The misconception of injustice is regulated as a situation that eliminates fault in TCK Article 30/4: “A person who makes an inevitable mistake regarding the act he/she has committed as being unjust shall not be punished.”
Although it is presumed that a person with the ability to perceive also has a consciousness of injustice as a rule; since the opposite of this situation may sometimes occur and the current law is based on the principle of fault, the legislator has created a provision that includes an exception. Thus, the misconception of injustice eliminates fault, not intent.
The Penal Code No. 765 does not include the misconception of injustice, on the contrary, it includes the provision that “ignorance of the law is not considered an excuse.” However, in the old decisions of the Court of Cassation, the existence of excuse has been accepted in cases where intent does not include consciousness of injustice, although not under the name of misconception of injustice.
The assessment of whether a behavior is immoral or not does not fully affect the existence of the misconception of injustice, and however, consciousness of injustice is taken into consideration when evaluating. Because immoral actions do not always violate legal norms, and immoral actions can also change over time. When evaluating the existence of the fallacy of injustice, the point to be considered is to determine whether the action constitutes injustice on the person’s part; not knowing whether the action that is considered to be injustice is defined in the applicable law will not eliminate the fault.
The situation where a person thinks that his/her action falls within the scope of legal compliance despite knowing that it is prohibited by the legal order is expressed as the fallacy of indirect injustice.
When determining the existence of an inevitable mistake, the situation of an average person in the group to which the perpetrator belongs will be taken as basis; factors such as the perpetrator’s age, profession, level of education, position, nationality, environmental conditions in which he/she lives, and the way the incident occurred will be taken into consideration. If the conclusion reached is that the mistake was avoidable, in this case, it will be necessary to determine the penalty by approaching the lower limit according to TCK Article 61, but the person will not be able to benefit from TCK Article 30/4.
PRACTICAL INCIDENTS;
1) The Cologne Court in Germany accepted that parents of Islamic faith who circumcise their child without their consent and the person who performs the circumcision commit the crime of intentional injury, but ruled that parents can benefit from the provisions of the fallacy of injustice regulated in Article 17 of the German Penal Code.
It is not possible for individual beliefs to benefit from the provisions of the fallacy of injustice.
2) “Since the defendant was caught selling smuggled cigarettes on a mobile stand according to the incident report and confessed to the crime in his defenses at the stages, the crime of smuggling was proven, therefore, the defendant should have been convicted according to Article 3/18 of Law No. 5607, but without an explanation that would allow for review, it was stated that ‘he made an inevitable mistake regarding the act he committed as a crime when his attitude and behavior at the hearing and the way he expressed himself were taken into account’, and therefore, Article 30/4 of the TCK, which has no application in the present case, was used. and the decision that there is no need to impose a penalty in accordance with Article 223/3-d of the CMK…”, Judgement No. 7, CD, T. 17.04.2018, E. 2017/10193, K. 2018/4118
3) A decision of the Court of Cassation is as follows: “If the perpetrator forcibly takes his daughter, who became a widow after the death of her husband, to his home without an illegitimate purpose and with the intention of protection and companionship and with the belief that it is a legitimate act, there is no criminal intent” (Y.1.CD, 23.12.1955, 3827). In essence, in these decisions, there is no doubt that the perpetrator acted intentionally, and it is accepted that he was in the wrong.
4) Another case of the wrongdoing error is called the “indirect wrongdoing error” or “concrete wrongdoing error”. In this case, the perpetrator; Although he knows that the act he committed essentially constitutes an injustice, he thinks that such a lawful reason exists in the legal order, even though there is no legal reason for this act. The most common example of this is the idea that the consent of the person concerned makes the act lawful in terms of the crime of forgery of a document. Indeed, there are decisions of the Court of Cassation in which the person who signs on his behalf with his consent has ruled acquittal on the grounds that the perpetrator did not have the intent to commit a crime, ignoring the fact that this situation should be evaluated within the scope of fault and not intent.
