Iba, Hasan; Hacioglu, Burhan Caner

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.

Yasar, Ercan; Iba, Hasan

Voluntary abandonment is a personal reason that removes punishment in terms of wrongfulness at the degree of criminal attempt. According to Turkish law voluntary abandonment is an institution linked to criminal attempt. Therefore, before making an assessment on the voluntary abandonment as an institution, it is necessary to determine whether there is an act which has reached the wrongfulness at the degree of criminal attempt. The Article 35 of the Turkish Penal Code No. 5237 sets out that criminal attempt has two main elements, one is positive and the other is negative, former is beginning to intend the crime with direct and appropriate acts and the latter is not completing the crime due to circumstances beyond defendant’s control. This study focuses on the practical drawbacks for narrowing the punishment caused by the interpretation of the article 35 of the Turkish Penal Code by adhering to the legality principle and proposes a solution to eliminate these drawbacks.

Michaelsen, Christopher; Oğuz, Serkan

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