What is attempted crime?
What is Attempted Crime? Attempted Crime in the Turkish Penal Code, its Conditions, Penalty, and Significance in Practice
One of the most important issues in the general theory of crime is the institution of "attempted crime." In criminal proceedings, the debate often focuses not so much on whether the crime has been completed, but rather on what stage it is at and whether the provisions regarding attempt should be applied. This is because the sentence for attempted crime can be significantly reduced compared to a completed crime; this has extremely important consequences for the defendant, the victim, and society. Especially in intentionally committed crimes, if the perpetrator has begun the execution of the act but is unable to achieve the criminal outcome due to reasons beyond their control, it is considered attempted crime, and the court reduces the sentence according to the criteria in the Turkish Penal Code. This article will examine in detail the legal definition of attempted crime, its conditions, its differences from a completed crime, the punishment regime, its relationship with voluntary withdrawal, attempted crime in complicity, and frequently encountered examples in practice.
1. The Concept of Attempted Crime in the Turkish Penal Code
Attempted crime, in short, is the situation where the perpetrator begins the execution of an act with the intention of committing a crime, but the crime is not completed due to a compelling reason beyond their control. Attempt can be considered an intermediate category between the preparatory phase, where the crime has not yet begun, and the stage where the crime is completed. Here, the perpetrator has aimed to fulfill the legal definition of the crime, created a serious danger to the legal value, but has not achieved the desired outcome. At the point where the protective aim of criminal law encompasses not only actual harm but also highly probable dangers, the provisions regarding attempted crimes come into play, and the perpetrator becomes punishable. Therefore, attempt is critically important for understanding not only harm crimes but also danger crimes.
In the Turkish Penal Code system, attempt is only accepted for crimes committed intentionally. This is because attempt, by its nature, relies on the perpetrator's intent, that is, acting knowingly and willingly about the nature and consequences of the crime. For negligent crimes, the institution of "attempted negligent crime" is not accepted because the perpetrator does not intend the outcome from the outset. From this perspective, attempt emerges as an institution that gives meaning to the intensity of intent and the intended outcome.
2. Conditions for Attempted Crime
For attempted crime to exist, a number of legal conditions must be met simultaneously. In practice, most discussions focus on whether one of these conditions is missing. The basic conditions can be summarized as follows:
Firstly, for an attempt to occur, there must be a crime that could have been committed intentionally. In crimes committed negligently, the provisions regarding attempt do not apply because it is assumed that the perpetrator did not intend the outcome and that there was no intent. For example, a person who causes an accident while driving carelessly cannot commit the crime of "attempted negligent homicide"; it would be either negligent injury or negligent homicide. On the other hand, the behavior of a perpetrator who takes a knife and lunges at a specific person with the intention of killing them can be considered as attempted intentional homicide.
Secondly, the perpetrator must have initiated the preparatory acts. Distinguishing between preparatory and preparatory acts is one of the most difficult areas, both in theory and practice. Preparatory acts are the initial stages where the decision to commit the crime is manifested externally, but the type of crime has not yet been concretized. For example, obtaining a screwdriver to commit theft or scouting the route to work are often considered preparatory acts. In contrast, the perpetrator beginning to force open a lock or attempting to enter the victim's house through a window are considered preparatory acts. Preparatory acts are those actions directly related to the act foreseen in the typical description, making the commission of the crime imminent and seriously possible.
Thirdly, the failure to complete the crime must be due to an external cause beyond the perpetrator's control. If the perpetrator voluntarily abandons the act of committing the crime, this is considered "voluntary abandonment," and the classic form of attempted crime does not apply. Conversely, if the perpetrator fires at their target but the bullet misses, the victim escapes by chance, or the crime is not completed due to the intervention of third parties, then it is considered an attempted crime. The essential point here is that the failure to complete the crime is due to a hindering factor independent of the perpetrator's will.
3. Distinction Between Preparatory and Execution Actions
Perhaps the most critical distinction in the law of attempted crime is defining the boundary between preparatory and execution acts. Preparatory acts are essentially unpunishable; however, if execution acts have begun, the provisions regarding attempt apply even if the result has not been achieved. This distinction is made not through abstract and stereotypical criteria, but by considering the specific characteristics of the case, the perpetrator's intent, the manner in which the crime was committed, the means used, and the protected legal value.
Preparatory acts are the stage where the decision to commit a crime begins to emerge in the external world, but the direct execution of the actions foreseen in the type of crime has not yet taken place. The perpetrator obtains the necessary means for the crime, makes a plan, and determines the place and time. For example, for a person planning to commit intentional homicide, purchasing a weapon, obtaining ammunition, and monitoring the victim's comings and goings from the house are considered typical preparatory acts. The main reason why this stage is not punishable is the principle of criminal law as a last resort (ultima ratio) and the need to avoid excessive interference in the planning stage, as well as the individual's freedom of thought.
