QUALIFIED FORM OF CRIME IN CRIMINAL LAW

ENTRANCE

Crime is considered a public wrong, an act that violates state law and is completely disapproved of by society, and an antisocial behavior. Crime has been committed throughout history, and this accumulation of knowledge has provided insights into how it occurs. Accordingly, crime occurs when the typical element—that is, the elements of the legal definition of crime in its formal sense—is present and the condition of unlawfulness is met. Typicality is divided into two elements: material and moral.

The material element addresses the act of crime in its concrete development, while the moral element describes the perpetrator's intention when committing the act. In addition to the material and moral elements of a crime, there are also a number of special regulations, also called the qualified states, circumstances, or elements of a crime, which are addressed within the material element. The purpose of this study is to attempt to explain the qualified elements of a crime, which have no impact on the occurrence, elimination, or absence of the crime, but rather only on the aggravation, increase, mitigation, or reduction of the penalty imposed in response to the crime.

1. A GENERAL OVERVIEW OF QUALIFIED FORM OF CRIME

Qualifying Circumstances of Crime are those that have penal sanction implications, such as aggravating and increasing the penalty. Depending on factors such as the manner in which a crime is committed and the characteristics of the perpetrator or victim, the crime may require a more severe punishment or a punishment different from the basic regulation. These circumstances and situations are called qualified circumstances of crime. In these situations, Criminal Law considers that, compared to the basic circumstances of the crime, the crime or the offender poses a greater social threat and therefore requires a more severe penalty for rehabilitation or social isolation. Alternatively, it provides for a modification of the perpetrator's punishment by "communizing" the damage suffered by the victim at some point, attributing the damage and loss to the public, based on the circumstances and resources available at the time of the crime.

According to the principle of legality in crime and punishment, for a crime and its qualified form to exist, it must be clearly regulated by law. Every crime may have its own qualified forms, and these are generally specified in subsequent articles of the relevant regulation of the Turkish Penal Code (TCK) or as a separate paragraph within the article regulating the basic penalty. The qualified form of a crime depends on the manner in which the crime occurred, the characteristics of the perpetrator, or the victim. is shaped by factors such as the situation.

2. TYPES OF QUALIFIED CASES OF CRIME

Qualified Circumstances are regulated differently in the Turkish Penal Code, depending on the characteristics of the perpetrator, the condition of the victim, the method of committing the crime or the consequences of the crime.

2.1. Qualified Circumstances Depending on the Characteristics of the Perpetrator

Such qualifying circumstances depend on the specific behaviors of the perpetrator during the crime, the circumstances in which the crime was committed, the degree and number of offenses, and the perpetrator's personal characteristics or intentions. Accordingly, the perpetrator will receive a more severe penalty than that envisaged in the underlying crime.

For example, intentional murder of a person is a crime under Article 81 of the Turkish Penal Code and is punishable by life imprisonment. The first paragraph of its continuation, Article 82 of the Turkish Penal Code, regulates premeditated murder or intentional murder by inflicting cruelty and torment with monstrous intent, and the penalty for such crimes is aggravated life imprisonment. For example, directly killing someone carries a life sentence, while killing someone by burning or strangling would be considered aggravated life imprisonment, and the penalty would be aggravated life imprisonment. To give another example, the crime of sexual assault is regulated under Article 102 of the Turkish Penal Code. The crime regulated in paragraph 3 of the same article, committed by more than one person, is also an aggravated circumstance that depends on the perpetrator's circumstances. In this case, the penalty is increased by half, not the standard penalty of five to ten years, but is applied to the specific case.

2.2. Qualified Circumstances Depending on the Victim's Situation

These qualifying circumstances are based not on the manner in which the crime was committed, but on the victim's special situation, vulnerability, or sensitivity. Under the Turkish Penal Code, some crimes qualify based on factors such as the victim's age, gender, physical or mental condition. This indicates that the perpetrator was more likely to use force or inflict pain on the victim during the crime.

