Escape of a prisoner or prisoner awaiting trial in Turkish criminal law

Abstract

Breach of prison is regulated under article 292 under the heading of Offences Against The Judicial Bodies or Court in the second chapter of the fourth section in the second book concerning special provisions of the Turkish Penal Code (TPC). It is also admitted under article 97/1 of The Law on the Execution of Penalties and Security Measures (LEPSM) that convicts who fail to return from a leave or who return with a delay of more than two days shall be liable to the provisions stipulated in Article 292 and the following articles of TPC. Legally protected interest of breach of prison is the benefits of the execution of detainment or conviction of detainee or convicted for individuals in community. The article is regulated as a particular offense. Perpetrator of this crime should be a convicted or detainee person. The victim is all the individuals of the community. There is not a victim in concrete meaning while the crime is not an offense against individuals. The crime of breach of prison may commited with two different pattern of behaviour. The first of these occurs with escape of detainee or convict from prison, penitentiary or custody of an officier (Art. 292/1 of TPC). The second option occurs with fail to return or return with a delay of more than two days of detainee or convict (Art. 97/1 of LEPSM). The cases of commission of this offense by using force or threat either jointly or armed are factual qualifications which require heavier punishment. Sincere repentance is regulated as a personal reason which seek mitigation of punishment. Moral element of the crime is general malice and the crime can not be committed with negligence. The Attempt to commit this crime is sentenced. Voluntary abandonment is also possible. Breach of prison does not show a feature in terms of participation in commission of a crime. General provisions of participation is applied. Breach of prison is a continuing offense. During commission of breach of prison crime, in case of the an offence aggravated as a result of injurious consequences or homicide, or damage to property is additionally punished according related articles of such offences. The Article is criticized justifiably in doctrine, with its defiance to principle against self-incrimination ( nemo tenatur) regulated under article 38/5 of Constitution or principle of protection the individual right and freedom regulated under Article 1 under the heading "Object of Criminal Code" of TPC. In our opinion, it is not right to punish a detainee or a convict because his/her attempt to escape. Such initiatives are natural, instinctive human reactions of individuals. Thus, regulations which take this into account, recognize the self defence as an compliance with the laws. In other words, such regulations recognize that individuals under criminal investigation, can not be forced to make a statement that would incriminate himself/herself or his/her legal next of kin, or to present such incriminating evidence. While recognizing the unpunishment of lying concerning accused offense, it does not force accused to tell the truth. Hence, we do not approve the punishment of breach of prison of an individual who naturally exhibit a behaviour for the unexecution of punishment or the escape. We think that individuals who escapes after detention or conviction in a penitentiary or a prison, should not be punished only because of breach of prison, just as unpunishment of a convict who does not give up one's self, flees and applies various methods, after learning his/her decision of conviction, and that the basic form of this crime should be extracted.