Attempt to crime in Turkish criminal law

The purpose of the criminal law is to take the action of the perpetrator, who proceeds on the path of crime (iter criminis), to be sanctioned by intervening after a certain stage in order to protect the social order. Here, since the thought stages and preparatory movements in the first part of the criminal path expand the area of punishment, they are accepted within the freedom of the perpetrator and cannot be punished. It is also not possible to prove that the perpetrator's state of thought and preparation will constitute a basis for committing a crime. The perpetrator also has the opportunity to withdraw from the idea and decision of committing a crime that does not turn into any action before starting the enforcement actions. Criminal law includes cases of strong suspicion based on concrete evidence within the scope of being punished. The action taken by the perpetrator can only be punished when it leaves the stage of preparatory actions and moves to the stage of execution actions. In this respect, the distinction between preparatory actions and enforcement actions on the way to crime is important in terms of holding the perpetrator responsible for attempted crime. The purpose of penalizing attempted crime is that the perpetrator puts the legal interest protected by the legislator in danger by demonstrating his will to commit a crime with his action. In Turkish criminal law, the attempt was regulated under two separate headings as "incomplete attempt" and "full attempt" according to the completion of the execution actions in the TPC numbered 765, while the new TPC numbered 5237 put an end to the distinction between incomplete and complete attempts. According to the regulation in the 35th article of the TCK numbered 5237, "If the person cannot complete a crime that he intends to commit by means of suitable actions and cannot complete it for reasons beyond his control, he is held responsible for the attempt. In case of attempted crime, the perpetrator is punished according to the gravity of the harm or danger. The distinction in the old law numbered 765, which was repealed to this regulation, regarding the fact that the perpetrator would be given a lesser penalty if the enforcement actions did not end or the enforcement actions ended but the legal type envisaged result could not be realized has disappeared. The punishment to be given to the perpetrator in the event of an attempt is not based on the criterion of whether the execution actions are over, but the weight of the damage and danger that will occur as a result of the perpetrator. In our opinion, the judge has been given a kind of discretionary power while appointing the sentence. The removal of the distinction between incomplete and full undertakings in the new TPC has been an appropriate arrangement in terms of implementation, in terms of ensuring unity in the proceedings. The undertaking institution is included in the general provisions of the Turkish Penal Code No. 5237. Since the completed forms of the crime types are included in the special part of the law where the crime types are regulated, if the attempt was not regulated, it would not be possible to punish the perpetrator who attempted to commit a crime in accordance with the principle of legality in crime and punishment, since the crime that remained at the stage of attempt does not comply with the definition of crime stipulated in the law. For this reason, it is a general provision as it can be applied to many types of crimes, as we will discuss in the following sections of our study, which is organized in the section of special provisions. The elements of the enterprise are divided into two as material and spiritual. According to the regulation in the Turkish Penal Code; The material element of the attempted crime is the initiation of the enforcement actions, the availability of the action, the completion of the enforcement actions, and the moral element is "caste". Based on the research we have done in doctrine and practice, it is the fact that attempted crime is one of the most discussed institutions in criminal law and that there are still some debates and disagreements on it. Keywords: Attempt, initiation of enforcement actions, availability of action, inability to complete enforcement actions, criminal path