Two types of limitation are recognised in the Penal Codes: the limitation period for prosecution and the limitation period for enforcement of the sentence. Once the period laid down by law has elapsed, a public prosecution cannot be brought; even if it has been brought, the case can no longer be continued if the limitation period for prosecution has expired. This is because the expiry of the limitation period for prosecution constitutes a bar here.
By contrast, a final judgment cannot be enforced once the period laid down by law has elapsed. The ground barring enforcement here is the expiry of the limitation period for enforcement of the sentence. The limitation period for prosecution is shorter than the limitation period for enforcement of the sentence.
Limitation is set out among the general provisions of the Turkish Penal Code (TCK) No. 5237. Pursuant to the clear and mandatory provision of Article 5 of the Turkish Penal Code No. 5237, which governs the “Relationship with special laws”, namely “The general provisions of this Code shall also apply to offences in special penal laws and in laws containing penalties”, after the new Turkish Penal Code entered into force, the provisions on limitation contained in this Code will also apply to offences in special penal laws and in laws containing penalties, even if they contain provisions to the contrary.
Since limitation is a matter of public order, it is applied ex officio. The defendant or the convicted person cannot waive limitation. This is stated in the second paragraph of Article 72 of the Turkish Penal Code as follows: “The limitation periods for prosecution and for enforcement of the sentence shall be applied ex officio, and the suspect, defendant and convicted person cannot waive them”. Whereas in civil procedure limitation may be taken into account only if it is raised by the parties as a plea in the case, in criminal law, by virtue of the principle of “ex officio application”, it must be taken into account and applied of their own motion by the judge or the public prosecutor.
Since limitation ultimately produces a result such as the termination of the State’s right to try, it is taken into account ex officio at all stages: investigation, prosecution, intermediate appeal and appeal on points of law. Until a decision becomes final and acquires the status of a judgment, the limitation period for prosecution runs. The limitation period that begins to run after the decision has become final and acquired the status of a judgment is the limitation period for enforcement of the sentence. In the Turkish Penal Code No. 5237, in parallel with the abolition of the distinction between felonies and misdemeanours among offences and with the new provisions introduced on various penal sanctions, the limitation periods for prosecution are regulated in the first and second paragraphs of Article 66 of this Code as follows;
Limitation period for prosecution
Article 66.- (1) Except in cases otherwise provided for by law, a public prosecution shall lapse upon the expiry of;
a) thirty years for offences requiring aggravated life imprisonment,
b) twenty-five years for offences requiring life imprisonment,
c) twenty years for offences requiring imprisonment of not less than twenty years,
ç) fifteen years for offences requiring imprisonment of more than five years and less than twenty years,
d) eight years for offences requiring imprisonment of not more than five years or a judicial fine,
Lapses.
(2) In respect of persons who, at the time of committing the act, had completed the age of twelve but had not completed the age of fifteen, the public prosecution shall lapse upon the expiry of one half of these periods; and in respect of persons who had completed the age of fifteen but had not completed the age of eighteen, upon the expiry of two thirds of them.”
Unless there is an express provision to the contrary in the law, the limitation period for prosecution applies to all offences. According to the seventh paragraph of Article 66 of the Turkish Penal Code No. 5237, the limitation period for prosecution does not apply where offences set out in the Fourth Part of the Second Book of this Code requiring aggravated life imprisonment, life imprisonment or imprisonment of more than ten years are committed abroad. The limitation periods for prosecution are laid down separately and in graduated form in the first and second paragraphs of Article 66 of the Turkish Penal Code No. 5237, in line with the severity of the penalties prescribed for the offences.
The fourth paragraph of Article 66 of the Turkish Penal Code No. 5237 expressly provides: “… in determining the periods, the upper limit of the penalty prescribed by law for the offence shall be taken into account; in offences requiring alternative penalties, imprisonment shall be taken as the basis for the purposes of limitation.” Accordingly, in the application of the Turkish Penal Code No. 5237 too, the upper limit of the penalty prescribed by law for the offence will be taken into account in calculating the limitation periods. Where imprisonment and judicial fines are provided for as alternatives, imprisonment will be taken as the basis for the purposes of limitation. The manner in which the limitation for the offence for which a convicted person who must be retried for the same act is subsequently tried is to be determined is regulated in the fifth paragraph of Article 66 of the Turkish Penal Code No. 5237. However, according to the provision in the fifth paragraph of Article 66 of the Turkish Penal Code No. 5237, in determining the limitation period here, the limitation to be determined according to the principles set out in the third paragraph of the same article, mentioned above, will be taken into account.
When the limitation period for prosecution begins to run is regulated in the sixth paragraph of Article 66 of the Turkish Penal Code No. 5237.
“(6) The limitation period shall begin to run, for completed offences, from the day on which the offence was committed; for offences that remained at the stage of attempt, from the day on which the last act was performed; for continuing offences, from the day on which the continuation ended; for successive offences, from the day on which the last offence was committed; and for offences committed against children by their ascendants or by persons having authority and influence over them, from the day on which the child completes the age of eighteen.”
Where the grounds for suspension listed in the law exist, the limitation period for prosecution is suspended; once these grounds cease to exist, it continues to run from where it stopped. For this reason, the period that ran before the suspension must be added to the period that will run after the suspension ends. The suspension of the limitation period for prosecution is regulated in the first paragraph of Article 67 of the Turkish Penal Code No. 5237.
“Where the conduct of an investigation or prosecution depends on obtaining permission or a decision, or on the outcome of a matter that must be resolved by another authority, the limitation period for prosecution shall be suspended until the permission or decision is obtained or the matter is resolved, or, in respect of a perpetrator about whom a decision has been given under the law that he or she is a fugitive, until that decision is lifted.”
