INTENT AND NEGLIGENCE IN TURKISH CRIMINAL LAW

INTENT AND NEGLIGENCE IN TURKISH CRIMINAL LAW

OF INTENT IN GENERAL
The typical form of culpability is intent. As a rule, crimes are punishable only if committed intentionally, and therefore there is no need to specifically mention intent in crime types. For example, as in the crimes of intentional homicide and intentional wounding in the Turkish Penal Code. The expression "intentionally" in these regulations indicates that these crimes can also be committed negligently.
In many penal codes around the world, the definition of intent, negligence, and similar concepts related to intent are not provided, leaving this to legal doctrine and practice. Indeed, the Penal Code No. 765 does not directly define intent, only stating that "the absence of intent in a crime removes the punishment."

ELEMENTS OF INTENT
Intent is the knowing and willful performance of the elements in the legal definition of the crime. According to this definition, intent consists of two main elements: knowledge and will.
1. The Element of Knowledge: Intent consists of the element of knowledge and precedes the element of will. The elements that must be known vary depending on the nature of the crime. The perpetrator must know that the target of their action is a human being (as in the crime of murder). Whether certain elements, although included in the legal definition, are known or not, and whether they affect the wrongful nature of the act, is irrelevant to intent.
2. The Element of Will: The essential characteristic of intent is the element of will. Knowing or foreseeing an action does not mean that the action is desired. The perpetrator must know and desire the consequences of their actions. For example, a person who plants a bomb to create panic foresees the deaths but does not desire them. Acceptance of this consequence is necessary for intent to exist.

THE ELEMENT OF KNOWLEDGE IN INTENT
Intent is the knowing and willing performance of the elements in the legal definition of a crime. The element of knowledge generally means knowing the subject matter of the crime, its consequences, and the characteristics of the act. The perpetrator must know the elements in the legal definition of the crime at the time of committing the act. Whether or not elements included in the legal definition, but which do not affect the wrongful nature of the act, are known is irrelevant in terms of intent.

RELATIONSHIPS BETWEEN INTENT, ERROR, AND DEVIATION IN TERMS OF THE ELEMENT OF KNOWLEDGE Intent
-Error Relationship: The perpetrator does not have intent because they are unaware of the elements of the crime. However, error can lead to negligent liability. If the error is substantial, it cannot be said that the crime was committed intentionally. Article 30 of the Turkish Penal Code regulates this with the statement, "A person who, at the time of the commission of the act, does not know the elements in the legal definition of the crime, does not act intentionally."
Intent-Deviation Relationship: In the case of deviation from the target, although the perpetrator's intent was directed towards a specific person, the result occurs in another person. In this case, the perpetrator is responsible for the resulting outcome.

IN INTENT
The element of willfulness in intent means knowingly and willingly carrying out the elements in the legal definition of the crime. The perpetrator must know and intend the elements of the crime. Willingness is an element of intent and is necessary for the existence of the perpetrator's intent.

PROBABLE INTENT
The Concept of Probable Intent: Probable intent exists when the perpetrator commits the act despite foreseeing that the outcome may occur. Probable intent is determined by the outcome, and the perpetrator accepts the foreseen outcome.
Relationship Between Probable Intent and Attempt: In cases of probable intent, attempt is not possible. This is because probable intent is based on the probability of the outcome occurring, and if the outcome does not occur, the perpetrator cannot be held responsible for the attempt.
Existence of Probable Intent in Every Crime: Some crimes cannot be committed with probable intent. For example, the crime of defamation can only be committed with direct intent. Crimes where the legal definition includes expressions such as "knowingly" or "while knowing" cannot be committed with probable intent.
Probable Intent in Terms of Sanction: A reduction in punishment is foreseen in cases of probable intent. However, this is a matter of debate in legal doctrine. According to some views, a reduction in punishment should not be applied in cases of probable intent because it is also a type of intent.

CONSCIOUS NEGLIGENCE
Conscious negligence occurs when the perpetrator, despite foreseeing the possibility of the outcome, commits the act relying on the belief that this outcome will not occur. The perpetrator foresees the outcome but does not desire it.

DISTINCTION BETWEEN POSSIBLE INTENT AND CONSCIOUS NEGLIGENCE
The difference between possible intent and conscious negligence lies in whether the perpetrator accepts the outcome. In possible intent, the perpetrator accepts the outcome, while in conscious negligence, the perpetrator is confident that it will not occur.

THE CONCEPT OF NEGLIGENCE IN GENERAL

A. The Legal Basis of Negligence
Various theories have been developed regarding the legal basis of negligence:
1. The Theory of Using Unlawful Means: This theory considers it sufficient to intentionally cause a harmful outcome using unlawful means. Advocated by Stoppato, this theory has been criticized for being abstract.
2. The Foreseeability Theory: According to this theory, advocated by Carrara, the essence of negligence lies in the individual's failure to intentionally exercise due diligence in calculating the foreseeable consequences of their actions. It has been criticized for its inability to explain conscious negligence and for its criterion of foreseeability.
3. The Preventability Theory: Advocated by Brusa, this theory defines negligence as the failure to prevent a foreseeable and preventable outcome. This theory has also been criticized for its inability to distinguish between foreseeability and prevention.
4. The Error Theory: According to this theory, advocated by Alimena, the cause of negligence is avoidable error. However, this view has been criticized for containing a logical fallacy.

B. Elements of Negligence
The elements of negligence can be grouped under five main headings:
1. The Existence of a Crime That Can Be Committed Through Negligence: Negligent liability is exceptional, and for the negligent form of an act to be punishable, there must be an explicit provision in the law (Turkish Penal Code, Article 22/1). The Turkish Penal Code contains provisions that provide for the punishment of the negligent form of some crimes.
2. The Act Being Performed Intentionally (Voluntariness): In negligent crimes, the act must have been performed knowingly and intentionally. This is easier to determine in negligent commission crimes, but more difficult in negligent crimes.
3. The Result Not Being Desired (Lack of Voluntariness): In negligent crimes, the result is not desired. The occurrence of the result is a condition requiring the punishment of the perpetrator. Even if the perpetrator foresees the result, if they do not desire it, it is considered conscious negligence.
4. The Result Being Foreseeable: In negligent crimes, the result must be foreseeable. This requires a concrete determination of whether the outcome in general negligence, resulting from carelessness and negligence, was foreseeable and preventable.
5. Causal Link Between the Act and the Result: There must be a causal link between the negligent act of the perpetrator and the resulting outcome. The actions of a third party or the victim may be influential in establishing this link. In negligent crimes, everyone is responsible for their own fault (Turkish Penal Code Article 22/5).