EXTRATERRITORIAL JURISDICTION FOR THE CRIMES WITH FOREIGN ELEMENT IN TURKISH CRIMINAL LAW

24.12.2018

 

After the murder of Saudi journalist Jamal Khashoggi in Istanbul many problems have arisen with both political and legal aspects.

Due to the allegations that the murder took place within the consulate building, discussions have been moved to another dimension in accordance with the The Vienna Convention on Consular Relations of 1963.

In fact, no matter what circumstances the crime is committed, the issue of where the offense should be prosecuted in criminal proceedings was often a controversial point. This is because of the direct influence of the criminal proceedings on the rights and freedoms.

In Turkey, the rules for the Principles for Extraterritorial Jurisdiction of the criminal Law are regulated under the articles 8th -19th of the Turkish Criminal law no 5237.

In this article, the rules for the Principles for Extraterritorial Jurisdiction of the Criminal Law shall be briefly summarized within the scope of these above-mentioned articles and  on the basis of main three principle as; “Territoriality Principle” , “The Principle of Personality”, “Principle Of Universality”.

  1. Territoriality Principle;

In accordance with “Territoriality Principle” which is one of  the main principles, the state can claim jurisdiction to prosecute criminal offences committed within their borders irrespective of by whom and to whom they were committed against in criminal law

Therefore, jurisdiction for crimes committed in the territory of the Republic of Turkey belongs to the Turkish courts, even if the offender and/or the victim are foreign.

According to the Article 8th  of Turkish Criminal Code;  

Turkish laws are applied for the offenses which are committed in Turkey. Where the act constituting an offense is partially or entirely committed in Turkey, or the result is obtained in Turkey, the offense is assumed to have been committed in Turkey.

According to the same article,  if the offense is committed;

  • in the Turkish territory, or airspace and Turkish territorial waters,
  • in open seas and the space extending above these waters, and in/by the Turkish vessels and airplanes,
  • in/by Turkish war ships and aircrafts,
  • in the stationary platforms exclusively constructed in the territorial boundaries of Turkey or in industrial zones,

then this offense is assumed to have been committed in Turkey.

 

2- The Principle of Personality

This principle is regulated within the scope of three different case ;

  • In Case Perpetrator Is Turkish Citizen- Victim Is Foreign

If a foreigner, excluding the offences listed in Article 13, commits an offence in a foreign country causing injury to Turkey, which requires a punishment with a minimum limit of less than one year imprisonment, and if the offender is found in Turkey, then he is punished according to the Turkish laws. The trial is filed upon request of the Ministry of Justice.

However,  for offences of “bribery” and “influence peddling” are  not based on the request of the minister of Justice.

  • If The Perpetrator Is A Foreign-Victim Turkish

If the offence is committed with the intension of causing injury to a Turkish citizen or a legal entity incorporated according to the Turkish laws and subject to special law, and if the offender is found in Turkey, then the perpetrator is punished according to the Turkish Laws upon complained of the injured party provided that that he is not convicted in the said foreign country for the same offense.

  • If Both The Perpetrator And The Victim Are Foreign;

 It is possible to make a trial in in case of existence of the following conditions;

Where the offence requires punishment with a minimum limit of less than three years imprisonment according to the Turkish Laws;

Where there is no extradition agreement or the demand of extradition is rejected by the nation where the   crime is committed or the person accused of a crime holds citizenship.

 

Principle Of Universality:

In the event that the following offenses set out in Article 13 of the Turkish Criminal Code are committed by a citizen or a foreigner in a foreign country, Turkish law shall apply. Thw offenses set out in Article 13 of the Turkish Criminal Code are as below;

- Genocide and crimes against humanity, crimes against the dignity of their bodies and the signs of the sovereignty of the state, crimes against the security of the state, crimes against the constitutional order and the functioning of this order, crimes against National Defence, crimes against national security and espionage, crimes against relations with foreign states.

-Torture, intentional pollution of the environment, production and trade of narcotic or stimulant drugs, facilitating the use of narcotic or stimulant drugs, counterfeiting in money, production and trade of tools that manufacture money and precious stamps, counterfeiting in Seal, trafficking, hijacking or detaining of sea, rail or air transport vehicles, or harming those vehicles.

 

On the other hand, sometimes a crime committed outside the Turkey by a foreigner may cause another crime in Turkey.  In this case , there is only one action committed in a foreign company , however usage of the revenue arising out of the crime in Turkey constitutes another kind of crime according to Turkish criminal Law.

For example  in case the revenue which was gained from a crime committed in a foreign country  is used in Turkey for any  disposition,  the crime of “Laundering of assets acquired from an offence” be constituted a set forth in the article 282 of Turkish Criminal Code No. 5237.

According to Turkish Criminal Code article 282;

“Where a person conducts any act in relation to an asset which has been acquired as a result of an offence which carries a minimum penalty of one year imprisonment, in order to transfer such asset abroad or to give the impression that such asset has been legitimately acquired source of such , shall be subject to a penalty of imprisonment for a term of two to five years and a judicial fine of up to twenty thousand days. (…)

Where this offence is committed by a public officer or professional person in the course of his duty then the penalty to be imposed shall be increases one half”

 

As it is explained above, judging a foreigner before Turkish authorities due to his/her crime committed in a foreign country can only be possible in case circumstances and/or crimes which are prescribed limitedly in Turkish Criminal Code exist.

In addition to all this, before ending our article we would like to state once more that for the matter of Turkey’s right to prosecute the case of Jamal Khashoggi is actually another matter that should be discussed in accordance with The Vienna Convention on Consular Relations of 1963 as we briefly mentioned above.

In this context, as a result of the interpretation of many articles of The Vienna Convention dated 1963 , many lawyers and legal experts agree that the murder of Saudi Journalist has exceeded the limits of diplomatic immunity

According to the article 31 titled “Inviolability of the consular premises” of the Convention, the authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster.

On the other hand, it is stated in the article 41 titled “Personal inviolability of consular officers” that Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

 

When it is assessed within the scope of Khashoggi’s murder, the article 55 titled “Respect for the laws and regulations of the receiving State” plays a significant role. According to the article, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.

Under all these provisions, whether Turkey has jurisdiction over Khashoggi’s murder is still a big matter of debate. However, in the current situation , the Turkish authorities still keep their  decisive attitude in prosecuting criminal proceedings arising out of the this serious murder committed within the borders.

 

 

Att. Semra Gürçal 

 

Bibliograpyhy: 

1. The Vienna Convention on Consular Relations of 1963

2. Turkish Criminal Code No. 5237