Exceeding the limits of self-defence under Turkish law

1. Self-defence is not just a question of proportionality

Self-defence is often reduced to asking whether the response was proportionate. That is only part of the examination. First, an unlawful attack and its timing must be established: has it occurred, or is its occurrence or repetition certain? Then come the necessity of defence at that moment, whether it was directed at the attacker and the degree of force justified by the circumstances. If the limit was exceeded, the particular act, moment and psychological influence behind the excess must be identified.

Combining these questions under ‘proportionality’ can obscure the difference between self-defence and exceeding its limits. Self-defence concerns whether the act is lawful. Under Article 27(2) of the Turkish Criminal Code (TCK), the lawful limit has been crossed; the question is whether the excess can be attributed to the actor as culpable conduct.

Articles 25 and 27 of the TCK establish this distinction; Article 223 of the Code of Criminal Procedure (CMK) identifies the corresponding judgment. The Court of Cassation’s Criminal General Assembly, in its decision E.2017/841, K.2017/440 of 31 October 2017, requires the conditions relating to the attack to exist and the proportionality limit of the defence to have been exceeded before Article 27(2) can apply. These criteria also appear in the Constitutional Court’s Muhterem Turantaylak judgment. [1][2][3][8]

This article examines the relationship between the provisions rather than simply listing them. German, Swiss and Austrian legislation is considered where it addresses the same problem through different structures. The purpose is not to import foreign outcomes into Turkish law, but to clarify the distinctions within Article 27 of the TCK.

2. Establish the conditions for self-defence first

Article 25(1) of the TCK provides that a person is not punished for an act necessary to repel an unlawful attack on their own or another person’s right, proportionately to the attack in the circumstances at that moment. [1] Although attack and defence appear together in the provision, each requires separate examination.

The Criminal General Assembly’s approach, cited in Muhterem Turantaylak, identifies four conditions for the attack: it must exist, be unlawful, concern a right capable of protection by self-defence and coincide in time with the defence. The response must be necessary, directed at the attacker and proportionate. [3]

This distinction matters. Where there was no attack or it had ended, the issue cannot invariably be described as ‘disproportionate defence’. Equally, beginning a response during an attack does not make every means used or every subsequent act lawful. Necessity and degree must be assessed as circumstances develop.

Proportionality is not a mathematical matching of weapons or means. It concerns the right threatened, seriousness of danger, course of events, time and place, the parties’ positions and the possibility of neutralising the attack otherwise. No single factor automatically determines the outcome.

Formulas such as ‘a weapon against a weapon’ or ‘only a fist against a fist’ do not replace legal assessment. An opportunity to leave the scene cannot be taken out of context and made the sole criterion either. Article 25 requires assessment of necessity at the time and the response’s relationship to the attack, beyond an abstract comparison of means.

3. Articles 27(1) and 27(2) regulate different forms of excess

Article 27 addresses two possibilities. Paragraph 1 concerns unintentionally exceeding the limits of a ground excluding criminal responsibility. If the negligent form of the act is also an offence, the penalty prescribed for that negligent offence is reduced. Paragraph 2 is confined to self-defence: no punishment is imposed where the excess results from excusable excitement, fear or panic. [1]

The paragraphs are not interchangeable. Paragraph 1 concerns an unintentional excess and whether a negligent form of the act is punishable. Paragraph 2 examines the link between an excess during self-defence and the excusable psychological state causing it. The first permits reduced liability for a negligent offence; the second supplies a specific ground excluding culpability.

The Criminal General Assembly’s 31 October 2017 decision requires four conditions together for Article 27(2): [8]

A right capable of protection by self-defence must exist.

The conditions relating to the attack must be present.

The response must exceed the required degree or proportionality in favour of the defender.

The excess must arise from excusable excitement, fear or panic. [3]

The examination therefore cannot begin and end with emotion. First establish the real, unlawful attack and its course, then whether the necessary degree of defence was exceeded. Fear alone does not make Article 27(2) applicable where the legally relevant attack is absent.

