The Problem of Creating Crimes and Penalties by Presidential Decrees

According to Article 38 of the 1982 Constitution and Article 2 of the Turkish Criminal Code (TCC) no. 5237, crimes and penalties must be prescribed by “statute”, which is a legislative act of the Turkish Grand National Assembly. Pursuant to Article 104/17 of the Constitution, crimes and penalties cannot be introduced through ordinary presidential decrees. This principle is not subject to dispute. The primary issue regarding ordinary presidential decrees lies in the delegation of regulatory power. While the sanction part of penal norms is determined by the legislative body, the President is authorised to outline the framework of the rule and provide its content (the problem of the blanket norms). As to whether crimes and penalties may be established by presidential decrees during a state of emergency, different approaches are adopted by criminal lawyers and constitutional lawyers. According to the prevailing view in criminal law doctrine, crimes and penalties cannot be created by presidential decrees during a state of emergency. Those who hold this view rely on the connection between Articles 104/17 and 119/6 of the Constitution. However, this view is open to debate from various perspectives. Article 38 of the Constitution, which enshrines the principle of legality, falls within the scope of the second sentence of Article 104/17 of the Constitution, which is subject to an exception under Article 119 of the Constitution. Furthermore, both the Constitutional Court and the prevailing view in constitutional law doctrine maintain that the Constitution does not provide an exclusive area of law.