Eskişehir Barosu Dergisi

Abstract

The relevance of the provisions on active remorse emerges in circumstances where the perpetrator, driven by sincere regret for the offense committed, fully rectifies the harm inflicted upon the victim-either through direct restitution or financial compensation-thereby reinstating the victim’s property to its prior condition before the commission of the crime. When the provisions of effective remorse are invoked, the offender’s penalty is mitigated depending on whether the harm is rectified during the investigation or trial phase. In instances where the offender remedies the victim's harm during the investigation stage, a more significant reduction is applied to the sentence in line with principles of fairness, compared to when the harm is addressed during the prosecution stage.
There is no ambiguity in applying effective remorse provisions in cases where the harm suffered by the victim in property-related offenses is entirely remedied through restitution or compensation. However, in scenarios where the offender provides only partial reparation to the victim, the victim’s consent is required to implement the provisions of effective remorse as per Article 168/4 of the Turkish Penal Code. This is because, in such cases, since the victim's harm is not fully addressed, their property remains diminished compared to its state prior to the offense. The aim and scope of this analysis are to explore how effective remorse is applied in cases where the harm is only partially compensated in property-related offenses.
Although the legislation refers to partial restitution of harm, no clarification has been provided regarding what should be understood by the term "partial." Within the doctrine, some argue that even if the harm is only partially remedied, this restitution must reach a certain degree of significance. However, based on the principle of legality and the prohibition of analogy, it should be acknowledged that even if only a very small portion of the harm is addressed, the harm is still partially remedied, and the victim's consent should be sought for the application of the provisions on effective remorse.