1. Introduction
International criminal law deals with one of the most important questions in cross-border criminal cases: which state has the authority to investigate, prosecute and punish a crime? In a globalized world, criminal acts often have connections with more than one country. A fraud may be organized in one country, the victim may be in another country, the money may be transferred through a third country, and the suspect may later be found in Turkey. For this reason, the jurisdiction of states in criminal matters has become a central issue in modern criminal law.
Criminal jurisdiction is closely connected with state sovereignty. As a general rule, every state has the right to punish crimes committed within its territory. However, international criminal law recognizes that states may also exercise jurisdiction over crimes committed abroad in certain circumstances. These circumstances may depend on the nationality of the offender, the nationality of the victim, the interests of the state, or the seriousness of the crime for the international community.
Under Turkish law, the scope of application of Turkish criminal law is mainly regulated under Articles 7-19 of the Turkish Criminal Code No. 5237. Article 8 of the Turkish Criminal Code provides that Turkish laws apply to crimes committed in Turkey. It also states that if the act is committed partially or wholly in Turkey, or if the result occurs in Turkey, the crime is deemed to have been committed in Turkey.
Therefore, the main question in international criminal cases involving Turkey is whether the criminal act has a sufficient legal connection with Turkey. This connection may arise from the place of the crime, the nationality of the offender, the nationality of the victim, the harm caused to the Turkish State, or the nature of the crime itself.
2. Main Principles of State Jurisdiction in Criminal Law
The jurisdiction of states in international criminal law is generally explained through five principles: territoriality, active personality, passive personality, protective jurisdiction and universal jurisdiction. These principles determine when a state may apply its criminal law to a particular act.
3. Territorial Jurisdiction
Territorial jurisdiction is the most fundamental principle of criminal jurisdiction. According to this principle, the state where the crime is committed has the authority to prosecute and punish the offender. In Turkish law, this principle is reflected in Article 8 of the Turkish Criminal Code.
A crime does not need to be fully completed in Turkey for Turkish jurisdiction to arise. If part of the act takes place in Turkey or the harmful result occurs in Turkey, the crime is deemed to have been committed in Turkey. This rule is highly important in cybercrime, online fraud, cross-border threats, international commercial crimes and digital evidence cases.
For example, if a person located abroad defrauds a victim in Turkey through online communication, Turkish authorities may have jurisdiction because the harmful result occurred in Turkey. Similarly, if forged documents are prepared or used partly in Turkey, Turkish criminal law may become applicable even if some elements of the offence occurred abroad.
Turkish law also extends territorial jurisdiction to Turkish land, airspace, territorial waters, Turkish vessels and aircraft, Turkish military vessels and aircraft, and certain fixed platforms located on Turkey’s continental shelf or exclusive economic zone. This is particularly relevant for maritime crimes, aviation offences, international transport and offshore energy facilities.
4. Active Personality Principle: Crimes Committed Abroad by Turkish Citizens
The active personality principle allows a state to prosecute its own nationals for crimes committed abroad. Under Article 11 of the Turkish Criminal Code, a Turkish citizen who commits a crime abroad may be punished under Turkish law if certain conditions are met. The offence must generally require a minimum prison sentence of at least one year under Turkish law, the offender must be present in Turkey, no judgment must have been rendered abroad, and the offence must be prosecutable in Turkey.
This principle is important for Turkish citizens living, working or travelling abroad. However, a Turkish citizen is not automatically prosecuted in Turkey for every offence committed abroad. The legal requirements must be carefully examined. These include the minimum sentence, the existence of a foreign judgment, the presence of the offender in Turkey and, in some cases, the complaint of the victim or the foreign government.
If the minimum sentence is less than one year, prosecution depends on the complaint of the injured person or the foreign government. In that case, the complaint must be filed within six months from the date the Turkish citizen enters Turkey.
5. Crimes Committed Abroad by Foreigners
Article 12 of the Turkish Criminal Code regulates the conditions under which a foreigner may be tried in Turkey for a crime committed abroad. This provision is one of the most practical rules in international criminal law, because the offender may be foreign, the crime scene may be abroad, but the crime may harm Turkey, a Turkish citizen or a Turkish legal entity.
If a foreigner commits abroad an offence against Turkey that requires a minimum prison sentence of at least one year under Turkish law, and the offender is present in Turkey, Turkish law may apply. However, prosecution in this situation depends on the request of the Minister of Justice.
If the crime is committed against a Turkish citizen or a private legal entity established under Turkish law, the offender may be tried in Turkey if the offender is present in Turkey, no foreign judgment has been rendered, and the victim files a complaint.
This rule may apply in cases such as fraud committed against Turkish citizens abroad, assault, threats, breach of trust, commercial crimes or cross-border financial offences. However, each case must be assessed separately.
6. Protective Principle
The protective principle allows a state to exercise criminal jurisdiction over acts committed abroad that threaten its national security, sovereignty, public order or essential state interests. This principle is especially relevant for offences against state security, constitutional order, espionage, terrorism, counterfeiting, bribery and certain organized crimes.
