PROTECTION OF THE VICTIM IN CRIMINAL LAW

PREFACE

"Protection of Victims in Criminal Law", which we prepared as our doctoral thesis, is one of the most important current problems of our age in terms of crime politics and the application of Criminal and Criminal Procedure Law. In our thesis, the basic assumptions of a new approach to social grouping based on social solidarity within the social structure are put forward as a solution to the problem. Our work titled "Social Solidarity Groups - Contemporary Intellectuals", which includes the functioning and application of this approach within a model, is about to be completed.

The thesis was published preserving the form and content in which it was presented to the jury, and only the "Concept of Victim", which was explained in a large paragraph in the Introduction, was turned into an independent Chapter. We intend to publish the criticisms and contributions of those who review the work in the next editions of the book or in a separate edition, provided that we use our right of reply.

My dear professor Ord., who supervised this thesis. Prof. Dr. Here I would like to express my gratitude to Sulhi Dönmezer. Without his encouragement and support, this work would not have been possible.

It has been an honor for me to publish their report on the thesis here with their permission. Also, my jury member professor, Prof. Dr. Erol Cihan also allowed the publication of his report evaluating the thesis. I would like to take this opportunity to thank them.

Even though I am working in Izmir, I would like to thank my teacher, Prof., Head of the Public Administration Department of the Faculty of Economics and Administrative Sciences, who fully supported the completion of the thesis at Istanbul University Faculty of Law. Dr. I am grateful to Mehmet Ali Göktaş, to the academic partners of Akevler Akdeniz Scientific Research Center, who created a scientific study and discussion environment, and especially to Yuc, from whom I took Usul-ı Fiqh lessons, and who shed light on my work with his criticism and contributions. Eng-Süleyman Karagülle, Head of the Center, Assoc. Dr. Arif Ersoy, my colleagues in the Public Administration Department with whom I discussed the issue from time to time, and Asst. Assoc. Dr. I would like to thank Şükrü Karatepe.

By the way, I would like to express my gratitude to M. Ali Türeli, the owner of Anadolu Printing Company, and the Printing House Staff, who contributed to the printing of the thesis and worked meticulously.

Izmir, January 1988.

Asst. Assoc. Dr. Suleyman AKDEMIR

EVALUATION-1

I examined the doctoral thesis titled "Protection of Victims in Criminal Law" written by Süleyman Akdemir. My opinions are presented below:

1. The subject of the thesis reflects one of the most important current problems in terms of contemporary crime politics and penal system practice. Indeed, for the last five or six years, the protection of victims in criminal law has been one of the issues that has occupied all countries. As a matter of fact, the special expert commission, which was established in 1983 within the decision-making authority of the Committee of Ministers of the Council of Europe and was asked to make recommendations to determine the contributions of the public to criminal policy, in its report, discusses the protection of the victim as one of the basic principles of a crime policy regarding crime prevention and re-socialization of criminals, and this considers the issue as one of the basic options of contemporary crime politics. In this respect, the subject of the thesis is truly current and in this respect, the thesis constitutes a "contribution" to the law of our country both theoretically and practically.

2. The language of the thesis reflects a clean, moderate, middle-of-the-road Turkish that is rare in younger generations today.

3. The thesis has been discussed and examined within a reasonable and balanced plan.

4. In the thesis, Turkish and especially English works on the subject have been reflected almost completely, within the framework of the resources provided by our libraries and with the contribution of our personal library.

Conclusion: The thesis, which reflects the author's own thoughts on various subjects, can be considered an original work.

Ord. Prof. Dr. Sulhi Dönmezer

EVALUATION 2

I examined the Doctoral Thesis titled "Protection of Victims in Criminal Law" written by Süleyman Akdemir. My opinion on this issue is presented below.

1. Selecting the topic:

The subject is related to the General Department of Penalty and a newly started area of Criminology; This issue has never been covered or left insufficient in Criminal Law until recently. There is a current research and analysis topic in the Western Criminal Law literature today.

2. Scientific method and plan of the subject:

The thesis consists of 3 main chapters and there is also an introduction. In the First Part, the historical development of the protection of the victim, in the Second Part, the protection of the victim in Contemporary Criminal Law, and in the Third Part, the inadequacy of the Institutions and suggestions are examined.

(First Part: 26-71), (Second Part: 72-110), (Third Part: 111-131) display a balanced organic integrity.

