Unjust provocation

The new Turkish Penal Code contains a provision that regulates provocation cases. The provision's title is unjustified provocation and if in a given case meets the conditions of which the perpetrator's punishment shall be reduced. As the chapter of this study on comparative criminal law has shown the institution of provocation contain in various legal systems, albeit in different forms. The objective of this study is to analyze the conditions application of provocation provisions in Turkish law as well as comparative criminal law. Taking a functional comparative approach the study has tried to shed light on the legal regulations, conditions and scope of provocation provisions in different countries. Roughly speaking, every legal system that has been analyzed in this study recognizes provocations cases in various ways depending on the legal policy of the given country. Some legal systems such as Turkish and Swiss criminal law systems contain provisions on provocation both in the general part and the special parts of their penal codes. And some countries (Germany and Common Law Countries, for instance) prefer to recognize cases of provocation only for some offenses in the special parts of their penal codes. The Turkish Penal Code contains provisions regarding provocation cases, which reduces the punishment of the offender, in the general part, and in special part as well. This is not a novelty of the new Turkish Penal Code. The new Penal Code (Code Number 5237) regulates the provocation in Article 29 whereas the former penal Code (Code Number 765) contained a similar provision in Article 51. Besides the former Penal Code in a number of provisions has included special provocation rules. The new Penal Code, on the other hand, contains in addition to the general provision a special provocation provision regarding the crimes of defamation. In general terms, there are two conditions for the applicability of the provocation provision in Turkish law. The first condition concerns the act of provocation, which has to be unlawful, and the second condition pertains to the psychological situation of the offender, which is called the psychological element of provocation. In order to fulfill the psychological element the offender must have been entered in a state of intense affection and heat. These conditions are not same in every country. The determination of these conditions varies according to the system chosen in a given legislation. Turkish definition of provocation lists the conditions of affection and heat disjunctively. As regards Common Law and U.S.A law the central term is anger while in Italian law heat and in German law anger. In Austrian and Swiss law the conditions of provocation are an asthenic or sthenic affection and this affection must be an excusable. The unlawful provocation is in Turkish law regarded as one of the reasons that reduces the blameworthiness of the perpetrator. This is the essence of the legal institution of provocation. There are number of theories which tries to explain the rationale of the provocation regulation in criminal law system. According to the subjective theory, which is the prevailing theory in the Turkish legal doctrine, for a perpetrator acts under the influence of an unjustified act that has caused the heat and anger the legislator regards such cases less serious than cases in which the perpetrator acts not under such influence whatsoever. Yet, this explanation of the rationale of the institution is not enough in itself, since this approach takes solely the actor's psychological situation into consideration. This would drive legal practitioners into misleading conclusions such as the heat or anger alone satisfies the definition of Article 29 Turkish Penal Code. In other words, a person who exposed to a not unjustified provocation, according to the subjective theory, would be punished by a less severe punishment. Thus, the objective theory, which is also called as exchange theory (takas teorisi), sees in provocation cases two offenders, namely the actor of the act of provocation and the perpetrator who acts under the influence of such provocative action. This theory fails to explain the legal nature of provocation as well. For this reason where the blames of the perpetrators exchanged this would have resulted with acquittal of the perpetrator acting under provocation. However, the legal system still expects from a actor acting under provocation that he masters his heat and emotions. Therefore, the subjective and objective criterion must be taken into account together. Yet, an unjustified provocative act is precondition in any provocation case. The study also discusses the applicability of the provocation provision together with other relevant legal institutions contained in the Turkish Penal Code. This discussion focuses, especially on the provisions on excessive self-defense, premeditation, honor killing, each of which compared with the provocation regulation. Of these institutions, the possibility of a co-existence between premeditation and provocation debated in the legal doctrine in Turkey. The study sums up the theories, which explains the premeditation. There are two prevailing view in this regard: first is the theory of cold-bloodedness, and secondly the theory planned action. According to the cold-bloodedness theory provocation and premeditation cannot co-exist. The planned-action theory, however, does not rule out such possibility. As to the cases of honor killing the Turkish Penal Code regards such cases as aggravated killing in Article 82 of the