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PUBLIC LAW

PUBLIC LAW. Dr. Özlem Döğerlioğlu IŞIKSUNGUR Yaşar University Faculty of Economics andAdministrative Science Introduction to Law – Lecture Notes. STATE. Definition: A defined territory, a permanent population and sovereignty.

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PUBLIC LAW

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  1. PUBLIC LAW Dr. Özlem Döğerlioğlu IŞIKSUNGUR Yaşar University Faculty of EconomicsandAdministrativeScience IntroductiontoLaw – LectureNotes Dr. ÖzlemDöğerlioğlu IŞIKSUNGUR Source: Aybay,R. Introduction to Law 2011;

  2. 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

  3. 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.

  4. STATE’S TERRITORY • Includes not onlythesurfaceland but theairspaceabove, andforStatesborderingseas, thecoastalwatersandterritorialseas. • The surface land territorial boundaries for Turkey were established by various international treaties. • The extent of Turkey’s territorial sea, otherwise known as “territorial waters” or the “maritime belt”, was established as being 6 miles (1 sea mile equals 1852 meters) by the Territorial Sea Law (Karasuları Kanunu). • Theairspace (territory) of a Stateincludes not onlytheatmosphereimmediatlyaboveitssurfacelandterritory but aboveitsterritorialseas as well.

  5. B-POPULATION • Constituesthephysicalbasisfortheexistence of a State. • Thehuman element is theState’s life source, itscharactergivenbytheeconomic, cultural, spiritualandhistoricaltraits of thecommunity, bothindividuallyandcollectively. • EachState can confernationality on thebasis of thecriteria 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: Turkey -child’s nationality determined by the place of birth: USA

  6. 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.

  7. 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.

  8. 2-BRANCHES OF PUBLIC LAW • Fivemainbranches: • ConstitutionalLaw (Anayasa Hukuku) • AdministrativeLaw (İdare Hukuku) • Criminal Law (Ceza Hukuku) • ProceduralLaw (Usul Hukuku) • Public Internatioanal Law ( Kamusal Uluslar arası Hukuk; Devletler Genel Hukuku)

  9. 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.

  10. 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.

  11. DEFINITION OF CRIME • An act which is against the law and is punishable by law. • It is theStatethatmustprosecuteandpunishthewrongdoer.

  12. 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

  13. 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.

  14. Penal provisions may have retroactive effect when they are n favor of the person to whom they are applied. • If the punishment for acrime is reduced under anew law, this will benefit persons already convicted and sentenced under the former,stricter law.

  15. 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

  16. 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.

  17. DIFFERENCES. PUBLIC LAW-PRIVATE LAW

  18. LAW OF PROCEDURE • Law contains: • substantive (maddi) and procedural aspects, or • adjectival aspects. • Substantive law: determines the content and meaning of the laws (norms) to be applied and by whom. • Procedure relates to the machinery of justice, to the form, manner and order of conducting civil, criminal and administrative cases, e.g what laws and rules are apply (choice are to be submitted, what presumptions apply, when a document must be filed, what questions can or cannot be asked.

  19. LAW OF PROCEDURE • The body of rulesappliedbythecourtwhenperformingitsduties. • Functions: • 1- To establish whether the rules of substantive law have been broken. • the basis of substantive law. • 2- To set upthejuridicialmachineryandlaydown a seriesofproceduralrulestoresolvedisputes. • Sub-branches: • the law of civil procedure (medeni usul hukuku; hukuk muhakemeleri usulü), • the law criminal procedure (ceza muhakemeleri usulü)

  20. 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.

  21. NEW CODE OF CIVIL PROCEDURE • Thenewcodeintroducedcertainnewconceptssuch as pre-trialhearing (conference) betweentheparties ( orpreliminaryexamination; ön inceleme” bythecourt) andproceduralprotectionsfortheinvidividualconsmersagainstbigcompaniesandbanks.

  22. B- CRIMINAL PROCEDURE • is concerned with the investigation, prosecution, trial and punishment of crimes. • Themethodsandprocedurestodeterminehowpeopleaccused of committing a crimewill be prosecuted. • An important procedural principle: • No one can be convicted unless proven guilty in a court

  23. Criminalresponsibility is personal ( Constitutionarticle 38/vı.) • No one can be punishedfor a criminalactcommitedbyanother, howeverclose he/shemay be totheperpettator. • Thefundamentalsource of Turkishcriminalprocedure is theCode of CriminalProcedure (Ceza Muhakemesi Usulü Kanunu); No 5271, 4 December 2004.)

  24. Incriminalcasestherearetwoparties, one is thepublic, representedbythepublicprosecutor ( Cumhuriyet Savcısı); theother is thedefandant, who is accused of havingcommited a crime. • Theprosecutorassertstheguilt of theaccused; in civilproceedingstheplaintiffassertssameliability ( responsibility)on thepart of thedefandant. • “burden of proof) • Theprosecution is obligedtoprovethattheallegedcrimewascomittedbytheaccused. • “Everyonechargedwith a penaloffence has therightto be presumedinnocentuntilprovenguilty”

  25. Thecourthavingproper name is courtwheretheoffensewascommited. • Thecourt of placewheretheaccused is arrested has venue. Exceptionstothis general ruleareprovidedfor in theCodeCriminalProcedure.(Articles 12-21)

  26. DIFFERENCE-CRIMINAL&CIVIL PROCEDURE • 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, not being bound by the request of the parties

  27. TURKISH SYSTEM • The court decides issues of the fact and law • Guilt are decided by the judge and not a JURY.

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