The punishment of preparatory acts

The subject matter of this thesis is the emplacement within criminal law of types of crimes that punish preparatory acts independently. In this context, the thesis will discuss whether such regulations, which contradict or are seemingly incompatible with various principles of criminal law have a legitimate standing international law and explore the criteria to be followed when preparatory acts are to be punished in exceptional circumstances. The thesis consists of two chapters. The first chapter of the research will deal with, primarily, the expansion of the protection of criminal law toward preparatory acts and the incompatibility of this exceptional situation with the act-based (objective) criminal law. Subsequently, the examination will focus on the offence principle which directs criminal policies and functions as a lynchpin in the expansion of the area protected by criminal law. In today's world, punishing merely the infringement of the legal goods and, thus criminal law to be merely repressive and punitive, is not sufficient for the effective protection of these legal goods. In order to protect legal goods that carry a primary and indispensable value and to prevent irreversible consequences, criminal law should also assume a preventive function. This inevitably results in the expansion of the area of punishable acts/offences. In this context, issues arise as to how far the legal goods is to be protected and to which degree or level could the protection of criminal law can be extended. In order to respond to these problems, the offence principle emerges as a key parameter. The second chapter of the thesis address the concept of preparatory acts, the grounds for refraining from punishment of preparatory acts as a general rule and the criteria to be followed in the exceptional situations where preparatory acts are punished. The history of criminal law is constituted of the conflict between crime and punishment policies adopted due to security concerns, and libertarian tendencies. The developments in the society in the XX. century, the increase in organized crime, the internationalization of terrorist activities, the evolution in technology and economics have resulted in the transformation of criminal law. Within the framework of this transformation and alteration, criminal law began to be identified with new definitions such as hostile criminal law, risk based criminal law etc. and it has been observed that security-oriented criminal policies have become increasingly dominant. With that being said, the increase in risks and dangers experienced in modern societies have prompted the legislators to expand the area of protection offered by criminal law. In this respect, it must be noted that the intervention of criminal law has extended, and criminal law has gained a preventive character. However, this newfound character of criminal law brings forth various problems and authoritarian practices aimed at limiting fundamental rights and freedoms. For these reasons, adhering to constitutional principles and a strict application of the principles of legality and certainty is crucial in the expansion of punishment toward preparatory acts. It has been argued that the expansion of the criminal law intervention and punishment of preparatory acts independently pose an incompatibility with the classical system of criminal law based on principle of harm and constitutional norms related to criminal law. It is also argued that the expansion of punishment to preparatory acts creates a contradiction with act-based criminal law. According to the notion of act-based criminal law, criminal law is a reactive branch of law that reacts to offence that has already been conducted and that has infringed legal goods. Pursuant to the definition of crime originating from the Enlightenment, in order for a sanction to be applied, there must exist an act committed by an offender and this act must present a tangible harm to the legal good. This tangible harm emanates as an infringement or threat to the legal good. The punishment of preparatory acts, however, is the product of an entirely different understanding. According to this understanding, the offender is prevented from finalizing his intention to violate legal goods. While this preventive punishment technique offers an effective protection of legal goods, it also carries great risks in terms of fundamental rights and freedoms. One should bear in mind that act-based criminal law is the antithesis of offender-based (subjective) criminal law and criminal law based solely on intention. In this context, the risk of criminal law departing from its humanist and libertarian character and leading too authoritarian practices should not be ignored. Since the punishment of preparatory acts independently is a punishment in the preliminary area, it is necessary to explain the main area protected by criminal law before proceeding into an explanation of this preliminary area. In this respect, any research focusing on the expansion of criminal intervention should tackle with the concept of harm principle and concept of legal goods as the subject of harm principle. Accordingly, the first chapter of the thesis will address the offence principle, theory of legal goods and the concept of constitutional legal goods. A principal topic analyzed in the first chapter is offence principle. Libertarian criminal law is the safeguard of legal goods enshrined in constitutions. The baseline for the legislator when prescribing a crime is legal goods while the concretization of that specific crime in the criminal code is achieved through the offence principle. (no crime without offence, nullum crimen sine iniuria) The offence principle has a conceptual and material aspect. The conceptual aspect concerns with the legislative acts. In that sense, when prescribing a new crime, the legislator must regulate it in such a way that it harms or, at the very least, infringes one or more legal goods in the constitution. The constitutional basis of the harm principle stems from the rule of law. In the course of this thesis, the constitutional and legal foundations of the harm principle are discussed in a comparative approach with Italian law. In addition, the types of crimes that independently