%0 Journal Article
%T The Criminal Responsibility in Kleptomania and the Consequences of Theft in Islamic Penal Law
%A Emel Y£¿lmaz
%J -
%D 2019
%X According to the Islamic penal law the application of a criminal sanction to a perpetrator requires the presence of some certain features in the perpetrator himself/herself. Sanity and comprehension are the most important ones of these features which have been elaborated under the title of ¡°ahliyyah¡± in classical fiqh literature. There is no dispute between muslim jurists over mitigating or quashing a fixed sanction due to an illness blocking sanity and comprehension. Some well-known illnesses affecting criminal accountability are mentioned in the classical fiqh literature, but their number is very limited so to enlight contemporary questions. Kleptomania is a modern disorder, specified by urging a person to steal by blocking his/her self control, and it is currently recognised as a way of defence in secular law. Here the question is: How would be ¡°pathological stealing¡± evaluated by the Islamic law which punishes stealing with a major sentence like ¡°hadd¡± or with ¡°ta¡®zir¡± in case of doubt or ambiguity? First of all, in order to answer thisnquestion it is inevitable to know the nature of kleptomania and define it. Kleptomania is a repeated failure to resist the impulse to steal an object with no intention of personal use or monetary gain. The action of stealing is not made with a financial motive as in an ordinary theft but with a motive of disposing a tension prior to the action. It £¿s neither planned nor assisted by any others. But the sanity of a kleptomaniac is not under doubt and they are able to refrain from action in the presence of security guard, policeman or camera. Indicating that kleptomaniacs are able to comprehend the result of their actions and they can somehow resist stealing. They feel guilt and shame after the action and get rid of the items they steal in different ways. Most individuals with kleptomania try unsuccessfully to stop themselves from that crime but the inability to stop leads to feelings of shame and attempts to commit suicide. Muslim jurists classify crimes of theft as sarikah and ikhtilas in compliance with some determined conditions. Sarikah is the basic crime of theft punished with the major sentence hadd, and other offences which do not fulfill the conditions of sarikah become ikhtil¨¡s punished with ta¡®zir. Sarikah is ¡°the taking of someone others certain amount (nis¨¡b) of durable goods which are under protection (hirz) with the intention of possession¡±, secretly and without his/her information. The action must avoid any suspicion whether it is Sarikah or not, so had can be imposed. The term secretly means taking the
%K £¿slam Ceza Hukuku
%K Ehliyet
%K £¿drak
%K Serika
%K Kleptomani
%U http://dergipark.org.tr/bilimname/issue/43606/531930