Attempt to commit a crime can be defined as the failure of the perpetrator, who has decided to commit a crime, to finalise the crime he/she intends to commit due to reasons beyond his/her control, even though he/she has made the necessary preparations for the crime he/she intends to commit by proceeding on the criminal path and has started the executive actions. As a matter of fact, Article 35 of the Turkish Penal Code (TPC) regulates the concept of attempted crime as follows: “A person is held responsible for attempted crime if he/she starts to directly execute a crime that he/she intends to commit with favourable actions and fails to complete it due to reasons beyond his/her control.”
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Pursuant to Article 35 of the TPC, an attempt to commit an offence occurs in two ways:
The perpetrator is punished for attempting the offence if he/she has started the execution of the offence but the execution of the offence is interrupted due to reasons beyond his/her control. For example, if the defendant, who shot with the intention of wounding, escaped when the police arrived at the scene, the offence of intentional wounding remained at the attempt stage since the act was interrupted.
If the perpetrator completes the executive actions but the desired result does not occur due to an obstacle outside the will of the perpetrator, the offence is attempted. For example, the crime remains in the attempt stage if the victim does not die despite hitting the victim’s body with a knife 5-10 times in the lethal area with a knife. The accused shall be punished for the offence of attempted intentional homicide.
Although the offence could not be realised by the perpetrator, the impunity of the actions on the way to the offence cannot be reconciled with law and justice. This is because, in the case of an attempt, even if the offence does not occur, a concrete danger to the social order arises. When assessing whether an act is unlawful, the legislator takes into account whether it disrupts the order in the society and whether it harms the protected rights or interests of the society.
CONDITIONS OF ATTEMPTED CRIME
With the actions remaining at the attempt stage, the actions in the legal definition of the offence have been fulfilled; however, the result remains incomplete. Therefore, the reason for punishing the attempt is based on the same reason as punishing completed offences.
In the attempt stage, the perpetrator starts the executive actions in order to achieve the result he/she wants to complete the offence he/she intends to commit; however, he/she cannot complete the executive actions for reasons beyond his/her control or the desired result does not occur despite completing the executive actions.
In order for an offence to remain at the attempt stage, the following conditions are required
Intention to commit an offence
The perpetrator directly starts the execution of the offence
The perpetrator has acted in a favourable manner to commit the offence
Failure of the perpetrator to complete the act due to circumstances beyond his control
conditions must be fulfilled.
INTENTION TO COMMIT AN OFFENCE
In order to speak of an attempt, the perpetrator must first of all intend to commit a specific offence. This is explained in Article 35 of the TPC with the words “an offence intended to be committed”. However, as can be understood from the definition in the article, the offence intended to be committed must naturally be an “intentional offence”. It is not possible to intend to commit a negligent offence. Therefore, there can be no attempt in negligent offences.
Intending to commit an offence involves knowing and willing the elements of the legal definition of that offence. In addition, the intention of the perpetrator must be aimed at defining the offence he/she intends to commit. Attempted intent to commit an offence cannot be mentioned. However, it may be controversial in some cases whether the intention to commit one offence includes another offence. For example, if the perpetrator pointed his knife at the victim with the intention of threatening him and walked towards him, it may be difficult to determine whether this action covers the intent to injure or kill. In this case, the criminal intent should be determined based on various data such as the behaviour of the perpetrator and the victim before the incident, their relationship, whether they had enmity or not, and the nature of the actions during the incident.
COMMENCEMENT OF ENFORCEMENT ACTIONS
The initiation of executive actions is one of the positive elements that ensure the formation of an attempt. The legislator does not punish all actions taken for the purpose of committing the offence. In this context, executive acts are within the limits of punishment. In this case, the question of whether an act is a preparatory act or an executive act is important. At the stage of preparatory acts, the perpetrator prepares to commit the offence; he buys the criminal instrument suitable for the crime he will commit, he has information about it, he prepares the necessary action plan to commit the crime.
Since it is difficult to distinguish between preparatory and executive acts, Article 35 of the TPC introduces the criterion of directly starting the execution. An act of execution occurs when the perpetrator starts to commit the behaviour necessary for the existence of the offence. Accordingly, starting to execute directly is accepted as an act of execution. The execution is deemed to have begun when the actions required for the occurrence of the offence in the law are performed.
ACTING IN A MANNER CONDUCIVE TO COMMITTING AN OFFENCE
Starting the execution of the offence directly is not sufficient for the formation of the attempt. In addition, it is also mandatory to have started the execution with favourable movements. As a matter of fact, our Law also stipulates the existence of an act favourable to committing an offence for the existence of an attempt to commit an offence. The perpetrator’s executive act must be suitable to realise the desired purpose. A favourable means is not included within the scope of a favourable act; as a matter of fact, the term means refers to something immobile.
While assessing the convenience, the situation and conditions at the time of the incident are taken into consideration. For example, if the act performed by the perpetrator does not allow the completion of the offence, then absolute/absolute unfitness will be in question. Relative unfitness is in question if the act is unfit for the subject of the offence that the perpetrator intends to commit, although under normal conditions it is suitable to bring about the consequences included in the legal definition of the offence. In some of its decisions, the Court of Cassation distinguishes between absolute and relative unfitness when evaluating the state of unfitness.
FAILURE TO COMPLETE THE EXECUTION OF THE OFFENCE
Failure to complete the executive acts is one of the negative elements of the attempt. In this case, the perpetrator, while proceeding on the path of the offence, is unable to complete the executive acts due to reasons beyond his control. The reason not in the hands of the perpetrator may be material or moral in nature, or it may be realised by the act of a third person; in any case, it will be prevented by external factors. Otherwise, if the perpetrator fails to complete the acts of execution with his free will, voluntary renunciation is in question.
The factors preventing the completion of the acts of execution must arise before the offence is completed. In the event that the perpetrator fails to achieve the desired result despite completing the executive movements, the offence cannot be completed.
MORAL ELEMENT IN ATTEMPTED OFFENCE
As can be understood from the wording of Article 35 of the TPC, attempt is only possible in offences that can be committed intentionally. As a matter of fact, Article 21/1 of the TPC states that “The occurrence of the offence depends on the existence of intent. Intention is the realisation of the elements in the legal definition of the offence knowingly and intentionally.” Intention is expressed with the regulation as follows. In this respect, it has qualities specific to the completed offence.
The intention in the attempted offence consists of the desire to commit the completed offence with all its elements. In short, the consciousness and will of the perpetrator to perform the behaviours suitable for committing the crime is evident. As a matter of fact, the decisions of the Court of Cassation have also stated that the intention of the perpetrator is to complete the offence and that a separate intention cannot be mentioned 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 intention of the perpetrator, “the behaviour of the perpetrator before and after the incident, the reason and nature of the animosity between the perpetrator and the victim, the nature of the criminal tool used by the perpetrator in the crime, the number of shots or blows and the distance, the location and characteristics of the wounds on the victim’s body, whether the victim had the opportunity to choose a target, the flow and cause of the incident, whether the perpetrator had an obstacle other than the will of the crime he intended to commit” are evaluated.
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