Criminal Law

Criminal law deals with the most serious kinds of harm that people can cause each other, or society. Although it is true that there are generally two private parties involved in criminal law, these kinds of harms are dealt with as public law because they are also acts against the state and society. Because they are a threat to public order, they concern the whole community.

Definition of crimes One of the major aspects of criminal law is the definition of criminal behavior. In general, a crime involves: A bad act (actus reus) Criminal intent (mens rea, or “guilty mind.”) Plus, the act must be against the law.

This last point is important because: “There can be no crime without law” (nullum crimen sine lege.) This means that an act cannot be punished unless there is a law against it at the time it is committed. It is generally considered to be unjust to make an act illegal after it has happened. This is called an ex post facto law.

One of the reasons that we have laws, and that laws are required to be published in some way, is that people need to have notice of what is prohibited. If people don’t know what the law is, they won’t be able to follow it. Ex post facto laws and secret laws don’t give people notice.

Plus, allowing the government to make ex post facto laws would give a great amount of power to the government to punish people they don’t like, even if they haven’t broken any laws.

Back to crimes: Some crime vocabulary: Murder Assault Battery Theft Rape Fraud Burglary Arson

What does it mean to define a crime? An example:

Larceny (theft) ARTICLE 141-(1) Any person who takes another’s movable property from its place without the consent of the owner to derive benefit for himself or third parties is punished with imprisonment from one year to three years. (2) All kinds of energy with economic value is also considered movable property.

We can break this law down into pieces, or elements: Any person who 1. takes another’s movable property from its place 2. without the consent of the owner 3. to derive benefit for himself or third parties Is guilty of larceny

Another example: Intentional pollution of environment ARTICLE 181-(1) Any person who intentionally drains refuse or waste into the ground, water or air contrary to the technical procedure defined in the relevant laws and in such a way to cause environmental pollution, shall be punished with imprisonment from six months to two years.

Pollution of environment by negligence ARTICLE 182- (1) Any person who drains refuse or waste into the ground, water or atmosphere by negligence in such a way to cause environmental pollution, shall receive a punitive fine. Where the refuse or waste is observed to have a remaining effect in the ground, water or atmosphere, punishment of imprisonment shall be imposed from two months to one year.

Criminal Procedure Rules about the investigation, prosecution, trial and punishment of crimes.

Burden of Proof: the state has the burden to prove the defendant is guilty. The defendant does not have to prove he is innocent. Presumption of innocence: we presume the defendant is innocent until he has been proven guilty.

Differences between Criminal and Civil procedure (which we will talk about later:) In civil procedure, the court is bound by the claims presented, and cannot exceed the demands made by the parties (“ultra petitia” rule.) In criminal procedure, the judge has much more power. The judge decides what law to use and what punishment to impose. He is not bound by what the parties ask her to do.

Punishment: Another area of criminal law deals with the punishment for crimes. Again, the principle of “no crime without law” applies – so someone cannot be given a punishment that was not on the books when the crime was committed. Example: There is no death penalty in Turkey. If someone commits a terrible crime in Turkey today, the legislature could not bring the death penalty back and sentence the person under it without violating this principle.

Purposes of punishment: Deterrence Retribution Rehabilitation

Deterrence - the act of making someone decide not to do something : the act of preventing a particular act or behavior from happening.

Retribution - punishment for doing something wrong.

Rehabilitation - to teach (a criminal in prison) to live a normal and productive life.

Fairness: Universal Declaration of Human Rights: Art. 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Francis Pakes, Comparative Criminal Justice (2 nd ed.) p. 125

However, there is little international agreement on what constitutes inhuman or excessive punishment. For example, in Europe, the death penalty has been outlawed because it is considered to be cruel. Pakes, p. 125

There is language in the US Constitution that is very similar to Article 5. US Constitution, Amendment 8 - Cruel and Unusual Punishment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. However, courts in the US have refused to find that the death penalty is cruel.

Imprisonment Imprisonment is one of the most popular forms of punishment today. It was not always this way. In earlier times criminals were ordered to pay financial compensation to their victims. Later on, corporal and capital punishment were used more often than imprisonment. Pakes, pp

More than 9.8 million people are held in penal institutions throughout the world. The US has the highest rate of imprisonment in the world, at 756 per 100,000, followed by Russia (629) China may have the world’s largest prison population, although it is impossible to be sure as Chinese figures are unreliable and do not include pre-trial detention. Pakes, p. 128