The crime of genocide, by definition, is the act of intentionally killing, causing serious harm to the physical or mental integrity of individuals, forcing individuals to live in conditions that will result in the total or partial destruction of the group, taking measures to prevent births within the group, or forcibly transferring children of the group to another group, as part of a plan aimed at their destruction. This crime is committed against individuals who can be distinguished from others based on race, political views, religion, social status, or any other distinguishing characteristic, and is committed for ulterior motives. This type of crime is regulated in Article 76 of the Turkish Penal Code, and both the perpetrator and the victim of the crime can be any individual belonging to a national, ethnic, racial, or religious group. The crime of genocide is covered in the “Genocide and Crimes Against Humanity” section of the International Crimes chapter of the Turkish Penal Code. The legal value intended to be protected by the crime of genocide is the material and moral existence of individuals belonging to a specific group.
TCK 76/1 “The commission of one of the following acts against the members of a national, ethnic, racial, or religious group with the intent to completely or partially destroy that group through the execution of a plan constitutes the crime of genocide:”
a) Intentional killing.
b) Inflicting severe harm on a person’s physical or mental integrity.
c) Forcing the group to live under conditions that will result in its complete or partial destruction.
d) Taking measures to prevent births within the group.
e) Forcibly transferring children of the group to another group.
TCK 76/2 “The perpetrator of the crime of genocide shall be sentenced to aggravated life imprisonment. However, for intentional killing and intentional injury crimes committed within the scope of genocide, the provisions of real concurrence shall apply according to the number of identified victims.”
TCK 76/3 “A security measure shall also be imposed on legal entities for these crimes.”
TCK 76/4 “The statute of limitations shall not apply for these crimes.”
The crime of genocide is considered to have occurred if it takes place in one of the five forms listed below. For this type of crime to be considered as completed and finished, it is sufficient for one of the five outcomes listed below to occur. It is not necessary for all outcomes to be realized.
- Intentional killing.
- Inflicting serious harm on a person’s physical or mental integrity (torture, mistreatment, oppression, subjugation).
- Forcing the group to live under conditions that would lead to its complete or partial destruction.
- Taking measures to prevent births within the group (for example, preventing individuals from the same group from legally marrying).
- The act of forcibly transferring children from one group to another.
Although these types of crimes are individually regulated as separate offenses in the Turkish Penal Code, it is required that the act be committed due to the person’s group, race, language, religion, or ethnic origin. Because these offenses are separately listed in the Turkish Penal Code, the crime of genocide is regulated as a composite offense.
The Condition of the Crime Being Dependent on a Complaint
Since the crime type is not specifically mentioned 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 an investigation and inquiry ex officio as soon as they become aware of the crime.
The Situation Regarding the Applicability of Conciliation to the Crime
The Turkish Penal Code does not provide for conciliation in the case of the crime of genocide. Since the crime of genocide is not a complaint-based offense and is not one of the listed offenses in Article 253 of the Criminal Procedure Code, it is not possible to pursue conciliation in relation to this crime.
The Crime of Genocide in Terms of the Manner of Its Commission
The crime of genocide can only be committed intentionally, and a special intent is required for the commission of the crime. It is sufficient for the act to be planned and done willingly. To determine the existence of special intent, the act itself will be examined. Similarity and frequency of acts targeting the same group, the statements made by the perpetrators before and after the event, the attitudes they adopted, the tools used, the physical harm caused, the manner in which the killing was carried out, the general political discourse that led to the acts, and the targeting of one group in a region while leaving others unaffected, among other factors, will be taken into consideration.
The Aggravated and Mitigated Forms of Punishment in Genocide Crimes
In the Turkish Penal Code, there are no specific provisions for aggravated or mitigated circumstances requiring less or more severe punishment for the crime of genocide.
The Institution of Effective Remorse
The institution of effective remorse is not regulated for every type of crime in the law. It can only be applied to crimes for which a specific provision exists. There is no regulation regarding effective remorse for the crime of genocide in the law.
THE EXECUTION REGIME APPLICABLE TO THE CRIME
The competent court for the crime of genocide is the High Criminal Court, while the court with jurisdiction is the court of the place where the crime was committed.
The penalty for the crime of genocide, as stipulated in Article 76 of the Turkish Penal Code (TCK), is aggravated life imprisonment. However, in cases of intentional killing and intentional injury committed within the scope of genocide, the provisions of real aggregation shall be applied according to the number of victims determined.
The crime of genocide does not fall under the category of crimes that require a complaint for prosecution. Therefore, there is no specific complaint period for its prosecution. The crime can always be subject to investigation and prosecution, provided it falls within the statute of limitations period.
According to Article 76 of the Turkish Penal Code, “The statute of limitations does not apply to these crimes.” As understood from this provision, the statute of limitations does not apply to the crime of genocide.
Under the Turkish Penal Code, a judicial fine is imposed as a substitute for imprisonment sentences of one year or less. However, the prison sentence for the crime of genocide cannot be converted into a judicial fine.
The postponement of the announcement of the verdict, as regulated in the Turkish Penal Code, applies to prison sentences of two years or less, provided that no harm has been caused to a public institution or organization. In such cases, a decision to postpone the announcement of the verdict may be issued based on the amount of the prison sentence imposed on the defendant. However, for sentences imposed for the crime of genocide, it is not possible to issue a decision on the postponement of the announcement of the verdict (HAGB).
According to the Turkish Penal Code, the suspension of the execution of a prison sentence means conditionally refraining from enforcing the convict’s sentence in prison. However, the suspension of a prison sentence imposed for the crime of genocide is not possible.
