Dr. Özlem Döğerlioğlu IŞIKSUNGUR

Yaşar UniversityYaşar UniversityFaculty of Economics Faculty of Economics

andAdministrative ScienceandAdministrative Science

Introduction to Law – Lecture NotesIntroduction to Law – Lecture Notes

Dr. Özlem Döğerlioğlu IŞIKSUNGUR Source: Aybay,R. Introduction to Law 2011; 1

STATEDefinition:

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:TerritoryPopulationSovereignty

A-TERRITORYDefinition

“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 TERRITORYIncludes 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-POPULATIONConstitues 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

individualReciprocal 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- SOVEREIGNTYSpiritual elementTwo Types:

External sovereigntyInternal sovereignty

In international relations the external aspect of sovereignty is :independence, which means the power of a State to

determine its own foreign policyQuestion of who possesses sovereıgnty.

Under the Turkısh Constitution, sovereignty belongs uncondinaally and without any restriction to the Nation.

2-BRANCHES OF PUBLIC LAWFive 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 LawTurkısh 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 CRIMEAn 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 ActA criminal acts is composed of three

elements:The act, or omission to act (“bad act”)The requisite intention: criminal intentIllegality , (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.

PunishmentPunishment must be specifically defined by lawThere can be no punishment without lawDefinition of the crimes& prescription of punishment

by statuteLimits of law judge’s discreation in determining the

punishment to be imposedPunishments:

Life imprisonmentImprisonmentFineAlternative sanctions

Voluntary work in a public serviceShort terms of imprisonment

PUNISHMENTAim 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 CaseCriminal Case Civil Case

Belongs to public law Belongs to private law

State is essential party Complaining 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 fine

The result: no prison. The primary object is to punish the offender but afford redress to aggrieved party.

LAW OF PROCEDURELaw 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 whomis 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 PROCEDUREFunctions:

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 Procedureconcerns 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:6100Adopted in 12.1. 2011Entered 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 Procedureis 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 ProcedureCriminal 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 CasesThere 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 partiesIn 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 lawGuilt are decided by the judge and not a

JURY.