Ankara --:-- · —
bilgi@utuhukuk.com
0536 593 16 00
The limitation period in criminal law is more important than in other areas, because the punishment of a person who has committed an offence provides moral satisfaction both for the victim and for society. In this article we examine limitation in criminal law under two headings: limitation of prosecution and limitation of enforcement of the sentence.
Currency note
This article was prepared on the basis of the legislation and practice in force on the date of its publication. Since then, there may have been changes to certain special provisions on the suspension of the limitation period for enforcement of sentences and to practice concerning compensation claims in cases dropped due to limitation. You are advised to consult a lawyer regarding the current position.
Time limits are very important in a legal system. Sometimes you may exercise a right within a certain period, while at other times a period must elapse before you can acquire a right. Limitation is likewise an institution of legal systems relating to time limits.
Limitation is defined by the Turkish Language Association as follows; “The lapse of a certain period under the conditions specified by law, resulting in the acquisition or loss of certain rights. Being released from an obligation once the matters specified in the law have occurred and the periods delimited by it have elapsed.”
In our legal system, limitation has different characteristics in private law and in public law. Indeed, within public law, in criminal law the defendant cannot waive limitation.
For this reason, limitation may apply to some offences but not to others. For those to which limitation applies, the limitation period may also be longer or shorter depending on the severity of the penalty attached to the offence and the type of offence. Where criminal proceedings are protracted, the institution of limitation attracts criticism because the person cannot be punished even if their guilt has been established by a court decision, which in a sense has the effect of an amnesty.
General grounds for discontinuance · TCC
In criminal law, the general grounds for discontinuance are regulated in the Turkish Criminal Code in the chapter entitled Discontinuance of Proceedings and Penalties . These grounds are as follows:
Special grounds for discontinuance · CCP
Special grounds for discontinuance are regulated in the Code of Criminal Procedure. These are:
Of these situations, this article addresses limitation of prosecution and limitation of the execution of sentence.
Limitation of prosecution is an institution which, upon the expiry of the periods laid down in the law, prevents an investigation from being conducted and a public prosecution from being brought against a suspect, or a public prosecution brought against a defendant from continuing, and therefore has the character of barring the state’s power to punish.
If the limitation period for prosecution expires during the investigation stage, a decision of non-prosecution must be issued; if the period expires during the prosecution stage, a decision to drop the public prosecution must be issued. The public prosecutor during the investigation stage, and the court during the prosecution stage, must take this into account of their own motion.
Investigation stage
A decision of non-prosecution is issued; the public prosecutor takes limitation into account of their own motion.
Trial stage
A decision to drop the public prosecution is issued; the court takes limitation into account of its own motion.
There are differing views as to whether limitation of prosecution belongs to substantive criminal law or to procedural law. This matter is important because, in substantive criminal law, the rule as to temporal application is the retroactive application of the more favourable law, whereas in procedural law the rule is immediate application. Drawing this distinction therefore determines which principle is to be followed. The prevailing view in doctrine accepts that limitation of prosecution is an institution of substantive criminal law, although by virtue of its consequences it also affects procedural law.
After the Second World War, during the trials concerning the genocide and crimes against humanity committed by Nazi Germany, the issue arose of these crimes becoming time-barred after twenty years. This attracted criticism from many quarters, and as a result work began on abolishing limitation for crimes against humanity. Subsequently, these rules were extended somewhat further and war crimes were also brought within their scope.
In Turkish law, too, no limitation period is provided for certain offences under Turkish Criminal Code No. 5237. These offences are:
The periods of limitation of prosecution are not left to the circumstances of the specific case and the discretion of the judge. They have been expressly regulated in the law according to the severity of the offences. The more severe the penalties prescribed as sanctions for the offences, the longer the limitation period. In a sense, a graduated system has been adopted.
The periods provided for in the law are subject to a threefold distinction according to age group and a fivefold distinction according to the severity of the offences.
The question of which penalty system should be used to apply the period presents a problem. On this point, there are views advocating the application of an abstract penalty system, a concrete penalty system and a mixed system. Under an abstract penalty system, the limitation period will depend solely on the penalty prescribed by law for the offence; this view is defended on the ground that adhering to an objective criterion is necessary, since benefiting from reductions left to the judge’s discretion, such as unjust provocation, would lead to different limitation periods and would not produce a fair result. Those advocating a concrete penalty system argue that, since each case depends on its own circumstances, standardisation would not produce correct and fair results. In fact, each of these views is internally consistent. It may be said that this distinction should, in a sense, be drawn according to the structure of society and the extent to which law plays an effective role in that society.
