ATTEMPT IN TURKISH CRIMINAL LAW

The Purpose of Attempt in Criminal Law

1. Maintaining Social Order:

   • Criminal law intervenes in the actions of individuals intending to commit crimes in order to protect social order. For a perpetrator to be punished after a certain stage of their criminal activities, the execution of the crime must have already begun.

2. Thought and Preparation Stages:

   • The perpetrator's mere intention to commit the crime or preparatory actions are not sufficient grounds for punishability. Actions at the thought or preparatory stage are not punishable under the penal code. During these stages, the perpetrator has the opportunity to change their mind before committing the crime.

3. Punishment Based on Concrete Evidence:

   • Criminal law defines punishability based on strong suspicion supported by concrete evidence. The perpetrator's progress to the execution of the crime is a prerequisite for punishability.

Stages of the Crime

1. Thought Stage: This is the stage where the perpetrator makes the decision to commit the crime and this decision forms in their mind. This stage is only relevant in intentional crimes. It is not possible to carry out the decision to commit the crime during the thought stage; therefore, decisions made only during the thought stage are not punishable.

2. Execution Phase: This is the expression of the decision to commit a crime, initially conceived in the thought phase, through concrete actions. For example, in a theft case, the perpetrator's actions aimed at stealing the money constitute the execution phase. The execution phase of each crime is determined by actions that conform to the legal definition of the crime.

3. Completion Stage: This stage occurs when all the elements of the crime as defined by law are fully realized. For example, the crime of murder is complete if the victim has died. If the crime is not complete, for example, if the victim has recovered, then it is considered attempted crime.

4. Termination: The moment when the crime ends, or the legal event completely concludes, after the crime has been completed. In instantaneous crimes, the moments of completion and termination may coincide, while in continuous crimes, these two moments are distinct.

Attempt

1. The Concept of Attempt: Attempt refers to actions that begin with the intention of committing a crime but are not completed. Attempt is only relevant in intentional crimes. At the attempt stage, the mental element of the crime is completed, but the material element may be incomplete.

2. Incomplete and Complete Attempt: Incomplete attempt occurs when the execution of the criminal act is not completed. Complete attempt occurs when, although the necessary actions for the crime are completed, the result is not achieved.

3. Punishment of Attempt: There are different theories regarding the punishment of attempt:

   • Subjective Theory: The perpetrator's intent to commit the crime is taken as the basis, and attempted crime is punishable for this reason.
   • Objective Theory: Attempt is based on jeopardizing the protected legal interest and is considered an incomplete form of the crime.
   • Mixed Theory: Combines both theories, taking into account both the perpetrator's intent to commit the crime and the danger posed by the act.

4. Punishability of Attempt: The punishment of attempt depends on whether the crime has progressed to the execution stage. Preparatory acts are generally not punishable, but in some cases, preparatory acts may constitute a separate crime.

   Distinguishing Between Incomplete and Complete Attempt:

   • Incomplete attempt occurs when the perpetrator fails to complete the execution of the criminal act. Complete attempt, on the other hand, is when the execution of the criminal act is completed but the result is not achieved. Incomplete attempt refers to the failure to complete the crime, while complete attempt refers to the completion of the crime but the failure to achieve the result. For example, a perpetrator who fires only one bullet from their gun and injures the victim is punished for incomplete attempt, while a perpetrator who fires a single bullet from their gun but fails to hit the victim is punished for complete attempt                                                                        

     Elements of the Enterprise:

   • For an attempt to occur, the perpetrator must have begun the execution of the intended crime using appropriate means. The mental element of an attempt is intent; that is, the perpetrator must have acted with the intention of committing the crime. The material element is that the execution of the crime has begun but not been completed. Furthermore, for the material element of an attempt, the perpetrator's execution must not be completed or the result must not have occurred.

   1. Uncommittable Crime:

      • An impossible crime occurs when the material subject of the crime is absent or the means used in the crime are unsuitable. In this case, even though the perpetrator has performed the necessary actions, the crime cannot be committed due to the unsuitability of the means used or the material subject of the crime. For example, an attempt to murder by a perpetrator whose gun is malfunctioning would be considered an impossible crime.

      • There is a distinction between an impossible crime and a presumed crime. A presumed crime is one committed as a result of a mistake regarding the existence of a penal norm or the elements of the crime. For example, a person believing they have committed adultery is a presumed crime because adultery is not defined as a crime in the Turkish Penal Code.

   2. Absence of Financial Matters:

      • The material subject of a crime is the person or thing against whom the crime is committed. For example, if a perpetrator attempting to kill a person accidentally shoots a horse, this indicates that the crime of homicide has not occurred because the living human body, which is the material subject of the crime, is not present.

      • Article 35 of the Turkish Penal Code states that the acts constituting the crime must be suitable for execution. Suitability must apply to the entire act, including the material subject matter of the crime.