The Legal Nature Of State Of Necessity In Light Of The Principle Of Unity Of The Legal Order

The current Turkish legal doctrine on the state of necessity mostly handles the concept separately in terms of civil and criminal law. However, the principle of unity of the legal order requires a holistic approach. Especially after the entry into force of the Turkish Penal Code (TPC) and the Code of Penal Procedure (CPP) on 01.06.2005, the legal nature of the state of necessity has been extensively discussed in criminal law doctrine. But these discussions rarely, if ever, take the fact that the state of necessity constitutes a ground of justification under civil law into account. This study takes a holistic approach in examining the legal nature of the state of necessity and emphasizes the interaction between civil law and criminal law within the context of grounds for justification. It starts with general remarks on the principle of unity of the legal order and proceeds with a description of the state of necessity with a particular focus on its legal nature from civil law and criminal law perspectives respectively. The study concludes that in light of the clear provision in Art. 223 (3) (c) CPP, the state of necessity does not constitute a justification in criminal law, and therefore, where Art. 25 (2) TPC applies, the judgment to be rendered is not an acquittal, but a decision that infliction of punishment is not required. Nonetheless in cases where the act qualifies as one performed in a state of necessity from a civil law perspective, the act shall also be deemed lawful in terms of criminal law and the court shall decide for acquittal.