4. Excess in intensity and excess in time

Legal scholarship and comparative analysis distinguish using excessive force while an attack continues from acting outside the period of defence. These are commonly termed ‘intensive excess’ and ‘temporal excess’. They are analytical concepts, not statutory provisions.

In an intensive excess, the unlawful attack continues but the response goes beyond what is necessary to repel it. The Assembly’s criteria directly address this situation: the attack conditions exist, but proportionality is disturbed in favour of the defender.

A temporal excess occurs before the attack begins or after it ends, raising the requirement that attack and defence coincide. Once the attack is clearly established to have ended, a later act does not automatically fall within Article 27(2), even if explained by emotions from the earlier attack. The Assembly separately requires the attack conditions to be present. [3]

Real events are not always so clear. The attacker’s ability to resume, the parties’ positions, interruptions between acts or the moment a weapon was neutralised may be disputed. Whether the attack ended or continued must be established from evidence of the sequence, sometimes second by second, not from its final scene alone.

Which forms of temporal excess fall within Article 27(2) remains debated in scholarship. This article follows the proportionality-centred approach of the 2017 Assembly decision whose full text was verified for the source. The majority and dissent in the 2022 decision discussed below also show the difficulty of assessing events. [8][9]

5. Fear is not enough: causation and excusability

Article 27(2) names excitement, fear and panic, but their mere presence is insufficient. The excess must result from that state, and the state must be excusable. Two connected questions follow: did the emotion actually cause the excess, and was it excusable in the circumstances?

The cause may be emotion produced by the attack, or instead anger, punishment, revenge, an earlier dispute or a fresh decision after the attack ended. In the reasoning quoted by the Constitutional Court, the Assembly states that provocation rather than Article 27(2) may arise where the response seeks to satisfy resentment instead of repelling an attack. [3]

The reaction must then be assessed for excusability. An attack naturally affects a person, but not every emotional response excludes culpability. Relevant factors include its nature and suddenness, perceived danger, room to act, duration and the connection between attack and excess.

Neither the actor’s statement ‘I was afraid’ nor an observer’s assumption is sufficient. Statements before, during and after the incident, witness accounts, video and audio, physical surroundings, distances, the sequence of acts, medical examinations and forensic findings must be read together. Any specialist assessment gains significance alongside the other evidence. No isolated item establishes the psychological state by itself.

Excusability supplies a legal measure between demanding perfect composure from an attacked person and forgiving every excessive reaction. Reasons must explain through concrete facts why the attack produced that state and how it caused the excess, not merely state that the accused was frightened.

6. Self-defence, excusable excess and provocation are distinct

Their relevance to the same incident does not make these three legal concepts interchangeable.

In self-defence, the attack and defence conditions are fulfilled and the act is lawful. Article 223(2)(d) of the CMK requires an acquittal where a ground of justification exists, even though the alleged act was committed. [2]

Under Article 27(2), the lawful degree of defence has been exceeded. If excusable excitement, fear or panic caused the excess, no punishment is imposed. Article 223(3)(c) expressly requires a ‘decision that there is no need to impose a penalty’ because culpability is absent. [2] This is not an acquittal under another name or on the same legal basis.

Provocation reduces the penalty for an offence committed under anger or severe distress caused by an unlawful act. It neither justifies the conduct nor removes culpability entirely. A punitive or angry response after an attack has ended may concern provocation rather than self-defence. The applicable provision depends on evidence of timing, purpose and psychological influence.

An imagined attack requires separate treatment. Where no attack existed but the actor believed its conditions were present, mistake must be examined before excess. Article 30(3) of the TCK allows a person to benefit from an unavoidable mistake about the conditions of a ground excluding or reducing criminal responsibility. [1] Combining actual attack, limits of defence and mistake obscures their different consequences.

7. Why ‘no punishment’ does not explain the legal outcome

A criminal judgment is not adequately described as ‘punished’ or ‘not punished’. The ground and form of the decision reveal the distinction between lawful conduct and the actor’s culpability.

