Military Offenses and Mere Military Offenses
The Law on the Amendment of the Military Penal Code and Some Laws entered into force by being published in the Official Gazette on 30/06/2021 and within the scope of this amendment, military crime, which presents a gap in the text of the law, was tried to be defined as a mere military crime. Before the amendment, the Military Penal Code No. 1632 did not define military crimes and did not count only military crimes. As a result, an unpredictable situation occurred within the scope of the principle of legality and certainty in crime and punishment. In this article, we will talk about military crimes and purely military crimes within the framework of the provisions of the Military Penal Code dated 30/06/2021 and the Law on Amending Some Laws.
Who is called a Soldier Person?
Military crimes and purely military crimes are crimes that can only be committed by military personnel and are among the crimes specific to this nature. In this context, first of all, it should be started with the definition of who is called a "military person". According to Article 3 of the Military Penal Code No. 1632, “Military persons; From marshal to second lieutenant, officers, non-commissioned officers, civilian personnel working in the staff and establishment of the Ministry of National Defense and the Turkish Armed Forces are expert gendarmerie, expert non-commissioned officers, contracted non-commissioned officers and privates, non-commissioned officers and privates and military students.” explicitly stated in the law.
What are Military Crimes?
In accordance with the additional article 11/1 added to the Military Penal Code No. 1632 in accordance with Article 1 of the Law on Amending the Military Penal Code and Some Laws, “The crimes regulated in this Law and the crimes committed by military personnel in relation to their military service and duties are military crimes.” It has been tried to define military crime. However, in our opinion, this definition is insufficient.
In this context, the most comprehensive definition of military crime made by Erman, widely accepted in the doctrine and in our opinion, is as follows. “For crimes that are only possible to be committed by military personnel, but are not partially or completely foreseen in the Turkish Penal Code and expressing a violation of a military service or duty, these crimes are not of this nature, but with the aim of protecting a military interest and because of the reference made or foreseen by the Military Penal Code. crimes that fall within the scope of application of the law are military crimes.”
What are the elements of military crime?
According to the definition made, for a crime to be qualified as a military crime;
a) It is possible to be processed only by military personnel.
b) Expressing the violation of a military service or duty that is not partially or completely foreseen in the Turkish Penal Code.
c) Pursuing the purpose of protecting a military interest and envisaged or referred to by the Military Penal Code, this law enters into the scope of application.
required.
What Are Mere Military Crimes?
Again, the definition of mere military crime by Erman is “Crimes that can only be committed by those who have the title of military person, that are not regulated as a crime in another law, partially or completely, and that express the violation of a military service or duty.” was made by saying.
However, in accordance with the additional article 11/2 added to the Military Penal Code No. 1632 in accordance with Article 1 of the Law on Amending the Military Penal Code and Some Laws, “The 60th, 62nd, 65th, 66th, 67th, 68th, 70th, 79th, 81st, 82nd, 85th, 87th, 88th, 89th, 90th, 91st, 97th, 98th, 100th, 101st, 102nd The crimes regulated in Articles 136 and 136 are purely military crimes.” only military crimes were counted in detail.
What are the elements of a mere military crime?
Accordingly, in order for a crime to be classified as a purely military crime:
a) It can only be processed by military personnel
b) It is not regulated partially or completely as a crime in another law.
c) Expressing a violation of a military service or duty
required.
What are purely military crimes under the law?
However, since only military crimes are listed in a limited manner in the Additional Article 11/2 added to the Military Penal Code No. 1632, it is not possible to qualify any other crime as a mere military crime, and the titles of purely military crimes are as follows:
Article 60 – Prisoners of war who were released by promise
Article 62 – Penalty of commanders who surrender a fortified position or their position or themselves or a ship or an airplane to the enemy
Article 65 - Penalties of those who do not go to their duties and civil servants
Article 66 - Escape and punishment
Article 67 - Penalties of those who fled to a foreign country
Article 68 - Punishment of those caught in the grace period
Article 70- Contractual desertion and punishment
Article 79- Punishment of those who make themselves unfit for military service
Article 81- Those who cheat to get rid of military service
Article 82- Chief or higher threat
Article 85 - Penalties of those who insult the chief and his mafev
Article 87 - Punishment of those who persist in disobedience
Article 88 - Penalties for disobedience in the face of mass soldiers or to avoid service or while armed
Article 89 - Penalties for disobedience causing great harm
Article 90- Strength and punishment
Article 91 - Penalties of those who attack the chief and mafevka
Article 97 - Corruption and its penalty
Article 98 -Punishment of those who do not report the mischief
Article 100 -Military rebellion and its punishment
Article 101 - Penalties of those who took the lead in the military rebellion
Article 102 - Punishment of criminals of military rebellion against the enemy
Article 136 - Those who are careless
Persons Covered by Military Penalty:
Officer
Petty officer
Expert Gendarmerie
Specialized Officer
Privates and Privates
Military Students
Reserve Soldier Persons
Civilian Staff
Civilians by Case
Foreign Military Persons
Duties and Powers in the Trial of Military Offenses and Mere Military Offenses
As it is known, the Military Courts were abolished in accordance with Article 17/E of the Law No. 6771 Amending the Constitution of the Republic of Turkey, which was enacted as a result of the referendum held on 16/04/2017, and it was decided that the trials to be held in accordance with the Military Penal Code would be conducted before civilian courts. In addition, in the decision of the First Chamber of the HSK dated 31/05/2017, it has been clarified which courts will be authorized and authorized for crimes falling under the jurisdiction of the abolished courts in accordance with the said amendment. In this context, these amendments have been included in the regulation under the title of "Duty and Authority of Courts" within the framework of the provisions of the Military Penal Code dated 30/06/2021 and the Law on Amending Certain Laws.
Accordingly, in cases and works related to military crimes, the first instance and heavy penal courts, which are named after the province where the crime was committed, are in charge and authorized. In addition, Ankara courts to deal with cases and works related to military crimes committed outside the borders of the country by military personnel, and in cases and works related to crimes regulated in Articles 65, 66, 67, 68 and 70 of the Law, the military unit or the suspect or the accused is a member of. Provincial and district courts of the place where the military institution is located are authorized.