Unlawfulness

There is no culpability without violation of the law. illegality without conformity to typicality, illegality
Without it, there is no fault. Typicalism is a prerequisite for illegality, and illegality is a prerequisite for culpability.
When the act conforms to the legal definition, it is also considered to be unlawful. Because legal
The definition defines unlawful behavior by type. In other words, an act is against the law.
because it is typified. Establishment of illegality, function of conformity with legal recognition
Since it is legal, there is no need for positive elements that establish other illegality besides conformity with legal recognition.
there is none. The conformity of the behavior to the legal definition indicates illegality. In other words, legal
realization of the definition constitutes the presumption of illegality. perpetrator, legal
When the definition is realized, the result is that the legal order does not approve of this behavior.
If a situation has arisen showing that the prohibited behavior is exceptionally lawful.
In the present case, the illegality of the act was rejected. In other words, if there is a reason for compliance with the law, the act is against the law.
is not. There is a presumption that the act complies with the definition of crime regulated in the legal definition, and that it is unlawful.
does not necessarily lead to the conclusion that it is against the law. Therefore, the legal recognition of the act
After determining its suitability, whether there is a reason for compliance with the law that removes the illegality.
It is necessary to check whether Reasons for legality, violation of legal definition of action
These are the events that make the perpetration of injustice not illegal. So to the law
If the reasons for compliance have been realized, it is no longer possible to talk about the unfairness of the act.

Gai (Final) Crime Theory

It is the theory developed by Welzel since the early 1930s. According to this theory, caste
it is included in the typicality along with the subjective element. Fault is accepted as a pure value judgment. of injustice
subjectification and normativeization of defect. Subjectivization of caste
also caused a change in the concept of injustice, the awareness of injustice is an independent element of the fault.
has been. In the material conditions of the reasons for compliance with the law, the mistake is not considered as intentional,
is classified as faulty. The distinction between legal error and actual error is abandoned and the material
The error in the elements is the element error, and the error in the illegality of the act is unfair.
called error. In the fallacy of unfairness, a distinction is made between inevitable and avoidable error.
The existence of the defect is rejected in the error, and the defect is accepted even if it is reduced in the avoidable error.
In the material conditions of the reasons for compliance with the law, the error is characterized as the error of injustice.
This theory also establishes causality in terms of condition theory. Fault is the judgment given about the perpetrator.
The final crime theory examines crime as typicality, illegality, and culpability. The objective of typicality
action to its elements, causality, and to its subjective elements, caste and other subjective elements.
are included.

Negative Criminal Element Theory

According to this theory, crime has two elements. These are typicality and imperfection. This theory is the element of typicality.
presents a different approach. The element of typicality of the crime, positive and negative typicality in itself.
made up of elements. Elements of positive typicality are expressed in the legal definition of the crime.
represents the elements. Negative typicality elements, on the other hand, are applied to the law during the evaluation of typicality.
states that the reasons for eligibility do not exist in the concrete case. in the legal definition for typicality
In addition to the existence of the elements, there should be no reasons for compliance with the law. This theory is legal
includes the element of contradiction in the element of typicality. The effect of such a determination is self-explanatory.
aspect reveals. According to this theory, caste contains only the objective elements of typicality.
It is not necessary to cover it, but also to include that there is no reason for compliance with the law in the concrete case.
required. Therefore, the error regarding the existence of the reason for compliance with the law, the error regarding the elements of the crime.
are analyzed within the scope of

T.R.
Supreme Court

8. Criminal Chamber

Base Number :2017/12704
Decision No: 2017/14128
K. Date:12.12.2017

COURT: Criminal Court of First Instance
CRIME: Slander
JURISDICTION: Acquittal

It has been discussed and considered:
Despite the fact that an investigation was initiated against the victims after he claimed that he saw the victims cutting trees although he did not see them cutting trees at the time of the incident, the fact that the trees were cut at the crime scene upon the notification of the accused would not remove the slander intent, and he was accused of committing the crime of opposing the Forest Law to the victims, even though he knew that he had not committed the crime. Decision to be acquitted with a written justification instead of his conviction for the crime charged in terms of Eren and his elements,
It is against the law, since the appeals of the Public Prosecutor were deemed appropriate in this respect, the verdict was stated in the 8/1 of the Law No. 5320 for this reason. It was unanimously decided on 12.12.2017 that it should be VOID pursuant to article 321 of the CMUK numbered 1412, which should be implemented pursuant to the article.