Article 223 of the CMK distinguishes the following outcomes:

A ground of justification leads to acquittal.

An excess of self-defence caused by excitement, fear or panic that excludes culpability leads to a decision that no penalty is to be imposed.

An unintentional excess may entail reduced liability for a negligent offence if that form of the act is punishable and the other conditions of Article 27(1) are met.

Where provocation is established, the act remains an offence but the penalty is reduced under the statutory conditions.

Each outcome requires different reasons. Self-defence requires an explanation of the attack and response conditions. Article 27(2) requires the particular excess, why the attack conditions continued, the psychological influence and its excusability. Provocation requires the link between the unlawful act and anger or severe distress, and the basis for the reduction.

Muhterem Turantaylak illustrates this need. The Constitutional Court noted that the trial court applied excessive self-defence without examining its conditions, particularly without explaining what established an unlawful attack by the applicant. [3] Naming a legal doctrine is not the same as demonstrating its conditions in the facts.

Reading two Court of Cassation decisions together

The 31 October 2017 Assembly decision (E.2017/841, K.2017/440) directly sets out the four conditions above, but rejected the self-defence objection in that case. Citing its general criteria does not mean the accused obtained exemption from punishment. This article relies on the criteria, not such an outcome. [8]

The 26 May 2022 decision (E.2021/279, K.2022/391) reached different outcomes for two people in the same incident. The child defendant’s conviction was quashed on self-defence grounds. The majority rejected the objection seeking Article 27(2) for the adult defendant, leaving the conviction with a provocation reduction intact. [9]

Dissenting opinions considered that the adult exceeded the limit under fear and threat. That position cannot be presented as the majority’s ruling. The disagreement shows interpretative difficulty, not a general rule that fear excludes punishment. The continuing attack, moment of response and each defendant’s position require individual assessment.

8. Which legal question does each item of evidence answer?

A long evidence list does not clarify matters unless each item is connected to a legal question. The examination can be organised under five headings.

8.1. The attack

Identify the attacker, the right threatened, unlawfulness and commencement. An argument, threat, physical approach and actual attack are not identical. Each act should be placed at its particular point in the sequence.

8.2. Timing

Examine whether response and attack coincided. Seconds on CCTV, witnesses’ sequence, positions and interruptions matter. A dropped weapon, retreat or renewed attack can alter the legal characterisation.

8.3. Necessity and degree

Assess whether the response was necessary and how its form related to the actual danger. Naming the means is insufficient: use, physical positions, severity and possible continuation of the attack must be considered together.

8.4. Psychological influence

Examine whether excitement, fear or panic arose from the attack, reached an intensity capable of explaining the excess and was excusable. Distinguishing it from anger, revenge or punishment is particularly important where motives overlap.

8.5. Legal outcome

Explain how the established facts relate to Articles 25, 27(1), 27(2), 29 or the mistake provisions. Where several possibilities arise, identify the factual basis for each. A conclusion cannot replace the preceding analysis.

9. A short hypothetical: changing conditions within one incident

Suppose A faces B’s unlawful physical attack in a confined space and responds to stop it. Within seconds, B drops the object used and the distance between them changes. A nevertheless makes one further move.

Even this brief incident raises several questions. If the attack continued and the first response was necessary, Article 25(1) is relevant. If the attack continued but the final act exceeded what was necessary, Article 27(2) may require examination of excusable excitement, fear or panic caused by it. If the attack had clearly ended and A acted on a fresh, angry decision, simultaneity and defensive purpose become questionable and other provisions may apply.

The outcome is deliberately left open. Falling, dropping an object or a short interval does not conclusively end an attack in every case; nor does it establish continuation. All the evidence and actual conditions at the moment must determine the characterisation.

