GROUNDS OF

JUSTIFICATION
 STATE OF NECESSITY (TPC ARTICLE 25/2)
Legitimate Defence and Necessity
Article 25
(2) No penalty shall be imposed upon an offender in respect of acts
which were committed out of necessity, in order to protect against a
serious and certain danger (which he has not knowingly caused) which
was directed at a right to which he, or another, was entitled and where
there was no other means of protection, provided that the means used
were proportionate to the gravity and subject of the danger.
 STATE OF NECESSITY
 The basis of this reason for compliance with the law itself consists in the legal
recognition of the instinct of protection again.
 While arranging the state of necessity in the TPC, the definition of the state of
necessity that eliminates the illegality in the German Penal Code is taken as the
basis, but it is claimed by some authors that this is a reason that removes the
culpability according to the TPC, but not a ground for justification.
 Necessity is different from legitimate defense as the act is perpetrated against not
the attacker but against a third person who has nothing to do with the danger caused
and this innocent third party is being harmed in order to be protected from the
dangerous situation.
 Since this reason for compliance with the law is in the form of harming third
parties, its morality has also been the subject of discussion. Equitable compensation
can also be paid for the damage caused.
 STATE OF NECESSITY
 In order to be able to speak of a state of necessity,
 There must be a serious and imminent (severe and definite) danger. The cause of the danger can be
natural forces, animals or other humans. If the source is a human, here different from the legitimate
defence, the harm is given to a third person.
 The danger may be directed to any right. This right might belong to the perpetrator or to a third party. The
acknowledgment of the danger to all kinds of rights has made the situation of necessity in favor of others
extremely controversial..
 The perpetrator must not have knowingly caused the danger (no self-induced necessity). The source of
this is the thought that no one can claim rights based on their own fault. In order to benefit from the state
of necessity, perpetrator mustn’t have performed the conduct that was the cause of the danger. It is not
enough to know the action that causes the danger, the result must also be known. But it is sufficient to
foresee this result, it is not necessary to have wanted it. Thus, the person who caused the danger by intent
or adverent/conscious negligence cannot benefit from this situation. Inadverent/unconcious negligence
can be accepted so the negligent can benefit from the state of necessity.
 STATE OF NECESSITY
 For the protective conduct;
 The protedtive conduct should be mandatory in terms of actual protection. If the perpetrator is left
with the option of inflicting damage and bearing the damage, then there is an obligation to defend.
There must be a real inevitability here. As an innocent third person is being harmed, different from
the legitimate defense, this requirement is interpreted strictly for neseccity and the perpatrator cannot
benefit form the state of necessity when it was possible to escape from the danger without
committing a harmful act.
 Those who are obliged to confront the danger (fire man, police officer) cannot benefit from the state
of necessity saying that they are in a necessity condition and the protecting act is mandatory. Also in
order to save these persons, state of necessity in favor of the third party shall not be applied.
 The possible harm caused by the danger should be proportional to the harm inflicted by the
perpetrator. Damage caused may be equal to or less than the threatening damage (danger).
STATE OF NECESSITY
 Requirements regarding the danger: serious and
imminent danger, danger directed at a right, not
causing the danger knowingly
 Requirements regarding the protection: No other
option to be protected from the danger, no
obligation to confront the danger, proportionality
between danger and the act of protection,
 State of
Necessity

Requirements Requirements
Regarding Regarding
Danger Protection

Serious and Danger Not Causing No Obligation Proportionality

No Other Option
Between Fanger
Imminent Directed at a the Danger to be Protected to Confront the and the Act of
Danger Right Knowingly from the Danger Danger Protection
EXERCISE OF A RIGHT (USE OF A RIGHT)
(TPC ARTICLE 26/1)
Use of a Right and Consent
Article 26
(1) A person who exercises his right shall not
be subject to a penalty.
EXERCISE OF A RIGHT
 The legal order, which gives an authority to a person, gives this person's interest
superiority over other interests. In this respect, the conduct cannot be deemed to be
antisocial.
 Here a right is any right and can arise from any branch of law. The right can also arise
from an administrative act, a court decision, a legal action or even from a custom. In
order to talk about this ground of justification, the legal order should have allowed the
exercise of the recognized right, albeit implicitly, in a way otherwise that usually
constitutes a crime. In addition, the perpetrator should not have any other mandatory
remedy to use this right.
 The limits of the right can be understood from the entire legal order. The act of obtaining
a right by itself is no longer a crime, and the limits of this ground of justification have
been therefore expanded. However the right shouldn’t be abused.
 Some of these rights are the right to criticism, freedom of press, the right to enforce
discipline (TPC Art. 232), the protection of possession (Civil Code art. 981/I), immunity
of accusation and defence ( TPC Art. 128)
 CONSENT OF THE PERSON CONCERNED / VICTIM
(TPC ARTICLE 26/2)

