PUBLIC LAW Dr. Özlem Döğerlioğlu IŞIKSUNGUR Yaşar University Faculty of Economics andAdministrative Science Introduction to Law – Lecture Notes Dr. ÖzlemDöğerlioğlu IŞIKSUNGUR Source: Aybay,R. Introduction to Law 2011;
STATE • Definition: A defined territory, a permanent population and sovereignty. • State as a political organization possessing the ultimate authority to govern its own population within its territory. • Elements: • Territory • Population • Sovereignty
A-TERRITORY • Definition “the sphere that State has the exclusive competence its laws and take others forms of action”. • This power includes: prohibiting other governments from exercising authority in the same area without the consent of the State.
STATE’S TERRITORY • Includes not only the surface land but also the airspace above, and for States bordering seas, the coastal waters and territorial seas. • The surface land territorial boundaries for Turkey were established by various international treaties.
B-POPULATION • Constituesthephysicalbasisfortheexistence of a State. • Each State can confer nationality on the basis of the criteria it establishes. • AnyStatemay, at itsdiscretion, confernationality on anyperson, in orderto be recognizedbyotherState’s it must be based on internationallyacceptedstandards. • Standarts: • -child’s nationality determined by the parent’s nationality: Example:Turkey -child’s nationality determined by the place of birth: Example: USA
CITIZENSHIP(NATIONALITY) • Definition: • The relationship between State an the individual • Reciprocal relationship between the individual and the State which involves mutual duties, obligations and responsibilities. • Not only persons (human beings) but also juridical (legal) persons ( such as corporations) have nationality. • Ships and airplanes may have “ nationality”, which is denoted by the nationality flag under which they are entitled to operate.
C- SOVEREIGNTY • Spiritual element • Two Types: • External sovereignty • Internal sovereignty • In international relations the external aspect of sovereignty is : • independence, which means the power of a State to determine its own foreign policy • Question of who possesses sovereıgnty. • UndertheTurkıshConstitution, sovereigntybelongsuncondinaallyandwithoutanyrestrictiontotheNation.
2-BRANCHES OF PUBLIC LAW • Five main branches: • Constitutional Law (Anayasa Hukuku) • Administrative Law (İdare Hukuku) • Criminal Law (Ceza Hukuku) • Procedural Law (Usul Hukuku) • Public Internatioanal Law ( Kamusal Uluslar arası Hukuk; Devletler Genel Hukuku)
CRIMINAL LAW • Concerned with criminal offences. • Identifies the acts and omissions that are subject to punishment prescribed. • crimes comitted against society : • Certain acts that violate the law are matters of public concern and not simply personal issues between the wrongdoer and the person who has suffered. • in a criminal court (ceza mahkemesi). • Suchactsareconsideredto be threatstothepublicorderandthereforetheyaretheconcern of thewholecommunity.
Sources of Criminal Law • Turkısh Criminal Code ( Türk Ceza Kanunu,TCK) • in 2004, replaced the former Criminal Code of 1926. • Law of Misdemeanours (Kabahatlar Kanunu) • The code of Military Criminal Law (Askeri Ceza Kanunu No 1632, of 22 May 1930) • In addition, there are statues regulating specific fields criminal law.
DEFINITION OF CRIME • An act which is against the law and is punishable by law. • It is the State that must prosecute and punish the wrongdoer.
Elements of Criminal Act • A criminal acts is composed of three elements: • The act, or omission to act (“bad act”) • The requisite intention: criminal intent • Illegality , (action) of the defendant should not be permitted
In order to establish a legal guilt: • “There must be a specific provision in the law which defines the act as a crime” • “There can be no crime without law” • An act constitutes a crime if and only if it is defined as a crime by a law currently in force.
Article 2(1) of Criminal Code: • “Nobody may be punished or subjected to security measures for an act which is not expressedly defined by law as a crime; and no one can be subject to punishment or a security measure not prescribed by law”
Article 38 of Criminal Code: “Punishments and security measures in lieu of punishment(ceza yerine geçen güvenlik tedbirleri) shall be prescribed only by law”
If the punishment for acrime is reduced under a new law, this will benefit persons already convicted and sentenced under the former law.
Punishment • Punishment must be specifically defined by law • There can be no punishment without law • Definition of the crimes& prescription of punishment by statute • Limits of law judge’s discreation in determining the punishment to be imposed • Punishments: • Life imprisonment • Imprisonment • Fine • Alternative sanctions • Voluntary work in a public service • Short terms of imprisonment
PUNISHMENT • Aim of the punishment: • Special prevention (İslah) • To deter the particular offender from future criminal conduct. • General Prevention • To deter others who might be tempted to commit crime.
LAW OF PROCEDURE • Law contains: • substantive (maddi) and procedural aspects or adjectival (usuli)aspects. • Substantive law: determines the content and meaning of the laws (norms) to be applied and by whom. • Procedure law: • decribes how the laws are to be applied and by whom • is the branch of law governing how justice is administrated by the courts and other institutions whose functions are related to judiciary such as procecutors. • The body of rules applied by the court when performing its duties.
LAW OF PROCEDURE • Functions: • 1- To establish whether the rules of substantive law have been broken. • the basis of substantive law. • 2- To set up the juridicial machinery and lay down a seriesof procedural rules to resolve disputes. • Sub-branches: • the law of civil procedure (medeni usul hukuku; hukuk muhakemeleri usulü), • the law criminal procedure (ceza muhakemeleri usulü)
A- Civil Procedure • concerns the enforcement of a civil claim through private action before a court of law. • In civil matters the public interest is not as prominent as in criminal cases.
New code of CivilProcedure • New Code No:6100 • Adopted in 12.1. 2011 • Entered into force 1/10/2011 • The new code introduced certain new concepts such as pre-trial hearing (conference) between the parties ( or preliminary examination; ön inceleme” by the court) and procedural protections for the invidividual consumers against big companies and banks.
B- Criminal Procedure • is concerned with • the investigation, prosecution, trial and punishment of crimes. • the methods and procedures to determine how people accused of committing a crime will be prosecuted. • An important procedural principle: • No one can be convicted unless proven guilty in a court
Criminal Procedure • Criminal responsibility is personal ( Constitution article 38/vı.) • No one can be punished for a criminal act commited by another. • The fundamental source of Turkish criminal procedure is : • the Code of Criminal Procedure (Ceza Muhakemesi Usulü Kanunu); No 5271, 4 December 2004.)
Parties in Criminal Cases • There are two parties: • public, represented by the public prosecutor ( Cumhuriyet Savcısı); • The prosecutor asserts the guilt of the accused; • The prosecution is obliged to prove that the alleged crime was comitted by the accused. • the defandant, who is accused of having commited a crime. • “Everyone charged with a penal offence has the right to be presumed innocent until proven guilty”
Which Criminal Court? • The court having proper venue is court where the offense was commited. • If it is unknown the court of place where the accused is arrested has venue. • Exceptions to this general rule are provided for in the Code Criminal Procedure.(Articles 12-21)
Important Difference-Criminal&Civil Procedure • The role played by the judge: • In Civil Law • the judge is bound by the request and claims put forward by parties • In Criminal Law, • the judge is the ultimate arbiter of the law to be applied and punishment to be imposed, • Judge is not bound by the request of the parties
Important! • The court decides issues of the fact and law • Guilt are decided by the judge and not a JURY.