3. Bibliography:

Turkish, Italian and English sources were used in the thesis. There is a rich bibliography on this subject.

4. Footnotes:

Rich footnotes are visible; It is compatible with scientific honesty in terms of form.

5. Conclusion: The author followed the path of solving legal problems with scientific method. Of course, whether the solutions are accurate or not may lead to debate. The author tries to find solutions to today's problems by modernizing Islamic institutions by making use of them.

Prof. Dr. Erol CİHAN

ENTRANCE

1 — “For many years, Criminal Law and Procedure dealt with the perpetrator in theoretical and practical terms, and the entire legal order, in a way, pursued the aim of determining the rights of the perpetrator of the crime. However, it is known that the main purpose of the penal practices of primitive societies is the satisfaction of the victim and compensation for the damages he suffered. Since the 1950s, it began to be accepted again that the rights of crime victims should be included in criminal law. The truth of the matter is that the criminal justice system does not operate at ideal levels, it serves itself and continues to disturb the victim like a wheel spinning in vain. Therefore, especially for Turkey, it is necessary to consider and propose other institutions and methods instead of traditional methods. We are of the opinion that compensating the victim for the damage caused by the crime constitutes an obligation for the State. The state must compensate the damages of crime victims through an "institution" it will establish. However, although this is the basis that will provide an answer to the problem, it is necessary to organize the issue separately in terms of various aspects and answer some questions. (one)

Dear Professor Ord. Prof. Dr. These sentences taken from Sulhi DÖNMEZER's relevant article and book point to the essence of the subject we will examine in our doctoral study.

2 — Our choice of such a topic as a thesis study is based on various reasons. We can briefly reflect these as follows:

The issue of Victim Protection in Contemporary Criminal Law first came to the fore in the West. Since the 1940s, studies on crime victims have given rise to a new branch of Criminology called Victimology (2). With the influence of Victimology, the classical understanding of the concept of victim in Criminal Law began to change (3). On the other hand, British female writer Margery Fry's article in 1957, pointing out the obligation of the State in compensating the damages of Crime Victims, brought the idea of the obligation of the State in the matter of protecting the victim up to date (4). The change in understanding that occurred after pointing out the State's obligation in Criminal Law to compensate the victims for their damages, affected the legislative bodies in various countries and resulted in new regulations regarding the protection of the victims (5). The issue of victims and their protection began to be discussed in International Congresses, the Council of Europe also carried out active activities on the issue and finally opened the "European Convention on Compensation for Victims of Violent Crimes" for signature by member states (6).

Before choosing the subject "Protection of the Victim in Criminal Law" as our doctoral thesis, we conducted a research on "Crimes of Neglect of Duty in the Turkish Penal Code", and in this research, while examining the issue of "causality of the negligent act", we saw that the "causality bond" was systematically examined in Islamic Law. In the meantime, we examined the institutions of "akile" and "kasâme", which are two basic institutions for the protection of the victim in Islamic Criminal Law, because they attracted our attention. Dear Professor Ord. Prof. Dr. Sulhi DÖNMEZER's pointing out the need to establish an "institution" for the protection of the victim in his articles titled "The Relationship between the State and the Victim of Crime" motivated us to investigate whether the institutions of akile and kasâme would make any contribution to the issue of protecting the victim.

In order to understand the Islamic Legal System, it was necessary to focus on "Usul Fiqh", which forms the basis of the system. When we contacted a group of friends who were working on this issue, we saw that they had established a Cooperative, were looking for answers to such issues in practice, and were even able to come up with some solutions. There was an accidental death, and the compensation was borne jointly by the cooperative partners. Moreover, the carpenter's workshop belonging to one of the enterprises affiliated with the cooperative burned down, and the damage was compensated by sharing it among the other enterprises affiliated with the cooperative. Likewise, a traffic accident occurred and the damage was covered by a special sharing method (7).

All these reasons and justifications enabled us to choose the subject of "Protection of Victims in Criminal Law", which is a current, dynamic and solution-seeking issue, as our doctoral thesis. The subject of our thesis was discussed by Mr. Ord. in accordance with Article 29 of the Istanbul University Faculty of Law Doctoral Regulations. Prof. Dr. We submitted it to Sulhi DÖNMEZER for approval and continued our work by taking the advice and directives that they found useful.

