Decision dismissing the request for annulment of a phrase in Article 188 of the Turkish Criminal Code
08 November 2018 Thursday
(E.2017/179, K.2018/106, 8 November 2018)
The contested provision provides that in cases where the crimes related to drugs are committed in public buildings and facilities used for treatment, educational, military and social purposes such as school, dormitory, hospital, barrack or place of worship and in public places at a distance of less than two hundred meters from their boundaries, the penalty to be imposed shall be increased by one half.
Grounds for the Request for Annulment
It was maintained that the phrase “…public buildings and … used for … social purposes …” in the contested provision was open to interpretation and therefore could lead to different assessments and penalty increase (or not an increase in the penalty) by the courts, which was in breach of the Constitution.
The Court’s Assessment
In the contested provision, the phrase “…public buildings and … used for … social purposes …” also covers the “public buildings … used for treatment, educational, military … purposes” and therefore constitutes a comprehensive rule also applicable to these. Therefore, the examination to be made as to the merits was limited to the phrase “… and social …”.
One of the main principles of the rule of law specified in Article 2 of the Constitution is certainty. Legal certainty can also be achieved by the case-law of the courts and the regulatory acts of the executive, provided that they meet the qualitative requirements such as being accessible and foreseeable, based on the legal regulations.
Today, where human rights and freedoms have come to the fore, “principle of legality in crime and punishment” enshrined in the Constitution constitutes one of the basic principles of criminal law. This principle, which is based on the opinion that individuals should know the prohibited acts or conducts beforehand, aims to guarantee fundamental rights and freedoms.
There is no doubt that the legislator can make legislative arrangements within the scope of his obligations to take the necessary measures in terms of the fight against drugs and his authority to determine the criminal policy, which are vested upon him by the Constitution. In this scope, the legislator, on condition of abiding by the basic principles stipulated in the Constitution, has discretion in determining which criminal acts and conducts shall be regarded as aggravating or extenuating.
The contested provision aims at protecting the public health. In this context, within the scope of his discretion, the legislator, considering that the committal of crimes in public buildings and facilities used for social purposes and in public places at a certain distance constitutes a factor that enables the spread of such acts to the society, acknowledged this as an aggravating circumstance and therefore aimed at preventing the spread of crime.
In our age where, especially, various economic, cultural and social relations prevail, it is not possible to specify respectively the public buildings and facilities located in public places and used for social purposes, as well as it is not possible for the legislator to foresee these. The legislator, specifying that the public buildings and facilities used for treatment, educational, military and social purposes may be schools, dormitories, hospitals, barracks or places of worship, and etc., only gives examples of the mentioned public buildings and facilities.
The fact that the phrase “… and social …”, which is the subject matter of the examination carried out on the merits, is an abstract concept does not necessarily mean that it is uncertain. As regards the contested provision, whether the place of crime is a building or facility used for social purposes shall be determined by the judicial authorities having regard to the particular circumstances of the case and considering the examples enumerated in the provision, and the provision shall be applied accordingly. Hence, the contested provision is not contrary to the principles of certainty and legality.
Consequently, the Court concluded that the contested provision was not in breach of the Constitution and therefore dismissed the request for annulment.