In our law, with regard to the calculation of periods, under Article 66/3 TCK, “In determining the limitation period for prosecution, the qualified forms of the offence requiring a heavier penalty shall also be taken into account on the basis of the evidence available in the file.” It would not be wrong to say that the concrete penalty system has been adopted, because, as is clear from the provision, it is settled that the qualified form of the offence or mitigating circumstances will be taken into account. Indeed, Article 66/4 TCK provides: “In determining the periods set out in the paragraphs above, the upper limit of the penalty prescribed by law for the offence shall be taken into account; for offences carrying alternative penalties, imprisonment shall be taken as the basis for the purposes of limitation.” and thus it is provided that the upper limit is to be taken as the basis.
The legislator has regulated the calculation of limitation for three different age groups. The TCK distinguishes, for the criminal liability of children, between the ages of 15–18, 12–15 and under 12. However, no separate limitation period has been set for children under 12, because children under 12 have no criminal liability and cannot be prosecuted. For this reason, in this article we will discuss the groups as regulated in the law, namely those over 18, those aged 15–18 and those aged 12–15.
The limitation periods for prosecution are regulated in Turkish Criminal Code Art. 66/1 as follows:
“Except where otherwise provided by law, a public prosecution shall be discontinued 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,
d) fifteen years for offences requiring imprisonment of more than five years and less than twenty years,
e) eight years for offences requiring imprisonment of not more than five years or a judicial fine.”
Turkish Criminal Code No. 5237, Art. 66/1
The periods first regulated in the law are those for persons over 18 with full criminal liability. As mentioned above, there is a fivefold distinction according to the severity of the penalties. For offences requiring these penalties, limitation will occur upon the expiry of the relevant periods. In the investigation stage, a decision of non-prosecution will be issued; in the prosecution stage, a decision discontinuing the public prosecution will be issued.
Thus a provision has been made with regard to the criminal liability of children. For the two age groups with criminal liability, limitation of prosecution will occur upon the expiry of these periods. The fivefold distinction above also applies here; half of the periods is prescribed for those aged 12–15, while two thirds of the periods is prescribed for those aged 15–18. However, the following point must additionally be borne in mind with regard to children aged 12–15. Under Article 31/2 TCK, children aged 12–15 have no criminal liability where they are unable to perceive the legal meaning and consequences of the act they have committed or where their capacity to control their behaviour is not sufficiently developed. For this reason, limitation is of no significance for those in this age group who are in such a situation.
First, it must be determined which type of concurrence is at issue. In the case of a composite offence, the fact that the elements constituting the composite offence or the offences constituting aggravating circumstances have become time-barred does not cause the composite offence to become time-barred, because they do not continue to exist independently; they are bound to it within the composite offence. In the case of mixed offences, since the offender will be punished for the offence requiring the heaviest penalty, it is of no significance that the other, lesser offences have become time-barred. In the case of real concurrence, since each offence will be punished independently, each offence will become time-barred according to the penalty to which it is subject.
The law may provide for alternative penalties for an offence. In such a case, where the penalties are imprisonment or a judicial fine, the question of which penalty should determine the limitation period will present a problem. The legislator has addressed this in Article 66/4 TCK “In determining the periods set out in the paragraphs above, the upper limit of the penalty prescribed by law for the offence shall be taken into account; for offences carrying alternative penalties, imprisonment shall be taken as the basis for the purposes of limitation.” and has stated that imprisonment will be taken as the basis.
In some cases, the offender may be retried for the same act by recourse to extraordinary legal remedies. For this reason, with regard to the commencement of the limitation period during a retrial, Article 66/5 TCK provides: “Where a retrial is required for the same act, the limitation period relating to the act shall start to run afresh from the date on which the court accepts the request to that effect.” and thus it is provided that the date of acceptance of the request for retrial will be taken as the basis.
After the offence has been committed and criminal liability established, it is important when the limitation period for prosecution, which arises depending on the term of the penalty prescribed for the offence concerned, begins to run, because there are differing views on this matter across legal systems. There are views such as that it starts on the day the offence was committed, on the date the offence came to light and became known, or on the date of the first act by the public prosecutor’s office.
In the Turkish legal system, this matter is regulated in the TCK. Article 66/6 TCK regulates on which day limitation begins according to the various types of offence: “Limitation begins to run, for completed offences, from the day on which the offence was committed; for attempted offences, from the day on which the last act was performed; for continuing offences, from the day on which the continuity ended; for successive (chain) 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 reaches the age of eighteen.”