Temporarily or in line with the Public Recommendation of the Workplace
Closing
Without the need for any official statement or T.C. Ministry of Health or
In addition, by following the recommendation of public institutions and organizations, the employer’s workplace temporarily
As a rule, the employer’s obligation to pay the wages of the workers continues. Because this
In this case, the employer closed the workplace on his own initiative without any compelling reason.
and the obligation to pay the wages of the worker does not cease. However, in this case, the employer
does not have to pay fringe benefits such as premiums, travel and meals related to being present/actually working.
we are of the opinion.
In case of temporary closure of the workplace, the obligation to pay wages arising from the law continues.
In this case, the employee’s consent is not required.
ii. The Employer’s Mandatory Closure of the Workplace Pursuant to a Public Decision
Pursuant to Article 40 of the Labor Law No. 4857, for more than 1 (one) week,
the occurrence of compelling reasons that cause the workers to stop working or prevent the workers from working
In the event of an employment contract, the employment contract is suspended for this 1 (one) week period and the worker receives half a salary during this period.
is paid. 3
The compelling reason for the closure of workplaces due to the mandatory decision of public institutions and organizations
It is evaluated separately for each concrete event. Supreme Court established
compelling reasons in their jurisprudence, “… interruption of transportation due to natural events such as hand, snow, earthquake,
Situations such as quarantine due to an epidemic are compelling reasons.
defines it. In this context, as we have seen examples in the world due to the Corona Virus
In case of imposition of regional quarantines or curfews, the worker’s employment
40th of the Labor Law No. 4857, for a period of one week due to the
According to the article, the employer is obliged to pay half wages to the worker. Because this article is
As stated in the Supreme Court decision, for cases such as quarantine practices due to epidemics
edited.

“Those who cannot work or are not employed due to the compelling reasons indicated in subparagraphs (III) of Articles 24 and 25.
The worker is paid half wage for each day up to one week during this waiting period.”
“The reasons that prevent the worker from working must occur in the worker’s environment. The reasons arising from the workplace and preventing work are not included in this article. For example, closure of the workplace is not considered a compelling reason. However, situations such as the interruption of transportation due to natural events such as floods, snow, earthquakes, and the quarantine application due to epidemics are compelling reasons. (Court of Appeals 9.05.2016 T. 09.05.2016, E. 2016/7175, K. 2016/11446/ Supreme Court 22. HDT T. 04.02.2014, M. 2013/2499, K 2014/1389/ Supreme Court 9. HDT. 29.05. 2014, M. 2012/10932, K. 2014/17580)

According to the 3rd clause of the 25th article of the Labor Law No. 4857, the worker is not allowed to work for more than 1 (one) week.
In the event of a compelling reason, force majeure preventing him from working, the employer 1 (one)
can terminate the employment contract for just cause after the weekly period has elapsed. coercive in this provision
Why does it occur not in the workplace, but around the worker and as a result, worker defect?
cannot fulfill its debt of employment due to temporary impossibility of performance without
is taken. A situation that occurs at the workplace and requires the cessation of work for more than 1 (one) week.
Based on compelling reason, the employer cannot terminate the employment contract with just cause. In this case, for good reason
The right of termination belongs to the employee.
It should be noted that in the rightful termination made for compelling reasons, the employee’s severance pay and all the related termination benefits.
must pay their debts. No notice pay is required.
However, the theater, which was decided to be closed privately as of the date of preparation of this article,
Except for some workplaces such as cinemas, performance centers, bars, gyms, Turkish baths, indoor playgrounds.
Since there is no compelling reason to prevent working throughout the country, including
that our evaluations under the title will not find application for all workplaces yet.
We would like to point out.