According to Law No. 5275 on the Execution of Sentences, for crimes committed after March 30, 2020, a convict must either be in an open penal institution or be eligible for transfer to such an institution and demonstrate good behavior to benefit from probation. However, the crime of genocide is not suitable for probation application.
EXAMPLES OF SUPREME COURT DECISIONS ON THE CRIME OF GENOCIDE
(Supreme Court 3rd Criminal Chamber 2017/19933E. 2018/14601K.)
It has been discussed and considered as required:
- Regarding the examination of the appeal objections against the conviction ruling issued for the defendant … concerning the intentional injury offense committed against the victim …;
Although certain provisions of Article 53 of the Turkish Penal Code No. 5237 were annulled by the Constitutional Court’s decision dated 08.10.2015, numbered 2014/140 Basis – 2015/85 Decision, which was published in the Official Gazette dated 24.11.2015 and numbered 29542, this matter can be considered during the execution phase and was not deemed a reason for reversal.
Considering the trial conducted, the evidence collected and explained in the judgment, the court’s conviction and discretion formed as a result of the prosecution, the reasoning provided, and the legal application, the defendant’s appeal objections are rejected, and the ruling is AFFIRMED as requested.
- Regarding the examination of the appeal objections against the conviction rulings issued for the defendant … concerning the offenses of intentional injury and threat committed against the victim
The rejection of other appeal objections deemed unfounded; however,
a) Given that the crime of simple intentional injury regulated under Article 86/2 of the Turkish Penal Code (TCK) No. 5237 is a crime subject to complaint, and the victim waived the complaint during the hearing on 14.01.2015, the defendant should be asked whether they accept the waiver as per Article 76/3 of the TCK No. 5237, and the defendant’s legal status should be evaluated accordingly.
b) The defendant’s refusal to admit to the charge of threat, along with the fact that the witness, who was only heard at the trial stage and not during the investigation, is the victim’s spouse and the defendant did not mention that their spouse was a witness during the investigation, suggests that, despite the lack of conclusive and convincing evidence that the defendant committed the crime, the defendant was convicted for the alleged threat instead of being acquitted.
This necessitated the reversal of the decision. Since the defendant’s appeal objections were deemed valid in this regard, the verdict is reversed for these reasons under Article 321 of the Code of Criminal Procedure (CMUK) No. 1412, as amended by Article 33 of Law No. 6723 and Article 8/1 of Law No. 5320, by unanimous decision on 08.10.2018.
(Court of Cassation 3rd Criminal Chamber 2018/4404E. 2018/12130K.)
It has been discussed and considered as follows:
The fact that the crime of simple intentional injury, as regulated in Article 86/2 of the Turkish Penal Code No. 5237, is one of the offenses subject to complaint, and that the complainant’s attorney informed in their petition dated 21.03.2018 that the complainant had withdrawn their complaint after the judgment, should be taken into account. Therefore, it is necessary to ask the defendant whether they accept the withdrawal, in accordance with Article 76/3 of the Turkish Penal Code No. 5237, and to evaluate the defendant’s legal situation accordingly.
This has led to the necessity of reversal. Since the defendant’s appeal objections are deemed valid, the judgment is therefore reversed under Article 321 of the Code of Criminal Procedure No. 1412, as amended by Article 33 of Law No. 6723 and Article 8/1 of Law No. 5320, by unanimous decision on 03.07.2018.
(Court of Cassation 3rd Criminal Chamber 2017/8784E. 2018/4815K.)
The matter has been discussed and considered:
- In the examination of the public prosecutor’s appeal against the decision of postponing the announcement of the judgment regarding the defendant …;
According to the decision of the Court of Cassation Criminal General Assembly dated 03/02/2009 and numbered 2009/13-12, the decisions to postpone the announcement of the judgment given for the defendant under Article 231 of the Code of Criminal Procedure (CMK) are subject to appeal in accordance with Article 231/12 of the CMK, and since an appeal is not possible, the file is to be sent to the Public Prosecutor’s Office of the Court of Cassation for review, without being examined on appeal, for it to be returned to the local court for examination.
As for the appeal objections of the Public Prosecutor regarding the dismissal decision for the defendant…;
a) Considering the doubts about whether the statements made by the complainant… on 07/11/2014 during the testimony in the instructed court, saying “I would like to participate in the case, I have not suffered any material damage due to the incident, I would like to reconcile with the defendant… but I do not want to reconcile with…”, were in the nature of a withdrawal of the complaint, it was necessary to inquire whether the complainant had withdrawn the complaint and whether the defendant accepted to withdraw in accordance with Article 76/3 of the Turkish Penal Code (TCK). However, a written judgment was made without considering this matter.
b) Considering that the simple intentional injury offense under Article 86/2 of the TCK, attributed to the defendant, fell within the scope of reconciliation according to the provisions of the Code of Criminal Procedure (CMK) Article 253, amended by Law No. 6763, published in the Official Gazette on 02.12.2016, and the changes made by the Law; it was necessary to send the case file to the reconciliation office for reconciliation between the defendant and the victim according to Articles 253 and 254 of the amended CMK. If the reconciliation attempt fails, the trial should continue. This was not taken into account when the judgment was made.
This necessitated a reversal, and since the Public Prosecutor’s objections were deemed justified, the judgment was overturned for the aforementioned reasons, pursuant to Article 321 of the Code of Criminal Procedure (CMUK), as amended by Law No. 6723, Article 33, and Law No. 5320, Article 8/1. The decision was made unanimously on 19.03.2018.
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