State of Necessity in Turkish Criminal Law
Necessity in Criminal Law
Necessity is a situation where a person who has no legal obligation to endure danger averts a severe and imminent threat to themselves or another person’s right, which they did not knowingly cause, by committing an act prescribed as a crime by law that is proportional to the threat.
In our criminal law, the state of necessity is regulated in Turkish Penal Code Article 25/2: ‘’No punishment shall be imposed for acts committed out of necessity to save a right belonging to oneself or another from a severe and imminent danger that they did not knowingly cause and that cannot be averted otherwise, provided there is a proportionality between the gravity of the danger and the act committed.’’ Article 25/1 of the TPC also regulates legitimate defense. The fundamental difference between legitimate defense and necessity is whether there is an unjust attack.
The act committed in a state of danger, necessity, or helplessness is not moral/legitimate. However, there is no concern that the requirements of law must always align with moral rules. In cases of necessity, we cannot punish individuals because we cannot blame them due to the principle that “necessity knows no law.” The reasons for not punishing the perpetrator in a state of necessity are explained as follows:
– Loss of the perpetrator’s will to resist due to external coercion
– Instinct of self-preservation
– No benefit in punishing such individuals
– The law gives precedence to the prevailing right among two conflicting equal rights
In a state of necessity, the legal order does not deem the act lawful but does not punish the perpetrator either. The legislator considers the act, while not legitimate, excusable. Although the act is not punished, in terms of the property used during the act, confiscation is possible as the act remains unlawful, unlike legitimate defense, provided the possession of the property alone is not a crime.
Conditions Related to the Danger in the State of Necessity
State of Necessity
1) Presence of Severe Danger
The danger must be a situation that can lead to significant damage or destruction. The source of danger can be natural events, human psychology or biology, animal movements, or human actions. The danger must be imminent. There must be a high likelihood of harm to the benefit at risk if immediate protective action is not taken. For example, in a mountain village invaded by wolves during winter, the arrival of winter is sufficient for the realization of severe and imminent danger, and the act of a person carrying an unlicensed weapon to protect themselves from wolves should be considered within the state of necessity. In this case, it can be said that the danger is imminent.
The danger must be severe. Individuals benefiting from the state of necessity cause harm to the rights and interests of innocent people; thus, the act should be considered within the state of necessity only if there is a severe danger. The severity of the danger is determined by the judge considering both the danger and the damage it may cause, based on legal and social values and objective measures. If the person acts under the subjective belief of severe danger, although it is not real, the provisions of TPC Article 30/3 may apply.
2) The Danger Must Be Directed at a Right
Any right can be considered within this scope. There is no limitation in TPC Article 25/2. As it is not explicitly prohibited in the law, the state of necessity can apply to all crimes.
3) Not Knowingly Causing the Danger
The reason for such a condition is the harm caused to an innocent person. Therefore, the legislator restricts the conditions for benefiting from this state. If the perpetrator caused the danger to commit the crime or if the person intentionally caused the danger, they cannot benefit from the state of necessity. If the person caused the danger through conscious negligence, it means they were aware of the outcome, and the state of necessity cannot be accepted. For example, a person who throws a cigarette into the forest without extinguishing it foresees the possibility of a fire. Even if they did not intend for the fire to occur, they cannot benefit from the state of necessity, as “foreseeing is not the same as not knowing.” If the negligence is unconscious, the state of necessity is accepted since the person did not know the outcome.
4) No Legal Obligation to Resist the Danger
This condition is not included in the law but is accepted in the doctrine. Since the state of necessity is an institution that regulates conflicts of rights, a person who has a legal obligation to sacrifice their right in the face of danger can no longer escape the danger and cannot claim that the harm caused while escaping the danger falls within the state of necessity. Moral obligation is not accepted in this context. Therefore, the obligation must be of a legal nature. The obligation to counter the danger can arise from a law or contract. “Examples include military personnel, security forces, firefighters, sailors, etc.”
Conditions for Protection in the State of Necessity
State of Necessity
1) No Other Means of Protection
The absence of other means of protection means that it is not possible to avoid and escape the danger without harming another person’s right. In a state of necessity, if it is possible to escape the situation without harming an innocent third person, the innocent third person cannot be chosen. The person must first seek to protect themselves from the danger by fleeing.
2) Proportionality Between the Severity of the Danger and the Act and Means Used
Here, the “principle of weighing values” is applied. The value being protected must be superior to or equal to the value being sacrificed. For example, if one of two climbers climbing a mountain cuts the rope of the other climber upon realizing the rope cannot support both, the act is considered within the state of necessity as the value being protected is equal to the value being sacrificed, and the climber is not punished. The judge will objectively determine which value is superior, “but the judge will also consider the importance of the value being protected for that person.”