Use of a Right and Consent

Article 26
(2) No penalty shall be imposed in respect of any act
committed as a result of the declared consent of another
person and provided that such person has the full
authority to give consent.
 CONSENT OF THE PERSON CONCERNED / VICTIM
 With some crimes where the absence of consent is sought, this situation is an element of the crime and consent is
not a ground of justification here. In some cases, although the type of crime is completed, consent removes the
illegality/unlawfulness. Art. 26/2 applies where the act is typical, but consent elimnates the negative element of
the crime.
 An opinion accepts consent as a legal transaction. However, the consent of the person to another to commit a
crime against himself is not a valid legal action. Moreover, in this case, the person must have the legal capacity to
act. Therefore, consent is a legal act. Acts committed as a result of consent are not punished, because there is no
social harm. On the other hand, if the state has an interest in protecting the legal object, consent cannot eliminate
the antisocial character of the act.
 Consent must be related to the rights that are owned and used in an absolute manner. The person giving consent
must be fully entitled. Rights granted by the state in order to guarantee the free enjoyment of individuals are rights
that can be freely used. Consent has no effect on crimes that directly concern the state. Consent is also ineffective
in terms of crimes against society and family. Of course, consent is valid in terms of rights related to property.
 It is forbidden for a person to give consent about his own body in a way that causes permanent weakness in
physical integrity, also about his/her right to live. However, physical intervention is allowed to a certain extent in
the Organ and Tissue Transplantation Law. Or you can have a tattoo or a piercing but you cannot let someone
ampute your arm when there is not any medical necessity. Consent for partial breach of honor is also valid.
 CONSENT OF THE PERSON CONCERNED / VICTIM
 Therefore, significant restrictions have been imposed on the removal of the unlawfullness by giving
consent, in terms of the benefit of the society.
 The person authorized to consent is the passive subject of the crime. If there is a definite advantage in
terms of the right holder, the consent of the representative may also be valid. Competence to consent
is determined according to the subject of consent (therefore on some occasions legal capacity is
sought for others not). The rules of the Civil Code on legal capacity do not apply, what matters is
whether the owner of the right is capable of comprehending the meaning and importance and the
consequences of using this right.
 Consent can be expressed in any way. It can be implicit or explicit. Presumed consent is also accepted
especially in medical cases, where it is not possible to obtain the consent of the concerned person.
Here his/her consent is presumed suggesting that if he/she knew the situation then also would allow
the process. Consent can be revoked at any time, it can be conditional. It must be given at least just
before the commision of the conduct and should be present during the time conduct is realised.
Immoral consent should be considered invalid. Also consent obtained by physical or psychological
coercion is invalid.
 Practice of the profession of medicine, sports activities, freedom of the press, banking activity are
examples.
EXCEEDING THE LIMITS OF
GROUNDS OF JUSTIFICATION (TPC
ARTICLE
Exceeding 27)
of Limits
Article 27
(1) Where the limits of criminal culpability are unintentionally exceeded
and the act was committed by recklessness and is subject to a penalty,
the penalty imposed, in respect of offences of recklessness, shall be
reduced by one-sixth to one-third.
(2) If the limits were exceeded in the course of legitimate defence as a
result of excitement, fear or agitation and can be regarded as excusable,
the offender shall not be subject to a penalty.
 EXCEEDING THE LIMITS OF GROUNDS OF
JUSTIFICATION
 The excess results from exceeding the proportionality requirement. If the limit is exceeded
consciously, then it is intentional, in which case Article 27 does not apply. If the person acting thinks
that he complies with the limit, but his mistake in this matter is due to not showing the necessary
attention and care, the excess is negligent. Then if the crime can be committed negligently, the
perpetrator will be held liable of it. He/she won’t be culpable if excessiveness has emerged despite
showing the necessary attention and care.
 Excess must be negligent (otherwise then intended then there is no room for a ground of justification).
In addition, in case of legitimate defense, if the limit is exceeded due to excitement, panic and fear, the
perpetrator won’t be punished. It's unclear why this is specific to legitimate defence. The excess results
from exceeding the proportionality requirement. However, the mistake is in assuming that these causes
exist. If the mistake is unavoidable, the person takes advantage of his mistake in accordance with Art.
30/3. If the mistake is not inevitable, then how the perpetrator will be punished is not written in the
law. In this case, the perpetrator should be punished negligently based on general principles. However,
in the justification of the article, it is stated that the perpetrator will be held responsible for his act, but
this situation will be taken into account in determining the penalty.