Journal of Penal Law and Criminology
A Comparative Examination of Some Basic Concepts and General Structure of Food Criminal LawMehmet Maden
Some of the basic concepts alongside the general structure of food criminal law are examined comparatively in this paper. The aforementioned basic concepts are specifically, “food”, “the right to adequate food”, “food security, “food safety” and “food fraud”. As regards the general structure of food criminal law, after a brief look at international concerns, we will examine the classifications and formulations of breaches of the law as well as some crime types. In particular, some characteristics of the two crime types which are directly related to food criminal law and regulated under the Turkish Criminal Code under the headings of “adding poisonous substances” (s 185) and “commerce of spoiled or altered foods and medicines” (s 186) have been explored. In this paper, we focus on “food safety” as one of the main legal values protected through food criminal law, not on the issues related to “food security” and “economic interests of consumers”. With this paper, by comparatively presenting some of the basic concepts and the general structure of food criminal law, we have attempted to lay the foundations for future studies on food criminal law.
Gıda Ceza Hukukunun Bazı Temel Kavramları ve Genel Yapısı Üzerine Mukayeseli Bir İncelemeMehmet Maden
Bu çalışmada, gıda ceza hukukunun temel bazı kavramları ve genel yapısı mukayeseli bir incelemeyle ele alınmıştır. Belirtilen temel kavramlar, özellikle, “gıda”, “yeterli gıda hakkı”, “gıda güvencesi”, “gıda güvenliği” ve “gıda dolandırıcılığı”dır. Gıda ceza hukukunun genel yapısıyla ilgili olarak; uluslararası boyut kısaca ele alındıktan sonra, hukuka aykırılıkların tasnifi ve formülasyonu incelenmiş ve ilgili bazı suç tipleri üzerinde durulmuştur. Türk Ceza Kanunu’nda, doğrudan gıda ceza hukukunu ilgilendiren ve “zehirli madde katma” ve “bozulmuş veya değiştirilmiş gıda veya ilaçların ticareti” başlıkları altında düzenlenen iki suç tipinin bazı hususiyetleri üzerinde özellikle durulmuştur. Çalışmanın odak noktası, gıda ceza hukukuyla korunan ana hukuki değerlerden gıda güvenliği olmuştur. Böylece, gıda güvencesiyle ve tüketicilerin ekonomik menfaatleriyle ilgili meseleler çalışmanın merkezinde yer almamaktadır. Bu çalışmayla, gıda ceza hukukuyla ilgili temel bazı kavramların ve gıda ceza hukukunun genel yapısının mukayeseli bir incelemeyle ortaya konulmasıyla, bundan sonraki çalışmalar için faydalı bir temel oluşturulmaya çalışılmıştır.
It could be said that food security, food safety and the economic interests of consumers are the three main legal values protected by food criminal law. Besides life and health (which have special places in food criminal law as protected legal values), any legal value protected by any type of crime is related to food criminal law, as long as it is concerned with food. In this paper, it was deemed acceptable to label “food security” as a hypernym for “food safety”. There are some criteria which can be taken into account when determining the form of a breach of food law. In other words, when regulating the breaches, the abovementioned criteria can determine the type of violation as administrative offences, misdemeanours or crimes. The degree of the effect of the act on public health; the type of the effect of the act on protected legal values (whether that be harm or danger); and if the type of the abovementioned effect is danger, the degree/type of this danger would be among these criteria. Whether the danger shall be correlated with general food law regulations, and if so, determining the kind of correlation are matters of preference when regulating a breach as a misdemeanour or a crime. The mental element could be another factor in determining the act as either a misdemeanour or a crime. Furthermore, peculiar feature of the breaches might be another determinant factor in this respect. Techniques of “crimes aggravated due to their consequences” and “blank criminal law” may be utilized in the protection of food safety. Crimes can be differentiated from misdemeanours with respect to the application of reasons for setting aside or reducing punishments (effective remorse etc.). In this respect, restorative justice procedures and sanctions can be utilized relative to the measures to be taken or the duties to be fulfilled. Considering the effect of actualized productive policy on protecting food safety, accepting legal entities as addressees of regulations and procedures is another important issue together with the issue of determining the sanctions to be applied to legal entities. Food safety can be protected through the use of laws targeting specific food related crimes or through other categories under general crimes for the protection of public health. Many crimes can be related to food security in some way. Specific criminal acts such as “food fraud” and “food hoarding” can be regulated or the related acts can be punished through the application of other crime types. Amongst those legal values protected by food criminal law, life and health feature prominently. There are two categories of laws which aim to protect these legal values. The first category is laws against harm crimes and the second group against danger crimes. The first group (harm) deals with general crimes of causing death or injury – the specialties of such crimes in the field of food criminal law are mentioned in the main text. The second group (danger) targets those crimes which endanger life or health. Two crimes which are directly related to food criminal law are regulated under the Third Part (Crimes Against Public Health) of the Third Chapter (Crimes Against Community) of the Second Book (Special Provisions) of the Turkish Criminal Code (TCC). These crimes are regulated under the headings of “adding poisonous substances” (s 185) and “commerce of spoiled or altered foods and medicines” (s 186). Besides these two specific acts, crimes and misdemeanours related to genetically modified organisms are regulated under the Biosafety Act (No. 5977), s 15. Additionally, there are related misdemeanours regulated under the Veterinary Services, Phytosanitary, Food and Feed Act (No. 5996), s 40 and 41. The crime of “adding poisonous substances” (TCC, s 185) is not restricted to food. Indeed, in the legal definition, the expression of food is not included and the subject of the crime is drawn up in a very comprehensive and extensive manner. It could be said that the subject of the crime of “commerce of spoiled or altered foods and medicines” (TCC, s 186) is “edible or drinkable things and medicines decayed or altered in a manner endangering life and health of persons”. Differently from the heading of the article, the expression of an “edible or drinkable thing” is included in the text, not the word “food”. Thus, substances consumed not through eating or drinking (for example, consumed intravenously or through the skin), cannot be the subject of this crime unless they are “medicine”. The crime under s 186 seems appropriate to be qualified as an “abstract-concrete endangerment crime” or a “suitability crime” rather than a “concrete endangerment crime”.