An attempted crime can be defined as the inability of the perpetrator, who has taken the decision to commit a crime, to conclude the crime he wants to commit for reasons that he does not have, despite the fact that he has made the necessary preparations for the crime he intends to commit by moving along the criminal path and starting executive actions. As a matter of fact, the Turkish Criminal Code (TCK) m.in Article 35, the concept of attempted crime is “If a person cannot complete a crime that he means to commit directly with favorable actions and complete it for reasons that he does not have, he is held responsible for the attempt.” is arranged in the form.
TCK 35. according to the article, attempted crime occurs in two ways:
If the perpetrator has started the execution actions but the execution actions have been interrupted for reasons that he does not have, he is punished for the attempted crime. For example, if the accused, who fired with the intention of injuring, fled when the police arrived at the scene, the crime of intentional wounding remained at the attempted stage, since the verb was interrupted.
Although the perpetrator completes the execution actions, an attempt to commit a crime occurs if the desired result does not occur due to an obstacle other than the perpetrator’s will. For example, if the victim does not die, despite striking the victim’s body with a knife 5-10 times in the lethal area, the crime remains at the attempted stage. The accused is punished for the crime of intentionally attempting to kill a person.
Although the crime was not committed by the perpetrator, the impunity of the criminal actions cannot be reconciled with the law and justice. Because, even if the crime does not occur in the event of an attempt, a concrete danger arises on the social order. When assessing that an act is unlawful, the legislator takes into account whether it is of a disruptive nature to the order in society, whether it harms the protected rights or interests of society.
CIRCUMSTANCES OF THE ATTEMPTED CRIME
The actions remaining at the stage of the attempt and the actions in the legal definition of the crime have been fulfilled; however, the sequel part remains incomplete. Therefore, the reason for punishing the enterprise is based on the same reason as punishing completed crimes.
At the stage of the attempt, the perpetrator begins execution actions in order to achieve the result he wants to complete the crime he intends to commit; however, he cannot complete the execution actions for reasons that he does not have, or the desired result does not occur despite completing the execution actions.
In order for a crime to remain at the attempted stage, the presence of the following conditions is required:
Finding the intent to commit a crime
The perpetrator begins the execution of the crime directly
Making favorable actions for the perpetrator to commit the crime
The perpetrator cannot complete his act for reasons that are not in his hands
conditions must be formed.
FINDING THE INTENT TO COMMIT A CRIME
In order for an attempt to be mentioned, it is imperative that the perpetrator, first of all, intends to commit a specific crime. T.C.M.in Article 35, this is explained with the words ”a crime he means to commit”. However, as can be understood from the definition in the article, the crime intended to be committed must naturally be a “deliberate crime”. It is not possible to mean the commission of a taxable crime. For this reason, there can be no mention of an attempt in installment crimes.
The intention to commit a crime involves knowing and wanting the elements in the legal definition of that crime. In addition, the perpetrator’s caste must be found for the purpose of defining the crime he intends to commit. The caste of attempting to commit a crime cannot be mentioned. However, whether the intent November to commit a crime also covers another crime may be controversial in some cases. For example, if the perpetrator points his knife at the victim for the purpose of threatening and walks on him, it may be difficult to determine whether this action covers the intent to injure or kill. In this case, the criminal November should be determined based on various data such as the behavior of the perpetrator and the victim before the incident, their relationship, whether they have enmity, the nature of the movements during the incident.
STARTING ENFORCEMENT ACTIONS
Starting executive actions is one of the positive elements that ensure the formation of the enterprise. Not all actions committed by the legislator with the purpose of committing a crime are punished. In this context, the enforcement actions are within the limits of punishment. In this case, the question of whether an act is a preparatory act or an executive act is important. At the stage of preparatory actions, the perpetrator is preparing to commit the crime; he buys the appropriate criminal instrument for the crime he will commit, has information about it, prepares the necessary action plan for committing the crime.
Due to the difficulty of Decoupling between the preparatory movement and the execution movement, the criterion of starting the execution directly has been introduced in Article 35 of the Turkish Penal Code. Enforcement action occurs when the perpetrator begins to commit the behavior necessary for the existence of the crime. Accordingly, the commencement of the execution directly has been accepted as an enforcement action. Enforcement actions are considered to have been initiated by making the movements contained in the law for the occurrence of a crime.
COMMITTING ACTS CONDUCIVE TO COMMITTING A CRIME
Having started the execution of the crime directly is not enough for the formation of the enterprise. In addition, it is imperative that the execution be started with appropriate actions. As a matter of fact, our Law also stipulates the existence of a movement conducive to committing a crime for the existence of an attempt to commit a crime. The perpetrator’s executive action must be conducive to achieving the desired goal. A favorable means is not included in the scope of favorable movement; as a matter of fact, the term means means something that is stationary.
When evaluating the suitability, the situation and conditions at the time of the incident are taken into account. For example, if the act made by the perpetrator does not allow to complete the crime, then in this case there will be absolute / absolute unfitness. Although under normal conditions it is conducive to bringing about the consequences contained in the legal definition of the crime, if the perpetrator is unfavorable in terms of the subject of the crime he wants to commit, there is a relative unfavorable. In some of its decisions, the Court of Cassation distinguishes between absolute and relative unfitness concepts when evaluating the state of suitability.
FAILURE TO COMPLETE ENFORCEMENT ACTIONS
The failure to complete the execution actions is one of the negative elements that ensure the formation of the enterprise. In this case, while the perpetrator is moving on the path of crime, he cannot complete the execution actions for reasons that he does not have. The reason that is not in the hands of the perpetrator may be of a material or spiritual nature, as well as it may happen with the act of a third person; whatever it is, it will be prevented by external factors. Otherwise, if the perpetrator does not complete the execution actions of his free will, then voluntary renunciation takes place.
Failure to complete enforcement actions The hindering factors must occur before the crime is completed. Although the perpetrator completes the execution actions, he cannot complete the crime if he cannot reach the desired result.
THE SPIRITUAL ELEMENT IN ATTEMPTED CRIME
T.C.M.As can be understood from the wording of article 35, an attempt is possible only in crimes that can be committed intentionally. As a matter of fact, TCK m. In 21/1, “The occurrence of crime depends on the existence of November. Caste is the intentional and intentional realization of the elements in the legal definition of the crime.” With the arrangement in the form of caste is expressed. In this regard, it has the characteristics specific to the completed crime.
The caste in the crime that has remained at the stage of the attempt consists of the desire to commit the completed crime with all its elements. In short, the consciousness and will of the perpetrator to perform behaviors that are conducive to committing the crime are obvious. As a matter of fact, it has been stated by the decisions of the Supreme Court that the perpetrator’s caste is aimed at completing the crime and that there cannot be a separate caste for the attempt.
T of the Criminal General Assembly of the Court of Cassation. 14.12.1999-1/278-308 in its decision in determining the intent of the perpetrator, “the behavior of the perpetrator before and after the event, the cause of the animosity between the victim and the perpetrator and the nature of the offender, the nature of the weapon used in the crime, shot or the pulse number from the wounds inflicted on the victim’s body with the possibility to choose the target attributes, whether it is the processing flow of the event and the reason of the crime against the will of the offender, whether or not it has become an obstacle means” are considered.
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