What is participation?

What is Participation? | Izmir Lawyer

İştirak nedir? Katılma, ortak olma olarak bilinen iştirak, ceza hukukunda düzenlenen uygulamalardan biridir. Ceza hukuku alanında suça iştirak etmek ise  en temel hali ile suçun birden çok kişi ile birlikte işlenmesi olarak ifade edilebilir. Bu durumda suçu işleyen faillere, müşterek ( birlikte hareket eden,sorumlu olan) fail denilmektedir.

Joint culpability, Law No. 5237 Turkish Penal Code This is a type of complicity regulated in Article 37. The explanation in the justification for the article, "In joint complicity, since there is a shared decision to commit the crime as well as a shared control over the act, each accomplice is considered a perpetrator," indicates that the type of complicity regulated in the first paragraph of the article is joint complicity. Joint complicity means that more than one person jointly commits the crime defined in the law, and the term "jointly" here should be understood as requiring a significant degree of agreement in terms of participation in the act. It should be stated that joint actions require a shared decision to commit a crime, agreed upon by two or more people and based on a mutual agreement to commit a specific crime. The existence of an intentionally and unlawfully committed act is sufficient for complicity in a crime. Each person who participates in the commission of the crime is punished according to their own culpable act, without regard to personal reasons that prevent the punishment of others. .

For complicity in a crime to exist, the person participating must act with the intention and awareness of participating in that crime. However, just as the elements of knowledge and will are necessary for intent, for complicity in a crime, mere awareness of participation is not sufficient; the intention to participate is also necessary. Since complicity in a crime cannot occur after it has been completed, the intention to participate must have occurred before or at the latest during the execution of the act. The intention to participate can be demonstrated explicitly or implicitly. For example, in the case of intentional bodily harm, a person who, while the perpetrator is inflicting the injury, says nothing but holds the victim's arms and assists the perpetrator, has participated in the crime of intentional bodily harm.

Article 37 of the Turkish Penal Code divides perpetration into two categories: "joint perpetration" and "indirect perpetration." Looking at the legal definition:

Participation in a Crime Through Joint Perpetration (Turkish Penal Code Article 37/1): Joint perpetration occurs when the necessary contribution of each perpetrator's actions is required for the crime to be committed. The key point in joint perpetration is that the participants have joint control over the act. For example, if two people agree to commit theft, and one acts as a lookout while the other steals the goods, each perpetrator will be punished with the same penalty as the crime committed, as they have participated in the crime through joint perpetration.

Participation in a Crime Through Indirect Perpetration (Turkish Penal Code Article 37/2): Indirect perpetration occurs when a person commits a crime by using another person as a tool. The indirect perpetrator is punished in the same way as the principal perpetrator. For example, if a minor child is used to facilitate the commission of a premeditated murder, the indirect perpetrator is punished in the same way as the person who actually committed the act.

Apart from being the perpetrator, other forms of complicity in a crime are regulated in Article 38 of the Turkish Penal Code No. 5237 as "incitement" and in Article 39 as "aiding and abetting." Unlike perpetrators, the liability of these individuals does not stem directly from their own actions. Let's examine this further:

Participation in a Crime by Incitement (Turkish Penal Code Article 38): Incitement to crime is the act of persuading, instigating, or otherwise influencing a person who has not yet decided to commit a particular crime to do so. Incitement to crime is a form of complicity. Since the instigator plays a significant role in the decision-making process of the person who will commit the criminal act, the instigator is also punished with the same penalty as the crime committed.

Abe the one who makes you sufferma içof for the following one of two verbsof  It must have happened:

1. One example is instigating someone who has no intention of committing a crime to decide to commit it. The perpetrator must not have the intention of committing the crime, or the intention must not be firm. In other words, if the person has already seriously considered committing the crime, then incitement is not possible.

2. To persuade a person who has not yet made a final decision to commit a crime, but who has some thoughts about it, by reinforcing those thoughts. The perpetrator must be incited, or convinced, to commit the crime. There must be behaviors that lead to the commission of the crime. These behaviors can be overt or covert.

