An offence means an unlawful wrongful act, prohibited by a criminal norm, conforming to the definition of the offence, and committed intentionally or by negligence. Minority of age is a matter that affects a person’s capacity for culpability and that removes or reduces the person’s criminal responsibility. In Article 6 of the Turkish Penal Code (TCK), persons under the age of 18 are regarded as children. It is for this reason that, as also stated in Article 3 of the Child Protection Law, the expression “child pushed into crime” is used in respect of persons under the age of 18 in the investigations and prosecutions conducted. For a person to be held responsible for a criminal act, he or she must, at the time the offence was committed, possess a degree of mental health and development equal to the average that any human being may have, so as to comprehend what he or she is doing and its consequences. Consequently, individuals under the age of 18 have been made subject to special distinctions in terms of criminal responsibility.
In forensic psychiatry practice, for children whose criminal responsibility is being assessed, the matters of perceiving the legal meaning and consequences of the act and directing their behaviour are assessed; according to their biological, psychological and social development, their mental development and whether they have psychiatric syndromes impairing their ability to evaluate reality are assessed. In our legal system, criminal and penal responsibility begins from the age of 12. It is a legal requirement to examine whether children between the ages of 12 and 15 have developed the ability to understand the meaning and consequences of the offence they are alleged to have committed, that is, their capacity for discernment and perception (Juvenile Courts Law, Article 20). On this matter, which is accepted in the field of medico-legal forensic psychiatry and has accordingly found a place in Article 31 of the Turkish Penal Code, it has been accepted that children between the ages of 12 and 15 who have committed a criminal act have no criminal responsibility where they are unable to perceive the legal meaning and consequences of the act they have committed or where their ability to direct their behaviour is not sufficiently developed. That is, criminal responsibility has not been imposed on individuals in this situation. In respect of these persons, child-specific security measures under Article 5-1 of the Child Protection Law (ÇKK) are ordered. These are the measures of handing over to the parent, guardian or one of the relatives, placement with a trustworthy family, placement in child care and upbringing homes, placement in workplaces or with a master craftsman, and referral to a hospital or to institutions for children who are difficult to educate. However, where it is established that persons in the 12-15 age group have the ability to perceive the legal meaning and consequences of the act they have committed and to direct their behaviour, then, unlike the first situation, diminished responsibility has been accepted for these persons and certain reductions are made in the penalties to be imposed. In terms of culpability, criminal responsibility has been imposed on individuals in this situation and it has been accepted that they bear criminal responsibility.
Mental illness is a cause that entirely removes or weakens the will and, at the same time, removes or mitigates the capacity for culpability. In individuals over the age of 18 who have been diagnosed with a mental illness, on this matter, which is accepted in the field of forensic psychiatry and has accordingly found a place in Article 32 of the Turkish Penal Code, it has been accepted that no penalty shall be imposed on persons who, owing to mental illness, are unable to perceive the legal meaning and consequences of the act they have committed or whose ability to direct their behaviour in relation to that act is significantly diminished. These persons bear no criminal responsibility, and a state of complete non-responsibility has been accepted. However, security measures specific to the mentally ill are ordered in respect of these persons.
The mental illnesses that give rise to criminal non-responsibility are severe and moderate intellectual disabilities, schizophrenia, delusional disorders, mood disorders with psychotic features and severe organic brain syndromes. However, for these illnesses to remove the person’s criminal responsibility, the person must have been under the influence of the illness on the date of the offence and must have committed the offence under the influence and by reason of that illness. In diminished responsibility, on the other hand, in individuals over the age of 18 who have been diagnosed with a mental illness, a limited criminal responsibility has been accepted for persons whose abilities to perceive the legal meaning and consequences of the act they have committed and to direct their behaviour in relation to that act are diminished, albeit not significantly, and certain reductions are made in the penalty to be imposed on them. In this case, for diminished criminal responsibility to be accepted, the illness must have caused the commission of the offence and the person must have been under the influence of the illness on the date of the offence. For example, a patient with an amnestic disorder, that is, memory loss, who forgets the payment date of a cheque bears no criminal responsibility, but the same patient bears criminal responsibility if he or she commits theft. Security measures specific to the mentally ill are also ordered in respect of these persons. In terms of culpability, since they have criminal capacity, it has been accepted that they bear criminal responsibility. Examples of situations in which the ability to direct behaviour is diminished are mild intellectual disabilities, certain severe personality disorders, the hypomanic phase of bipolar mood disorder and predementia states. Physicians form a medical opinion on this matter by assessing it together with the nature of the offence and the manner or motivation of its commission and by taking into account the particular circumstances of each patient, and decide accordingly.
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/akil-hastalarinda-ve-12-15-yas-arasinda-cezai-sorumluluk