Criminological dangerousness in Criminal Law

As a social being, humans have always wanted to learn the thoughts and plans of other individuals in society towards themselves. Since fear of dangers originating from nature and other individuals has haunted humanity since its existence, it can be said that the desire to eliminate danger still exists among the individuals that make up society today. This situation has also been reflected in criminal law through various regulations introduced to intervene before harm occurs or a crime is committed, in order to prevent the feared situation from happening. The increase in risks and the fear associated with these risks have further strengthened this desire, making the concept of "preventing harm" the basis for the legitimacy of various measures that interfere with freedoms. At its core, dangerousness is a subjective judgment that requires prediction. While it is not considered possible to predict human behavior, a complex entity, with near certainty, various advancements have been made in this area with technological development, and these technological tools have begun to be used in determining individuals' future likelihood of committing a crime. Even before these technological advancements existed, a review of criminal law history shows that importance was attached to the offender being in a "dangerous" state. Indeed, in some legal systems today, this state constitutes the justification for implementing various preventive or security measures on the offender. One of the conditions for resorting to security measures, which do not have as long a history as "punishment," is the dangerous state of the offender. Again, it is observed that the penalties for offenders considered "habitual criminals," "repeat offenders," or "sexual offenders" are intensified, the type of penalty applied to these individuals may be changed, or security measures may be imposed alongside punishment. Mechanisms are also encountered whereby offenders considered dangerous can be supervised even after the execution of their sentences. Article 58 of the Turkish Penal Code (TPC), titled "Recidivism and Special Dangerous Offenders," establishes a category among offenders, recognizing "dangerousness" as a normative characteristic. In the TPC system, security measures, accepted as another type of sanction alongside punishment, also require the condition of the person being dangerous for their application. These are outcomes explicitly attributed to dangerousness in the legal text. Although some legal regulations do not explicitly use the terms "dangerousness" or "dangerous offender," the prescribed regulations can be seen as a reflection of this understanding. For example, one of the conditions for benefiting from the institution of "conditional release," regulated in Article 107 of the Law on the Execution of Penal and Security Measures is "good conduct," which requires an assessment that the person will not commit another crime. Additionally, conditions like the suspension of imprisonment or the deferral of the announcement of the verdict, which depend on the court forming an opinion that the person "will not commit another crime," indicate the necessity of not showing a state of dangerousness. Therefore, not only being dangerous but also "not being dangerous" holds importance in our legal system. While dangerousness influences many decisions in criminal law, it is generally addressed in Turkish law within the context of its relation to security measures. However, the desire to examine the subject from all aspects and with a comprehensive perspective constitutes the primary reason for this study. This is because the measures taken against individuals' dangerousness are not limited to security measures, which are just one type of sanction. Thus, dangerousness should be addressed as a standalone topic, not limited or linked solely to security measures. There are many points to clarify, from how the concept should be defined to how such an assessment should be made. The intended contribution to Turkish criminal law through this thesis is to provide an explanation for fundamental issues related to dangerousness. Therefore, this study primarily aims to examine dangerousness conceptually. Additionally, examining offender groups that are categorically considered "dangerous" constitutes another aim of this study. Although examining the personality of the offender does not have a history as ancient as the concepts of crime and punishment, it is today an inseparable part of criminal law. Especially with the positivist school, classifications regarding offenders have become significant. In Turkish law, under Article 58 of the TPC, recidivists, habitual offenders are classified as "dangerous." In our study, these groups, along with sexual offenders, are examined. Although they are not included in the dangerous offender category under this article, the different and severe measures prescribed for sexual offenders are significant indicators that they are considered dangerous and are treated differently from other offenders by the legislator. The study titled "Criminological Dangerousness in Criminal Law" comprises three main chapters in light of these main topics for analysis: "The Concept of Dangerousness and Fundamental Issues Related to the Concept," "Specially Dangerous Offenders," and "The Consequences of Dangerousness."