A. Rule Governing the Issuance of Specially Stamped Passports to Lawyers

Subject Matter Rule

The rule in question stipulates that lawyers who are investigated or prosecuted for certain crimes should not be given special stamped passports, limited to the duration of the investigation or prosecution.

Reason for Cancellation Request

In summary, in the petition; It has been argued that the rule in question limits the freedom of travel by stipulating certain conditions for lawyers in terms of holding a special stamped passport, and that the rule is unconstitutional.

Court’s Evaluation

As stipulated in the rule, it is clear that not giving a specially stamped passport to the person concerned on the grounds that he is being investigated or prosecuted for certain crimes does not result in the person being described as a criminal and penal sanction.

The fact that the legislator stipulates certain conditions while making arrangements regarding the persons who can benefit from special stamped passports is only a limitation for obtaining such passports. Accordingly, the rule in question, which can be summarized as stipulating certain conditions in order to reach the opportunities provided by being able to go abroad as a special stamped passport holder, does not have an aspect that restricts the freedom to go abroad, which is guaranteed in Article 23 of the Constitution.

Since it can be said that lawyers who are under investigation or prosecution for certain crimes and those who are not, are in a similar situation to make comparisons, it can be said that a difference is created between them by the rule.

The fact that lawyers within the scope of the rule subject to the case cannot obtain special stamped passports is not of a permanent nature and is limited to the duration of the investigation or prosecution carried out for the aforementioned crimes.

A suitable balance has been established between the aim pursued by foreseeing the aforementioned difference in the conditions regarding the acquisition of the opportunity to obtain a special stamped passport and the means envisaged by the rule. In this context, according to the purpose of foreseeing the said difference brought by the rule, an excessive burden was not imposed on the lawyers within the scope of the rule. In this respect, there is nothing contrary to the principle of equality in the rule.

For the reasons explained, the Constitutional Court decided that the rule was not unconstitutional and that the request for annulment was rejected.

B. The Rule Restricting the Freedom to Travel Abroad

Subject Matter Rules

Those whose passports have been revoked due to their membership or affiliation with or affiliation with structures, formations or groups, or terrorist organizations that are determined to pose a threat to national security in the rules subject to the case, and those whose passports have been taken administrative action against being issued a passport, shall be made by law enforcement units, provided that they meet the conditions specified in the rules. According to the results of the research, it has been regulated that a passport can be issued by the Ministry of Interior.

Reason for Cancellation Request

In summary, in the petition; It has been argued that the rules are contrary to the Constitution, stating that the Constitution gives authority to the administration in an area where the Constitution explicitly stipulates a judge’s decision, eliminates the opportunities for individuals to work abroad, and creates a disproportionate intervention in their private lives.

Court’s Evaluation

Article 23 of the Constitution states that a citizen’s freedom to go abroad can only be limited by the decision of a judge, depending on the reason for a criminal investigation or prosecution.

Since certain conditions are stipulated by the rules in question for those who are allowed to obtain a passport, the rules impose a limitation on the freedom to go abroad. Granting this opportunity to some people by the rules results in the fact that passports cannot be obtained for those who are not given the opportunity, therefore, the rules in question impose a limitation on the aforementioned freedom for these people.

A regulation regarding the freedom to go abroad, which is one of the dimensions of freedom of movement and which is under special guarantee, must not be contrary to the limitations stated in Article 13 of the Constitution and the guarantee envisaged here.

It is clear that the rules subject to the case restrict the issuance of passports to individuals regardless of the reason for the criminal investigation and prosecution and the decision of the judge.

Considering that the freedom to go abroad can only be limited due to a criminal investigation or prosecution and is subject to the guarantee of a judge’s decision pursuant to Article 23 of the Constitution, it is seen that some of the reasons for restriction stipulated by the rules in the case do not comply with the limitations stated in the aforementioned article of the Constitution and are against the guarantee of the judge’s decision attached to these reasons. . In this respect, the rules limit the freedom to go abroad in violation of the Constitution.