A parenthetical note is required here: the rule that, for offences committed against children by their ascendants or by persons having authority and influence over them, the period begins when the victim reaches the age of eighteen is intended to ensure that these offences do not, as far as possible, go unpunished by taking advantage of limitation. It also aims, on the other hand, to protect victim children under eighteen from the hardship of the proceedings. Of course, if an investigation has been opened upon the complaint of the victim child and the prosecution is continuing, there is no need to wait for the child to reach eighteen for limitation to begin. If the date of the complaint or the date on which the offence was committed is known, that date is taken as the basis. The persons having influence and authority are not defined here; however, they may include teachers, employers, guardians and the like.
“Where the conduct of an investigation or prosecution is dependent on obtaining permission or a decision, or on the outcome of a matter that must be resolved by another authority, limitation of prosecution shall be suspended until the permission or decision is obtained or the matter is resolved, or, in respect of an offender regarding whom a decision has been made in accordance with the law that he is a fugitive, until that decision is revoked.” These grounds are listed exhaustively, and suspension of the period cannot arise in other situations. Among the grounds for suspension, in the case of fugitive status, the suspension will continue until the fugitive dies. In the other cases, however, since matters such as obtaining permissions and decisions or treating an issue as a preliminary question are acts of a functioning system, such acts will be carried out within a time frame that prevents the suspect/accused from being prejudiced by the situation. If a ground for interruption arises as a result of grounds for suspension, a suspended period cannot be interrupted because the period has stopped running. This must be stated expressly.
“In relation to an offence;
a) the taking of a statement from, or the questioning of, one of the suspects or accused before the public prosecutor,
b) the issuing of a detention order against one of the suspects or accused,
c) the drawing up of an indictment in respect of the offence,
d) the delivery of a conviction, even if only in respect of some of the accused, shall interrupt limitation of prosecution.”
Turkish Criminal Code No. 5237, Art. 67/2
Where these circumstances exist, limitation is interrupted and starts afresh. If there is more than one ground for interruption, under the third paragraph of the relevant article limitation continues to run again from the last of the acts interrupting it. The fourth paragraph of the provision stipulates that the period may be extended by at most half. What is meant here is that, in the event of interruption, the period relating to the offence committed by the person, including the time already elapsed, cannot exceed the original period by more than half. By way of example, if one of the grounds for interruption occurs in respect of an offence subject to a ten-year limitation period, the limitation period may amount to a maximum of 15 years in total. The 15 years are counted from the date on which the limitation period for the offence first began.
The most important consequence of limitation of prosecution is the discontinuance of the public prosecution. The reason for the discontinuance of the proceedings is that limitation extinguishes the State’s power to adjudicate. Once the existence of limitation is established, it is applied in priority to other grounds for discontinuance.
Where proceedings are discontinued as a result of limitation, the suspect/accused cannot claim compensation on the ground that he was unjustly detained, because at that time limitation had not yet occurred, and whatever the relevant legal rules required was applied. No unlawful situation will have arisen. If, apart from the time-barred offence, proceedings against the accused continue for another offence, there is no obstacle to making use of the time-barred offence in the course of those proceedings when examining it.
Once the period prescribed by law has elapsed since the judgment rendered in a case, the judgment can no longer be executed. The period prescribed here is called limitation of the execution of sentence (ceza zamanaşımı). The rationale for this institution is that there is no public interest in executing the delayed penalty of an offender for an offence that society has come to forget, and that doing so would arouse a feeling of pity towards that person in society.
The periods prescribed for limitation of the execution of sentence are relatively longer than those prescribed for limitation of prosecution, because here the case has been heard, the evidence continues to exist, the accused has been convicted and the offence has been proven; only its execution remains. Whereas society may more quickly forget the act of a person whose trial has not yet been completed, it will take longer for the mark left on society by a person whose guilt has been established to fade.
The penalty imposed on the person whose execution has become barred will be taken into account in cases of recidivism and suspension. For example, where a decision on the deferral of the announcement of the verdict (HAGB) is to be issued as a result of proceedings for another offence, the person must not previously have been convicted of an intentional offence. Here, whether a HAGB decision will be issued in respect of the person will be determined by taking into account the offence whose sentence has become time-barred.
