1. Territoriality of Criminal
Offences
As a preliminary matter, it is
necessary to explain the territorial scope of the application of criminal laws.
The territorial application of criminal laws refers to the determination of
which criminal law applies to an offence committed in a particular place. In
this context, it determines the jurisdiction in which a national or a foreigner
who commits an offence either within or outside the territory of a state will
be prosecuted, as well as the criminal law applicable to that offence.
Under the territoriality
principle, the criminal law of the state in whose territory an offence is
committed applies. The nationality of either the offender or the victim is of
no relevance. It is generally accepted that a system based on territorial sovereignty
offers the solution that is most consistent with justice and fairness, as it
enables the re-establishment of the legal order, which is presumed to have been
disturbed by the commission of the offence, through the application of the law
of the place where the offence was committed. It also facilitates the
collection of evidence and the conduct of other investigative measures. [1]
Turkish law likewise adopts a
mixed system, under which the territoriality principle constitutes the general
rule. Accordingly, Turkish criminal law applies to all offences committed
within the territory of Türkiye, irrespective of the offender's nationality.
However, Turkish criminal law may also apply to certain offences committed
abroad, regardless of the nationality of the offender.
Offences committed outside the
territory of Türkiye are regarded as having been committed in a foreign state.
Article 8 of the Penal Code defines the territorial boundaries of Türkiye and
specifies the places in which offences are deemed to have been committed within
Turkish territory.
As a general rule, an offence is
deemed to have been committed in the place where its commission began,
continued, or was completed. [2] Article 8(1) of the Penal Code provides that:
“Where the act is committed wholly or partly in Türkiye, or where the result
occurs in Türkiye, the offence shall be deemed to have been committed in
Türkiye.” As is clear from this provision, an offence is deemed to have been
committed in Türkiye even where the act is committed only partly within Turkish
territory. Likewise, even where the act is committed wholly or partly abroad,
the offence is still deemed to have been committed in Türkiye if the result
occurs there. By treating Türkiye as the place where the offence was committed
whenever any part of the act or the result occurs within its territory, the
scope of the territoriality principle is broadened, and Turkish courts are
vested with jurisdiction. [3]
Offences committed through the
Internet also present particular issues with regard to determining the place
where the offence is committed. Turkish penal regulations contain no express
provision governing this issue. Where data are uploaded to the Internet from
within Türkiye, the act is deemed to have been committed in Türkiye and,
accordingly, the offence is regarded as having been committed in Türkiye
pursuant to the territoriality principle. Likewise, even where the data are
transmitted from abroad, if unlawful content is stored on a server located in
Türkiye, the offender is considered to have acted directly through that server.
Consequently, the offence is regarded as having been committed in Türkiye, and
the territoriality principle applies. [1]
2. Examination of Article 13 of
the Penal Code
Article 13 governs the
prosecution in Türkiye of certain offences committed abroad (expressly listed
in the provision). Under this article, no distinction is made according to
whether the offence is committed by a Turkish national or a foreign national.
Accordingly, Turkish criminal law applies where any of the offences listed in
the article is committed abroad, regardless of the offender’s nationality. The
offences falling within the scope of this rule are provided in the provision.
Article 13 of the Turkish Penal Code
reads as follows:
“(1) Turkish law shall apply
where any of the following offences is committed abroad by a Turkish national
or a foreign national:
a) Offences set out in Part One
of Book Two.
b) Offences set out in Chapters
Three, Four, Five, Six, Seven and Eight of Part Four of Book Two.
c) Torture (Articles 94 and 95).
d) Intentional pollution of the
environment (Article 181).
e) Manufacture of and
trafficking in narcotic or psychotropic substances (Article 188), and
facilitating the use of narcotic or psychotropic substances (Article 190).
f) Counterfeiting currency
(Article 197), manufacture of and trafficking in instruments used for the
production of currency and valuable stamps (Article 200), and forgery of
official seals (Article 202).
g) Prostitution (Article 227).
h) (Repealed: 26/06/2009 – 5918/Art.
1)
i) Hijacking or seizure of
maritime, railway or air transport vehicles (Article 223(2) and (3)), or
offences involving damage to such vehicles (Article 152).
(2) (Supplemented second
paragraph: 29/06/2005 – 5377/Art. 3) Except for the offences set out in
Chapters Three, Four, Five, Six and Seven of Part Four of Book Two, prosecution
in Türkiye for the offences falling within the scope of paragraph (1) is
subject to a request by the Minister of Justice.
(3) Notwithstanding that a
conviction or an acquittal has been rendered in a foreign country for the
offences specified in subparagraphs (a) and (b) of paragraph (1), prosecution
shall be conducted in Türkiye upon the request of the Minister of Justice.”
The offences provided under this
Article, which endanger the internal or external security of the state,
undermine its international reputation or financial credibility, or constitute
an attack on the significant interests of its nationals, shall be subject to
criminal proceedings in Türkiye regardless of who committed them. For the
offences other than those specified in subparagraphs (a) and (b), criminal
proceedings may be instituted in Türkiye only if no conviction or acquittal has
previously been rendered in a foreign country. Accordingly, where the offender
has already been tried abroad and a conviction or an acquittal has been
rendered, criminal proceedings may not subsequently be instituted against that
offender in Türkiye under Turkish law.