punish preparatory acts are evaluated within the framework of the harm principle. The second chapter of this thesis deals with the concept of preparatory acts. The concept of preparatory acts has two aspects. The first aspect is of procedural nature and becomes apparent in the distinction between the preparatory phase and the execution phase of each type of crime. The criminal path (iter criminis) consists of four stages: the stage of thought and decision, the stage of preparation and execution, the moment of completion and the moment of exhaustion. The stage of thought and decision is the first step in the criminal path, then this thought matures and becomes a decision to commit a crime. According to the modern understanding of criminal law, a crime can only come into existence from an act committed by a human being that is reflected in the outside world. Resorting to punishment without a concrete act reflected in the outside world leads to a criminal law system that suppresses freedoms and the emergence of a police state. An approach that takes only the thoughts and intentions of individuals as the foundation of punishment and punishes individuals not for the acts they commit but for their personal characteristics is incompatible with act-based criminal law. The internal behaviors of the individual fall outside the sphere of interest and analysis of criminal law. Criminal law concerns with the acts that take place in the outside world and have a material character. In this respect, the stage of thought is outside the sphere of intervention of criminal law. The concept of preparatory acts, which is pivotal for our research topic, is related to the essence of the crime and dependent on the interconnection between the protected legal goods and the individual type of crime. In some cases, the legislator may prescribe as independent crimes the acts that do not directly violate legal goods but are the means for the future acts of the same offender or other offenders. These acts play a functional role for the objective crimes that will directly harm the legal goods protected by law. Indeed, these are preparatory acts that are instrumental for the future criminal offences that will infringe the legal goods. Some authors define preparatory acts that are independently punished as "crimes involving indirect danger" (pericolo indiretto) or "prevention crimes" (reato ostativo, délit obstacle). These independent types of crimes are positioned in an area far removed from legal goods and are aimed at preventing acts that will result in danger or harm. These preparatory acts are prescribed as independent type of crimes since they are an appropriate prerequisite that prevents the commission of the main crime although they actually precede even the punishable attempts. The second chapter of this thesis explains the legal grounds for the expansion of criminal intervention and the concept of hostile criminal law. To put it briefly, even in states with liberal democratic systems, authoritarian and repressive measures in criminal law are utilized in order to accommodate security concerns. In this context, the concept of hostile criminal law, which caused great destruction in human history, has started to be put back in use. In short, hostile criminal law refers to an understanding of criminal law that attaches more weight to the dangerousness of the offender rather than the act and perceives punishment not as a proportionate response but as a means to eliminate the perpetrator. According to this understanding, criminal law is utilized as a tool in order to eliminate individuals who are perceived by the state as enemies. In hostile criminal law systems, the state expands the intervention of criminal law by utilizing certain techniques and types of crimes in order to punish those who are considered dangerous for its ideology. In this framework, actions that are not appropriate to harm the legal goods, and in this respect, the preparatory acts, are also punished in an excessive manner. The second chapter of the thesis, lastly, deals with the constitutional compatibility of the provisions penalizing preparatory acts. In this context, it is suggested that provisions penalizing preparatory acts should be subjected to a five-step test in order to be legitimately included in the criminal law order. In this respect, firstly, it has been argued that pursuant to the principle of proportionality, the expansion of criminal protection toward the stage of preparatory acts, the legal good protected should be of utmost importance. Accordingly, as the importance of the legal goods protected in the norm increases, the intervention of criminal law can be expanded further. However, it is also suggested that the importance of the protected legal good alone is not sufficient; it should also be indispensable for the perpetuity of the society and the integrity pf the democratic institutions protected in the constitution. Secondly and also pursuant to the principle of proportionality, once it is determined that the norm penalizing preparatory acts is aimed at protecting legal goods with highest importance, it should also be examined whether the norm is appropriate to achieve this objective. Thirdly, in order for a norm penalizing preparatory acts to be in accordance with the constitution, the punishment enshrined in the preparatory offence should be the last resort. Fourthly, the punishment and its consequences should be proportional to the benefit too be obtained from the punishment. In other words, a balance must be sought between the limitations on fundamental freedoms resulting from the punishment of preparatory acts and the protected legal goods. Fifth and finally, it is stated that there should be a proportion between the gravity of the act involved in the preparatory offence and the criminal sanction stipulated in the norm. Prescribing the same penalty for differing degrees of harm to the legal value would be disproportionate. Thus, the legislator should prescribe more lenient preparatory acts compared to the execution phase. Although all these criteria are important; in our opinion, it is of vital importance that the judge examines whether the act in question is appropriate and capable of violating the protected legal good in each specific case.