A PROBLEMATIC ISSUE FOR THE VIEW THAT ACCEPTS INTENT AS THE SUBJECTIVE ELEMENT OF WRONGFULNESS: MISTAKE IN THE FACTUAL ELEMENTS OF THE DEFINITON OF CRIME BY MENTALLY DISORDERED PATIENTS

Intention and mistake are mutually exclusive ontological concepts; if there is an intent, there is no mistake, if there is a mistake, there is no intent. The mistake causing to the absence of intent depends on the perpetrator’s mistake in a matter that falls within the scope of the intent. According to the first paragraph of Article 30 of the Turkish Penal Code No. 5237, the mistake in the material elements of the definition of crime prevents intent. The nature of the wrongdoing on the structure of the punishable act varies according to the theories. According to the Classical Theory, which was the dominant view in the period of the Turkish Penal Code No. 765, since the intent is exclusively a component of the blameworthiness, it does not affect the wrongfulness consisting of the elements of illegality and typicality. Such a mistake always affects the blameworthiness. According to the view that accepts intent as the subjective element of wrongfulness, which gives its spirit to Turkish Penal Code No. 5237, intention is not an element of blameworthiness; it is an element of wrongfulness. According to this view, since intention is the subjective element of the definition of crime, the act is not typical in the presence of a mistake that prevents the intent. According to Article 223 of the Criminal Procedure Law No. 5271, a typical and illegal act (wrongfulness) must exist in order to be able to order security measures for mentally disorder patients. According to the view that accepts intent as the subjective element of wrongfulness, the issue of whether security measures can be imposed on mentally disorder patients who make mistakes in the material elements of the definition of crime due to their illness, is a matter that needs to be resolved in terms of the view that accepts intent as the subjective element of wrongfulness, since the mistake that prevents the intention prevents also the act from being typical. This study will focus on the subject in question.