The preparatory acts are those actions that directly involve the performance of the act defined as typical of the crime, and that seriously endanger its legal value. At this stage, the perpetrator is not only the planner but also the person who has actually begun to carry out the essential elements of the crime. For example, pointing a weapon at the victim and pulling the trigger, attempting to break into a premises by breaking a lock, or secretly taking the victim's belongings and putting them in their pocket are considered preparatory acts. Especially in judicial practice, the criteria of "direct connection with the acts listed in the legal definition of the crime" and "creating a concrete danger to legal value" become important for determining preparatory acts.
4. Distinguishing Between Favorable and Unfavorable Enterprises
Another important aspect of attempted crime is the suitability of the means used and the subject matter chosen. In criminal law, it is also a matter of debate whether the crime being attempted is objectively suitable for producing the result, considering the means used and the subject matter chosen. Suitable attempt occurs when the means and conditions chosen by the perpetrator are suitable for the completion of the crime under normal circumstances. For example, shooting at a victim with the intent to kill, but the bullet missing the target, is an example of suitable attempt.
In contrast, an attempt without a valid reason occurs when the means used or the chosen subject is not suitable from the outset for producing the desired result. For example, shooting a victim with a weapon believed to be loaded but actually empty, administering a harmless substance instead of poison, or attempting to stab a person who is already dead with the intent to kill them are all examples of attempts without a valid reason. In these cases, the degree of social danger may seem lower; however, since the perpetrator's intent and outwardly dangerous will are present, a certain degree of punishment is accepted in many legal systems. In the Turkish Penal Code, while the assessment of suitability is at the discretion of the judge, the reduction rate in punishment is determined by considering the perpetrator's intent and the degree of dangerousness of the act.
5. Determining the Punishment for Attempted Crime
The method of determining punishment in cases of attempted crime is a frequently debated topic in both legal doctrine and practice. This is because the court has the authority to significantly reduce the basic sentence prescribed for a completed crime, depending on the severity of the attempt. In determining the limits of these reductions, the intensity of the perpetrator's actions, how close the crime came to being committed, and the severity of the concrete legal danger involved are taken into account.
The general system works as follows: First, the basic penalty prescribed by law for the completed crime is determined. Then, a reduction is applied to this penalty because the act remained at the attempt stage. The closer the crime is to being committed, that is, the closer the perpetrator is to the outcome, the less the reduction is expected to be. For example, in a theft case, if the perpetrator is caught while only loitering around the area before breaking the lock, it may be considered that the execution phase has not been reached at all, and even the attempt may not be in question. Conversely, if the perpetrator breaks the lock and enters but is caught before taking the goods, the attempt is considered to have been committed in a more serious manner, and the reduction rate may be more limited. Thus, the judge determines a fair penalty in each specific case.
In determining the punishment, factors such as the intensity of the perpetrator's intent, whether they have committed similar acts before, the physical danger they posed to the victim, and the manner in which the crime was committed are taken into account. Particularly in cases of attempted murder, criteria such as whether the victim's vital organs were targeted, the type of weapon used, the distance fired, and whether multiple shots were fired stand out as concrete indicators determining the severity of the attempt.
6. The Relationship Between Voluntary Withdrawal and Attempted Crime
Before understanding the concept of attempted crime, it's essential to grasp the concept of voluntary abandonment. In many cases, the question of why the perpetrator failed to achieve the criminal outcome raises the question of whether it was an attempt or a voluntary abandonment. Voluntary abandonment occurs when the perpetrator, of their own free will, no longer wishes to carry out the criminal act, ceases the actions they initiated for that purpose, or prevents the outcome from occurring. In this case, the perpetrator is not punished for attempted crime because they abandoned the crime solely of their own free will; they may only be held responsible for the independent crimes committed up to that point, if those actions constitute a separate offense.
For example, if a perpetrator shoots a victim and then, by their own efforts, prevents the outcome from occurring by assisting them and getting them to the hospital, this could be considered voluntary withdrawal. Similarly, if someone enters a house to steal but leaves without taking anything, this can also be considered voluntary withdrawal. The important thing here is that at a stage where the outcome is already in the perpetrator's hands, they voluntarily abandon their desire for that outcome. If the outcome would not have occurred anyway, for example, if the gun is faulty and doesn't fire, then this is not voluntary withdrawal, but rather attempted crime in the classical sense.
