Transcript STATE
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 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. The extent of Turkey’s territorial sea, otherwise known as “territorial waters” or the “maritime belt”, was established as being 6 miles (1 sea mile equals 1852 meters) by the Territorial Sea Law (Karasuları Kanunu). The airspace (territory) of a State includes not only the atmosphere immediatly above its surface land territory but above its territorial seas as well. B-POPULATION Constitues the physical basis for the existence of a State. The human element is the State’s life source, its character given by the economic, cultural, spiritual and historical traits of the community, both individually and collectively. 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: Turkey -child’s nationality determined by the place of birth: 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. Penal provisions may have retroactive effect when they are n favor of the person to whom they are applied. If the punishment for acrime is reduced under anew law, this will benefit persons already convicted and sentenced under the former,stricter 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. PUBLIC LAWPRIVATE LAW PUBLIC PRIVATE 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 Commencing a legal action: State prosecutes 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 PROCEDURE Law contains: substantive (maddi) and procedural aspects, or adjectival aspects. Substantive law: determines the content and meaning of the laws (norms) to be applied and by whom. Procedure relates to the machinery of justice, to the form, manner and order of conducting civil, criminal and administrative cases, e.g what laws and rules are apply (choice are to be submitted, what presumptions apply, when a document must be filed, what questions can or cannot be asked. LAW OF PROCEDURE The body of rules applied by the court when performing its duties. 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 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 consmers 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 responsibility is personal ( Constitution article 38/vı.) No one can be punished for a criminal act commited by another, however close he/she may be to the perpettator. The fundamental source of Turkish criminal procedure is the Code of Criminal Procedure (Ceza Muhakemesi Usulü Kanunu); No 5271, 4 December 2004.) In criminal cases there are two parties, one is the public, represented by the public prosecutor ( Cumhuriyet Savcısı); the other is the defandant, who is accused of having commited a crime. The prosecutor asserts the guilt of the accused; in civil proceedings the plaintiff asserts same liability ( responsibility)on the part of the defandant. “burden of proof) The prosecution is obliged to prove that the alleged crime was comitted by the accused. “Everyone charged with a penal offence has the right to be presumed innocent until proven guilty” The court having proper name is court where the offense was commited. 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) DIFFERENCE-CRIMINAL&CIVIL PROCEDURE 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, not being bound by the request of the parties TURKISH SYSTEM The court decides issues of the fact and law Guilt are decided by the judge and not a JURY.