Vagrancy (Offense) from Past to Present
Asena Kamer UsluadamThroughout history, vagrancy has been used in various societies to denote someone who is “dangerous”; vagrancy regulations have been enacted and implemented to eliminate the “danger” with sanctions, such as death penalty, imprisonment, forced labor, and exile, by determining this danger according to social needs. Historically, there have been approaches to vagrancy, sometimes punishing them, applying measures to prevent crime, and sometimes protecting and assisting them. Currently, the 1982 Constitution, the European Convention on Human Rights, the Turkish Civil Code, and various texts contain regulations on vagrancy. Today, the objectives of protection and prevention of crime continue to exist in a mixed manner. The study highlights how changes in social life determine vagrancy as a social phenomenon. The effects of wars, epidemics, population changes, and economic structure changes on both the scope of vagrants and their position before legal order and the tools to be used to combat them are discussed. While the new position of vagrancy, which was regulated as a crime under Turkish law until 1963, in the perspective of critical criminal law is determined, the relationship of vagrancy with the concept of underclass is revealed.
Geçmişten Günümüze Serserilik (Suçu)
Asena Kamer UsluadamSerserilik tarih boyunca çeşitli toplumlarda “tehlikeli” bulunanı ifade etmek üzere kullanılmış; serserilik düzenlemeleri, bu tehlikenin içeriğini döneminin toplumsal yapısına ve ihtiyaçlarına göre doldurarak; ölüm cezası, hapis cezası, zorla çalıştırma, sürgün gibi yaptırımlarla “tehlikeyi” bertaraf etmek üzere yürürlüğe konulmuş ve uygulanmıştır. Serseriliğin tarihsel seyrine bakıldığında onlara yönelik bazen cezalandırma bazen suç işlenmesinin önlenmesine yönelik tedbirler uygulama bazen de koruma, yardım etme yönünde yaklaşımlar söz konusu olmuştur. Hâlihazırda 1982 Anayasası, Avrupa İnsan Hakları Sözleşmesi, Türk Medeni Kanunu ve çeşitli hukuki metinlerde serserilere yönelik düzenlemelere rastlanmaktadır. Yürürlükte bulunan mevzuat incelendiğinde koruma ve suç işlenmesinin önlenmesi amaçlarının karma bir şekilde varlığını sürdürdüğü görülmektedir. Çalışmada tarihsel süreçte serserilik düzenlemeleri toplumsal yaşamda meydana gelen değişimler ekseninde incelenirken bu değişimlerin sosyal bir fenomen olarak serseriliği ve serserileri ne şekilde belirlediğine dikkat çekilmiştir. Savaşlar, salgın hastalıklar, nüfus değişiklikleri ve ekonomik yapıda meydana gelen değişimlerin hem serserilerin kapsamına hem onların hukuk düzeni karşısındaki konumlarına ve onlarla mücadelede başvurulacak araçlara etkisi ele alınmıştır. Türk hukukunda da 1963 yılına kadar suç olarak düzenlenen serseriliğin eleştirel ceza hukuku perspektifinde yeni konumuna dair tespitlere yer verilirken serserilerin sınıf altı kavramıyla ilişkisi ortaya konulmuştur.
In historical times, vagrants have been the subjects of aid and punishment from time to time and have been positioned somewhere between these two extremes according to their social structure and needs. The dynamics that changed the perspective on work and poverty also affected the perspective on vagrancy, and heavy sanctions, such as death penalties, exile, and forced labor, could be imposed on vagrants. In times of labor demand, vagrants were sometimes forbidden to leave their settlements, imprisoned in workhouses, and forced to work in exile. In times of population mobility, when the security of life and property was in danger and social order was disrupted, sanctions such as death, stigmatization, beatings and, imprisonment were imposed on vagrants.
The first laws punishing vagrancy in the West is the labor laws enacted in England in the 14th century. The vagrancy regulations enacted in this period were seen as an alternative way of providing cheap labor, which had become expensive due to the death of almost half of the population because of the Black Death and the loss of some lands. Until the 16th century, vagrancy regulations aimed at providing cheap labor were transformed to serve the purposes of discipline and social control. By the 19th century, vagrancy, which had been a status until then, was regulated as a crime by associating it with certain acts, and to provide the labor force needed by the industry, the conditions of those who received assistance worsened, and work was tried to be made attractive. In the 20th century, with the outbreak of world wars and the rise of welfare-oriented states, the approaches to vagrancy and homelessness changed.
In the Ottoman Empire, as in Europe, people who did not work, were lazy, and wandered around were considered “dangerous” to society, and various ways were sought to eliminate this danger. From the 16th to the 19th centuries, methods such as forced labor or exile to the countryside were used against vagrants and beggars.
After Tanzimat’s proclamation, the aim of rehabilitation through labor came to the forefront of the fight against vagrancy. The Law on Vagrants and Wrongdoing-Expected Persons, which entered into force during this period, remained in force until 1963.
Today, vagrancy, which is included as a legitimate reason for limiting the right to liberty and security under the Constitution and the ECHR, continues to exist in a mixed manner with other legislative regulations, with the aim of protecting vagrants and preventing crime. Vagrancy is not criminalized under a condition or an act as it was in the past. However, in the changing social life with developments in the second half of the 20th century, work, poverty, and the position of vagrants have moved to a new place. Vagrants, whose labor force was utilized in the years following industrialization and who were supported and rehabilitated through social policies in the years when welfare state policies were effective, began to be addressed through their potential criminality and marginality.
Today’s vagrants are the equivalent of the social science concept of “underclass”, which is defined as a social class that does not have employment opportunities in the labor market, is a burden on public welfare in proportion to its number, and is a source of drug and violent crime.
Nowadays, when the need for the labor force has decreased due to technological developments, globalization, and economic policies, and full employment cannot be achieved, the criterion of “choosing not to work when one has the opportunity to work”, which serves to distinguish vagrancy from other poor groups, is no longer valid. On the other hand, the fact that social policies during the crisis of the welfare state are still being positioned as working and not being able to work due to temporary risks means that unemployed poor groups are included in the vagrant category as a whole. In such a context, without the need for vagrancy as a traditional concept, it seems inevitable that groups deprived of their work and social welfare will be subjected to surveillance and other preventive law enforcement activities with a focus on their dangerousness in terms of social order.
In addition, the transformation of social life has inevitably led to changes in the field of criminal law, and as the critical literature emphasizes, criminal law has begun to assume a preventive function, emphasizing the aim of preventing possible future violations rather than past violations. The new trends focusing on risks in crime prevention and combating crime in criminal law, which has been expanding toward the pre-crime field, show that potentially dangerous vagrants have naturally reappeared on the radar of criminal law. In this case, vagrants are in the interest of criminal law not as criminals but as potential criminals.