Participation in a Crime by Aiding and Abetting (Turkish Penal Code Article 39): Aiding and abetting a crime refers to providing material or moral support to a person who has decided to commit a crime. Aiding and abetting is also a form of complicity. For example, encouraging someone to commit a crime by saying that their decision to commit the crime is right and necessary, providing a weapon for intentional homicide or intentional injury, or promising to hide the perpetrator after the incident are typical forms of aiding and abetting. According to Article 39 of the Turkish Penal Code, perpetrators who are convicted of aiding and abetting a crime benefit from a certain percentage reduction in their sentence.

Aiding and abetting a crime refers to participating in a crime by assisting the perpetrator, without being the perpetrator themselves.

ThisAiding and abetting a crime occurs in the following cases:

1. Encouraging someone to commit a crime (moral assistance)
2. To reinforce a person's already existing decision to commit a crime (moral support)
3. Promising to help someone after they commit a crime (moral support)
4. Showing the way or method of how to commit the crime (moral support)
5. Providing the person with the tools and equipment used in the commission of a crime (financial assistance)
6. Facilitating the commission of a crime by providing assistance before or after the crime (financial assistance)

If we examine the Supreme Court decisions regarding participation in political activities:

1. Committing the Crime of Robbery Together

“Sanıklar ……..ların eylemin gerçekleştirilmesi sırasında sanık M… K… ile birlikte mağdurun etrafını sardıkları, sanık M…’nın bıçakla tehdit ederek cep telefonunu aldığı sırada el ve işbirliği ile hareket etmek suretiyle yağma suçunun işlenmesine katıldıkları ve bu şekilde fiili birlikte gerçekleştirdiklerinin anlaşılması karşısında; haklarında 5237 sayılı TCK’nın 37/1. maddesi ile uygulama yapılması gerektiği gözetilmeden, yazılı gerekçe ile aynı Yasanın 39/2-c. maddesi ile cezalarından indirim yapılması, karşı temyiz olmadığından bozma nedeni yapılmamıştır” (Yarg. 6.CD., 28.05.2012, 2008/22543, 2012/11237).

2. Being Present with the Perpetrator During the Commission of the Crime and Providing Moral Support

“In the incident where the defendant H… Y… decided to kill his uncle, the victim A…, and went to the coffeehouse where the victim was with the defendant E…, and when the defendants got out of the vehicle, H… Y… was in front and armed, while E… was behind H… and unarmed, the defendant H… Y… entered the coffeehouse and shot the victim A… with a pistol, wounding him in the left thigh, and when the victim hid under the table, the defendant continued to shoot, but some of the shots hit the deceased V… and the victim Ş… who were playing a game with their friends at the time, and then the defendants fled in the vehicle they arrived in; although it was understood that the defendant E… assisted the defendant H… Y… by being present and providing moral support during the commission of the crime, the judgment rendered in writing, accepting that he participated in the act within the scope of Article 37/1 of the Turkish Penal Code instead of punishing him in accordance with Article 39/2-c of the Turkish Penal Code, is contrary to the law.’ (Supreme Court, 1st Criminal Chamber) 08.05.2012, 2011/4702, 2012/3681).

3. Direct Participation in the Commission of the Crime

“"It has been observed that the defendants S… and E…, together with defendant O…, should be held directly responsible as joint perpetrators within the meaning of Article 37/1 of the Turkish Penal Code for their actions of forcibly putting the victim into a car in a way that would break her resistance, and then taking her to two separate houses before finally taking her to the house where she was last held captive; and defendant M… A…, in order to overcome her will to leave the house and break her resistance, beat and mistreated the victim in the house where she was held captive. However, the court applied Article 39/2-e of the Turkish Penal Code instead, resulting in an insufficient sentence." (Supreme Court of Appeals, 14th Criminal Chamber, 10.10.2011, 2011/413, 2011/606).

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