3) Compatibility of the Protective Act with the Legal Order
If the protective act is in contradiction with the legal order, the state of necessity cannot be accepted. For example, there is no exception to torture; the prohibition of torture is an absolute right. Islamic law and English law do not allow killing a person in a state of necessity.
A view defended in the doctrine is that sacrificing one person’s life to save multiple people cannot be accepted.
Necessity for the Benefit of a Third Person
In light of the clear expression of TPC Article 25/2, acts performed with the aim of rescuing a third person in danger also constitute a state of necessity. In this regard, whether the third person wanted this or not does not matter. If childbirth poses a danger to the mother’s life or health, even if the mother wants the child to be born and herself to be sacrificed, the doctor who ensures the child is born dead and saves the mother is considered to be acting within the state of necessity.
Differences Between Necessity and Legitimate Defense
1) In legitimate defense, the defense is directed against the attacker; in a state of necessity, the person acting in necessity directs the act not at the perpetrator but at an “innocent person.”
2) Legitimate defense involves an unjust attack; in a state of necessity, there is a “danger that cannot be qualified as justified or unjust.”
3) Legitimate defense involves an attack by a person, while a state of necessity involves a danger that may arise from a natural event, an animal, or human actions.
4) In legitimate defense, the person using this right does not need to have caused the attack; in a
state of necessity, the danger must not have been knowingly caused.
5) In legitimate defense, there is no superiority of rights, and the defense must be proportional to the attack; in a state of necessity, the value of the protected benefit must be higher than or at least equal to the value of the harmed benefit.
6) In legitimate defense, there is no obligation to compensate for the harm caused to the attacker, while in a state of necessity, there is an obligation to compensate.
7) The obligation to flee in a state of necessity is more absolute than in legitimate defense.
8) In a state of necessity, the person who incites or assists the individual does not benefit from the reason for exemption from punishment. The state of necessity applies only to the perpetrator. In legitimate defense, both the instigator and the perpetrator benefit from the justification.
9) As the state of necessity removes culpability, it is possible to act within the scope of legal justification against it. The act retains its wrongful nature in the state of necessity. Therefore, it is not possible to act in legitimate defense against someone acting in legitimate defense. Both parties cannot be on legitimate grounds simultaneously. However, the situation is different for the state of necessity.
EXAMPLES OF SUPREME COURT DECISIONS ON THE STATE OF NECESSITY
State of Necessity
‘’In the event of a fire risk in the industrial site, the act of breaking the door lock and entering the premises by the defendants who could not find the security guards should be considered as performed under the influence of the state of necessity and acquittal should be decided instead of ruling that there is no need for punishment.’’ (SUPREME COURT 9th Criminal Chamber, E. 2008/15262 K. 2010/6954)
‘’In the present case, as stated in the plaintiff institution’s letters, minutes were taken regarding the defendant’s use of unmetered illegal electricity on 22/05/2006 and 31/01/2007, the elements of the charged offense were fulfilled in his actions, and it was overlooked that there was no “necessity to meet an urgent need reaching a state of necessity” regulated in Article 25 of TPC No. 5237, while deciding that “the defendant’s debt to the institution could be collected through legal means, all family members should not be left without electricity, the defendant used electricity in a state of necessity, and the act was a legal dispute.” (SUPREME COURT 2nd Criminal Chamber, E. 2014/658 K. 2014/11877)
“On the day of the incident, the defendant stole a police vehicle to take his friend İmdat, who was injured with a knife in a fight involving many people, to the hospital. The vehicle was immediately found in front of the emergency room by the police. Considering that the defendant’s action falls within the scope of the “state of necessity” regulated in Article 147 of the TPC, it was necessary to decide that there is no need for punishment according to Article 223/3-b of the CPC. However, the decision of acquittal on the grounds of legal justification was incorrect and required annulment.” (SUPREME COURT 13th Criminal Chamber, 11.11.2014, 31481)
“In the incident where the defendant was injured for 5 days due to the attack by multiple people after a discussion with the person claiming to be a parking attendant about the fee, and there was no other way to escape the ongoing attack, the act of firing a shot in the air with his licensed gun to scare the attackers should be considered within the state of necessity. The decision to convict the defendant instead of acquitting him required annulment. The appeals of the defendant’s lawyer were justified, and the judgment was annulled on these grounds.” (SUPREME COURT 2nd Criminal Chamber, 2004-17156/2005-29224)
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Necessity in Turkish Criminal Law[/caption>
