Presentation on theme: "Dr. Özlem Döğerlioğlu IŞIKSUNGUR Yaşar University Faculty of Economics andAdministrative Science Introduction to Law – Lecture Notes Dr. Özlem Döğerlioğlu."— Presentation transcript:
Dr. Özlem Döğerlioğlu IŞIKSUNGUR Yaşar University Faculty of Economics andAdministrative Science Introduction to Law – Lecture Notes Dr. Özlem Döğerlioğlu IŞIKSUNGUR Source: Aybay,R. Introduction to Law 2011;1
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 Constitues the physical basis for the existence of a State. Each State can confer nationality on the basis of the criteria it establishes. Any State may, at its discretion, confer nationality on any person, in order to be recognized by other State’s it must be based on internationally accepted standards. 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. Under the Turkısh Constitution, sovereignty belongs uncondinaally and without any restriction to the Nation.
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). Such acts are considered to be threats to the public order and therefore they are the concern of the whole community.
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.
Differences. Criminal Case-Civil Case Criminal CaseCivil Case Belongs to public lawBelongs to private law State is essential partyComplaining party is a private party Except in certain cases, State initiates the criminal proceeding on behalf of the victim of the crime and general community Individual must initiate the legal action in his name The process of commencing a legal action: State prosecutes The process of commencing a legal action: In a private civil suit: Civil Parties sue State is obliged to prosecute a person accused of commiting a crime. Personal&voluntarary choice of individual to take or not to take a civil action against counter party The Results: prison sentence or fineThe result: no prison. The primary object is to punish the offender but afford redress to aggrieved party.
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 Civil Procedure 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.