Crimes against humanity, by definition, are crimes committed through the implementation of a plan and with political, philosophical, racial, or religious motives, targeting a civilian group of the population. These crimes include deportation, enslavement, systematic killing of individuals in mass, abduction and extermination of people, torture, inhuman treatment, or subjecting people to biological experiments, forced impregnation, and forced prostitution. This type of crime is regulated under Article 77 of the Turkish Penal Code, where the perpetrator may be any individual or legal entity, and the victim could be any person belonging to a group representing a political, philosophical, racial, or religious ideology. Crimes against humanity are regulated under the section “Genocide and Crimes Against Humanity” in the part of the Turkish Penal Code concerning international crimes. The legal value sought to be protected by crimes against humanity is the material and spiritual existence of individuals belonging to a specific group.
TCK 77/1 ‘The following acts, when committed systematically against a segment of society with political, philosophical, racial, or religious motives and in accordance with a plan, constitute crimes against humanity:
a) Intentional killing.
b) Intentional injury.
c) Torture, abuse, or enslavement.
d) Deprivation of personal liberty.
e) Subjecting to scientific experiments.
f) Sexual assault, sexual abuse of children.
g) Forced impregnation.
h) Forced prostitution.
TCK 77/2 ‘In the case of committing the act defined in paragraph (a) of the first paragraph, the offender shall be sentenced to aggravated life imprisonment; in the case of committing the acts defined in the other paragraphs, a prison sentence of no less than eight years shall be imposed. However, regarding the crimes of intentional murder and intentional injury committed under paragraphs (a) and (b) of the first paragraph, the provisions of real concurrence shall be applied according to the number of victims determined.
TCK 77/3 ‘It is stated that security measures shall also be imposed on legal entities for these crimes.
TCK 77/4 ‘It is stipulated that the statute of limitations does not apply to these crimes.
For this type of crime to be considered committed and completed, it is sufficient for it to result in one of the eight outcomes specified in Article 77/1 of the Turkish Penal Code. Not all of the outcomes need to occur.
In order for this crime to be established, it is not enough for the person to engage in an active act, but the person must directly target someone belonging to that group due to their affiliation with the group.
The Crimes Against Humanity regulated in Article 77 of the Turkish Penal Code should not be confused with the Crime of Genocide regulated in Article 76.
- In the crime of genocide, the victim is chosen because they are a member of a national, ethnic, racial, or religious group, and the goal is the complete or partial destruction of that group. Essentially, in the case of crimes against humanity, the primary target is not the group itself, but the individual member of the group. However, if the acts committed against individuals reach a certain intensity, genocide may certainly be constituted.
The Condition of Complaint Dependency of the Crime
Since the type of crime is not specifically stated in the law, its prosecution is not dependent on a complaint. The investigation and prosecution are carried out ex officio. The public prosecutor can initiate research and investigation as soon as they become aware of the act committed.
The Situation Regarding the Eligibility of the Crime for Reconciliation
In the Turkish Penal Code, there is no provision for reconciliation in cases of Crimes Against Humanity. Since the investigation and prosecution of Crimes Against Humanity are not dependent on a complaint, and they are not included in the list of catalog crimes under Article 253 of the Criminal Procedure Code (CMK), it is not possible to pursue reconciliation in relation to these crimes.
Crimes Against Humanity in Terms of the Manner of Commission
Crimes Against Humanity can only be committed intentionally, and a specific intent is required for the crime to occur. The crime cannot be committed with a probable intent or direct intent. It is sufficient for the act to be carried out deliberately and intentionally. To determine the presence of specific intent, the act itself will be examined. Similarities and prevalence in actions directed at individuals belonging to the same group, statements made by the perpetrators before and after the incident, their behavior, the tools used, physical harm inflicted, the manner of killing, the general political rhetoric leading to the acts, and the targeting of one group while leaving others unaffected in the same region will all be considered.
Qualifying Circumstances That Require More or Less Severe Penalties in Crimes Against Humanity
In the Turkish Penal Code, while there is no provision for a mitigating circumstance that requires a lesser penalty for Crimes Against Humanity, there is a provision for an aggravated circumstance that requires a more severe penalty. According to Article 78 of the Turkish Penal Code;
‘(1) A person who establishes or leads an organization with the intent to commit the crimes listed in the above provisions shall be punished with imprisonment of ten to fifteen years. Members of such organizations shall be sentenced to imprisonment of five to ten years.
(2) Security measures shall also be imposed on legal entities for these crimes.
(3) Statute of limitations does not apply to these crimes. It is stipulated that if these crimes are committed in an organized manner, it will be a reason for an increased penalty.
However, it is worth noting that for every victim involved in the commission of a crime against humanity (for example, intentional killing), there will be considered a separate crime against humanity, and the principles of real concurrence will apply.
This crime is one that is suitable for attempt. If systematic actions are taken to implement the plan, but the result is not achieved due to reasons independent of the will of the perpetrator(s), an attempt will be considered.
The Institution of Effective Remorse
The institution of effective remorse is not a provision regulated for every type of crime in the law. It is only applicable to crimes for which a regulation exists. There is no provision for effective remorse for Crimes Against Humanity in the law.
The Execution Regime to Which the Crime is Subject
The competent court for crimes against humanity is the International Criminal Court.
The punishment for Crimes Against Humanity is regulated under Article 77/2 of the Turkish Penal Code, which states: “In the case of committing the act specified in paragraph (a) of the first paragraph, the offender shall be sentenced to aggravated life imprisonment; in the case of committing acts defined in the other paragraphs, a prison sentence of no less than eight years shall be imposed.”
Crimes Against Humanity are not categorized as offenses subject to complaint-based prosecution. Therefore, there is no time limit for filing a complaint for the prosecution of the crime. The crime can be investigated and prosecuted at any time, provided it is within the statute of limitations.
Under the Turkish Penal Code, judicial fines are imposed for prison sentences of one year or less, and it is a substitution of imprisonment with a monetary penalty. However, the prison sentence for Crimes Against Humanity cannot be converted into a judicial fine.
The decision to postpone the announcement of the judgment, as regulated in the Turkish Penal Code, is applied to prison sentences of two years or less, and a decision to postpone the announcement may be made for the defendant if no harm has been caused to public institutions or organizations, and the amount of prison sentence does not exceed the prescribed limit. However, it is not possible to issue a decision to postpone the announcement of the judgment (suspended sentence) for the sentence imposed for Crimes Against Humanity.
According to the Turkish Penal Code, the decision to postpone the execution of a prison sentence is a conditional waiver of the execution of the sentence in prison. It is not possible to postpone the execution of a prison sentence for Crimes Against Humanity.
According to the Enforcement Law No. 5275, for crimes committed after March 30, 2020, in order for a convicted person to benefit from probation, they must be in an open penal institution or have the right to be assigned to such an institution and must be of good conduct. Crimes Against Humanity are not a type of crime eligible for probation.
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