What is TCK Article 92 and Why Is It Important?

Article 91 of the Turkish Penal Code, titled “Organ or tissue trafficking”, imposes severe penalties on individuals who acquire, sell, purchase, or mediate the transfer of organs or tissues without legally valid consent. However, alongside these heavy sanctions, Article 92 provides for the circumstances of the person selling their organs or tissues social and economic conditions introduces an exception due to.

This article acknowledges the reality that individuals who sell their organs or tissues are generally driven to this act by circumstances such as desperation, poverty, or heavy debt burdens. The legislature has adopted a more humane approach toward the perpetrator in such cases, allowing for a reduction in sentence or even exemption from punishment. This is also consistent with the fundamental criminal law principles of “culpability” and “proportionality”.

Assessment of Social and Economic Conditions

According to TCK Article 92, the court evaluates the conditions of the person who sells their organs or tissues social and economic conditions must evaluate meticulously. While making this evaluation, many factors such as the person's financial status, family responsibilities, health status, debts, education level, and unemployment status are taken into consideration.

Court of Cassation precedents also show that courts have broad discretion in this regard. For instance, a precedent states that matters such as the perpetrator's background, social relations, post-offense and trial conduct, and the potential effects of the sentence on the perpetrator's future may be taken into account among the grounds for discretionary mitigation.

Relationship with Effective Remorse Provisions

Effective remorse provisions are also regulated in the TCK for the crime of organ or tissue trafficking. According to Article 93 of the TCK, if a person who sells their organs or tissues informs the authorities before the situation is learned by official bodies and facilitates the apprehension of the criminals, no penalty shall be imposed on them. If, after the crime is discovered, they voluntarily serve and assist in the emergence of the crime and the apprehension of other criminals, their sentence shall be mitigated.

Although state of necessity and effective remorse both offer the opportunity for sentence reduction or waiver of punishment for the perpetrator, they are based on different conditions. While the state of necessity focuses on external factors (social and economic conditions) that led to the commission of the crime, effective remorse focuses on the cooperation and remorse behaviors demonstrated by the perpetrator after the crime. Both situations demonstrate that the criminal justice system seeks to gain a deeper understanding of the individual's situation and the motivations behind their action.

State of Necessity in Judicial Practice

In the application of Article 92 of the TCK, the Court of Cassation expects courts to take into account all characteristics of the specific case and objectively evaluate the conditions in which the perpetrator was situated. This may require not being content merely with the statements of the perpetrator, but collecting information from relevant institutions and organizations (social services, municipality, district governorship, etc.) and examining documents demonstrating the perpetrator's economic status (bank account statements, title deed records, income documents, etc.).

In such cases, courts must investigate whether the perpetrator's act of selling an organ was truly a “last resort,” whether alternative options existed, and the extent of desperation under which this act was carried out. This detailed examination is of critical importance for rendering a fair decision.

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Frequently Asked Questions (FAQ)

Q1: What is the state of necessity in organ trafficking? 

The state of necessity in organ trafficking is a provision regulated under Article 92 of the Turkish Penal Code. According to this article, taking into consideration the social and economic conditions in which the person selling their organ or tissue is situated, the sentence to be imposed may be mitigated, or the court may waive the imposition of a penalty.

Q2: In which circumstances can Article 92 of the TCK be applied? 

Article 92 of the TCK can be applied when a person is forced to sell their organ due to severe social and economic conditions such as poverty, heavy debt burden, family responsibilities, and health problems. The court evaluates the extent to which these conditions affected the person's action.

Q3: What is the rate of sentence reduction under Article 92 of the TCK? 

Article 92 of the TCK does not specify a fixed reduction rate. Whether a sentence reduction will be applied and the amount of such reduction are at the discretion of the court, based on the specific circumstances of the case and the severity of the conditions in which the person was situated.

Q4: What does waiver of punishment mean? 

Waiver of punishment is when the court imposes no penalty whatsoever on the perpetrator for the crime of organ or tissue trafficking, upon concluding that the social and economic conditions in which the individual found themselves were extremely severe and hopeless. This is a decision applied in very exceptional circumstances.

Q5: What is the difference between Article 92 of the TCK and effective remorse? 

While Article 92 of the TCK (state of necessity) focuses on the social and economic conditions that led to the commission of the crime, effective remorse (Article 93 of the TCK) focuses on the perpetrator's cooperative and remorseful behavior after the crime. Both may offer the possibility of a sentence reduction or waiver of punishment, but they are based on different grounds.

Conclusion / Summary

Article 92 of the Turkish Penal Code is an important provision that allows for a reduction in sentence or a waiver of punishment in the crime of organ or tissue trafficking due to the condition of the person selling their organ social and economic conditions reflecting the humanitarian face of criminal law, it ensures that a more flexible approach is adopted toward individuals driven into this crime by compelling reasons such as desperation and poverty. When applying this provision, courts must meticulously evaluate the conditions in which the perpetrator was situated and render a fair decision by taking all the specific characteristics of the case into consideration. Thus, crime is combated while the difficult circumstances of individuals are not disregarded.

Atty. Batın YILMAZ