08 Jul ATTEMPTED CRIME
It is possible to define an attempted crime as the inability of the perpetrator, who has made a decision to commit a crime, to conclude the crime he wants to commit for reasons that he does not have, even though he has made the necessary preparations for the crime he means to commit by moving along the criminal path and starting enforcement actions. As a matter of fact, the Turkish Penal Code (TCK) m.35, the concept of attempted crime is “If a person cannot directly commence and complete the execution of a crime that he means to commit with favorable actions and for reasons that he does not have, he is held responsible for the attempt. it is organized as “.
TCK 35. attempted crime under the article occurs in two ways:
The perpetrator is punished for attempted crime if he has started enforcement actions, but for reasons that he does not have, the enforcement actions have been interrupted. For example, if the accused fired with the intention of wounding fled upon the arrival of the police on the scene, the crime of wounding with intent remained at the attempted stage because the act was interrupted.
Although the perpetrator completes the enforcement actions, if the desired result does not occur for any reason other than the will of the perpetrator, an attempted crime will occur. For example, despite the fact that the victim was stabbed 5-10 times with a knife to the lethal area of the victim’s body with a knife, the crime remains at the attempted stage if the victim does not die. The accused is punished for the crime of intentionally attempting to kill a person.
Although the crime could not have been committed by the perpetrator, the impunity of the actions in the way of the crime cannot be reconciled with the law and justice. Because, even if the crime does not occur in the event of an attempt, there is a tangible danger to the public order. When assessing the illegality of a legislative act, the legislator takes into account whether it is a violation of 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 carried out, but the final 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 his/her enforcement actions in order to achieve the result that he/she wants to complete the crime he/she intends to commit; however, for reasons that he/she cannot complete the enforcement actions or the desired result does not occur despite completing the enforcement 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
The perpetrator shall take appropriate actions to commit the crime
The perpetrator’s inability to complete his act for reasons beyond his control
its 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 means committing a specific crime. TCK m.in 35, this aspect is explained with the words ”a crime that he means to commit”. However, as can be understood from the definition in the article, the crime meant to be committed must naturally be a “deliberate crime”. It is not possible to mean the commission of a taxable crime. Therefore, there can be no mention of attempted taxi crimes.
To mean the commission of a crime involves knowing and requesting the items in the legal definition of that crime. In addition, the perpetrator’s caste must be found for the purpose of identifying the crime that he intends to commit. There can be no mention of the caste of attempting to commit a crime. However, it may be controversial in some cases whether the November for committing a crime also includes another crime. For example, if the perpetrator pointed his knife at the victim for the purpose of threatening and walked on him, it may be difficult to determine whether this action covers the intent to injure or kill. In this case, the criminal intent should be determined based on various data such as the perpetrator’s and the victim’s behavior before the incident, their relationships, whether they have animosities, and the nature of the November during the incident.
STARTING ENFORCEMENT ACTIONS
Starting enforcement actions is one of the positive elements that ensure the formation of the enterprise. All actions taken by the legislator for the purpose of committing a crime have not been punished. In this context, 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 being prepared to commit the crime; he buys the crime instrument suitable for the crime he is going to commit, has information about it, prepares the necessary action plan for committing the crime.
Due to the fact that the distinction between the preparatory movement and the enforcement movement is difficult, the criterion for directly starting enforcement has been introduced in Article 35 of the Dec. An executive act occurs when the perpetrator begins to commit the behavior necessary for the existence of the crime. Accordingly, the initiation of direct enforcement has been accepted as an enforcement action. It is considered that enforcement actions have been started by making the movements contained in the law for the formation of a crime.
MAKING ACTIONS CONDUCIVE TO COMMITTING A CRIME
Having started the direct execution of the crime, it is not enough for the formation of the enterprise. In addition, it is also necessary to start with actions conducive to enforcement. As a matter of fact, our Law also stipulates that for the existence of an attempted crime, there is a movement conducive to committing a crime. The perpetrator’s executive action should be conducive to achieving the desired goal. A convenient means is not covered by a convenient movement; as a matter of fact, the term vehicle means something that is stationary.
When assessing the availability, the situation and circumstances at the time of the incident are taken into account. For example, if the act committed by the perpetrator does not allow to complete the crime, then in this case there will be an absolute /absolute unfitness. Although under normal circumstances it is convenient to produce the results contained in the legal definition of the crime, if it is unfavorable for the subject of the crime that the perpetrator wants to commit, there is a relative disadvantage. In some of its decisions, the Supreme Court distinguishes between the concepts of absolute and relative unfitness when evaluating the state of unfitness.
FAILURE TO COMPLETE ENFORCEMENT ACTIONS
The inability to complete enforcement actions is one of the negative elements that ensure the formation of the enterprise. In this case, the perpetrator is unable to complete the enforcement actions for reasons that he does not have, while moving along the path of the crime. The reason that is not in the hands of the perpetrator may be of a material or spiritual nature, as well as it may be realized by the act of a third person; whatever happens, it will be prevented by external factors. Otherwise, voluntary renunciation is possible if the perpetrator does not complete the enforcement actions of his own free will.
Obstructive factors that prevent enforcement actions from being completed must occur before the crime is completed. Although the perpetrator completes the enforcement actions, he cannot complete the crime if he fails to achieve the desired result.
THE SPIRITUAL ELEMENT OF ATTEMPTED CRIME
TCK m.as can be seen from the words of article 35, an attempt is possible only in crimes that can be committed intentionally. As a matter of fact, TCK m. November 21/1 “The occurrence of crime depends on the existence of caste. Caste is the deliberate and willful realization of the elements in the legal definition of the crime. By the arrangement in the form ” ” the caste is expressed. In this regard, it has the qualities characteristic of a completed crime.
The caste in the crime that has remained at the attempted stage consists in the desire to commit the completed crime with all its elements. In short, it is obvious that the perpetrator has the consciousness and will to perform behaviors that are conducive to committing the crime. As a matter of fact, it was stated by the decisions of the Supreme Court that the perpetrator’s caste is intended to complete the crime and there can be no mention of a separate caste for the attempt.
T. of the Criminal General Assembly of the Supreme Court. 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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