Within the crime theory adopted by the new Turkish Penal Code No. 5237, there are some regulations under the name of personal reasons that reduce the punishment. Crime; It is embodied by the act formed by the trio of movement, result and causal bond. The act is the main activity that constitutes the crime, and when this act results in a result, the elements of the crime occur automatically. However, it is essential in this regard to establish a causal link between the action and the result caused by the action. As a matter of fact, if the necessary causal link cannot be established, it will be obvious that the situation that creates the result does not arise from the action in question. In this case, we can say that the act does not cause the result and therefore the crime does not occur.
The crime is completed when the result is realized. Of course, these assumptions will be discussed under the condition that the act in question is regulated as the same type of crime in the Turkish Penal Code. This is a requirement of the element of typicality.
Effective remorse is a regulation that is among the personal reasons that eliminate the punishment or require a reduction in the punishment. It is not a provision applicable to every type of crime as regulated in Article 168 of the Turkish Penal Code. However, effective repentance provisions can be applied for a limited number of crime types specifically specified in the law. These crimes; crime of depriving a person of liberty (TCK 110), crimes against property (TCK 168), manufacturing, trading or purchasing drugs or stimulants for use, possession (TCK 192), forming an organization for the purpose of committing a crime (TCK 221), embezzlement (TCK 248), bribery (TCK 254), slander (TCK 269), false testimony (TCK 274).
UNDER WHAT CONDITIONS DOES ACTIVE REGRET OCCUR?
Based on the completion of the crime, there must be a provision regarding effective remorse within the scope of the Turkish Penal Code. Another personal reason that removes or reduces the penalty is voluntary renunciation. What makes effective remorse provisions different from voluntary renunciation provisions is that the crime is completed. While the crime has not yet been completed, effective repentance provisions will not be applicable.
Subsequently, the perpetrator or the person(s) who participated in the crime must show remorse and make restitution or compensation for the damage. This is due to the personal reason that removes or reduces the penalty. In crimes committed jointly, as a result of one of the perpetrators showing effective remorse and compensation for the damage caused, the other partners who participated in the crime will not be able to benefit from this situation. Even though the perpetrators committed the crime jointly, the effective repentance mechanism works on a personal principle.
In case of partial compensation for the damage, the victim’s consent is first required in order to apply the provisions of effective remorse. In this case, since the grievance in question has not yet been resolved, the effective regret mechanism will not be able to work without consent.
Another important issue is related to when effective regret occurs. In this case, effective remorse shown before the prosecution begins and effective remorse shown during the prosecution are of great importance in terms of penalty reduction. If effective remorse is shown after the prosecution begins but before the verdict is given, the penalty to be imposed is reduced by up to half. In case of effective remorse, the judge may reduce the sentence at the rate specified in the article. In this regard, the judge is given discretionary power depending on the sincerity of the effective repentance and the amount of damage compensated. With this provision, a certain reduction in the penalty has been made possible in cases where the crime of plunder involves a special regulation.
In the law, it is envisaged that in the crimes of theft, damage to property, abuse of trust, fraud, fraudulent bankruptcy, negligent bankruptcy, gratuitous use and misuse of bank/credit cards, the penalty will be reduced by up to 2/3 of the penalty if the full refund or compensation is made before the start of the prosecution, and by up to 1/2 if it is made after the prosecution has started but before the verdict is given.