Where the grounds interrupting the limitation period for prosecution specified in the law exist, the period that has run up to that moment is extinguished; once these grounds cease to exist, it begins to run anew.
The interruption of the limitation period for prosecution is regulated in the Turkish Penal Code in the second, third and fourth paragraphs of Article 67.
“(2) In relation to an offence;
a) the taking of the statement of, or the questioning of, one of the suspects or defendants before the prosecutor,
b) the issuing of a detention order in respect of one of the suspects or defendants,
c) the drawing up of an indictment in relation to the offence,
d) the delivery of a conviction, even if only in respect of some of the defendants,
Shall interrupt the limitation period for prosecution.
(3) When the limitation period for prosecution is interrupted, the limitation period shall begin to run anew. Where there is more than one ground interrupting the limitation period for prosecution, the limitation period shall begin to run anew from the date on which the last ground of interruption occurred.
(4) In the event of interruption, the limitation period shall be extended by at most one half of the period laid down by the Law in respect of the offence concerned.”
According to the third paragraph of Article 67 of the Code: “When the limitation period for prosecution is interrupted, the limitation period shall begin to run anew. Where there is more than one ground interrupting the limitation period for prosecution, the limitation period shall begin to run anew from the date on which the last ground of interruption occurred.” The fourth paragraph, for its part, lays down by how much the limitation period for prosecution is extended in the event of interruption, stating: “In the event of interruption, the limitation period shall be extended by at most one half of the period laid down by the Law in respect of the offence concerned.”
The limitation periods for enforcement of the sentence are regulated in Article 68 of the Turkish Penal Code.
“ARTICLE 68. – (1) The penalties set out in this article shall not be enforced upon the expiry of the following periods:
a) For aggravated life imprisonment, forty years.
b) For life imprisonment, thirty years.
c) For imprisonment of twenty years or more, twenty-four years.
d) For imprisonment of more than five years, twenty years.
e) For imprisonment of up to five years and judicial fines, ten years.
(2) In respect of persons who, at the time of committing the act, had completed the age of twelve but had not completed the age of fifteen, the penalty shall not be enforced upon the expiry of one half of these periods; and in respect of persons who had completed the age of fifteen but had not completed the age of eighteen, upon the expiry of two thirds of them.
(3) Limitation shall not apply to aggravated life imprisonment, life imprisonment or imprisonment of more than ten years imposed for offences set out in the Fourth Part of the Second Book of this Code that were committed abroad.
(4) Judgments containing penalties of different types shall not be enforced upon the expiry of the period laid down for the most severe penalty.
(5) The limitation period for enforcement of the sentence shall begin to run from the day on which the judgment becomes final or the enforcement is interrupted in any manner, and the period shall be calculated on the basis of the remaining amount of the penalty.”
As with the limitation period for prosecution, exceptional provisions have also been introduced with regard to the limitation period for enforcement of the sentence, and this is expressed in the third paragraph of Article 68 TCK as follows: “Limitation shall not apply to aggravated life imprisonment, life imprisonment or imprisonment of more than ten years imposed for offences set out in the Fourth Part of the Second Book of this Code that were committed abroad.”
The moment from which the limitation period for enforcement of the sentence begins to run is stated in the fifth paragraph of Article 68 of the Turkish Penal Code as follows: “The limitation period for enforcement of the sentence shall begin to run from the day on which the judgment becomes final or the enforcement is interrupted in any manner, and the period shall be calculated on the basis of the remaining amount of the penalty.”
Article 69 of the Turkish Penal Code No. 5237 regulates the relationship between the limitation period for enforcement of the sentence and deprivation of rights, and accordingly, “The duration of deprivations of rights attached to the penalty or specified in the judgment shall continue until the limitation period for enforcement of the sentence expires.” The legislative rationale of the article also explains the matter as follows: “The text of the article states that the duration of deprivations of rights attached to the penalty or contained in the judgment given by the court shall continue until the limitation period for enforcement of the sentence expires. A delay in the enforcement of the penalty imposed shall not prevent the application of the deprivations of rights attached to that penalty. However, the article provides that deprivations of rights arising in this manner shall continue at most until the limitation period for enforcement of the sentence expires.” In the application of Article 69, the provisions of Article 53, entitled “Deprivation of the exercise of certain rights”, must also be taken into account.
A separate limitation period has been laid down for confiscation, which is provided for in the TCK as a security measure, and this is set out in Article 70 of the Code as follows: “A judgment relating to confiscation shall not be enforced once twenty years have elapsed from the date on which it became final.”
The grounds interrupting the limitation period for enforcement of the sentence are regulated in Article 71 of the Turkish Penal Code.
“(1) Service of notice on the convicted person in accordance with the law by the competent authority for the enforcement of the conviction, or the apprehension of the convicted person for this purpose, shall interrupt the limitation period for enforcement of the sentence.
(2) Where a person convicted of an offence commits an intentional offence requiring imprisonment with an upper limit of more than two years, the limitation period for enforcement of the sentence shall be interrupted.” is the provision contained therein.
Pursuant to the first paragraph of Article 72 of the Turkish Penal Code, “The limitation periods for prosecution and for enforcement of the sentence shall be determined by reckoning in days, months and years. A day is twenty-four hours; a month is thirty days. A year shall be calculated according to the official calendar.” The second paragraph, for its part, lays down that the limitation periods for prosecution and for enforcement of the sentence shall be applied ex officio and that the suspect, defendant and convicted person cannot waive them.
This is an English translation of the author’s article originally written in Turkish.
Link to the original article on Hukuki Haber: https://www.hukukihaber.net/ceza-hukukunda-zamanasimi