The crime of resisting to prevent the performance of duty is a type of crime regulated under Article 265 of the Turkish Penal Code (TPC). This crime includes criminal sanctions against individuals who prevent public officials from performing their duties. Also known as resisting a public official, this crime is of great importance for the protection of public order. However, in practice, individuals being accused of this crime while trying to exercise their legal rights brings both legal and social debates. The crime of resisting to prevent the performance of duty has become one of the frequently filed types of cases today. It is particularly frequently applied to citizens trying to exercise their right to freedom of expression and thought and the special form of this right, the right to freedom of assembly and demonstration.
What is the Purpose of TPC Article 265 Crime of Resisting to Prevent the Performance of Duty?
Article 265 of the Turkish Penal Code aims to ensure that public officials can perform their duties safely and to protect public order. Public officials bear the responsibility of ensuring the general order of society and carrying out public services. In this process, being prevented from performing their duties constitutes not only an individual violation but also a threat to public order.
The main purposes of TPC 265 are as follows:
- Protection of public order: Actions that prevent public officials from performing their duties can cause chaos and disorder in society. Ensuring this order is the key to individuals living in a safe environment.
- Ensuring continuity of public services: It is essential to ensure that civil servants work in a safe environment for public services to be provided uninterrupted and effectively.
- Preventing the limitation of individual rights: Resistance against officials can violate not only the rights of civil servants but also the rights of individuals who want to benefit from public services.
However, the protection of fundamental rights during the implementation of TPC 265 is also important. While laws guarantee that public officials do their jobs, they should not violate the rights of citizens; on the contrary, they should establish a balance compatible with these rights. In this context, the implementation of the law aims to create a delicate balance between public order and individual freedoms.
What are the Elements of TPC Article 265 Crime of Resisting to Prevent the Performance of Duty?
The crime of resisting to prevent the performance of duty is regulated in Article 265 of the Turkish Penal Code and occurs through the use of force or threat to prevent public officials from performing their duties. The relevant regulation is as follows:
“Resisting to prevent the performance of duty Article 265-
(1) A person who uses force or threat against a public official for the purpose of preventing them from performing their duty shall be punished with imprisonment from six months to three years.
(2) If the crime is committed against persons performing judicial duties, a sentence of imprisonment from two years to four years shall be imposed.
(3) If the crime is committed by making oneself unrecognizable or by more than one person together, the sentence to be given shall be increased by one-third.
(4) If the crime is committed with a weapon or by taking advantage of the intimidating power created by existing or alleged criminal organizations, the sentence to be given according to the above paragraphs shall be increased by half.
(5) If aggravated forms of the crime of intentional injury due to the result occur during the commission of this crime, the provisions regarding the crime of intentional injury shall also be applied separately.”
As we can see in the law, we can summarize the basic elements of this crime as follows:
- Action Against a Public Official:
The target of the crime is a public official performing public service. Interventions made during duty are evaluated within this scope. - Use of Force or Threat:
The application of force or threat to prevent the public official from performing their duty is one of the basic elements of the crime.
This crime has been regulated to ensure that public officials can perform their duties safely and to protect public order. However, when applied, the fundamental rights and freedoms of individuals must also be taken into consideration.
What are the Penalties for the Crime of Resisting to Prevent the Performance of Duty?
Article 265 of the Turkish Penal Code has regulated the penalties for the crime of resisting to prevent the performance of duty in detail. The penalties to be applied in case of using force or threat to prevent the public official from performing their duty are as follows:
- Basic Penalty:
A person who uses force or threat against a public official shall be punished with imprisonment from 6 months to 3 years. - Commission Against Those Performing Judicial Duties:
When the crime is committed against judges, prosecutors, lawyers or other persons performing judicial duties, the penalty is increased and imprisonment from 2 years to 4 years is applied. - Making Oneself Unrecognizable or Commission of the Crime by More Than One Person:
If the perpetrator makes themselves unrecognizable to conceal their identity or if the crime is committed together with more than one person, the determined penalty shall be increased by one-third. - Commission with a Weapon or by Taking Advantage of the Intimidating Power of Criminal Organizations:
If the crime is committed using a weapon or by taking advantage of the intimidating power created by criminal organizations, the penalty shall be increased by half. - Commission of the Crime of Intentional Injury:
If aggravated forms of the crime of intentional injury occur due to the result during the crime, the provisions regarding the crime of intentional injury shall also be applied separately.
Examples of the Crime of Resisting a Public Official
- When a police officer wants to conduct an identity check, not only refusing to show identification but also physically attacking the officer.
