Legitimate Defense and State of Necessity in Turkish Criminal Law

The Turkish Penal Code (TPC) contains legal regulations ensuring that individuals are not punished for acts committed under certain circumstances. Two of the most important of these regulations are “legitimate defense” (self-defense) and “state of necessity.” Both are fundamentally based on the instinct to protect oneself or another, but there are significant differences between them. In this article, we will discuss these two important concepts regulated in Article 25 of the TPC, their conditions, and their legal consequences in detail.

What is Legitimate Defense (Self-Defense)?

Legitimate defense, as defined in TPC Article 25/1, refers to acts committed under the obligation to repel an unjust attack directed at a right belonging to oneself or another, which is occurring, or is certain to occur or repeat, in a manner proportional to the attack according to the circumstances of the moment. In this case, no penalty is imposed on the person.

Conditions for Legitimate Defense

For an act to be considered legitimate defense, certain conditions regarding both the attack and the defense must coexist:

1. Conditions Regarding the Attack:

• There Must Be an Attack: There must be an actual ongoing attack or an attack that is certain to begin.

• The Attack Must Be Unjust: The attack must be unlawful. The exercise of a legitimate right (e.g., police using legal force) is not considered an attack.

• The Attack Must Be Directed at a Right: The attack can be directed at any legally protected right, such as the right to life, bodily integrity, or property.

• Attack and Defense Must Be Simultaneous: The defense must occur while the attack is ongoing. An act committed against a finished attack is not considered legitimate defense; it may be evaluated as revenge or unjust provocation.

2. Conditions Regarding the Defense:

• There Must Be a Necessity for Defense: There must be no other remedy but to defend oneself to escape the attack. However, the law does not impose a duty to retreat on the person under attack.

• Defense Must Be Directed at the Attacker: The defense must be directed only at the person or persons carrying out the attack.

• Defense Must Be Proportional to the Attack: There must be a reasonable balance between the instrument used in defense and the nature of the attack. For example, using a firearm against an attack that could be warded off with a simple slap is not considered proportional.

What is State of Necessity?

State of necessity is regulated in TPC Article 25/2. Accordingly, no penalty is imposed on the perpetrator for acts committed under the necessity of saving oneself or another from a grave and certain danger, which the person did not knowingly cause and had no other means of protection against, provided there is proportionality between the gravity of the danger and the subject and means used.

Conditions for State of Necessity

The following conditions are sought for the acceptance of a state of necessity:

• There Must Be a Grave and Certain Danger: There must be a serious and certain danger directed at a right of the person or another. This danger may stem from human behavior, an animal attack, or a natural event.

• The Danger Must Not Be Knowingly Caused: The person must not have intentionally caused the dangerous situation they are in.

• There Must Be No Other Means of Protection: There must be no remedy other than committing the act constituting the crime to escape the danger. If there is an opportunity to flee, this opportunity must be used.

• There Must Be Proportionality Between the Danger and the Act: There must be a balance between the damage caused to protect against the danger and the value of the right saved.

• There Must Be No Obligation to Face the Danger: The person must not have an obligation to endure the danger due to their profession or a legal duty (e.g., a firefighter fleeing a fire).

Differences Between Legitimate Defense and State of Necessity

Although these two concepts are often confused, there are fundamental differences:

Conclusion

Legitimate defense and state of necessity are reflections of the fundamental principle of criminal law, “no penalty without fault.” In both cases, the legislator has stated that individuals will not be held responsible for acts committed under extraordinary and compelling circumstances. However, for these rights to be exercised, the conditions specified in the law must be evaluated meticulously. It is extremely important to receive legal support from a criminal lawyer to avoid loss of rights when facing such situations.