VOLUNTARY WAIVERS

1- INTRODUCTION

According to the Turkish Criminal Law Article 36/1 If the perpetrator voluntarily abandons the actions taken to commit the crime or prevents the completion of the crime or the occurrence of the result through his own efforts, he is not punished for the attempt; however, if the completed part essentially constitutes a crime, he is punished only with the penalty applicable to that crime. According to Turkish Criminal Law, voluntary abandonment means that the perpetrator, through his own will or effort, ceases his actions or prevents the occurrence of the crime .

A voluntary renunciation occurs when the perpetrator voluntarily refrains from completing the crime. For example, if a perpetrator who takes a knife to the victim's workplace to commit robbery abandons the actual crime without threatening or coercing the victim, the perpetrator will be subject to the provisions for voluntary renunciation . If the perpetrator completes the act but prevents the outcome through their own efforts, the provisions for voluntary renunciation apply. For example, if a perpetrator leaves the back door of their workplace open to commit a robbery, and their accomplices enter through the door and take the goods. However, if the perpetrator returns to the workplace and puts the goods back in their place, the provisions for voluntary renunciation apply.

2- CONDITIONS FOR VOLUNTARY WAIVERS

The conditions for the application of voluntary renunciation provisions are explained by the General Assembly of Criminal Courts of Appeals as follows:

If the defendant, despite having the ability and conviction to continue committing a crime, abandons the crime by abandoning the act or voluntarily prevents the outcome from occurring after completing the actions, then abandonment is considered voluntary. Conversely, if the perpetrator is unable to continue the act for reasons other than the risks foreseen and calculated when starting the act, or if the outcome does not occur, then abandonment is not considered voluntary. In this case, the act cannot be completed due to obstacles beyond the perpetrator's control, or the outcome does not occur without the perpetrator's will, thus constituting an attempted crime.

For voluntary renunciation to occur, certain conditions must be met:

1. Existence of intent and commencement of execution actions: The perpetrator must have taken action with the intention of committing a crime .

2. Renunciation before the crime is completed: Renunciation must occur before the crime is completed.

3. Scope of desistance: The perpetrator must stop his actions aimed at continuing the crime or prevent the completion of the crime or the realization of the outcome through his own efforts.

4. The abandonment must be voluntary: The perpetrator must abandon his actions voluntarily or must knowingly and willingly avoid the consequences of the crime.

5. Prevention must be achieved through the efforts of the perpetrator: Preventing the crime from occurring or the outcome from occurring must be achieved through the direct efforts of the perpetrator.

The requirement of voluntariness does not require the perpetrator to act with sincere remorse. Desistance may be motivated by fear, compassion, remorse, or other emotional factors. This does not eliminate the existence of voluntary desistance. The crucial point here is that the perpetrator voluntarily abandons the crime or prevents the consequences.

The basis for renunciation need not be moral or humanitarian values. From a legal perspective, it is sufficient for the perpetrator to knowingly and willingly cease the act. Furthermore, even if the perpetrator only temporarily gives up the crime—in other words, intends to commit the crime later—does not preclude them from benefiting from the voluntary renunciation provision. This is because, in this case, public order is not disrupted and the commission of the crime is prevented. In this context, we can say that voluntary renunciation is an assessment that focuses on the actual consequences rather than the perpetrator's sincerity or intention.

3. CONSEQUENCES OF VOLUNTARY WAIVERS

In cases of voluntary renunciation, the perpetrator is not punished for the crime of attempt. However, if the actions taken before the voluntary renunciation constitute a separate crime, the perpetrator is held liable for that crime. Even if the perpetrator attempted to prevent the completion of the crime by showing remorse during the crime process, if the outcome is achieved, voluntary renunciation cannot be considered, and the crime is considered committed.

For example, even if a person who fires a gun with the intention of killing someone feels remorse and immediately attempts to save their life by calling an ambulance and providing first aid, voluntary renunciation cannot be applied if the victim dies. However, such an effort may be considered grounds for a discretionary reduction in the perpetrator's sentence. If, with voluntary renunciation, the person the perpetrator intended to kill is transported to the hospital by the perpetrator, and the perpetrator is injured but not killed, the perpetrator will be investigated and prosecuted for intentional injury, not attempted murder.

4- APPEALS OF THE COURT OF APPEALS ON VOLUNTARY WAIVERS

For voluntary renunciation to be accepted, the perpetrator must voluntarily abandon their actions aimed at committing the crime, without being coerced, or must make a serious and effective effort to prevent the completion of the crime. However, the Supreme Court's decisions clearly illustrate how these requirements are interpreted in specific cases.

1. Gunshot Wounding and Escape

In one incident, the perpetrator fired an unlicensed firearm at the victim at close range during an argument. He then continued his attack after the victim fell to the ground, firing three more shots, and then fled the scene. Approximately five months later, the perpetrator surrendered with the weapon used in the crime. In this case, the perpetrator was deemed unable to benefit from the provisions of "voluntary renunciation." The Supreme Court of Appeals ruled that the perpetrator's statement, "Take the victim to the hospital," could not be considered a serious attempt to prevent the outcome. Furthermore, considering the possibility of bystanders intervening in the incident because it occurred in a crowded area, the perpetrator's actions were not decisive in preventing the outcome.

2. Entering a House with the Intention of Stealing and Escape

In another incident, a perpetrator forced his way into a house at night and fled the scene before completing the burglary upon being discovered by residents. In this case, the Court of Cassation did not consider the perpetrator's presence in the house, and therefore his inability to continue the act, to be a voluntary abandonment. This is because the perpetrator did not abandon the crime voluntarily; on the contrary, he was forced to abandon his act due to the intervention, or potential intervention, of the home's residents.

3. Injury and Transport of the Victim to the Hospital

In another incident, the perpetrator shot the victim at close range during an argument, inflicting life-threatening injuries. He then drove the victim to the hospital in his own vehicle, ensuring her survival. In this case, the Supreme Court of Appeals noted that the perpetrator showed remorse and made a significant effort to save the victim, and ruled that the perpetrator should be punished for the lesser offense of intentional wounding, rather than the completed offense.

These examples demonstrate that voluntary renunciation must be carefully evaluated in terms of the perpetrator's will during the crime and the impact of their actions on the outcome. The perpetrator must make a serious and sincere effort to prevent the completion of the crime or the occurrence of the outcome. However, where this effort is insufficient or ineffective, voluntary renunciation provisions do not apply. The Supreme Court's decisions in such cases clarify the objective and subjective conditions for voluntary renunciation through concrete examples.