Attempted

Attempted crime can be defined as the failure of the perpetrator, who has taken the decision to commit a crime, to proceed on the path of crime, to make the necessary preparations for the crime he intends to commit, and to start the enforcement actions, but not to conclude the crime he wants to commit due to reasons beyond his control. As a matter of fact, the concept of attempted crime in Article 35 of the Turkish Penal Code states: “A person is held responsible for attempting a crime he intends to commit, if he/she starts the execution directly with appropriate actions and cannot complete it for reasons beyond his control.” formatted.

Pursuant to Article 35 of the Turkish Penal Code, attempted crime occurs in two ways:

If the perpetrator has started the enforcement actions but the enforcement actions are interrupted for reasons beyond his control, he is punished for attempted crime. For example, if the accused, who shot with the intention of injuring, fled after the police came to the scene, the crime of intentional injury remained at the stage of attempt, since the act was interrupted.
Even though the perpetrator completes the enforcement actions, if the desired result does not occur due to an obstacle beyond the perpetrator’s will, an attempted crime is in question. For example, if the victim does not die even though the victim hits the lethal area 5-10 times with a knife, the crime remains in the attempted phase. The accused is punished for the crime of intentionally attempting to kill a person.
Although the perpetrator could not commit a crime, impunity for criminal acts cannot be reconciled with law and justice. Because, even if a crime does not occur in the event of an attempt, a concrete danger arises on the social order. When evaluating whether an act is unlawful, the legislator takes into account whether it disrupts the order in the society or not, and whether it harms the protected rights or interests of the society.

TERMS OF ATTEMPT TO CRIME

The actions remaining in the attempt stage and the actions in the legal definition of the crime have been fulfilled; but the conclusion part is missing. Therefore, the reason for punishing the attempt is for the same reason as for punishing completed crimes.

At the stage of attempt, the perpetrator starts enforcement actions in order to achieve the result he wants to complete the crime he intends to commit; however, he cannot complete the enforcement actions for reasons beyond his control, or the desired result does not occur despite completing the enforcement actions.

The following conditions are required for a crime to remain at the stage of attempt:

Presence of criminal intent
The perpetrator directly begins the execution of the crime
The perpetrator’s actions that are suitable for committing the crime
Failure of the perpetrator to complete his act due to reasons beyond his control
conditions must be met.

FINDING CRIMINAL INTENTION

In order to be able to speak of attempt, the perpetrator must first of all intend to commit a certain crime. In Article 35 of the Turkish Penal Code, this issue is explained with the words “a crime he intends to commit”. However, as it can be understood from the definition in the article, the crime intended to be committed must naturally be an “intentional crime”. It is not possible to intend to commit a negligent crime. For this reason, attempt cannot be mentioned in negligent crimes.

Intention to commit a crime includes knowing and wanting the elements in the legal definition of that crime. In addition, the intent of the perpetrator must be for the purpose of defining the crime he envisages to commit. An attempt to commit a crime cannot be mentioned. However, it may be controversial in some cases whether the intent to commit a crime also includes another crime. For example, if the perpetrator pointed his knife at the victim and walked towards him with the aim of threatening, it may be difficult to determine whether this action includes the intent to injure or kill. In this case, the intent of the crime should be determined based on various data such as the behavior of the perpetrator and the victim before the event, their relations, whether they have hostility or not, and the nature of the actions during the event.

STARTING EXECUTIVE MOVEMENTS

Initiating enforcement actions is one of the positive elements that enable the establishment of the enterprise. Not all actions taken by the legislator for the purpose of committing the crime were 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 execution act is important. At the preparatory stage, the perpetrator is preparing to commit the crime; He buys the crime tool suitable for the crime he will commit, has information about it, and prepares the necessary action plan for committing the crime.

Since the distinction between the preparatory act and the execution act is difficult, the criterion for 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 initiation of the execution directly is accepted as the execution act. Enforcement actions are deemed to have started with the execution of the actions specified in the law for the occurrence of the crime.

ACTION SUITABLE FOR COMMITMENT

It is not sufficient for the establishment of the attempt to have started the direct execution of the crime. In addition, it is obligatory to start with actions suitable for execution. As a matter of fact, our Law stipulates the existence of an act suitable for committing a crime for the existence of attempted crime. The perpetrator’s act of execution must be conducive to achieving the desired purpose. A suitable vehicle is not included in the eligible movement; As a matter of fact, the term vehicle refers to something immobile.

While evaluating the eligibility, the situation and conditions at the time of the incident are taken into consideration. For example, if the action taken by the perpetrator does not allow to complete the crime, then there will be an absolute unfitness. Under normal conditions, although it is suitable to bring about the consequences included 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 relative unfavorability. In some of its decisions, the Court of Cassation distinguishes between absolute and relative inconvenience while evaluating the suitability.

FAILED TO COMPLETE EXECUTIVE MOVEMENTS

Failure to complete enforcement actions is one of the negative factors that enable the establishment of the enterprise. In this case, while the perpetrator is on the path of crime, he cannot complete the enforcement actions for reasons beyond his control. The reason that is not in the hands of the perpetrator can be material or moral, or it can be realized by the action of a third person; whatever it is, it will be hindered by external factors. Otherwise, if the perpetrator does not complete his/her enforcement actions with his/her free will, voluntary renunciation is in question.

The impediment to the completion of the enforcement actions must occur before the crime is completed. Even if the perpetrator completes the execution actions, he cannot complete the crime if he cannot achieve the desired result.

SPIRITUAL ELEMENT IN ATTEMPT TO CRIME

As it can be understood from the wording of TCK Article 35, attempt is only possible 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 intent. Caste is the knowing and willful realization of the elements in the legal definition of the crime.” With the arrangement in the form, the intent is expressed. In this respect, it has the characteristics of a completed crime.

The caste in the crime that has remained at the stage of attempt consists of the desire to commit the completed crime with all its elements. In short, the consciousness and will of the perpetrator to carry out the behaviors suitable for committing the crime is obvious. As a matter of fact, it has been stated by the Supreme Court decisions that the intent of the perpetrator is to complete the crime and that there is no separate caste for the attempt.

In the decision of the Criminal General Assembly of the Court of Cassation, T. 14.12.1999-1/278-308, while determining the perpetrator’s intent, “the perpetrator’s behavior before and after the event, the reason and nature of the hostility between the perpetrator and the victim, the nature of the crime tool used by the perpetrator, the number of shots or blows distance, the location and characteristics of the wounds on the victim’s body, whether there is a possibility to choose a target, the flow and reason of the incident, whether there is an obstacle outside the will of the perpetrator of the crime he intends to commit.

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