Confiscation institution in Turkish Criminal Code

Turkish Criminal Code numbered 5237 and Criminal Court Law no. 5271, which came into force on 01.06.2005, contain new regulations that can be considered very significant in terms of our legal system. Our criminal sanction system has also been affected by these new regulations. Sanctions are organized under two different titles as criminal and security measures in our Criminal Code. In the Turkish Criminal Code numbered 5237, the most important characteristics of the amendment to the confiscation is that the legal characteristic of the confiscation is considered as a safety measure. However, there is no consensus on legal characteristic of security measures in the doctrine. Some authors claim that security measures are sanction of criminal law, while others claim that they are preventative administrative measures. The dominant opinion in Turkish Law is the opinion which claims that security measures have the characteristics of sanction. Thus, the Legislature has also regulated the security measures in the article of 53 and the following articles under the title of sanctions in the third section of Turkish Criminal Code numbered 5237. This section includes "Disqualification from use of certain rights" (article 53), "Confiscation of Property (article 54), "Confiscation of Income" (article 55), "Security Precautions Specific to Minors" (article 56), "Security Precautions to Insane People" (article 57), "Recidivism and Offenses of Special Risk" (article 58), "Deportation" (article 59), "Security Precaution for the Legal Entities" (article 60). Confiscation is derived from the word "Sudur" which is Arabic origin and means to reveal / appearance, existing. The word confiscation was used in the meaning of taking or seizing someone's private property with authority on behalf of the state or the emperor without paying any price as well as it was used in the meaning of confiscation or seizing of properties and goods forbidden by the laws. The history of the confiscation institution dates back to old times. In the early law system, general confiscation sanction which constitute clear intervention to the property right and is not in proportion to the crimes committed were foreseen. In parallel with the developments in the field of law, the confiscation institution and fundamental rights and freedoms have changed over time, the general confiscation sanction enforcement which is a clear violation of the property right has been abandoned. If one were to propose a definition in general, we could define the confiscation as "termination of ownership of assets of misdemeanant or the offense or crime things by their substance or things or goods in connection with a misdemeanor or felony or all or part of their fruits, if they exist, under the provisions of the law or return value, and delivery of this ownership to the State by decree of court". In order to rule the confiscation, although it is compulsory to commit an offense, the author does not have to be condemned to punishment / sentence for this offense. Nowadays, the confiscation institution has become one of the most effective way of modern criminal law system for the fight against crime and criminals. The purpose of organizing the confiscation institution is to prevent to acquire illegally through gaining illegal/unlawful material benefit or committing an offense. In the Turkish Criminal Code numbered 5237, the confiscation is divided into two categories as property and income confiscation. With the new regulation, the institutions such as partial confiscation, equivalent confiscation, confiscation of replacement value, principle of proportionality are subjugated. In all these regulations, the status of bona fide third parties is taken into account. In the 1st paragraph of the article 54 of the Turkish Criminal Code, the confiscation of things in connection with a crime, in other words the confiscation of goods which is used to commit an offense or the goods that is intended for committing an offense or is the result from the crime, or which is prepared in order to use to commit a crime provided that it is hazardous for public safety, public health or public moral is subjugated. In order to enforce the provision of this article, an intentional crime should be committed in terms of the things used to commit an offense or the goods which is intended for committing offense or is the result from the crime, and the things should not belong to bona fide third party. According to the article 55th of the Turkish Criminal Code, it can be stated that the confiscation of income means the delivery of the material benefits provided for committing the offense or which are constituted the subject of the crime or are gained by committing an offense, and the delivery of the economic profits resulting from the evaluation or transformation of these material benefits to the State. In recent years, especially in the context of economic crimes, there has been massive increase in the crimes committed to earn income. The economic profits and material benefits earned from the crime are mostly used for reoffending / committing further offense. With new regulation, the legislature aims to prevent the author to use of profits (material benefits) by committing offense to commit a new crime future as a resource and prevent the committing of new offenses. Thus, the confiscation of income has become an effective deterrent against crime committed to earn illegal economic profit such as "money laundering", "drug traffic", "fraud", "illegal trafficking", "and collusive tendering". The procedures for the protection, seizure, disposition, extradition, confiscation and disposal of the crime things and economic profits in connection with the crime have regulated in the "Crime Things Regulation" that the some articles were published in the Official Gazette dated 17.05.2017 and numbered 30069, and that has become effective on 23.3.2016 by publishing in the Official Gazette numbered 29662. In this study, the definition of the confiscation institution, the development of confiscation in the historical process, legal characteristics of the confiscation, confiscation types, the comparison of confiscation to similar concepts, the status of confiscation in international agreements and in the comparative law of the some countries, the enforcement conditions of the confiscation, confiscation trial and the execution of confiscation judgment are researched. The Supreme Court practices and different opinions in doctrine are included. In the conclusion of this study, the proposed solutions to the problems related to the confiscation are presented. Key Words: Confiscation, Safety Measures, Confiscation of Property, Confiscation of Income, Confiscation Trial.