CEZA HUKUKUNDA MAĞDURUN KORUNMASI sosyal gruplaşmaya yönelik yeni bir yaklaşım

SUMMARY

The compensation of victims of crime in the contemporary criminal law has taken place in the agenda of The West, during the second half of this century. Studies on victims of crime have brought forward a new discipline which is called Victimology in Criminology since 1940's. On the other hand, the British writer Sara Margery Fry pointed out the responsibility of the state in compensation of victims, in her article published in 1957. This article made the responsibility of the state a subject of discussion at the international level. This understanding in the role of the state in compensation of losses of the victim, effected legislative bodies, and some countries have made laws in this field. Meanwhile, the matter of victims and their protections have been discussed in various international seminars. The Council of Europe has supported research and scientific studies in this subject and even has prepared «The European Convention on the Compensation of Victims of Violent Crimes» for its members to be approved in 1984.

Before preparing our Ph. D. Thesis in this actual subject, we studied the present institutions aiming at the compensation of losses of the victim, in detail. We saw that the present institution were inadequate in compensating losses of the victim, and even the new proposals related to the subject were not sufficient in finding out essential solutions. These proposals have been but forward to reduce the present victimizations and some new legislative arrangements have been worked out like «Fund System», « Private Insurance System» and «Social Security System» in some countries. These arrangements can be accepted as partial solutions, because depending on the basis of payment of premiums before cases, encouraging the crime, not covering all citizens, and even increasing victimization in some cases. Owing to these reasons, these proposals can not be accepted as a final and permanent solutions.

Afterwards, the inadequacy of present institutions on the compensation of losses the victim has let us to study the historical origin of the subject and to develop a new approach for the solution. We took advantage of some principles and results from the History of Law and Sociology in detail while devoloping proposals concerning our approach. Earlier in the Primitive Periods, the protection of vic-

tims were realized within the social groups and communities in which they lived with social discipline. Then, evolution of social groups and social institutions based on social contracts between those groups and communities has taken place.

We began to study the historical developments by starting from investigating the Islamic Legal System, and then we extended our study to The Primitive, The Ancient, and Roman legal systems concerning the protection of the victim. We realized that there were similar institutions for the protection of victim in The Primitive, The Ancient, and Roman Legal System to the institution of «Âkile» in The Islamic Legal System. This similarity had permitted us to put forward «A New Approach" to protect the victim in present times. Meanwhile, we also investigated the role of the state throughout the history in protecting of victims and examined the present role of the state in solving the problem. We noticed that, in our time, the state should possess a vital role in protecting the victims. But how will the state carry out this duty?

In spite of all human beings have the same number of chromosomes, men can only make close relationship with their close kins, neigbours and with the members of social groups in the communities where they live. Due to that fact, we attempted to reach a solution with an approach aiming at social grouping, as experienced in the history.

In conclusion, according to us, all social groups should be reorganized by state based on this context: 1— all citizens should be covered in the form of social groups, 2— democratic participation should be taken as a basis, 3— legal basis of responsibility should be in the form of partnership / association, 4— the losses of victims should be paid by the intergroup social solidarity, 5— the payment should be made not according to the premium system, but following the case, by equal installments, 6— In order to achieve those purposes, covenants must be undertaken by all social groups. If the state is not competant enough to organize present social groups in that context, then a new institution should be formed based on these fundamental principles to protect victims of crime.

Since, the essential issue is to prevent victimization in the community and in the society, those institutions should provide advisory facilities to their members and provide guarantees in compensation and should defend the rights of their members, should set up social solidarity. When the men live in such social groups which furnish these facilities and opportunities, it can be said that they are protected in real sense.