THE PROHIBITION OF RETROSPECTIVE ACTIVITY IN CRIMINAL LAW

ENTRANCE

Legal certainty is essential to protect the principle of the rule of law, as guaranteed by Article 2 of the Constitution of the Republic of Turkey . The principle that laws are not retroactive has been adopted to protect trust in the law, protect individuals against arbitrary application of laws, and ensure that trust in the law remains intact. The prohibition of retroactivity is a principle that protects individuals from being subjected to more severe penal sanctions not in effect at the time of the act. This principle is a manifestation of the principles of legal certainty, certainty, and justice.

1- APPLICATION OF PENAL LAWS IN TERMS OF TIME

The prohibition of retroactivity states that an act that had no legal sanction at the time it was committed cannot be retroactively sanctioned by a new law . Similarly, an act subject to a sanction cannot be subjected to a more severe sanction by a new law. This prohibition is a consequence of the principle of legality. The prohibition of retroactivity relates to the determination of the temporal scope of application of criminal laws.

The scope of application of the criminal law in terms of time encompasses legal approaches regarding the time at which the law will be applied . According to the Turkish Penal Code, the "law at the time the act was committed" is taken into account. Accordingly, criminal sanctions will be imposed in accordance with the current law.

The principles of retroactivity, immediate application, and prospective application govern the application of laws. If a law applies to acts and events committed before its enactment, it is said to be retroactive. The principle of immediate application applies to laws intended to be effective from the moment they enter into force. If a law, despite being repealed, continues to apply to acts committed during its enactment, it is said to be prospective. According to Article 7 of the Turkish Penal Code, these principles can be applied under certain circumstances .

2- THOSE SUBJECT TO THE LAW OF THE TIME THE ACT WAS COMMITTED

The first sentence of Article 7 of the Turkish Penal Code states, "No one may be punished or subject to security measures for an act that was not considered a crime under the law in force at the time it was committed." A similar provision is found in Article 38 of the Constitution: "No one may be punished for an act that was not considered a crime under the law in force at the time it was committed; no one may be given a penalty heavier than that stipulated for that crime at the time the crime was committed." These provisions state that criminal laws are not retroactive . The prohibition on retroactive application is a natural consequence of the principle of legality. The prohibition on retroactive application underlies fundamental rights and freedoms and the legal limitations of criminal policy.

The prohibition on retroactive application of criminal laws aims to prevent an act from being punished by a later law. An act can only be punished if it was criminalized at the time of its commission. A law cannot be retroactively applied to punish the perpetrator if it was criminalized after it was commissioned. Regulations that create new crimes or increase existing penalties can only be effective after their effective date.

Article 7/3 of the Turkish Penal Code states, "Except for those related to the suspension of prison sentences, conditional release, and recidivism, provisions regarding the enforcement regime shall be implemented immediately." Except for the exceptions specified in the provision, legislative changes regarding the enforcement regime shall be implemented immediately upon entry into force, regardless of whether they are in the offender's favor or not, for the relevant situations. The prohibition on retroactive application shall not be effective in this case.

3- RETROACTIVE APPLICATION OF THE LAW IN FAVOR OF THE PERPETRATOR

There is an exception to the retroactivity of criminal laws : a law that favors the perpetrator can legally be applied retroactively . The prohibition of retroactivity protects the perpetrator . Therefore, this prohibition is limited to situations that harm the perpetrator . A law enacted in favor of the perpetrator will have retroactive effect. Article 7/1 of the Turkish Penal Code (TCK) explains this as follows: "No one may be punished or subject to security measures for an act that is not considered a crime under the law that came into force after it was committed. If such a penalty or security measure has been imposed, its execution and legal consequences shall automatically be revoked." Article 7/2 of the TCK states, "If the provisions of the law in force at the time of the crime differ from those of laws enacted later, the law that favors the perpetrator shall be applied and enforced." This clarifies that the law enacted in favor of the perpetrator will have retroactive effect.

If an act that was considered a crime at the time it was committed is later decriminalized by a law that is enacted, the new legal regulation will be retroactive , thus favoring the perpetrator, and the legal guarantee that no penalties or security measures will be imposed on the perpetrator will be enforced . Furthermore, if a law that came into effect later changes the elements of a crime and its penalties to the perpetrator's advantage, it will also affect acts committed before it was enacted.

If an act, which was considered a crime at the time it was committed , ceases to be a crime by a law enacted later than the date of the crime, this could also affect the final judgment rendered under the old law. Article 7/1 of the Turkish Penal Code clarifies this by stating, "If such a penalty or security measure has been imposed, its execution and legal consequences shall automatically be terminated." The new law not only terminates the execution but also removes the consequences of the conviction. For example, the measure of deprivation of certain rights will be terminated, and archives and registry records related to the conviction for this crime will be deleted without request.

4- DETERMINATION OF THE LAW IN FAVOR

According to Article 7/2 of the Turkish Penal Code, “If the provisions of the law in force at the time of the crime are different from the laws that came into force later, the law that is in favor of the perpetrator shall be applied and executed.” This article primarily asks, “ Which of the laws enacted as a crime and the new laws enacted later create a legal situation in favor of the perpetrator? ” The answer to this question needs to be determined. If a newly enacted law has removed an act from being a crime, it is clear that this law favors the perpetrator. This is clearly stated in Article 7/1 of the Turkish Penal Code , which states, "No one can be punished or security measures applied for an act that was not considered a crime according to the law in force at the time it was committed. No one can be punished or security measures applied for an act that was not considered a crime according to the law that came into force after it was committed. If such a penalty or security measure has been imposed, its execution and legal consequences are automatically abrogated." Paragraph 2 of the article relates to the content of the new and old laws regulating an act as a crime . These legal regulations require the determination and implementation of the law that creates a legal situation in favor of the perpetrator.

Article 9, Paragraph 3 of Law No. 5252 on the Enforcement and Implementation of the Turkish Penal Code (TCK) contains a provision regarding the determination of the law in favor of the offender. Accordingly, "the decision in favor of the offender shall be determined by applying all relevant provisions of previous and subsequent laws to the case and comparing the resulting results." According to this law, the previous and subsequent laws shall be applied separately to the case, and the law in favor shall be applied by comparing the results. A mixed application of both laws is not possible.

5- FORWARD ENFORCEMENT OF TEMPORARY OR TEMPORARY LAWS

If a law specifies how long it will remain in effect, it is called a "temporary law." For example, if the text specifies that it will remain in effect for two years, it is a temporary law. Temporary laws, on the other hand, are limited to the duration of the event to which they are linked. In other words, these laws are effectively temporary. For example, a law that remains in effect during the state of emergency is a temporary law.

According to Article 7/4 of the Turkish Penal Code, "temporary or temporary laws shall continue to apply to crimes committed during their period of effect." This provision relates to the prospective application of temporary and temporary laws. This law stipulates that a temporary or temporary law that has been repealed will continue to apply. This is because these laws are repealed not by a change in criminal policy , but by a change in the actual situation that led to their enactment. The principle that " the law that favors the perpetrator shall apply retroactively " does not apply to these laws .

CONCLUSION

The prohibition of retroactivity in criminal law is crucial for maintaining trust in the law and establishing the concept of justice. This principle ensures the credibility of the law by preventing individuals from being subjected to more severe penalties subsequently enacted for their actions. This principle, clearly stipulated in the Constitution and the Turkish Penal Code, holds a significant position in international law. The prohibition of retroactivity is indispensable for protecting the fundamental rights of individuals and ensuring the humane application of criminal law.

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