3 - While preparing the thesis, we first focused on the institutions that protect the victims today, and it was seen that the inadequacy of the existing traditional and indirect institutions and the opinions put forward as a result of this insufficiency and the practices in various countries do not bring a radical solution to the issue of protecting the victims. For this reason, suggestions have been tried to be made to eliminate the deficiencies and shed light on future studies. Legal History and Sociology were used while putting forward the suggestions. Indeed, throughout history, the protection of victims and the reparation of damages have been within the social group and society to which the individual belongs. Groups based on blood and kinship ties in the primitive period have created new groups based on contract with the evolution of humanity. At this stage, it required us to investigate the answers to the questions of what contemporary groups could be like and what kind of responsibility they could have in protecting the victim.

The examination of social groups in history began by examining the way Islamic Law resolved the issue. The fact that the solutions realized through the institution of reason in Islamic Law showed similar characteristics in Roman Law, Old Law systems and the primitive period has confirmed our view that the issue of protecting the victim can be approached in a similar way today. Although all people are brothers, the people they relate to are their relatives, the groups they belong to and the society they live in. For this reason, suggestions targeting the grouping phenomenon have been put forward in order to protect the victim, taking into account the evolution of individuals, social groups and society throughout history.

4 —Our thesis consists of an introduction, four chapters and a conclusion. The definition of the concept of victim is of particular importance in determining the scope of the study. For this reason, in the First Chapter, a definition of the concept of victim is given, taking into account its meanings in other branches of law. In the Second Chapter, "Historical Development of Victim Protection" is explained based on the definition of the concept of victim. While the developments in Primitive Periods, Ancient Legal Orders, Roman Law and Islamic Law are explained, the institutions that protect the victims are mentioned. The Third Chapter is devoted to the subject of "Protection of the Victims in Contemporary Law". In the First Paragraph, «Traditional and Indirect Institutions Ensuring the Protection of the Victim»; In the Second Paragraph, "Direct and Indirect Institutions Effective on the Protection of the Victim"; In the Third Paragraph, "New Regulations on the Protection of Victims" and in the Fourth Paragraph, "Protection of Victims in Turkey" were examined.

The Fourth Chapter is titled "The Inadequacy of the Procedures and Institutions Protecting the Victims and Recommendations on This Subject". Today, procedures and institutions aimed at protecting the victim are insufficient to achieve this aim. In order to eliminate this inadequacy, alternative views have been put forward in various countries to make payments within the "Fund System", "Private Insurance" and "Social Security System". When these systems are evaluated in terms of the developed "Micro Balance", "Macro Balance", "Equality of Opportunity and Opportunity" and "Justice" criteria, they are limited to a partial solution, and they also encourage crimes in the field of Criminal Law and therefore have a deep-rooted effect on the problem. and it was seen that they could not provide a permanent solution. However, all these developments have made important theoretical and practical contributions to the issue of victim protection.

Then, suggestions were made regarding the protection of the victim. The suggestions in question have been put forward by determining the stage that the State has reached today and the place of this stage in the issue of victim protection, based on the historical origin of the protection of the victim. It has been pointed out that the protection of the victim can be achieved through an institution in the nature of a social group established by the state, and some determinations have been made about this institution. Recommendations in the field of Criminal Law are based on the definition of the concept of victim and some features are emphasized. In addition to the victimization of the state and the individual, it has also been suggested to introduce the concept of community victimization.

As a result, the synthesis of the review was made. Moreover, since the issue of Victim Protection is closely related to the functioning of the State and the Social Institutions that constitute it, it is emphasized that it is difficult to address it in its entirety in a doctoral thesis limited only to Criminal Law, and it is also pointed out that the issue can be completely resolved with a synthesis after studies in other related fields.