As a rule, all final sentences may become time-barred. However, as with limitation of prosecution, certain exceptions are regulated in the TCK. Where these sentences relate to the following offences:
It is stated that, for crimes against humanity and genocide, limitation cannot apply to these offences, without any distinction between limitation of execution and limitation of prosecution. Whereas, in the context of limitation of prosecution, limitation does not apply to the investigation and prosecution of the relevant offences, this article provides that the sentence imposed will not become time-barred.
With limitation of execution, unlike limitation of prosecution, there is no divergence of opinion as to whether the abstract or the concrete penalty system should apply, because there is a concrete sentence that has been imposed. The periods on which limitation of execution is based are set out in Article 68/1 TCK as follows:
“The penalties set out in this article shall not be executed upon the expiry of the following periods:
a) forty years for aggravated life imprisonment.
b) thirty years for life imprisonment.
c) twenty-four years for imprisonment of twenty years or more.
d) twenty years for imprisonment of more than five years.
e) ten years for imprisonment of up to five years and for judicial fines.”
Turkish Criminal Code No. 5237, Art. 68/1
If there is real concurrence in respect of the offences committed, limitation of execution is not calculated on the basis of the total sentence. The limitation period is calculated on the basis of the sentences imposed for each offence.
As with limitation of prosecution, there is a provision here for the age groups of children with criminal liability, namely those aged 12–15 and those aged 15–18. This matter is regulated in Article 68/2 TCK. “The sentence shall not be executed upon the expiry of half of these periods in respect of persons who had attained the age of twelve but not fifteen at the time of committing the act, and of two thirds of these periods in respect of persons who had attained the age of fifteen but not eighteen.”
Pursuant to Article 68/3 TCK, “Judgments containing penalties of different types shall not be executed upon the expiry of the period set for the heaviest penalty” and thus it is stated that, upon the expiry of the limitation period applicable to the heaviest penalty, the others can no longer be executed either. In the situation described in the article, if the period for the heaviest penalty has expired, it is evident that the period has a fortiori expired for the other penalties, since shorter or equal periods apply to them.
Pursuant to Article 69 TCK, “The duration of deprivations of rights attached to the penalty or specified in the judgment shall continue until the limitation period for the execution of the sentence expires.” and thus it is stated that the limitation period for execution will also be taken as the basis for deprivations of rights. A deprivation of rights may, for example, be a ban from holding public office.
The commencement of the limitation period for execution is regulated in Article 68/5 TCK. The period begins in two situations: the first is when the judgment becomes final, and the second is when execution is interrupted. Where execution is interrupted, the periods will relate to the remaining sentence. In other words, where execution is interrupted after the sixth year of the sentence of a person sentenced to ten years, the limitation period that begins as a result will be calculated on the basis of the remaining four years, not on the basis of the sentence imposed for the offence.
When the judgment becomes final, limitation of prosecution ceases and is replaced by limitation of execution. A judgment may become final in two ways: if the judgment rendered at the end of the proceedings is not subject to any legal remedy, it becomes final on the date it is rendered. If a legal remedy is available, it may become final upon expiry of the time limit for applying for that remedy. Finally, where a legal remedy is pursued, it becomes final on the date on which the higher court, following its review, issues a decision upholding it.
Execution may be interrupted, for instance, by escape from prison. In the case of conditional release, execution is not interrupted but continues.
It is interrupted by the notification served on the convicted person by the authority competent to execute the conviction. The competent authority is the public prosecutor’s office. Limitation is interrupted in respect of whichever sentence the notification concerning execution relates to.
The period is also interrupted where the convicted person is apprehended by the authority competent to execute the conviction. The competent authority is the public prosecutor’s office. Limitation will be interrupted in respect of the sentence for which the apprehension was ordered. Where the person is apprehended for another purpose, limitation is not interrupted.
Limitation is also interrupted where the convicted person commits, within the limitation period, an intentional offence requiring imprisonment of more than two years. For the second offence committed by the convicted person to interrupt the limitation period for the sentence imposed for the first offence, there must be a final judgment establishing that he committed the second offence.
With limitation of execution the sentence lapses, but the judgment rendered continues to exist with its other consequences. It therefore continues to serve its functions in relation to recidivism and preventing the suspension of sentences. Similarly, the lapse of the sentence does not affect the provisions concerning personal rights, compensation and costs of proceedings (Article 74/3 TCK). The act that is the subject of the sentence may also give rise to a disciplinary penalty or an administrative sanction. These continue to exist unaffected by limitation of execution, and the sanctions may be applied. Upon expiry of the limitation period, the sentence is deleted by the Directorate General of Judicial Records and Statistics and entered in the archive record (Article 9 of the Judicial Records Law No. 5352).