- Verbally insulting or threatening to prevent an enforcement officer from performing their duty.
- Showing force or threat to a municipal police officer at a workplace that has been legally ordered to close, disregarding the officer’s authority.
- Threatening and applying force to judicial officials such as judges, prosecutors and lawyers during their duties.
What is the Meaning of the Concept of “Force” Under TPC 265?
Force is a concept frequently used in the Turkish Penal Code and generally refers to physical violence. In the context of the crime of resisting to prevent the performance of duty, force refers to coercive actions applied to prevent the public official from performing their duty.
TPC Article 265 states that a person who uses force to prevent a public official from performing their duty will be punished. What the concept of force specified in TPC 265 refers to is one of the issues that should be emphasized. Force is the use of physical power against a public official. The limit of force is simple intentional injury (Article 86/1). (Artuk-Gökcen-Yenidünya / Criminal Law Special Provisions p.1142 15th Edition) As can be understood from this statement, force must include acts of intentional injury; in this respect, it must naturally be clearly established beyond any doubt that it directly targets the victim. The intent of the perpetrator must converge at the point of “acting to prevent the public official from performing their duty.”
How is the Relationship Between Perpetrator and Victim Determined in the Crime of Resisting to Prevent the Performance of Duty?
There must be a causal link between the act and the perpetrator. To be punished for the crime of resisting to prevent the performance of duty, which public official’s duty the perpetrator prevented by using force must be determined clearly and beyond doubt. However, the connection between the perpetrator and the act must be determinable one-to-one in a way that also includes the victim.
The crime of resisting to prevent the performance of duty is a crime that, in terms of material elements, requires the victim to directly produce results at the point of public duty activity. In this respect, the situation of preventing public duty to which the intent is directed must have been realized by a determinable perpetrator with a determinable action directed at a determinable victim.
The Public Official’s Duty Must Be Lawful in the Crime of Resisting to Prevent the Performance of Duty
For the crime of resisting to prevent the performance of duty to occur, it is not sufficient for the victim to be a public official alone. The duty performed by the public official must be a lawful duty. This situation is important both for determining the criminal liability of the perpetrator and for keeping the authorities of public officials under control as one of the elements of the crime.
What is a Lawful Duty?
A lawful duty refers to situations where the public official:
- Acts within their authority,
- Performs duty within the limits prescribed by laws,
- The transaction performed does not contain unlawfulness in terms of form and content.
If the transaction performed by the public official is unlawful, the right of citizens to resist can become controversial and in this case, the crime of resisting to prevent the performance of duty may not occur. For example, if a public official intervenes beyond their authority or tries to perform a transaction in a way they are not authorized to do, these actions are not considered a lawful duty.
Effect of Unlawful Duty on the Crime
If the duty is not lawful, the actions performed by the perpetrator to prevent this duty cannot be evaluated within the scope of TPC 265. However, it should also be considered that the perpetrator’s action may be evaluated within the framework of other criminal law provisions.
For example:
- A citizen’s resistance during a police officer’s unlawful detention of a citizen is not evaluated as the crime of resisting to prevent the performance of duty.
- However, if another crime such as intentional injury against the public official is committed during this resistance, the perpetrator can be held responsible for this crime.
Lawfulness Condition in the Crime of Resisting to Prevent the Performance of Duty
For the crime to occur:
- The public official must perform their duty within the limits of authority and law,
- The duty must be applied in a way that does not violate the legitimate rights of the citizen.
Therefore, when evaluating whether an action constitutes a crime within the scope of TPC 265, whether the public official’s duty is lawful must definitely be investigated.
Conclusion and Summary
The crime of resisting to prevent the performance of duty is an important regulation regulated in Article 265 of the Turkish Penal Code, aiming to ensure that public officials perform their duties safely. This crime, which is of critical importance for the protection of public order, must also be applied in a balanced manner with the fundamental rights and freedoms of individuals.
For this crime to occur, the public official must be performing a lawful duty, and the perpetrator must have the intent to prevent this duty through force or threat. Additionally, there are situations where penalties can be aggravated depending on the manner in which the crime is committed. Criminal sanctions are increased especially when committed against judicial officials, carried out together with more than one person, or when a weapon is used.
However, if the public official does not perform their duty lawfully, these actions cannot be evaluated within the scope of the crime of resisting to prevent the performance of duty. The protection of fundamental rights such as citizens’ freedom to seek justice, freedom of expression and thought is of great importance in this process.
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