In practice, the claim of voluntary withdrawal is often raised by the defense, and the court assesses, based on concrete evidence and the course of events, whether the perpetrator genuinely abandoned the intention. The manner in which the perpetrator left the scene, their subsequent statements, their approach to the victim or the incident, and their behavior before and after the incident are all considered. If voluntary withdrawal is accepted, the perpetrator receives a significant penalty advantage, as the provisions regarding attempted crimes cannot be applied.
7. Attempted Crime Committed in Collaboration
The areas where attempted crime and complicity intersect are quite broad. When multiple individuals decide to commit a crime together and proceed with the execution of the act, but the crime is not yet completed, the concept of "attempted crime in complicity" arises. Here, each perpetrator's contribution to the act, the scope of their intent, and their degree of participation in the execution are evaluated individually. Joint perpetration, instigation, and aiding and abetting can lead to different outcomes in cases of attempted crime.
For example, if two people plan to rob a bank together, enter the bank armed, and are about to reach the vault when they are apprehended by the police, the provisions regarding attempted crimes apply to both. In this case, the individuals considered joint perpetrators are evaluated according to the actions they carried out. The instigator is often held responsible even in cases of attempted crimes because the crime is not completed; they are also part of the shared intent to commit the crime. As for the accomplice, whether or not the provisions regarding attempted crimes apply is debated, taking into account the nature of the assistance and the degree of contribution to the crime.
When evaluating attempted crimes committed jointly, the role of each defendant in the incident, their contribution to the criminal plan, and their intent during the incident are particularly important. In cases where some individuals only played a role in the preparatory phase and did not participate in the execution of the act, their liability for attempted crimes may be considered more limited. In this respect, courts often have to evaluate the defendants' statements and defenses, camera recordings, witness testimonies, and technical evidence together.
8. Differences Between Completed Crime and Attempted Crime
The fundamental difference between a completed crime and an attempted crime lies in whether all the elements stipulated in the legal definition of the crime have been fulfilled. In a completed crime, the typicality is fully realized; that is, the material and moral elements of the crime have occurred as required by law. In an attempted crime, however, the result included in the legal definition of the crime has not yet occurred, but the executive actions have reached a stage where the realization of this result is strongly possible.
The most concrete reflection of this difference is seen in the amount of punishment. In a completed crime, the basic punishment prescribed by law is taken as the basis, and aggravating or mitigating circumstances are applied accordingly. In the case of attempted crime, however, a certain percentage reduction in punishment is applied according to the principles specified in the law. Thus, from the perspective of criminal justice, a reasonable distinction is made between a perpetrator who has fully achieved the result and a perpetrator who has not achieved the result but has created a danger to legal values. This distinction is also consistent with the severity of the harm suffered by the victim, its repercussions in society, and the aim of crime prevention.
9. Crimes Where Attempted Crime is Possible and Not Possible
The concept of attempt is not applied equally to all types of crimes. While the concept of attempt is theoretically possible in some crimes, in others, due to the nature of the crime, it is not possible to speak of an attempt. For example, in crimes involving only the act, where the crime is completed simply by performing the act without seeking a result, attempt often becomes meaningless. This is because the crime is completed the moment the act is performed; prior to this, it usually does not go beyond the preparatory stage. The crime of simple insult can be given as an example; the crime is completed with the utterance of the insulting words, and the preparatory actions beforehand are often not punished.
On the other hand, attempt is not accepted in negligent crimes. This is because in these crimes, the perpetrator does not intend the result; therefore, one cannot speak of "beginning the execution of actions with the intention of achieving the result." In contrast, attempt is quite common in crimes such as intentional homicide, intentional injury, theft, and fraud. Furthermore, in some negligent crimes, it is difficult to apply the concept of attempt unless special conditions are met; because in negligent crimes, the structure of the act in the form of intent to achieve the result and inaction makes the discussions about attempt more complex.
10. Case Studies of Attempted Criminal Activity
To illustrate the theory, it would be helpful to mention some common example scenarios in practice. For instance, in cases of attempted murder, typical instances include the perpetrator using a weapon targeting vital areas of the victim, or attacking with a knife, but the victim surviving through medical intervention. In such cases, the court determines the existence of attempted murder and the severity of the punishment based on concrete criteria such as the nature of the weapon used, whether the injuries are life-threatening, and the manner in which the attack was carried out.
A similar assessment is made regarding attempted theft. If the perpetrator enters a residence at night, rummages through drawers, but is caught before taking the goods, it is considered that the execution of the act has begun and the result has not occurred due to external reasons. Conversely, if the perpetrator is caught at the entrance of the apartment building before entering the residence, it can often be assumed that it remained in the preparatory stage and did not even proceed with the attempt. In fraud, however, attempted fraud is discussed when the perpetrator presents forged documents or requests a bank transfer with the intention of deceiving the victim, but the victim becomes suspicious and does not send the money.