Feragat edilemez
As with limitation of prosecution, in limitation of enforcement the convict cannot waive limitation; it is applied of the court’s own motion.
Sanctions that are not in the nature of a penalty, such as security measures, are not subject to limitation.
For both limitation of prosecution and limitation of execution, periods are calculated in years, months and days pursuant to Article 72 TCK. Looking at the institution of limitation from both perspectives, we see that it is not unlimited. However, as with limitation of prosecution, it would be appropriate to set an upper limit in the case of interruption for limitation of execution as well, since otherwise there is no difference between suspension and interruption.
We are of the opinion that bringing terrorist offences within the scope of offences not subject to limitation would serve the public interest and create a sense of satisfaction in society.
Limitation period for prosecution and limitation period for enforcement of sentences: key differences in the article
| Limitation of prosecution | Limitation of the execution of sentence | |
|---|---|---|
| Foundations | TCK m. 66-67 | TCK m. 68 |
| Sonucu | The public prosecution is dropped | Ceza infaz edilmez |
| Longest period | Thirty years for offences requiring aggravated life imprisonment | Forty years for aggravated life imprisonment sentences |
| Shortest period | Eight years | Ten years |
| Children | Ages 12-15: half of the periods; ages 15-18: two thirds (Art. 66/2) | Ages 12-15: half of the periods; ages 15-18: two thirds (Art. 68/2) |
| Commencement | For completed offences, the day on which the offence was committed (Art. 66/6) | Finalisation of the judgment or interruption of enforcement (Art. 68/5) |
Related page: Serious Crimes Lawyer in Ankara (Assize Court) — investigation, pre-trial detention, assize court trials and legal remedies
Related legislation: Turkish Criminal Code No. 5237 (mevzuat.gov.tr)
The article examines the statute of limitations in criminal law under two headings: limitation of prosecution and limitation of punishment. Limitation of prosecution bars investigation and prosecution once the statutory periods have elapsed; limitation of punishment prevents the judgment from being enforced after the statutory period has elapsed.
TCK m.66/1’e göre kamu davası; ağırlaştırılmış müebbet hapis gerektiren suçlarda otuz, müebbet hapiste yirmi beş, yirmi yıldan aşağı olmamak üzere hapiste yirmi, beş yıldan fazla ve yirmi yıldan az hapiste on beş, beş yıldan fazla olmamak üzere hapis veya adli para cezasında sekiz yıl geçmesiyle düşer.
TCK m.67/2’ye göre şüpheli veya sanığın savcı huzurunda ifadesinin alınması ya da sorguya çekilmesi, tutuklama kararı, iddianame düzenlenmesi ve mahkûmiyet kararı verilmesi zamanaşımını keser. Kesilmeyle süre baştan başlar; ancak makaleye göre süre en fazla yarısı kadar uzayabilir.
TCK m.66/6’ya göre süre tamamlanmış suçlarda suçun işlendiği günden, teşebbüste son hareketin yapıldığı günden, kesintisiz suçlarda kesintinin gerçekleştiği, zincirleme suçlarda son suçun işlendiği günden başlar. Çocuklara karşı üstsoy veya üzerlerinde hüküm ve nüfuzu olanlarca işlenen suçlarda çocuğun on sekiz yaşını bitirdiği gün esas alınır.
TCK m.68/1’e göre ceza; ağırlaştırılmış müebbet hapiste kırk, müebbet hapiste otuz, yirmi yıl ve daha fazla süreli hapiste yirmi dört, beş yıldan fazla hapiste yirmi, beş yıla kadar hapis ve adli para cezalarında on yıl geçmesiyle infaz edilmez.
Makaleye göre ceza hukukunda sanık açısından zamanaşımından feragat söz konusu değildir. Ceza zamanaşımında da hükümlü zamanaşımından feragat edemez ve zamanaşımı re’sen uygulanır.
According to the article, the penalty lapses upon expiry of the limitation period for punishment, but the judgment continues to exist with its other consequences and continues to serve its function in relation to recidivism and preventing suspension of the sentence. Provisions concerning personal rights, compensation and litigation costs are also unaffected (Article 74/3 TCK).
Consultation request
As UTU Hukuk Danışmanlık, we provide legal and advisory services in the field of criminal law.
Fill in the form and we will call you. You can also contact us directly: