Attempt, Complicity, and the Concurrence of Crimes in Respect of Foreign Nationals
Within the territorial jurisdiction and judicial authority where the Turkish Penal Code (TPC) applies, the fact that either the offender or the victim is a foreign national directly affects the application of the fundamental institutions of criminal law theory. Globalization, migration, international trade, and tourism have increasingly brought criminal cases involving foreign elements before Turkish judicial authorities.
In this context, the application of the legal concepts of attempt, complicity, and the concurrence of crimes with respect to foreign nationals must be examined within the framework of the principles of international criminal law, the territorial application provisions of the Turkish Penal Code (Articles 8 et seq.), and international human rights standards.
CHAPTER ONE
Applicable Law and Jurisdiction in Crimes Involving Foreign Elements
When a foreign national commits a crime in Türkiye or when foreign nationals participate in a criminal act through complicity, the first issue to be determined is whether Turkish courts have jurisdiction over the matter.
Pursuant to Article 8 of the Turkish Penal Code, Turkish criminal law applies to crimes committed within the territory of Türkiye under the principle of territoriality.
Where a foreign offender attempts to commit a crime in Türkiye, participates in an organized criminal enterprise together with other foreign nationals, or commits a series of offenses, the general provisions of the Turkish Penal Code concerning attempt, complicity, and concurrence of crimes apply without distinction.
However, the international dimension of the case may give rise to specific legal considerations regarding the offender’s legal status, interpretation rights, and the determination of the constituent elements of the offense.
CHAPTER TWO
The Institution of Attempt with Respect to Foreign Nationals
1. Criminal Intent and the Issue of Cultural or Legal Unawareness
The essential element of criminal attempt is that the offender begins the execution of the offense through suitable acts with the intention of committing the crime.
A foreign national’s lack of complete knowledge regarding Turkish legislation, customs, or criminal law norms may become relevant when assessing criminal intent during the attempt stage.
Mistake of Law (Article 30/4 of the Turkish Penal Code)
If a foreign offender commits in Türkiye an act that is not considered a crime—or is regarded merely as a minor administrative offense—in their home country, they may fall into an unavoidable mistake concerning the unlawfulness of their conduct.
For example, where conduct such as violating certain commercial regulations or using narcotic substances is legally tolerated or punished only by an administrative fine in another country but constitutes a serious criminal offense in Türkiye, the existence and intensity of the offender’s criminal intent during the attempt stage may become a matter of legal assessment.
Suitability of the Means Used
When determining whether the instruments brought into Türkiye or obtained by a foreign offender are suitable for committing a particular offense under Turkish law, the competent authorities evaluate the relevant technical and factual circumstances of the case.
2. Incomplete and Complete Attempt in an International Context (Cross-Border Elements)
In offenses involving foreign nationals, whether an attempt is classified as incomplete or complete frequently depends on external factors such as deportation proceedings, the necessity of leaving the country, or the early intervention of law enforcement authorities.
Illustrative Example
A foreign tourist packages a historical artifact with the intention of smuggling it abroad and delivers it to a cargo company. Before the package leaves Türkiye, customs officials detect and seize it.
In this situation, there is a complete attempt, because the offender has completed all acts necessary to execute the offense, yet the intended result—the unlawful exportation of the artifact—does not occur due to circumstances beyond the offender’s control.
If, however, the offender had been apprehended by the police while merely preparing the package before handing it over to the cargo company, the provisions governing an incomplete attempt would apply.
In practice, many criminal plans involving foreign offenders remain at the attempt stage near border crossings due to law enforcement intervention before departure from Türkiye.
CHAPTER THREE
Complicity with Respect to Foreign Nationals
An examination of crimes involving foreign nationals reveals that many are committed within the context of organized criminal activities, including:
- International drug trafficking,
- Migrant smuggling,
- Human trafficking,
- Transnational organized crime.
By their very nature, such offenses generally require the participation of multiple individuals.
1. International Co-Perpetration and Criminal Organizations
Within criminal organizations formed by foreign nationals, relationships of complicity frequently extend across national borders.
Co-Perpetration (Article 37 of the Turkish Penal Code)
Individuals of different nationalities who cooperate in migrant smuggling—for example, an organizer, a boat captain, and an intermediary—are each considered co-perpetrators, since they exercise joint control over the execution of the offense.
The fact that a foreign participant does not speak Turkish or does not personally perform every act constituting the offense does not eliminate their criminal responsibility if they played a decisive role in planning or controlling the crime.
Indirect Perpetration and the Status of Victims
In human trafficking cases, individuals who deceive foreign women or workers into entering Türkiye and subsequently coerce them into prostitution or criminal activity are regarded as indirect perpetrators.
The trafficked persons themselves may be exempt from criminal liability where their capacity to make free and voluntary decisions has been eliminated through coercion, deception, or exploitation.
2. Accomplice Liability (Instigation and Aiding) and Language/Communication Barriers
Where a foreign national instigates another foreigner or a Turkish citizen to commit a crime, or provides assistance in the commission of an offense, the rules governing criminal participation under the Turkish Penal Code apply in full.
Instigation
If a foreign national in Türkiye commits a crime upon the instructions of a person located in their home country or in another foreign jurisdiction, the person who instigated the offense may become subject to international criminal cooperation mechanisms, including the issuance of an Interpol Red Notice or other international arrest procedures, where the legal conditions are satisfied.
The physical absence of the instigator from Türkiye does not eliminate criminal liability where the offense falls within the jurisdiction of Turkish courts.
Aiding and Abetting
Where a foreign national supplies the instruments used in the commission of a crime, provides accommodation, transportation, logistical support, or otherwise facilitates the commission of the offense, the provisions of Article 39 of the Turkish Penal Code concerning aiding and abetting shall apply.
