T.C. SUPREME
Criminal General Assembly
Based on: 2012/1-560
Decision: 2012/227
Date of Decision: 12.06.2012
INTENTIONAL HOMICIDE – THE DEFENDANT’S DEFENSE THAT THE VICTIM MADE THREATENING AND INSULTING REMARKS TO HIM – FAILURE TO OBSERVE THAT THE PROVISIONS OF UNFAIR INCITEMENT SHOULD BE APPLIED – VIOLATION OF THE PROVISION
SUMMARY: Defendant H. in the discussion between the Decedent and the victim, which is understood to have occurred before the murder incident, the defendant H. said that the victim had made threatening and insulting remarks to him.with the defense of the defendant M.since the statements of ‘s confirming this defense cannot be proven otherwise, the defendant H. judging in his favor, defendant H.for this reason, unfair driving provisions should be taken advantage of. Accordingly, the decision of the local court to resist, defendant H. it should also be decided that it will deteriorate due to the failure to observe that unfair driving provisions should be applied to it.
(5237 Pp. K. m. 29, 82) (5271 Pp. K. m. 209) (YCGK. 16.02.2010 T. 2009/1-251 E. 2010/25 K.) (YCGK. 13.11.2001 T. 2001/1-239 E. 2001/247 K.) (YCGK. 15.12.2009 T. 2009/1-2009 E. 2009/290 K.) (YCGK. 02.02.2010 T. 2009/1-239 E. 2010/14 K.)
The case: The defendants on the charge of premeditated murder by designing H.B. and M.B.’s No. 5237 of 82/1 tcy-a lack of truth and they are punished with life imprisonment in accordance with regarding the Ankara Heavy Penal Court No. 12-57 11.09.2008 by day and ex-officio the provision, which is subject to appeal, the attorney and counsel on appeal by the accused attendees of the Supreme Court of viewing the file 1. By the Criminal Department on 10.02.2010 day and number 2929-724;
<… By reading the death examination and autopsy minutes based on the verdict clearly at the trial and establishing the verdict without asking what the defendants and their supporters will say, CMK 209/1. violation of the article…>,
It has been decided that it will deteriorate without examining other aspects of its failure.
15.04.2010 Ankara Heavy Penal Court 16-28 break up the day and number; as in the first provisions, the defendants No. 5237 of 82/1 tcy-a in accordance with, they are punished with life imprisonment, and inequality, it is decided an appeal on its own motion, which is subject to a judgment, the defendants counsel and attorney of the Supreme Court on the appeal of the attendees viewing the file by 1. By the Criminal Department on 02.03.2011 day and number 4648-1213;
<… 2) Defendants H. and M.in terms of murder crimes;
a) It is understood that the defendants decided on the action before the date of the incident, persevered and persistently implemented the plan they had made, and that no evidence was obtained that they had not Decried their decision in the time between the designed action and its execution, defendants H. and M.instead of being punished for intentional manslaughter that complies with the actions of, the establishment of a conviction for manslaughter by designing it incorrectly in writing,
b) The victim E before the date of the incident. and his friend L.Sh.at the exit of the bar on 20.07.2007, defendant H.it is understood that they injured him with a beer bottle and a knife, but considering the more serious attack and the consequences, in accordance with the rules of rights, justice and grace, defendant H.’e determination of excessive punishment by not applying written punishment instead of a reasonable discount on the punishment imposed due to incitement…>,
It has been decided that they will be corrupted by their lack of accuracy.
The local court is on 28.04.2011 with days and numbers 10-26;
<… Defendants H.B. and M.B.that ’s actions were, as our court has shown in writing, <Intentional Manslaughter>, that is, defendants H.B. and M.B.’s victim E.S.Jul, Jr., and J.A., who had decided to kill, and had obtained the shotgun, while Jul, who had procured the shotgun, to carry out their actions, had obtained the shotgun.D.’tan, they asked for two shotgun shells, again witness N.B.as can be seen from the statement of, witness Y.in response to the statement of <is two bullets enough for a pig hunt>, defendant M.B.although witness Y. made a statement that <one bullet is enough for the pig we are going to kill> D., witness N.B.in, Y.’for himself described the situation this way, directly if you verify our statement in the court, when asked about this issue, this topic is in the form of statement that we talked about I don’t remember where, therefore, a <kill the guy by designing Action>, <Design> in theory, the plan has been tried to be explained with the theory of setting up and composure, in our application the High Court, the plan is revealed by combining the theories of composure and setting up an application, and design criteria that are determined by the High Court; the defendant to commit a specific crime against a person and unconditional firmly decide, given immediately failure to enforce this decision with the decision to commit a crime and go through a period of time between the actual performance and calm composure against the perpetrator in this time of spiritual peace reached after deliberation to this decision, the decision not only to insist on the actual process that the defendants contingent events could be summarized as the lack of material we H.B. and M.B.in, victim E.S.the fact that they decided to kill E. S.L., who is an intimate friend ofSh.’i’m the victim, E.the witness of this matter, whom they removed from the side of L.Sh. according to the statement, it was fixed, then they provided a shotgun on the day of the incident and the victim was Jul E.S.defendant H.B.he said that he wanted to meet the victim by phone and that they met at around 21:00 and the defendant H.B.according to the article, the accused received the victim by means of the ‘s vehicle, then the accused, M from the accused.B.as can be seen from the wife’s statement, they returned to their home at about 03:00, during which time the defendants were the victims of E.S.between the decision to kill and the execution of the decision, a reasonable period of time elapsed, but despite this, the defendants considered it with composure and Decisiveness, since it is understood that they did not renounce their actions, insisted on committing the act and carried out their actions, so that all the evidence covered by the file in our material case was designed from the beginning, the actions of the defendants, and in accordance with this design, the conditions set by the Supreme Court of Cassation were formed…>,
He resisted the first provision with his opinion.