Code. In the legal justification of Article 82 Turkish Penal Code, the legislator names lack of unjustified provocation as a condition for the applicability of aggravated killing provision. If one assumes this correct this would lead one to the conclusion that in cases where the actor acts under the influence of provocation, the aggravated cases of honor killing shall not be applied. The legal justification of Article 29 Turkish Penal Code, however, expresses that the rule on provocation can not be applied, if the actor's case is honor killing case. The legal justification adds further that the adjective unjustified (haksiz) contained in Article 29 Turkish Penal Code in order to rule such cases out. Accordingly, in cases where the perpetrator has acted purely on the motives of honor and revenge the unjustified provocation provision shall not be applied. The study, furthermore, provides an analysis on the conditions of Article 29 Turkish Penal Code. In Turkish criminal law, if case meets the conditions of Article 29 the punishment of the perpetrator shall be reduced. First, there must be an unjustified act against the provoked perpetrator himself or another person, and this provocation must have led the perpetrator to heat or affection. The most important element of a provocation within the meaning of Article 29 Turkish Penal Code is the unjustified nature of provocation. The case provocation must have caused by the provoked perpetrator himself. There is no clarity in Article 29 Turkish Penal Code as to whom the act of provocation must have directed. In other words, the perpetrator may have been provoked as result of an unjustified directed against a third person. In legal doctrine and jurisprudence it has been acknowledged that unjustified acts may have directed against the relatives, close ones, and other persons. The offence committed as a consequence of the unjustified provocation, however, must be committed against the provoker himself. The attack may target the body or property interests of the provoker. Furthermore, the offense may be committed against a person, who was in position to prevent the unjustified act. According to this view, a provocation may satisfy the definition of Article 29 if the perpetrator committed the crime against the provoker himself, or against a victim who has not prevented or approved the unjustified act. In Turkish law the time condition of the provocation evaluated according a criterion according to which the perpetrator must commit the crime under the influence of heat or affection. There must be causal link between the crime and the act of provocation. The fact that the crime committed under the influence of provocation must be clearly evidenced. The Turkish Penal Code sets out no proportionality test. Having said that, there must be a reasonable link between the provocation and the crime committed as a result of which if not a proportionate relationship. The court must in such cases consider social environment and upbringing of the perpetrator as well as his power to resist. If the perpetrator's reaction is exceedingly disproportionate to the provocative act it cannot be said that there is a proportionate relationship between the (unjustified) act and the reaction (crime). The study confines a large scope to comparative criminal law. In doing so, the study analyzes Common law legal systems, Germany, Austria, Italy, France and the Netherlands. In common law jurisdictions provocation is considered as a mitigating factor only in intentional killing cases. Concerning grave crimes, however, the cases of provocation may be taken into account by the judge or the jury in determining the offender's sentence. Generally, in common law jurisdictions existence of provocation defense reduces the crime from murder to manslaughter. In conclusion, it can be said that common law jurisdictions does not contain a universal rule on provocation, these jurisdictions tackle this issue in respect of various crimes instead. In Germany, on the other hand, regulated both in general part and in special part with regard to intentional killing and defamation crimes. If a provocation causes a mental situation as a result of which the offender cannot measure and perceive the result of his actions, he is considered an incapable of criminal actor capacity, i.e. capacity of blameworthiness. Furthermore, according to Article 213 German Penal Code 'If the murderer (under section 212) was provoked to rage by maltreatment incited on him or a relative, or was seriously insulted by the victim and immediately lost self-control and committed the offence, or in the event of an otherwise less serious case, the penalty shall be imprisonment from one to ten years'. The Swiss and Austrian criminal law systems contain similar provisions. In Austrian Criminal Code, for instance, Article 34 (8) lists provocation as one of the grounds that leads to a reducement of punishment. In Italian law, punishment of an offender who committed as result of an unjustified act of another person shall be reduced. There are three conditions that have to be satisfied in provocation cases. Firstly, the offender must have acted as result of aggressive, angry emotional situation in which he cannot master any longer. Secondly, the provocation act must be unjustified. Thirdly, there must be causal link between the unjustified act and the reaction against this act. In French law, there is no clear regulation on provocation cases. However, the judge considers provocation in determination of sentence of the perpetrator. Same holds true for the Dutch law.