In practice, cultural ties, family relationships, ethnic communities, or informal solidarity networks among foreign nationals may occasionally facilitate organized forms of criminal assistance. Nevertheless, criminal liability is determined solely on the basis of the legal elements of the offense and the individual’s contribution to its commission, regardless of nationality or cultural affiliation.
3. The Principle of Dependency and the Legal Status of Foreign Offenders
Whether the principal offender is a foreign national, lacks criminal capacity, or is subject to different legal standards in their home country does not, by itself, alter the application of the principle of dependency under Article 40 of the Turkish Penal Code.
For an accomplice tried before Turkish courts to incur criminal liability, it is sufficient that the principal act constitutes an intentional and unlawful offense under Turkish law.
Accordingly, differences between the criminal laws of Türkiye and the offender’s country of nationality—such as variations regarding the age of criminal responsibility or rules concerning mental incapacity—do not prevent the application of Turkish criminal law where Turkish courts have jurisdiction.
CHAPTER FOUR
The Concurrence of Crimes in Respect of Foreign Nationals
The rules governing the concurrence of crimes require particular attention when prosecuting foreign nationals who commit multiple offenses or whose single act gives rise to more than one criminal offense.
The application of these rules directly affects sentencing, the execution of criminal penalties, and, where applicable, subsequent administrative measures such as deportation.
1. Real Concurrence of Crimes and Its Impact on Deportation
Where a foreign offender commits multiple independent offenses in Türkiye at different times, the rules governing real concurrence of crimes apply, and separate penalties are imposed for each offense in accordance with the Turkish Penal Code.
As a result, the aggregate sentence may substantially increase the offender’s period of imprisonment.
Following the execution of the sentence, foreign nationals are frequently subject to deportation proceedings under the Law on Foreigners and International Protection (Law No. 6458).
Longer prison sentences resulting from real concurrence may also lead to:
- Longer entry bans into Türkiye,
- The imposition of administrative restriction codes,
- In certain circumstances, permanent restrictions on re-entry.
2. Chain Offenses (Article 43 of the Turkish Penal Code) and Foreign Offenders
A foreign national who repeatedly commits the same offense pursuant to a single criminal intent may be prosecuted under the provisions governing chain offenses.
For example, a foreign national who repeatedly uses forged passports or identity documents while entering Türkiye or extending an unlawful stay may, depending on the circumstances, be prosecuted under Article 43 of the Turkish Penal Code.
However, Turkish courts carefully examine whether the repeated acts truly originate from a single criminal decision.
Whether each act resulted from a separate and independent decision or from one continuing criminal intent is decisive in determining the applicability of the chain offense provisions.
3. Ideal Concurrence of Crimes (Article 44 of the Turkish Penal Code): Practical Examples
Cases involving foreign nationals frequently present situations in which a single act simultaneously constitutes more than one criminal offense.
Illustrative Example
A foreign national apprehended in Türkiye while using a forged passport may simultaneously commit:
- The offense of Forgery of an Official Document under Article 204 of the Turkish Penal Code, and
- Offenses arising from unlawful entry into Türkiye or violations of the Law on Foreigners and International Protection (Law No. 6458).
In such circumstances, Turkish courts apply the principle of ideal concurrence of crimes, under which the offender is punished only for the offense carrying the most severe penalty—typically the offense of forgery of an official document.
This approach reflects the principles of legal certainty, proportionality, and fairness by preventing multiple punishments for essentially the same wrongful conduct.
CHAPTER FIVE
Special Procedural Issues and Practical Considerations
When foreign nationals are prosecuted under the rules concerning attempt, complicity, and the concurrence of crimes, several procedural safeguards deriving from the right to a fair trial must be observed.
Right to an Interpreter
Where the accused or any co-defendant participating in the proceedings does not possess sufficient knowledge of the Turkish language, the presence of a qualified sworn interpreter throughout both the investigation and prosecution stages is mandatory to safeguard the right to defense.
Accurately determining issues such as:
- the offender’s criminal intent during the attempt stage,
- the allocation of roles among accomplices,
- statements made during investigation and trial,
depends upon accurate and complete interpretation.
Failure to provide adequate interpretation may constitute a violation of the right to a fair trial under both Turkish constitutional law and the European Convention on Human Rights.
Consular Notification
If a foreign national is arrested or taken into police custody in Türkiye, the competent authorities are generally required to notify the relevant embassy or consulate in accordance with the Vienna Convention on Consular Relations, provided that the applicable legal requirements are met and the individual’s rights under the Convention are respected.
Consular authorities may assist the detained individual by facilitating communication, providing information regarding local legal procedures, and helping ensure access to legal representation, without interfering with the independence of the judicial process.
CHAPTER SIX
Conclusion
The legal institutions of attempt, complicity, and the concurrence of crimes established under the Turkish Penal Code apply equally to all individuals, regardless of nationality. This reflects the fundamental principles of equality before the law and territoriality, which constitute the cornerstone of Turkish criminal law.
Nevertheless, when foreign nationals are involved, the practical application of these legal institutions often intersects with additional considerations, including transnational criminal networks, language and cultural barriers, mistakes of law, international judicial cooperation, and administrative measures such as deportation following the execution of criminal sentences.
Accordingly, Turkish judicial authorities must not only apply the general provisions of the Turkish Penal Code accurately and consistently but must also ensure full respect for universally recognized fair trial guarantees, international human rights standards, and Türkiye’s obligations arising from international treaties.
Achieving this balance is essential both for the effective administration of criminal justice and for maintaining legal certainty, equality before the law, and compliance with international legal principles in cases involving foreign nationals.
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