For the reasons explained, the Constitutional Court decided that the rules were unconstitutional and that they were annulled, and that the decision would enter into force one year after its publication in the Official Gazette.

Uninterrupted crimes are divided into two as compulsory uninterrupted crime and possible uninterrupted crime in the doctrine.
Mandatory uninterrupted crime naturally occurs for a certain period of time with the realization of the act in the legal definition.
It is called continuous crime. The crime of deprivation of personal liberty (Article 109 of the TCK), housing
The crime of violating the immunity (Article 116 of the TCK) is a compulsory uninterrupted crime. A possible uninterrupted crime is normally not a continuous crime, but
In some cases, crimes that are committed without interruption are called probable uninterrupted crimes. E.g
TCK m. Although the crime of gratuitous use in 163/1 is not a continuous crime, art. gratuitous in 163/3
The crime of exploiting is carried out as an uninterrupted crime. Electricity available on subscription basis
energy, water or natural gas without the consent of the owner and determining the amount of consumption
If it is consumed in a way that prevents it, since the gratuitous benefit continues during the usage period, m.
163/3 takes place in the form of uninterrupted crime.

Salary Seizure is regulated in Article 83 of the EBL. Here, in order to send a salary lien to the workplace of the debtor, the follow-up must be finalized. After the proceeding is finalized, the creditor from the enforcement office decides to place a lien on the debtor’s salary. However, no more than ¼ of his salary can be deducted without his consent.

With Article 90 and its continuation of Law No. 5510, it has been regulated that retirement pensions can only be seized due to alimony and SGK premium debts, and cannot be blocked or seized due to other receivables. In this case, the lien cannot exceed ¼ of the pension.

In addition, the consent of the debtor is required to be able to place a lien on the pension. After the Supreme Court follow-up is finalized, the consent given during the foreclosure is accepted as a valid consent. On the other hand, it may be possible for the bank to deduct the entire salary deposited in the bank account due to salary lien. The person under the threat of foreclosure should also notify the bank that the account in the bank is a salary account.

As a rule, employers are prohibited from employing uninsured workers. Since the insurance is the social security of the worker, the legislator has foreseen an obligation in this direction in case of abuse of this situation by the employer and stipulated a certain sanction if the employer does not comply with the rule. However, in practice, workers are unfortunately employed for various reasons without insurance or with under-reporting of insurance. It is possible for workers who cannot object to this situation while working, to file a lawsuit to ensure that their retroactive insurance is deposited after leaving the job, with a service determination case. Service determination lawsuit is a lawsuit filed by the worker who is employed without an insurance notification and without paying the premiums, in order to compensate for this period of time he worked without insurance, as if he had worked as an insured.

Worker Who Wants to File a Case for Detection of Service,

The defendant must make sure that the workplace is one of the workplaces that meet the conditions in accordance with the provisions of Social Insurance and General Health Insurance No. 5510.
The service must have been seen as uninsured by the claimant worker and in this case it must not have been detected before by SSI.
The subject of the lawsuit regarding the service determination case should be long-term insurances.
The worker must file the case within 5 years. (There are exceptional cases.)
The plaintiff worker, who has filed a service determination lawsuit, is obliged to prove the dates and work he claims to have worked. Witness statements are of great importance in the determination and proof of this issue. Proof in the service determination lawsuit may be possible with the testimony of the plaintiff worker, his colleague with whom he works, or the testimony of the worker or workers working in the neighboring workplace. In practice, the Courts select 4-5 (the number of witnesses may increase or decrease depending on the length of service) payroll witness and invite them to the hearings to be heard in the case.

The worker who filed a service determination case (if the worker has passed away, his legal heirs – mother, father, spouse, brother, etc.) opens the case against the employer, and if the employer has more than one, against each of them.

Status of the usufruct owner

Article 700 – In case a shareholder establishes usufruct right on his/her own share, if one of the other stakeholders requests to share within three months starting from the notification of the establishment of the usufruct right; The usufruct right in sharing through sale continues on the price to be deducted for the relevant share.