SUBJECTIVE REASONS THAT RULE OUT CRIME

Accident, vis major, vis absoluta, vis compulsiva, Mistake

 SUBJECTIVE REASONS THAT RULE OUT CRIME

 Unexpected situation (accident, coincidence). These situations cut the causal link and prevent the
conduct from belonging to the perpetrator. The unexpected situation includes not only the causal
factors that occur after the conduct, but also all the factors that existed before or at the same time as
the conduct, which made possible the occurrence of a completely unusual outcome. The absence of
causality also indirectly removes culpability. There is no provision in the TPC regarding these.
However they can be taken into consideration according to the general principles.
 In force majeure (vis major), there are forces that are foreign to the perpetrator and that inevitably
force him to a certain conduct. In this case, people do not move, they are moved. Therefore the
person is not culpable also due to the absence of a causal link. There is no provision in the TPC
again.
 These are reasons that prevent conduct belonging to the perpetrator. Vis absoluta also prevents the
conduct belonging to the perpetrator.
TPC ARTICLE 28
 Force and Violence, Menace and Threat
Article 28
(1) No penalty shall be imposed upon a person who commits
a criminal offence as a result of intolerable or inevitable
violence, or inevitable and serious menace or gross threat. In
such cases, the person involved in the use of force, violence,
menace or threat shall be deemed to be the offender.
VIS ABSOLUTA AND VIS COMPULSIVA
 Violence (vis absoluta, material coercion): here the source of the
compelling cause is human. In this state, the person becomes the
longa manus (outstretched hand) of the person who forces him and
his will is completely eliminated. In TPC Art. 28, it is clearly
regulated that the person who applies coercion will be the
perpetrator of the crime.
 Threat/menace (vis compulsiva, moral compulsion): in this case,
the will of the perpetrator belongs to him, but it is a defective will.
Moral coercion relieves the perpetrator from responsibility if it is
“inevitable and serious”. (Article 28 of the TPC).
MISTAKE TPC ARTICLE 30
 Mistake
Article 30
(1) Any person who, while conducting an act, is unaware of matters which constitute the actus reus
of an offence, is not considered to have acted intentionally. Culpability with respect to negligence
shall be preserved in relation to such mistake.
(2) Any person who is mistaken about matters which constitute an element of a qualified version of
an offence, which requires an aggravated or mitigated sentence, shall benefit from such mistake.
(3) Any person who is inevitably mistaken about the conditions which, when satisfied, reduce or
negate culpability shall benefit from such mistake.
(4) (Paragraph Added on 29 June 2005 - By Article 4 of the Law no. 5377). Any person who makes
an inevitable mistake about whether his act was unjust or not shall not be subject to penalty.
MISTAKE
 In case of mistake, the behavior belongs to the perpetrator, but there is no intent and
sometimes no negligence. Mistake usually derives from misunderstanding. If the
perpetrator is in doubt, it cannot be said that he made a mistake and should benefit
from it as he/she has done it while the confusion in his mind has not disappeared.
Forgetting is equal to not knowing, and therefore to mistake. The mistake that occurs
during the execution of the crime is called aberration. Mistake should not be an error
caused by carelessness. Otherwise, negligent liabilty will still be in discussion.
 The law does not regulate someone else's faulting the perpetrator as a mistake. Article
37/2 (mediated crime) can be considered here. There is a clear provision in the Italian
Penal Code.
 Traditional doctrine does not excuse mistake of law, but considers essential mistake as
an excuse. Essential mistake is an error of perception, whereas legal mistake is a
mistake of evaluation. However, this view cannot explain the mistake on the penal laws
and the mistake on other laws. The solution must be sought in the psychological nature
of the mistake. So the mistake can be split into two.
MISTAKE