For example, the crime of sexual assault is regulated in Article 102 of the Turkish Penal Code (TCK). The third paragraph of the same article stipulates certain aggravated circumstances. Accordingly, if such an aggravated circumstance occurs, instead of the basic penalty of five to ten years' imprisonment, the penalty will be increased by half and applied to the specific case. In these aggravated circumstances, the crime is committed against a person who is physically or mentally incapable of defending himself or herself, or against a person related by blood or in-law up to the third degree. This is considered an aggravated circumstance depending on the victim's situation. Considering another example, the crime of premeditated murder, regulated in Article 82 of the TCK, and the crime of torture, regulated in Article 94 of the TCK, can be committed "against a child or a person physically or mentally incapable of defending himself or herself." This is another significant factor that can be considered depending on the victim's situation and vulnerability.

2.3. Qualified Circumstances Depending on the Method of Committing the Crime

In such qualified cases The way the crime is committed, the tools used or the methods followed may make the crime more or less dangerous.

Examples of this include killing with chemical weapons, which is the qualified form of premeditated murder as defined in TCK Article 82; intentional wounding as defined in TCK Article 86; sexual assault as defined in TCK Article 102; threat as defined in TCK Article 106; deprivation of liberty as defined in TCK Article 109; and plunder as defined in TCK Article 149, which are committed with a weapon. Furthermore, the crime of violating the inviolability of the home as defined in TCK Article 116 and the crime of theft as defined in TCK Article 143, which are committed at night, are also examples of qualified forms of the crime, depending on the method of perpetration.

2.4. Qualified Circumstances Related to the Consequences of the Crime

Qualified circumstances related to the consequences of a crime are special circumstances in the Turkish Penal Code (TCK) that, due to the manner in which they are committed or the consequences of the crime, result in penalties that differ from the basic nature of the crime. This means that the penalty for a crime varies not only based on the intent and actions of the perpetrator but also on the circumstances that arise as a result of the crime.

One of the best examples of this is the crime of incitement to suicide regulated in TCK Article 84. In the continuation paragraph of the same article, if suicide occurs as a result of incitement to suicide, the perpetrator will be punished with a more severe penalty than the basic form of the crime. Another example is the crime of sexual assault regulated in TCK Article 102. The continuation article of this regulation states that 'in case the victim enters a vegetative state or dies as a result of the crime, a sentence of aggravated life imprisonment shall be imposed.' Although the penalty for the crime of sexual assault is regulated as five to ten years, if the victim dies or enters a vegetative state as a result of the crime of sexual assault, the perpetrator will now be subject to aggravated life imprisonment. Another example that can be given is TCK Art. The fifth paragraph of the crime of qualified theft, regulated in Article 142, states , "In the event of a temporary disruption of public services in the field of communications, energy, or railway or air transportation as a result of the commission of the crime of theft, the penalty to be imposed in accordance with the provisions of the preceding paragraphs shall be increased by half to twice." Here, too, the penalty will now be applied to the perpetrator, increased by half of the penalty imposed in the basic form of the crime.

CONCLUSION

The importance of aggravating circumstances in criminal law stems from their ability to better reflect the danger posed by the crime and its impact on the victim. The severity or severity of the crime's consequences allows for greater fairness in sentencing the perpetrator. Taking such circumstances into account not only ensures the punishment of the perpetrator but also protects public safety and upholds the rights of the victim or perpetrator. Aggravating circumstances also play a significant role in criminal proceedings. Courts attempt to determine a fairer sentence by considering the manner in which the crime was committed and its impact on the victim. Furthermore, recognizing such circumstances as aggravating factors can act as a deterrent to individuals who intend to commit crimes.

SOURCE

Sowmyya Thotakura, 'Crime: A Conceptual Understanding' (2014) 4(3 ) Indian Journal of Applied Research 195, 196

Lecturer/Associate Member Sezgi DEMİRKALE, (2022) 'ELEMENTS OF CRIME IN TURKISH CRIMINAL LAW DOCTRINE'

Mehmet Emin Artuk, Ahmet Gökcen, (2024) ' General Provisions of Criminal Law'

Turkish Penal Code No. 5237, (2024), www.mevzuatgov.com.tr

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