Elements And Types Of The Offence Of Instigation In The Turkish Criminal Code
1. MATERIAL ELEMENTS OF INSTIGATION
The existence of a subject of instigation
As in every offence, instigation must also have a subject. The offence that may be the subject of instigation must be possible; otherwise, “impossible instigation” will be in question in the offence that has no subject or whose subject is impossible. If the instigator knows that the act to be instigated is not a crime or if he knows that the occurrence of the crime is unfavourable, in this case, “unfavourable instigation” cannot be mentioned.
Presence of the instigator and the instigated
Article 38 of the TPC defines an instigator as a person who incites another person to commit an offence. As can be understood from the regulation of the law, the person instigating and the person instigated cannot be the same person; in instigation, another person other than the instigator takes the decision to commit a crime. In this respect, the person instigated must also be specific; otherwise, the offence of incitement, not instigation, occurs.
Since legal persons do not have the capacity to act, they do not have the capacity of fault. Therefore, it is not possible for legal persons to neither instigate nor be instigated to commit a crime. As a matter of fact, in terms of legal persons, the real person acting on behalf of the legal person is in the position of the instigator or the instigated. However, the Constitutional Court also has a contrary opinion on this issue.
Specificity of the Victim
The act of instigation must be against a specific person. The person instigated to commit a crime by the instigator may commit the act of instigation against a certain person. In order for the act of instigation to be in question, the victim must be a certain person.
Decision to commit a crime in the person instigated as a result of the act of instigation
It is not possible to speak of instigation without an act of instigation. An act of instigation is an act that encourages and persuades the person instigated to commit an offence until the person instigated starts to commit the offence. The instigator’s act of instigation must be of such a degree as to enable the person instigated to commit the offence to take the decision to commit the offence and to start the executive acts. As a matter of fact, without the act of instigation, the person instigated would not have committed this offence.
Factors other than the instigator may also be effective in the decision of the person instigated to commit the offence. However, if the decision to commit the offence was not taken by the person instigated before the instigating act of the instigator, instigation is in question.
Commencement of Execution Acts by the person instigated as a result of instigation
What is meant by the result of instigation is the change of thought in the person instigated to commit the offence after the instigator’s act of instigation. It causes instigation with the change of thought. If the thought changed by the person instigated is reflected to the outside world by starting the executive actions, the result of instigation occurs. Instigation is not punishable if the instigated person does not start the execution of the offence despite the decision to commit the offence.
Causal link in instigation
In order to talk about instigation, there must be a causal link between the act of instigation and the result of instigation. Following the completion of the act of instigation and the formation of the thought of committing a crime in the person instigated, there must also be a causal link between the act that the person instigated starts the executive actions and performs the act.
2. MORAL ELEMENT OF INSTIGATION
Instigation may be intentional. The main thing in instigation is the desire to commit an offence to another person. The instigator must know or at least foresee that the act to be committed by the person instigated is a crime. It is possible to commit instigation with probable intent. For example, the person who orders the killing of the owner of a coffeehouse by shooting a coffeehouse with a gun, foresees that other people passing by the coffeehouse may be injured and killed in addition to the people who were in the coffeehouse at the time. In this case, he shall be liable for the other consequences with probable intent.
TYPES OF INSTIGATION
Simple instigation
Simple instigation is when a person induces another person to commit a crime by leading him/her to commit a crime by making him/her decide to commit a crime and pushing him/her to commit a crime, and when he/she influences a person who would not commit a crime under normal circumstances and makes him/her commit a crime.
Chain instigation
If not the person directly instigated, but someone else is instigated and this person is instigated by contacting the first instigated person, then this is “instigation to instigate” or “chain instigation”. For example, if the head of a criminal organisation asks one of his men to find a hitman to kill another person, this is chain instigation.
Indirect instigation
Indirect instigation will occur if the instigated person uses another third party only as a means of instigation.
Joint instigation
In joint instigation, the acts of instigation are carried out by more than one person together. It is the actions of at least 2 instigators jointly on the instigated or by using an intermediary instigator to create a decision of instigation in the perpetrator in a chain.
Instigation to Help
It is to persuade the person instigated, who has no intention of assisting the unlawful act committed intentionally by the instigator, to decide to assist the instigator. Instigation to assist is considered as assisting the principal act. In order for the instigation to assist to be punished, the instigated aider and abettor must have started executive actions to assist the perpetrator.
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