The confiscation in the Turkish Criminal Law

Confiscation is an institution whose origin dates back to ancient times and was used throughout history as a political and legal order. The word "müsadere " - confiscation - which is of Arab origin, is derived from the word " Sudur " and means to reveal or highlight. Some dictionaries refer to its historic mission and define it as the enactment of a decree " ferman " or the confiscation of property from someone on the order of the Sultan. Although the word confiscation was also used to denote " extortion " means forcibly remove someone's property without his consent, it is clear that the confiscation is often based on legal grounds. The term was also used confiscation in history to capture the state of the property of certain senior manager of state or died naturally rich or sentenced to death and executed or the seizure of their property during their lifetime. It has sometimes been abused method of confiscation, transforming it into a tool of torture or oppression and even in times of financial crisis the state revenue source. In the west, the confiscation was used generally for the seizure of assets of persons serving sentences for the seizure of assets of wealthy individuals when the rulers launched into work or went to war for the seizure of assets of persons sentenced to death or died without heirs and continues as rules of modern right people. If one were to propose a modern definition of perspective to our right, we could define the confiscation as " a sanction of criminal law will result in the entry in the hands of authors or sometimes third parties and delivered to the State constituting the offense or crime things by their substance or thing or goods in connection with a misdemeanor or felony under the provisions of the law or return value and their fruits, if they exist. " Confiscation terminating the property was an institution that has often varied from the point of view of its conditions and its legal characteristics. It was reformed and rendered effective especially for the fight against organized crime. We achieved this by expanding the scope and easing the conditions of implementation of the " confiscation called classical " which consists of " confiscation of the object used for the commission of a crime." Progress has been made from 1970 through many changes in comparative law and international law. Among the changes that expand the scope, we can enumerate the confiscation of income removed the offense, xvi additional assets acquired with the gains from the income and if the forfeiture of the property was not possible to confiscate an equivalent amount in value of the property. In parallel, the conditions of application of confiscation were relaxed by practices such as the organization of confiscation as a security measure by the deletion of the condition of guilt, confiscation of assets derived from crime even in the hands of third parties and consideration of the gross value of earnings. Similarly many legal provisions have created legal presumptions and thus reversed the burden of proof in cases where it was difficult to prove that a property situated in the asset of the author came from crime, while it was obvious. We even encounter practices that organize the confiscation processes of civil law, in order to escape the strict rules of criminal justice. In dilemma of freedom and safety, all these practices that appear as anti freedom. Thus, if the accused was not able to prove the origin of the property in question, it would be assumed that the property is derived from the crime, even though it was not formally proven, and confiscation transformed into a general confiscation. In our thesis, we have tried to clarify in detail the problems that these developments may cause the light of fundamental human rights . But if we were to summarize, the general confiscation is essentially a ban should be understood by confiscation, confiscation special. It is desired doctrine to satisfy a condition " connection with an offense" among the conditions for confiscation by abandoning the distinction general confiscation and special confiscation. However, the developments worldwide announce indirectly a trend toward general confiscation. Many changes in foreign laws have also been taken up by our domestic law . But if we were to make a general comparison of the views of rights, we can say that changes in our law is more conservative and in favor of human rights. Changes in the provisions of our criminal law in 2005, confiscation, is organized under two different titles to Articles 54 and 55 of the first book containing the general provisions of the Turkish Penal Code ( TPC) . According to Article 54, which organizes " the confiscation of goods" ; " (1) provided that they do not belong to a person bona fide third parties, there will be the forfeiture of goods used for the comission of a crime or intended to commit the crime or derive from the crime. The properties prepared to commit the crime will be confiscated if it were seen a danger to public order, public health or morals. (2) If things within the scope of the first paragraph should disappear, be sold, consumed or forfeiture may be made impossible by other means; there will be the confiscation of a xvii sum equivalent to the value of these things. (3) If the forfeiture of the thing used in the commission of the crime would cause more severe than the crime itself and consequences and undermine the fairness, forfeiture may not be ordered. (4) The property of which the production, storage, use, transportation, purchase or sale constitutes an offense is subject confiscation.