FOOTNOTES;------------------------------------------------ --------------------------------------1-Dönmezer, S., The Relationship between the State and the Crime Victim , Onar Armağanı 1977, p. 179 et seq.; Dönmezer - Erman, Theoretical and Applied Criminal Law, Istanbul 1981, 1148.2-Drapkin, I. -Viano, E., (Eds.) Victimology: A New Focus, 1. ISV, I, London 1974 p. IX; Schneider, H.J., The Present Situation of Victimology in the World, III. ISV, 1979 Munster/Westfalia, Schneider, HJ (ed) The Victim in International Perspective, New York, 1982, p. 11th; Dönmezer, S., Criminology, Istanbul, 1981, p. 44(3) Sengstock, MC - Liang, J., Elderly Victims of Crime, A Refinement of Theoryin Victimology, III, İSV, Schneider (ed), p. 117(4) Edelhertz, H. . Geis, G., Public Compensation to Victims of Crime, Washington, 1975, p. 10(5) Edelhertz-Geis, 11(6) See: Tsitsoura, A., The European Convention on the Compensation of Victims of Violent Crimes, Towards a Victim Policy in Europe (Seminar, 31 Oct. – 2 Nov. 1983 Espoo - Finland) Helsinki 1984 p. 113; For the explanation of the contract, see: Council of Europe, Explanatory Report on the European Convention on the Compensation of Victims of Violent Crimes, Strasbourg, 1984. (7) The name of the Cooperative in question is "Limited Liability Akevler Credit and Assistance Cooperative" and has been in operation since 1967. The cooperative has over 1500 partners. 5 branches and headquarters of the cooperative are in Izmir. In addition, there are also construction enterprises, printing enterprises, olive oil factories, publishing enterprises, studies-plans-projects and Research Units in which the Cooperative participates as a service partner. We would like to make some brief excerpts from the articles of the Articles of Association and the cooperative activity reports, as they are related to our subject and to introduce the Cooperative. Article 78 of the Cooperative Articles of Association, titled "Insurance", states that "within the partnership community, all «goods and lives are insured» with the principles of surety, cooperation and solidarity. There are. This is based on the «development of the insurance system». In this respect, any insurance that is not 'obligated' by law cannot be taken out 'individually'. It was envisaged that a private insurance system would be developed by stating that "a union can only be established by other partnerships". In Article 3 of the Cooperative Articles of Association, the "purpose" is stated as "a- The purpose of the partnership is to bring together people who can get along with each other in working and living and to realize economic, social, scientific and moral "solidarity" and cooperation among them. , will serve the circulation of the values in which it participates as a service partner in Ordinary Partnerships belonging to commercial, agricultural, building, residential and mining enterprises. Since we consider it relevant to our subject, we find it appropriate to write the reasons for the establishment of the partnership from the 1971 activity report of the Cooperative: 1- "There are many legislation and regulations in our society. Due to custom, small entrepreneurs do not know the business procedures and cannot employ qualified personnel because they do not have enough power. Therefore, many correspondences and agreements are either not made at all or are executed incorrectly. 2- Again, since many tax laws are so complex that even a good expert cannot understand, accounting issues frighten small entrepreneurs. Failure to develop due to the preparation of fake business books or completely secret work instead of serious and real accounting constitutes one of our most obvious sad problems. 3- If small entrepreneurs stop their enterprises, they dispose of the goods they have at a very low cost because they cannot find a place to protect them. In partnerships, registration processes do not work when the partners are responsible, and when one of them is registered, the rights of the others are endangered. 4- Small entrepreneurs are deprived of the opportunity to "defend" their rights in the courts, and lawyers do not deal with such small businesses. In fact, the courts (cases) that last for "years" do not provide the slightest benefit to small entrepreneurs in terms of getting their rights. 5- Almost no "loan" is given to small entrepreneurs from official banks, big borrowers exploit them. Since they are not recognized in the market, they do not have personal loans and therefore they cannot start a business. They are deprived of the opportunity to do so. 6- In order to establish both capital and business partnerships, business and capital owners fall into the arms of capitalists and moneylenders because they do not "know" each other. 7- Small entrepreneurs lack the opportunity and advertising power to "promote" their goods. 8- Small entrepreneurs do not know the trading practices. For this reason, conflicts often arise between them, but they cannot find an authority to resolve them. What benefit can a "case" that will be settled "years" later be for the entrepreneur, other than causing a lot of trouble? 9- Entrepreneurs who have established a partnership by combining their small capital are deprived of "control" of their business because they are not competent. They cannot employ "technical" personnel because they do not have enough resources. 10- In addition to their personal wealth, large entrepreneurs have also secured their lives with retirement and insurance opportunities. However, small entrepreneurs face the danger of hunger every day. Under these conditions, small entrepreneurs disappear in Turkey and instead, either exploitative capitalists fed with European credits or a group of workers looking for work on the streets of Europe because they cannot feed themselves emerge. This situation poses a great danger for the future of Turkey. The founders, who have experienced all this, found a positive and valid solution in establishing a "partnership" that will solve the "issues"...", 1971 activity report of the Cooperative.

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