10. Germany: lawful defence and fear-related excess in separate provisions

Section 32 of the German Criminal Code defines self-defence as the defence necessary to avert a present unlawful attack on oneself or another person and states that conduct within it is not unlawful. [4]

Section 33 excludes punishment where the actor exceeds self-defence through confusion, fear or terror. Its wording, ‘Verwirrung, Furcht oder Schrecken’, is linguistically close to the excitement, fear and panic in Article 27(2) of the TCK. [5]

The similarity does not establish identical application. The German text has no express equivalent to the TCK’s ‘excusable’. Its practical meaning cannot be decided from words alone without German scholarship and judgments. This article makes no definitive German case-law claim about the forms of excess covered by section 33.

The statutory structure nevertheless helps distinguish lawful defence under section 32 from emotion-related excess under section 33. Similarly, Articles 25 and 27(2) of the TCK require separate examination of justification and the culpability consequences of excess.

11. Switzerland: two consequences of excessive defence

Article 15 of the Swiss Criminal Code permits a person facing an unlawful attack or its immediate threat, or another person, to repel it in a manner appropriate to the circumstances. [6]

Article 16 provides two consequences. Paragraph 1 requires a penalty reduction for excess. Paragraph 2 states that the actor is not culpable where the excess occurs through excusable excitement or dismay caused by the attack. The official German wording is ‘entschuldbarer Aufregung oder Bestürzung’. [6]

The structure is comparable because neither system treats ordinary excess and excusable attack-induced emotion alike. Their conditions differ, however: Swiss Article 16(1) directly reduces the penalty, whereas Article 27(1) of the TCK additionally requires an unintentional excess and a punishable negligent form of the act.

The Swiss phrase excluding culpable conduct expressly distinguishes justification from culpability. In Turkish law, that distinction appears when Article 27(2) of the TCK is read with Article 223(3)(c) of the CMK.

12. Austria: the connection between emotional excess and negligence

Section 3 of the Austrian Criminal Code regulates both self-defence and excess. Paragraph 1 concerns necessary defence against a present or immediately impending unlawful attack on listed interests, including life, health, bodily integrity, sexual integrity and autonomy, liberty and property. It also limits manifestly inappropriate defence against a threat of very slight harm. [7]

Paragraph 2 concerns excessive or manifestly inappropriate defence undertaken solely through dismay, fear or terror. Punishment follows only if the excess is negligent and the negligent act is punishable. The official terms are ‘Bestürzung, Furcht oder Schrecken’. [7]

Austria thus connects emotional excess to negligence and the punishability of a negligent offence. Article 27(2) of the TCK excludes punishment for excess caused by excusable excitement, fear or panic. The separate negligence rule in Article 27(1) and exclusion of culpability in Article 27(2) differ from the Austrian model combined in section 3(2).

13. Comparing the four statutory frameworks

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The table compares express statutory wording only. A foreign-law conclusion for an actual dispute requires separate national case-law analysis of an attack’s immediacy, necessary degree of defence, forms of excess and psychological intensity.

14. Five distinctions emerging from the comparison

14.1. Justification and absence of culpability are different

All four systems separate self-defence from excessive defence. In Türkiye, the difference between Articles 25 and 27(2) is completed by the CMK’s distinction between acquittal and a decision not to impose a penalty. It determines the facts that reasons must address, not just the terminology.

14.2. Similar emotional terms do not establish the same legal threshold

Fear and related terms occur across the texts. Turkish and Swiss provisions expressly require excusability, while the German and Austrian sentences are structured differently. Shared words do not establish identical proof requirements or consequences.

14.3. Ordinary and emotional excess interact differently

Turkish paragraphs 27(1) and 27(2) have separate conditions and consequences. Switzerland separates reduction and absence of culpability; Austria links fear-related excess to negligent liability; Germany directly excludes punishment in section 33. The general statement ‘excess means no punishment’ is therefore incomplete.

14.4. Psychological state cannot replace the defence conditions

The Assembly’s criteria begin with the attack and excessive degree of response. Foreign emotional-excess provisions are likewise linked to self-defence. Fear is not an independent, unlimited exemption from punishment; it must be assessed in the relationship between attack and response.