(5) Where partial seizure is in question, the court may decide confiscation of only that portion without giving damage to other parts of the property. (6) With regard to the property owned by more than one person, the court may adjudicate confiscation of the part corresponding to the share of the person participating the offense ". According to Article 55, the title is " confiscation of income" (1)" The court may adjudicate confiscation of pecuniary benefits provided through commission of offense, or constituting the object of the offense, or secured for commission of offense, as well as the economic gains recorded as a result of assessment or conversion of these benefits. In order to take decision for confiscation pursuant to the provisions of this subsection, reimbursement of pecuniary benefits to the aggrieved part should be out of question. (2) In cases where the confiscation of the property or pecuniary benefits subject to confiscation is not likely, or it is not possible to deliver the same to the concerned authorities, the court may adjudicate confiscation of the values considered as the counterpart of this property. (3 ) (Appendix. 26/6/2009-5918/2 art) For things that comes under this section may be confiscated, the person who has subsequently acquired must be entitled to the provisions on good faith of the Turkish Civil Code No. 4721 dated 22/11/2001." From the perspective of legal persons, the CPT number 5237 provide a security measure responsibility and confiscation provided for in Article 60 of the said Code. Other provisions concerning confiscation among the general provisions, Article 64 case of death of the accused or convicted, Article 65 of the amnesty cases, Article 70 of the prescription in the confiscation, Article 74 provides that the effects of laches or sentence on confiscation and Article 75 which provides that the prepayment does not preclude forfeiture. Concerning the forfeiture provisions in other laws, it is referred to in Articles 54 and 55 of the CPT by law number 5728. Thus unification referred to in the section of general provisions is also provided for the confiscation. The legislature considered the confiscation as a security measure; and to decide on confiscation, it is not necessary that sentence be pronounced. Yet the legal xviii qualification of confiscation is discussed in the doctrine. When we examine the provisions in question we find that a unilateral approach of this kind is not appropriate and that the law contains provisions whose legal nature is variable. Thus, the confiscation " of the thing used for offense or crime or which is intended or is the result " that are in the field of confiscation ( art. 54/1 CPT, paragraph 1) is essential for a response to the violation and the nature of a penalty. Indeed, the law makes no reference to the danger of the thing and in practice things even non-hazardous but which were used to commit the offense or crime are confiscated. Similarly, the danger is not longer taken into account from the point of view of proportionality (Article 54/3 CPT) and the conditions of forfeiture of things are the things belonging to the author or his accomplice to the crimes and intentional crimes. That is why we are of the opinion that the confiscation of these things should be arranged as a consequence of the conviction. Confiscation of "things whose object is the crime " in the context of the confiscation of things ( art. 54/4 CPT), as in the past is provided as a security measure. Confiscation is implemented without verification of the conditions of belonging and condemnation. Moreover, as will be explained below, the confiscation of "dangerous thing crafted for the commission of the crime " is an "quasi poliçe measures". Indeed, as appropriate, confiscation is possible even if the passage to the act of committing the crime and crime has not started. Confiscation of income is mixed essential. In the confiscation of income, we can say it plays a preventive role, since it gives the message that the author will not benefit the gains from the commission of the offense or crime have been transformed into interest and various variables. The author committing the crime affect its profit social equality. He increased his fortune unfairly reaping gains . Forfeiture of such undue gain, deprives society of hope to reap gains in this way and so prevention is ensured in general. Because of this characteristic, the confiscation of earnings, is assimilated to a penalty. But it is clear that we should not use a sanction that has the characteristics of a sentence without a conviction. This prevents the author using illegal gains obtained to finance the commission of other offenses or crimes. In this way the author was deprived of the provision of illegal gains and the danger being thus removed, we can say that the special prevention is also provided. The confiscation of equivalent value when the confiscation of the property is not possible have the character of a penalty. xix Thus, we see that the legislature without taking into account the criminal nature of certain measures of confiscation and therefore the variety of them, has arranged under the title of " security measures". This unifying approach is inappropriate whether the point of view of the law-making methods or whatever the point of view of the goal. Indeed, such a classification can lead to consistent readings about the consequences of forfeiture and its relationship with other legal rules. Therefore, we can say that the institution of forfeiture in our law is consistent with contemporary standards. Better yet, with respect to foreign rights we have a more protective penal policy from the point of view of fundamental rights. But we observe problems tans from legislation and practice. We offer solutions to these problems in this work.