Mistake

Mistake of Fact (Actus

Mistake of Law
Reus)
 MISTAKE
 There is a mistake of law when the perpetrator conceives, wishes and realizes the prohibited conduct,
considering that it is not prohibited by the penal norm. On the other hand, when the perpetrator believes
that a different conduct has occurred despite knowing the penal norm correctly (but when the prohibited
conduct is performed) there is a mistake of actus reus. To determine what type of mistake exists, it is
sufficient to look at whether the perpetrator is asking for a typical actus reus or another actus reus.
 In case of essential mistake, the perpetrator does not want to give harm, so he has no intention. However, if
the act has a negligent form, he/she can be punished. In mistake of law, there is only mistake on illegality,
and since the perpetrator may know that his conduct is harmful, intent continues to exist.
 In order for the perpetrator to be culpable, he does not need to know that the conduct is against the law.
Such an acceptance results in the punishment of no one, for acts that are evaluated as a crime by the
legislator, but for the general belief stay to be legal. The rule that “ignorance of the law excuses no one”
(Ignorantia juris non excusat or ignorantia legis neminem excusat) has preserved its existence since Roman
Law. With the naturalistic rationalism of the Enlightenment, this principle was based on the absolute
presumption that all citizens knew the law. Because, not knowing the law would not be an excuse in an
order where there are natural crimes. On the other hand, with the emergence of the other/artificial crimes
category, this presumption was abandoned and the political necessity to ensure the state authority became
the basis of this principle and turned into the purpose of protecting the legal order. With the transition from
the liberal state to the authoritarian state, the principle has become a tool of oppression.
 MISTAKE OF LAW
 A mistake of law may result directly from a misunderstanding or misinterpretation of the penal code, or from a misunderstanding
or misinterpretation of a law outside the penal code. It is clear that the presumption that the laws are known by everyone has lost
its value today. Because "presumption" is an indirect proof activity that enables reaching from the known to the unknown
through a probability calculation based on the results of the vast majority of events. There is no duty to know the law. However,
since the state authority cannot be applied against people who can prove that they do not know the law, such a rule must be
accepted. On the other hand, in some cases, it is very difficult to hold people responsible for a minimum of negligence because
of the ignorance of the law, due to the multiplicity of laws, international roaming, etc. In order to soften this rigidity, the criterion
of “knowability” has been proposed. However, in this case, a strange result would arise as the perpetrator, who knows that his
conduct is antisocial, is not responsible for not knowing the law. For this reason, it imight be admissible as a state of goodwill
arising only from objective and collective ignorance (strike, national disaster) and the decisions of some authorities (judicial
organs, administrative authorities) about the legitimacy of the act. The Italian Constitutional Court interpreted Article 5 of the
IPC as an excuse for mistake on the rule only when there is an unavoidable ignorance.
 Moreover, knowledge of the law is often general and vague for the ordinary citizen. For this reason, for the implementation of
this principle, a legal order should be established in which formal illegality and substantive illegality are in harmony. This order
should be built around real legal objects. In that case, knowability should be sought in the absence of knowing, and antisocial
awareness should be sought in the absence of knowablity. The judgment on the awareness of anti-sociality is not given according
to the individual, but according to the common judgment. Therefore, when ignorance is not related to the technical and
professional field of the perpetrator and there is no antisocial awareness, ignorance of the law is considered an excuse.
 According to the Penal Code of TPC 4, ignorance is not an excuse. In article 30/4, it was said that the person who made the
inevitable mistake that the act he committed constitutes an injustice is not punished, and it was accepted as an excuse for
ignorance only if there is no antisocial awareness.
MISTAKE OF ACTUS REUS
 Mistake of Actus reus is an essential mistake. The essential mistake is a
detection/perception mistake. There is an essential mistake, when had the real
situation been as envisaged by the perpetrator, the conduct would be lawful (ÖNOK,
Penal Law, p. 233). This mistake must be an objective mistake on one or more of the
objective elements of the crime. In this respect, mistake on the object and mistake on
the person are important in terms of criminal law only if they are essential elements
for the crime. Essential mistake may be on the positive or negative elements of the
crime. There was no provision in the TPC nb 765 to regulate essential mistake, but
from the general principles regarding intent, it could be said that this type of mistake
removed/abolished intent. TPC Article 30, it is regulated that a person who does not
know the elements in the legal definition of the crime during the execution of the act
does not act intentionally, and the state of negligent responsibility is reserved.
 If the mistake is essential however also evitable, then the negligent responsibility
will arise if the crime in question can be comitted by negligence.
 BACK TO MISTAKE OF LAW
 According to TPC numbered 5237, mistakes can be considered as
excuses, when regarding laws other than penal laws. These are
considered as an excuse if they turn into a mistake on the actus reus, or
they remain as a mistake on the penal norm and are not considered an
excuse. Therefore, the problem is not about the imperativeness of these
rules. In this case, the penal code should refer to the relevant law and this
mistake should turn into a mistake on the constituent elements of the
crime.
 In that case, if the mistake of law on a norm other than the penal norm
turns into a mistake on the elements of the crime, it becomes an essential
mistake and removes the criminal responsibility. The error remains as a
mistake on the penal norm if it does not turn into an essential mistake.
 MISTAKE REGARDING THE QUALIFIED
CIRSUMSTANCES (AGGRAVATING OR MITIGATING
CIRCUMSTANCES) OF THE CRIME
 According to article 30/2, the perpetrator takes benefit from the mistake when the
more severe and aggravated forms of the crime have occurred. In the presence of
an aggravating circumstance, this cirsumstance is not blamed on the perpetrator if
he has a mistake concerning it. The perpetrator won’t be liable of the aggravating
circumstance if he hadn’t acted with the intent in relation to this circumstance.
 But also, the perpetrator who thinks mistakenly there is a mitigating circumstance
will benefit from this. Also, when there is a mitigating circumstance of which the
perpetrator is not aware of he will benefit from it again.
 Mistakes as to the identity of the victim do not matter as long as the identity of the
victim does not constitute an aggravating of mitigatin circumstance.