In Turkish law, Article 13 of the Turkish Criminal Code lists several offences for which Turkish law may apply even when the crime is committed abroad by a citizen or a foreigner. These include torture, intentional pollution of the environment, drug trafficking, counterfeiting money, prostitution, bribery and hijacking of sea, railway or air transport vehicles.
The protective principle reflects the idea that a state must be able to protect itself against serious criminal acts that target its essential interests, even when those acts are committed outside its territory.
7. Passive Personality Principle
The passive personality principle is based on the nationality of the victim. Under this principle, a state may claim jurisdiction when one of its citizens is the victim of a crime committed abroad.
In Turkish law, this principle appears mainly in Article 12/2 of the Turkish Criminal Code. If a crime is committed abroad against a Turkish citizen or a Turkish private legal entity, Turkish courts may have jurisdiction if the offender is present in Turkey, no foreign judgment has been rendered, and the victim files a complaint.
This rule is particularly important for Turkish citizens living abroad, tourists, international investors and victims of cross-border fraud. However, Turkish jurisdiction is not automatic. The presence of the offender in Turkey, the lack of a foreign judgment and the complaint requirement must be carefully examined.
8. Universal Jurisdiction
Universal jurisdiction is based on the idea that some crimes are so serious that they harm the international community as a whole. Therefore, a state may prosecute such crimes even if the crime was not committed in its territory and neither the offender nor the victim is its national.
The International Committee of the Red Cross explains universal jurisdiction as a tool that allows states to prosecute offenders even without a direct link between the crime and the prosecuting state. Its purpose is to prevent impunity and to stop perpetrators of serious crimes from finding a safe haven in third countries.
Universal jurisdiction is especially important in relation to war crimes, genocide, crimes against humanity, torture and other serious violations of international humanitarian law. In Turkish law, Article 13 of the Turkish Criminal Code contains a domestic reflection of this idea for certain listed offences.
9. International Criminal Court and Turkey
The International Criminal Court is a permanent international criminal court established to prosecute the most serious crimes of concern to the international community. The Rome Statute emphasizes that the ICC is complementary to national criminal jurisdictions, meaning that national courts have the primary responsibility to prosecute international crimes.
The principle of complementarity means that the ICC does not automatically replace national courts. According to the United Nations explanation, the ICC may act only when national courts are unwilling or unable to genuinely investigate or prosecute.
Turkey has a specific position in relation to the ICC. According to the Turkish Ministry of Foreign Affairs, Turkey is not a party to the Rome Statute, which is the founding treaty of the International Criminal Court. Therefore, Turkey’s approach to international criminal law is mainly shaped by the Turkish Criminal Code, the Criminal Procedure Code, Law No. 6706 on International Judicial Cooperation in Criminal Matters, and applicable bilateral or multilateral treaties.
10. International Judicial Cooperation and Extradition
Having jurisdiction is not always sufficient in international criminal cases. Evidence may be located abroad, the suspect may be in another country, witnesses may live outside Turkey, or financial records may be held by foreign institutions. For this reason, international judicial cooperation is crucial.
Law No. 6706 on International Judicial Cooperation in Criminal Matters regulates the procedures and principles of criminal cooperation with foreign states. Its purpose is to provide the legal framework for international cooperation in criminal matters, while preserving the application of international treaties to which Turkey is a party.
In practice, international cooperation may include taking witness statements, obtaining documents, collecting banking records, securing digital evidence, search and seizure requests, extradition, temporary arrest and transfer of sentenced persons. In cybercrime, international fraud, money laundering and organized crime cases, the effectiveness of international cooperation may directly determine the success of the case.
11. Deduction of Foreign Detention Periods and Consideration of Foreign Law
Article 16 of the Turkish Criminal Code provides that time spent in custody, detention, observation or imprisonment abroad for the same crime shall be deducted from the sentence imposed in Turkey. This rule is important to prevent unfair double punishment in cross-border cases.
Article 19 of the Turkish Criminal Code also provides that, as a general rule, when a crime committed outside Turkish territory is tried in Turkey, the sentence imposed under Turkish law may not exceed the maximum penalty provided under the law of the country where the crime was committed. However, this limitation does not apply if the crime was committed against the security or interests of Turkey, against a Turkish citizen, or against a private legal entity established under Turkish law.
12. Conclusion
The jurisdiction of states in international criminal law cannot be determined only by looking at the physical place where the crime was committed. The nationality of the offender, the nationality of the victim, the interests of the state, the seriousness of the crime, the presence of the offender in Turkey, the existence of a foreign judgment, complaint requirements and ministerial authorization may all be relevant.
Under Turkish law, Articles 8-13 of the Turkish Criminal Code provide the main framework. Article 8 regulates territorial jurisdiction. Article 11 concerns crimes committed abroad by Turkish citizens. Article 12 concerns crimes committed abroad by foreigners when there is a connection with Turkey, Turkish citizens or Turkish legal entities. Article 13 provides for the application of Turkish law to certain serious offences committed abroad.
For this reason, every cross-border criminal case must be assessed individually. In cases involving international fraud, crimes against Turkish citizens abroad, drug trafficking, counterfeiting, bribery, cybercrime, terrorism or organized crime, professional legal assistance is essential for determining jurisdiction, collecting evidence and initiating the correct legal procedure.
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