il libro - Silvio Riondato

62 L. Pasculli, C. Candiotto, S. Riondato
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amendments) draws a criminal law system based on the rule of law, which cannot
imply, as such, the necessary recognition of the principle of culpability.
Indeed, the criminal code, after having stated that no one can be kept responsible
from another person’s act (Article 20, para. 1) expressly requires, as a necessary
element of crime (and condition of punishment), the culpability of the author of the
fact, in the two forms of malice (which, as in the Italian criminal code, is considered
the general criterion of attribution of criminal responsibility) and negligence (which
is a subsidiary criterion of subjective inculpation) 51 .
e 2004 amendment to Article 38 of the Constitution could have represented a
good occasion to introduce a clear statement of the principle of culpability. It would
have been enough to add an adjective to the phrase of Paragraph 7 («Criminal responsibility
shall be personal and culpable»). us would have allowed to consider
nally achieved the (constitutional) armation of the primacy of the value of the
human person before the value of the Turkish nation, at least in criminal matters. Yet
the afore-mentioned interpretation of the principle of personality, quite undisputed
and diused in other legal systems, can provide a strong argument to consider the
principle of culpability (at least implicitly) proclaimed by the Turkish Constitution.
5.3. Principle of materiality and principle of harm
e principle of materiality of criminal oences (that is the necessity for the legislator
to criminalize only material facts and not mere intentions) can be traced in the
rst Paragraph of Article 38, where the norm makes reference to an «act» in order to
qualify the substance of a criminal oence. It is clear that an act is an externalization,
a manifestation of a criminal intent, unlike an attitude. Indeed, the also the Latin
expression used to signify the objective element of crime is that of actus reus (as opposed
to mens rea, used to mean the subjective element of crime).
ere is no explicit recognition, though, of the principle of harm – further development
of the principle of materiality – according to which no one should be
punished for a fact (or an «act») which is not harmful or at least dangerous for some
relevant interest, good or value. Well known is the double nature of such principle:
it can serve as a binding rule for the courts (principle of harm as interpretative criterion)
or as a binding rule for the legislator (principle of harm as legislative criterion).
When the principle of harm is armed as an interpretative criterion, that means that
courts must ascertain the concrete harmfulness or dangerousness of a fact corresponding
in the abstract to a criminal oence established by law. When it is armed as a
legislative criterion, that means that the legislator itself cannot establish as criminal
oences facts which are not concretely dangerous or harmful.
51 Articles 21 and 22 of Turkish criminal code.