These examples could be multiplied; what is important is to carefully analyze the legal definition of the crime, the nature of the execution of the acts, the legal risk created, and why the outcome did not occur in each specific case. Otherwise, either preparatory acts will be unnecessarily punished, or dangerous attempts may go unpunished.
11. The Importance of Attempted Crime from a Defense Perspective During the Investigation and Prosecution Phases
The concept of attempted crime is not merely a theoretical institution of criminal law; it is a practical tool that directly influences the strategy of both the defense and the prosecution. From the defense's perspective, the acceptance that the crime was not completed and remained at the attempt stage often means a significant reduction in sentence for the defendant. Therefore, careful analysis of the sequence of events, evidence, camera recordings, witness testimonies, and especially forensic reports is necessary.
For example, the distinction between attempted murder and intentional injury can significantly affect the severity of the sentence for the defendant. The defense might argue that the perpetrator's intent was to injure, not kill, that the actions demonstrated this intent, and that the means used and the intensity of the act did not point to an intent to kill. Conversely, the prosecution will argue that the sequence of events, the weapon used, and the targeted area demonstrate an intent to kill. Similarly, debates about whether it was attempted theft or a simple act of damaging property can also be central to the defense.
In this context, the correct application of the provisions regarding attempted crimes is critically important for both the fair determination of the punishment and the balanced protection of the rights and interests of the parties. Especially in serious crimes, correctly determining whether the crime remained at the attempt stage can make the difference between lengthy prison sentences that directly affect the defendant's life and more proportionate punishments.
12. Statute of Limitations, Recidivism, and Deferment in Attempted Crimes
In cases of attempted crime, the statute of limitations is generally determined in parallel with the statute of limitations applicable to the completed crime. Here, the fact that the crime remains at the attempt stage only affects the amount of punishment; the statute of limitations for prosecution and punishment prescribed for the relevant type of crime generally applies in the same way. Regarding recidivism, committing the same type of crime in an attempted manner can be considered a basis for recidivism under certain conditions; because whether the previous conviction was for an attempted crime or a completed crime does not prevent the application of the recidivism principle, the essential thing is the existence of a conviction.
Institutions such as postponement, deferment of the announcement of the verdict, and conversion to alternative sanctions may become easier to apply when considering the already reduced lower limit of the sentence due to attempted crime. Therefore, acknowledging attempted crime not only reduces the amount of punishment for the defendant but also opens the door to more favorable execution and postponement possibilities.
13. Conclusion: The Role of Attempted Crime in Criminal Justice and Practical Recommendations
Attempted crime is one of the fundamental institutions of the criminal justice system that strives to strike a delicate balance, ensuring the equilibrium of justice for the individual, society, and the victim. On the one hand, it aims to maintain deterrence by punishing the concrete danger that incomplete acts pose to legal value; on the other hand, it is necessary to establish a reasonable difference in punishment between the perpetrator who has not yet committed the act and the perpetrator who has fully committed it. The regulations concerning attempted crime in the Turkish Penal Code aim to establish this balance, allowing the judge to individualize the punishment according to the specific characteristics of the case.
From a practical standpoint, it is crucial for individuals facing charges of attempted crime to provide a complete and consistent account of all details of the event, particularly accurately identifying the stage at which the execution of the act was halted and the reasons why the outcome was not achieved. Assessing the possibility of voluntary withdrawal, correctly defining the scope of intent, and determining the degree to which the targeted legal value was jeopardized are all technical areas in criminal proceedings that require professional legal support.
For victims, it should not be forgotten that even in cases of attempted crime, there is a serious legal protection mechanism. Even if the outcome does not occur, the fear, anxiety, physical or psychological effects experienced by the victim can be taken into account in compensation cases as well as in criminal proceedings. In this respect, correctly classifying attempted crime is important not only in terms of the amount of punishment, but also in terms of protecting the victim's rights to material and moral compensation.
In conclusion, the concept of attempted crime plays a crucial role not so much in the abstract theory of criminal law, but rather in the fair resolution of concrete cases frequently encountered in daily life. Therefore, both individuals under investigation or prosecution as suspects or defendants, and victims of crime, should be aware of the conditions, consequences, the possibility of voluntary withdrawal, and the impact on sentence reduction related to attempted crime; and should not neglect to seek legal support from an expert criminal lawyer to avoid any loss of rights. This will both protect the individual sense of justice and ensure that the criminal justice system operates in a predictable and consistent manner.
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