14.5. Textual similarity does not prove historical or functional identity

The TCK’s emotional terms are strikingly close to those in the German-language provisions. That does not prove Article 27(2) is an exact counterpart of a particular foreign rule or should follow the same judgments. Any historical-origin claim requires legislative preparatory materials and comparative criminal-law scholarship.

15. A sequence for reasoned legal examination

The following sequence can help distinguish concepts in a judgment, academic study or case-file review:

Identify the attack: what was it, was it unlawful and which right was threatened?

Establish timing: when did the attack begin, the response occur and the attack end?

Assess necessity: was the act needed to repel the attack, and was it directed at the attacker?

Identify the excess: which act crossed the limit, at what moment and in what way?

Connect emotion to evidence: did excitement, fear or panic arise from the attack, how did it cause the excess and why was it excusable or not?

Separate alternatives: why do Articles 25, 27(1), 27(2), 29 and, where relevant, the mistake provisions apply or not?

Explain the judgment: what statutory basis supports acquittal, no penalty or conviction?

This is not a predetermined outcome template. It helps examine each condition through its own evidence and reasons without assuming the result in advance.

16. Conclusion

Self-defence cannot demand flawless calculation from someone facing an attack’s full pressure. Nor does an attack make every response lawful without limits. Article 25 defines lawful defence; Article 27 addresses the different consequences of exceeding it.

Article 27(2) requires more than ‘fear’: an actual self-defence situation, excessive degree of response, attack-induced emotion, a causal link and excusability must coexist. Reasons for no punishment are incomplete without these elements. The Assembly’s criteria and the Constitutional Court’s reasoning review in Muhterem Turantaylak show why naming a doctrine is insufficient. [3][8][9]

Fear-related excess is not unique to Turkish law, but Germany, Switzerland and Austria answer it differently. Switzerland distinguishes reduction from absence of culpability; Austria links emotional excess to negligence; Germany excludes punishment. Türkiye separates ordinary unintentional excess and excusable emotional excess into two paragraphs.

Comparative analysis is useful not for importing ready-made outcomes, but for clarifying justification, limits, culpability, psychological influence and the form of judgment.

Source notes

[1] Turkish Criminal Code, Law no. 5237, particularly Articles 22, 25, 27, 29 and 30. Current official legislation: Legislation Information System. Official copy as enacted by Parliament: TBMM text.

[2] Code of Criminal Procedure, Law no. 5271, particularly Articles 223 and 230. Current official legislation: Legislation Information System. Official copy as enacted by Parliament: TBMM text.

[3] Constitutional Court, Muhterem Turantaylak, application no. 2014/15253, 9 May 2018; particularly the cited Criminal General Assembly criteria of 31 October 2017, E.2017/1-841, K.2017/440, and the Court’s review of reasons: Constitutional Court decisions database.

[4] German Criminal Code (Strafgesetzbuch), section 32 — Notwehr, current official German text: German legislation.

[5] German Criminal Code (Strafgesetzbuch), section 33 — Überschreitung der Notwehr, current official German text: German legislation.

[6] Swiss Criminal Code (Schweizerisches Strafgesetzbuch), Articles 15–16, official German record: Fedlex.

[7] Austrian Criminal Code (Strafgesetzbuch), section 3 — Notwehr, official consolidated record: RIS.

[8] Criminal General Assembly, 31 October 2017, E.2017/841, K.2017/440. Case analysis — Turkish text.

[9] Criminal General Assembly, 26 May 2022, E.2021/279, K.2022/391. Case analysis — Turkish text.

Source check for the Turkish article: 8 September 2026. Articles 25 and 27 of the TCK, Article 223 of the CMK, the cited Constitutional Court and Court of Cassation judgments, and the foreign statutory provisions were checked against official sources. The Court of Cassation records the 2017 case as 2017/841; the Constitutional Court’s quotation uses 2017/1-841. The foreign-law discussion compares statutory texts only and does not equate national case-law scope.

General-information notice: this article is not legal advice about a particular person or event. Its foreign-law discussion must not be used as a legal opinion or practical recommendation in those countries.