What is criminal capacity and does it differ according to age?
Criminal law stipulates that the perpetrator must have “criminal capacity” in order for an act to be accepted as a crime and for this act to be punished. Criminal capacity means that the person has the ability to perceive the legal meaning and consequences of the act committed and to direct his/her behaviour according to this perception (will). Especially in the case of children, this ability differs according to age and level of development. The Turkish Criminal Code (TCK) regulates the criminal responsibility of children separately according to age groups, taking into account their developmental characteristics and their potential to be integrated into society. In this article, we will examine in detail what criminal capacity is, how it differs according to age groups and the legal consequences to be applied in case children commit a crime.
Definition of Criminal Capacity and Its Importance in Criminal Law: Criminal capacity is the mental and voluntary ability necessary for a person to be found guilty and punished for the wrongful act committed by a person. Pursuant to the principle of “no punishment without fault” in criminal law, a person must be at fault for the act committed by that person in order to be punished. Faultfulness, on the other hand, requires the person to have committed the act knowingly and willingly (intent) or by acting against the obligation of care and attention (negligence). Therefore, a person who lacks cognition and willpower cannot be considered defective and cannot be punished for the act he/she has committed.
Criminal Capacity According to Age Groups (Article 31 of the Turkish Criminal Code): Article 31 of the Turkish Criminal Code divides criminal responsibility due to minority into three main categories:
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0-12 Age Range (children under 12 years of age):
- Absence of Criminal Responsibility: According to Article 31/1 of the TPC, “Children who have not completed the age of twelve at the time of committing the act are not criminally responsible.” Children in this age group are considered to lack the ability to perceive the legal meaning and consequences of the act they commit and to direct their behaviour. Therefore, criminal proceedings cannot be initiated against these children and no penalty can be imposed on them.
- Failure to Prosecute: Even if an investigation is conducted against these children, the prosecution (trial) stage cannot be initiated.
- Implementation of Security Measures Specific to Children: Although they are not criminally liable, “child-specific security measures” may be applied to these children. These measures aim to protect, educate and reintegrate the child into society. For example, measures such as education measures, counselling measures, health measures or accommodation measures may be taken.
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12-15 Age Range (Children who have completed 12 years of age but have not completed 15 years of age):
- Investigation of Perception and Willpower (Farik-i Mümeyeyyiz): According to Article 31/2 of the TPC, “Children who have completed the age of twelve but have not completed the age of fifteen at the time of committing the act are punished if they have the ability to perceive the legal meaning and consequences of the act committed and to direct their behaviour in relation to this act. Otherwise, they shall not be punished.” For children in this age group, whether they have the ability to perceive the legal meaning and consequences of the act they commit and to direct their behaviour (whether they are farik-i mümeyyiz or not) is investigated separately in each concrete case. This research is usually determined by reports made by the Forensic Medicine Institution or child mental health specialists.
- No Criminal Responsibility if there is no ability: If it is determined that the child does not have this ability, he/she has no criminal responsibility and cannot be sentenced. In this case, child-specific security measures are applied.
- Reduction in Penalty if Talent is Present: If it is determined that the child has this ability, he/she is criminally responsible. However, a legal reduction is made in the penalty to be imposed due to minority. Instead of aggravated life imprisonment, imprisonment from twelve to fifteen years, instead of life imprisonment, imprisonment from nine to twelve years. Other prison sentences are reduced by half.
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15-18 Age Range (Children who have completed 15 years of age but have not completed 18 years of age):
- Acceptance of Full Criminal Capacity: According to Article 31/3 of the TPC, “Persons who have completed the age of fifteen but have not completed the age of eighteen at the time of committing the act shall be sentenced to imprisonment from twelve years to fifteen years for offences punishable by imprisonment for fifteen years or more, and from nine years to twelve years for offences punishable by life imprisonment. In other cases, the sentence shall be reduced by one third.” Children in this age group are considered to have full criminal capacity if there is no abnormality in their mental faculties. In other words, it is assumed that they have the ability to perceive the legal meaning and consequences of the act they commit and to direct their behaviour.
- Legal Reductions in Penalties Due to Minority: Even if they have full criminal capacity, legal reductions are applied to the penalties to be imposed due to their minority. These reductions, as stated above, may be at different rates depending on the nature of the offence.
- Special Regulation of Aggravated Life Imprisonment and Life Imprisonment: Children in this age group shall be sentenced to imprisonment from fifteen to twenty years instead of aggravated life imprisonment, and to imprisonment from twelve to fifteen years instead of life imprisonment.
18 Years of Age and Above: Persons over 18 years of age have full criminal capacity according to the Turkish Penal Code. Except for special circumstances such as mental illness, they are held fully responsible for the acts they commit and the full penalties stipulated in the law are applied to them.
The Importance of Age at the Time of Committing the Offence: In determining criminal capacity, the age at the time of the offence is taken as the basis, not the age at the time of the trial. This is a requirement of the principle of “the law at the time of the offence is applied” of criminal law.
Juvenile Courts and Juvenile High Criminal Courts: Juveniles are tried in special courts, taking into account their special circumstances and protection needs:
- Juvenile Courts: Juvenile Courts deal with offences committed by persons under 18 years of age.
- Juvenile Assize Courts: Trial of offences committed by persons under the age of 18 who have committed offences falling within the jurisdiction of the high criminal court.
These courts apply special procedures in order to provide pedagogical and psychological support during the trial of children, to avoid situations that may adversely affect their development and to ensure their reintegration into society.
Security Measures Specific to Children (Article 56 of the TPC): Child-specific security measures may be applied instead of or together with punishment for children who have no criminal responsibility or whose criminal responsibility has been reduced. These measures are as follows:
- Education Measures: Ensuring that the child continues his/her education.
- Counselling Measure: Providing psychological and social support to the child and his/her family.
- Health Measure: Measures to improve the physical or mental health of the child.
- Shelter Measure: Ensuring that the child is sheltered in a safe environment.
- Probation Measure: Supervision of the child in the community by following certain rules.
These measures are determined by considering the principle of the best interest of the child and in accordance with the development of the child.
Mental Illness and Criminal Capacity: Apart from minority, mental illness is also an important factor affecting criminal capacity. According to Article 32 of the TPC, “A person who, due to mental illness, is unable to perceive the legal meaning and consequences of the act he/she has committed or whose ability to direct his/her behaviour is significantly reduced, shall not be sentenced or his/her sentence shall be reduced.” This situation is also determined by the Forensic Medicine Institution reports.
Criminal capacity is a concept that forms the basis of criminal law and is indispensable for a fair trial. Especially the criminal responsibility of children differs according to their age and developmental characteristics and is specially regulated by the legislator. The Turkish Criminal Code prioritises the protection, education and reintegration of children into society rather than punishing them. Therefore, the legal processes and measures to be applied in case children commit offences are different from adults. In this sensitive area, in order to protect the rights of children and to take the right legal steps, it is of great importance to get support from an expert criminal lawyer and professionals experienced in the field of juvenile law.