Gönüllü Vazgeçme

Voluntary abandonment, which under the former Turkish Criminal Code (Law No. 765) was recognised only while the acts of execution were still in progress, is drafted in the Criminal Code of 2004 (Law No. 5237) so as also to cover cases where the acts of execution are complete but the result has not occurred. In other words, unlike the former Code, the new Code has broadened the field of application of voluntary abandonment and regulated it specifically.

The institution was chosen as the subject of study because it affords the offender who has set out on the path of crime a way back even after the acts of execution have ended.

In laying down the new system in Article 36 of the Code, it is provided that the offender who voluntarily abandons cannot (as a rule) be punished for the offence whose execution was begun, but may be punished where the acts performed up to that moment constitute an independent offence. Accordingly, where the offender, after beginning the acts of execution, personally prevents their completion — or, having completed them, personally prevents the occurrence of the result — the provisions on voluntary abandonment (Article 36) apply; where causes outside the offender's will produce those outcomes, the provisions on attempt (Article 35) must be applied instead.

After assessing the concept and legal nature of voluntary abandonment, the article examines one by one the conditions required for its application. It also assesses the institution's relationship with, and differences from, the closely related institutions of attempt and effective remorse.

In the exposition, examples are given at the relevant points from the decisions of the Constitutional Court, the Court of Cassation and the Military Court of Cassation, and the views of the doctrine are discussed.

The conclusion emphasises that voluntary abandonment as regulated in Article 36 is an exceedingly useful institution: it reduces the victim's harm and fears, while enabling the offender, thanks to good faith shown, to escape punishment. It might be thought that the victim may not be fully satisfied in a case of voluntary abandonment; but since the victim's material and moral position, had the result of the acts of execution materialised, would be far graver than under voluntary abandonment, that objection is not credited.