3. Illegal Betting Offences
Committed Through Information Systems
With the rapid advancement of
technology, the Internet has become increasingly developed and widespread. This
technological development has also given rise to new forms of violations in the
field of economic crime. Among these, betting and games of chance have become
one of the most prevalent forms of unlawful activity, largely due to the
unprecedented growth of the global sports industry. As a result, numerous
national and international companies have been established to offer betting and
games of chance to individuals. These developments have made it necessary for
states to introduce statutory regulations governing such activities. In
Türkiye, this area is primarily regulated by Law Nr. 7258. In addition, Article
228(3) of the Turkish Penal Code criminalizes providing a place or opportunity
for gambling through the use of information systems.
Pursuant to Article 228(1) and
(3) of the Turkish Penal Code;
"(1) Any person who
provides a place or opportunity for gambling shall be sentenced to imprisonment
for a term of one to three years and to a judicial fine of not less than two
hundred days.[96]
(3) (Supplemented: 15/08/2017-Decree
Law Nr. 694/Art. 139; Enacted without amendment by Law Nr. 7078 dated 01/02/2018,
Art. 134.) Where the offence is committed through the use of information
systems, the offender shall be sentenced to imprisonment for a term of three to
five years and to a judicial fine ranging from one thousand to ten thousand
days."
For an offence to be established
under the Turkish Penal Code, it is necessary that a place or opportunity for
gambling be provided through the use of information systems. This offence is a
pure conduct offence in terms of its result. In other words, no particular
result is required for the offence to be completed.
Pursuant to Article 5(1)(b) of
Law Nr. 7258:
"(b) Any person who enables
fixed-odds or pari-mutuel betting, or games of chance based on sporting events
organized abroad, to be participated in from Türkiye by providing access via
the Internet or by any other means shall be sentenced to imprisonment for a
term of four to six years."
For an offence to be established
under Law Nr. 7258, the game concerned must qualify as betting or a game of
chance. The act constituting this offence consists of enabling betting or games
of chance to be played from Türkiye by providing access via the Internet or by
any other means. It is stated in legal doctrine that, since the game is made
accessible for participation in Türkiye, the offence is deemed to have been
committed in Türkiye; however, the offence set out in this subparagraph was
introduced in order to eliminate any uncertainty that might arise from the fact
that the game is organized abroad. Accordingly, where a game organized abroad
is made available by the offender for participation in Türkiye by providing
access via the Internet or by any other means, the offender shall be punished
under Article 5(1)(b) of Law Nr. 7258. [4] For the offences of organizing
betting and games of chance under this Law to be established, the offender must
not possess any authorization or license.
Neither of these offences
requires the occurrence of any particular result in order to be completed. The
commission of any of the acts specified in the relevant statutory provision by
the offender is sufficient for the offence to be established. Such offences are
classified as pure conduct offences (offences not requiring a result). The
offence is completed upon the performance of the conduct prohibited by law,
without any requirement that the conduct produce harm or any other consequence
in the external world.
As explained above, these
offences are, by their nature, pure conduct offences aimed at providing access.
Accordingly, the place where the offence is committed cannot be determined by
reference to its result. Rather, the place of commission is the place where the
act of execution is carried out. Where all acts of execution are performed
abroad, the offence must be regarded as having been committed abroad.
4. Conclusion
The offences listed under
Article 13 of the Turkish Penal Code are subject to the principle of numerus
clausus. As this principle requires an exhaustive enumeration, the offences
listed therein cannot be interpreted expansively. Offences relating to illegal
betting are not among those listed in Article 13 of the Turkish Penal Code.
Accordingly, where such an offence is committed by a foreign national, it
cannot be deemed to have been committed in Türkiye. As explained above, Article
13 is subject to the principle of numerus clausus. Furthermore, when
assessed in light of the territoriality principle, where the offender, betting
websites, servers, and payment systems are all located abroad, the acts of
execution must be regarded as having been completed abroad. Since illegal
betting offences are, by their nature, pure conduct offences aimed at providing
access, the place of commission cannot be determined by reference to the
result. Where all acts of execution take place in a foreign country, it becomes
difficult to conclude that the offence was committed in Türkiye. To hold
otherwise would effectively extend the scope of Article 8 of the Turkish Penal Code
beyond its statutory limits. However, the territorial scope of Turkish is
expressly defined by the Code. Accordingly, when all these considerations are
taken together, it would constitute an erroneous interpretation to conclude
that an illegal betting offence has been committed in Türkiye where the
relevant conduct has taken place entirely abroad.
Fatma Şengün, Legal Intern
References:
1. H. Aydın, Yabancı Ülkede İşlenen Suçlarda
Türk Mahkemelerinin Yetkisi (The Jurisdiction of Turkish Courts over
Offences Committed in Foreign Countries).
2. Taner, p. 204.
3. Zafer, p. 625; Akbulut, Ceza Hukuku Genel
Hükümler (General Provisions of Criminal Law), p. 129. Hakeri, p. 85;
Özen, p. 83.
4. O. Belci, Spor Müsabakalarında Yasadışı
Bahis ve Şans Oyunu Suçları (Illegal Betting and Games of Chance in Sporting
Events).
