Mistake of Fact in Turkish Criminal Law

In modern criminal law, the act forms the basis of the crime (Koca & Üzülmez, 2010, p. 124). But there should be a mental connection between the act and the offender who commits the act. In other words, without a mental connection, a behavior would not have the characteristic of an act and consequently it would not constitute a crime (Özgenç, 2010, p. 213; Koca & Üzülmez, 2010, p. 178). This mental connection between the offender and the act emerges either as intention or negligence. The intention is a form of committing the injustice and occurrence of a crime depends on the existence of intention. Intention is committing the elements of crime in the legal definition willingly and purposely. If the offender does not know the objective elements in the definition of the crime, he would not act intentionally. In criminal law, if the offender’s conception and the fact do not comply with each other, it is called a mistake (Önder, 1992, p. 325). The mistake might stem from the fact that a person does not know the fact at all or it might also arise out of the fact that he knows it defectively or wrongly. In this regard, two kinds of mistake, not knowing the fact or knowing it wrongly, are two distinct forms (Gropp, 2005, § 13, n. 4; Dönmezer & Erman, II, 1999, n. 1039). However, the offender conceives the fact wrongly in both of these cases. It should be examined that whether the wrong conception of the offender affects his punishability? In other words, will the incongruity between the offender’s will and the fact be valued in the criminal law? We should answer this question in the following way: The consequences of the offender’s wrong conception might be different; the wrong conception might eliminate the offender’s intention, it might be of importance for his culpability (reproachability) or it might not be of importance for the criminal liability ( Jescheck & Weigend, 1996, p. 306; Heinrich, II, 2005, n. 1064). Thus, it cannot be generalized that the mistake would eliminate the criminal liability by all means, or it would be completely ineffective in punishment. It should be evaluated according to the content of the offender’s mistake. But criminal law has to take into consideration the case of mistake which affects the offender’s will and has to demystify the mistake’s effect on the offender’s liability. The subject of the offender’s conception might be related to anything belonging to the external world, it might also be related to a fact belonging to the normative world. If anything belonging to the external world is conceived differently than what it is, it is called mistake in perception, if a reality related to the normative world is evaluated differently than what it is, it is called mistake in evaluation (Toroslu, 2005, p. 217; Heinrich, II, 2005, n. 1066–1067). Perceiving or knowing the presences belonging to the external world wrongly is a matter related to the person’s intention; and such a mistake eliminates the intention. Since the intention is knowing the objective elements in the crime’s legal definition (typicality) (TPC1 art. 21/1), this mistake is generally called as mistake of element or mistake of typicality. On the other hand, the mistake in evaluation belonging to the normative world is a mistake related to the person’s comprehension and thus it is relevant to culpability. Consequently this mistake type is characterized as the mistake of injustice (TPC art. 30/4) or mistake of prohibition. Thus, it is possible to divide the mistake into two categories, namely the mistake affecting the culpability and the mistake eliminating the intention in respect to their consequences (Özgenç, 2010, p. 393; Artuk/Gökcen/Yenidünya, 2007, p. 683; Koca & Üzülmez, 2010, p. 254).In the article 30 of TPC, titled “mistake”, the mistake eliminating the intention and the mistake eliminating the culpability are regulated together. In the this article consisting of four paragraphs mistake of objective elements, mistake of aggravating and mitigating factors, mistake of objective conditions of the reasons mitigating or eliminating the culpability and the reasons of justification and mistake of prohibition (mistake of injustice) take place respectively.