Unsuccessful instigation in criminal law

Instigation means making someone, who has no idea about committing a determined offence, to take decision in order for committing the offence. The wrongdoing of instigating is based on causing the offence to be committed. Starting from this point, it has been accepted in Article 38 of the New Turkish Criminal Code that the instigator deserves to be punished with the punishment of the committed offence as an accessory. In the legislative justification, it was put emphasis upon instigating, albeit in another context, constitutes a wrongdoing in itself. In order to hold the instigator responsible for participation, there must be an act that was committed intentionally and unlawfully and that remained at least at the stage of attempt. If the perpetrator does not begin the execution of the act directly, he/she cannot be held responsible for the participation since the quantitative element of the accessoriness rule is not realized. In this case, where the main act was not committed and the instigation was attempted, a general provision regarding the punishment of the instigator was not regulated in the New Turkish Criminal Code. In the doctrine, the existence of this gap in the code has been criticized, claiming that acts of instigation (attempted instigation) which constitute wrongdoing in itself should be punished. Attempted instigation was deemed worthy of punishable in many countries under comparative law in particular German and Italy whereas it can not be punished under Turkish Law. In the study, penal sanction was accepted for attempted instigation in the countries examined- except Italy. However, in Italy, the punishment of security measure sanction was preferred. Thus, the punishability of the attempted instigation has been discussed from comparative perspective and the subject of the study has been examined in more detail regarding German Law. In article 30/f.1 of the current German Criminal Code, it is regulated that a person who attempts to instigate another to commit a felony or to instigate a felony shall be liable according to provisions governing attempted felonies. Under German Law, the principles of attempted felony are applied and the penalty of the instigator is determined by making a reduction. At the same time, it has been accepted that it is punishable in offences (felonies) that require at least one year's imprisonment. The justification for the punishment of attempted instigation, which is shown as an example of preventive criminal law, is based on actual danger to protected legal values. Attempted instigation is threatened with punishment in the foreground of participation as a dangerous preparatory act by an independent norm in the ciriminal code. By instigating another, the instigator started the criminal causality process, which is independent and over which his/her dominance can not be established anymore, and has lost dominance (control) over the event. It is accepted that the instigator, who causes the danger of important legal values and the danger of committing the felony at any time, with the loss of dominance, enters the punishable area in the foreground of participation. With this study, considering the article 30/f.1 of German Criminal Code, it is aimed to write a proposal provision for Turkish Law from the thought that a regulation should be made in the New Turkish Criminal Code, which ensures that instigating acts, which are committed in the foreground and gain the content of wrongdoing by influencing of someone else's will to commit an offence, are punished with an independent provision without waiting for the offence to be committed. In the proposed provision, it has been accepted that attempted instigation is punishable in the general provisions part of the code and merely for determined types of offences by reducing the penalty in accordance with the attempted offence.