Upon appeal of this provision, which is subject to formal appeal, by the defendants’ defense counsel and the Public prosecutor of that place, the Supreme Court C.The file sent to the First President of the Supreme Court with the notification of the Attorney General’s Office dated 22.03.2012 and numbered 310919 <bozma> was evaluated by the General Assembly of the Punishment and decided on the grounds described:
Verdict: Review, defendants H.B. and M.B. it was made limited to the provisions established about it.
Defendant H.B. although the appeal was appealed by the defense counsel asking for a trial examination of the verdict, there is no provision in the Criminal General Assembly of the Supreme Court that the appeal review will be held in a trial, since the defendant’s defense has refused the request for a trial examination to review the file;
There is a dispute between the Special Department and the local court regarding the fact that the act of premeditated murder was committed by the defendants, and there is no Decency in this admission as of the contents of the file. The dispute between the Special Department and the local court, which must be resolved by the General Assembly of Decriminalization; whether the defendants committed the crime of intentional homicide by designing and whether the accused H. in its aspect, it is also related to determining whether the conditions for the application of unfair driving provisions have been established.
From the contents of the examined file;
Victim E.S. with his friend L.Sh.on 20.07.2007, defendant H.B.an investigation has been launched against them for allegedly injuring a person with a weapon in a way that can be eliminated with a simple medical intervention, but at the investigation stage, E.S.due to the fact that October was dead, it was decided that there was no room for additional prosecution against him, L.Sh. as for the 86/2 and 86/3-e of TCY No. 5237. a public lawsuit was filed on 08.04.2008 with a request to be punished in accordance with the articles,
Defendant H.B. and E. D. about the victim E.S.on 24.07.2007, a public lawsuit was filed against the accused on 30.09.2007, accused H. on 20.02.2008, for having committed the crime of threats and insults against the bet on 24.07.2007, accused H. on 30.09.2007, accused H. on 20.09.2007, accused H. on 20.09.2008.B.for the acquittal of the charged crimes, e. D.on the other hand, it was decided that his conviction for both crimes and the disclosure of the provision about him should be left undone,
On the day of the incident, the victim’s line 0 539 was called from an undetected number at 20:34,
At 20:39 on the same day on the victim’s line 0 539, defendant H.he called 0 538 and they had a 13-second conversation,
In addition, the defendant H. at 12:08 on the victim’s 0 539 line on the same day.he sent a message to the line 0 538, which he uses,
Participating F.S. in a nutshell; <my son E. there had been a fight between the accused and the Decedents before, they often pinned my son down. They later said they had reconciled. My Son H.B.he said he would be filing a petition to dismiss the celebrity’s complaint. After that, they met several times and went for a drink. E. bana H.he mentioned that there was a rifle in the trunk of his car. So I told him he could hurt himself. My son said he didn’t get in his car alone. He left the house in the morning on the day of the incident, when he came home at noon, H.he said that he did not come, although he promised to return the complaint. He even said that he saw himself passing by, but did not come, did not answer his phones, did not answer his phone, saying that his charge had run out. So I told him not to fall on it. He came home in the evening, ate his dinner at about 08:30, H.B.he left the house saying he didn’t want to give up his complaint. N., who later became our friend. I. he called me, it was about 21.00-21.30, E.He said he was meeting with LA and he was coming home. I waited, he didn’t come home, I found out that he was killed>>,
Witness D. D.in summary; <On the day of the incident, my wife was around 20:00 H.B.’they’ve arrived, eltim Y.they took the shotgun from the and put it in the trunk together. When I asked, they said they were going to shoot a pig. That night, my wife arrived around 02:30-03.00, her head was covered in blood. When I asked what happened, he said <we killed a man>, he did not give names. He washed the clothes himself at the tap, put them in the attic, and took them out of there and threw them in the trash, because they couldn’t find the shirt there during the search> format Dec Dec,
Witness S. K. in a nutshell; <E.S. I know a person named and he becomes my friend, E.S. about 2 months ago, he worked as a baker in Kumluca Village.B. he had a fight with a person named, then they reconciled, I run a bar called Hodri Meydan, located on the beach in the district of Cide, E.S. he also comes to this place that we operate frequently, H.B. after making up with E.S. they came to my office and had a drink, they came about 3-4 times, they had a drink together, E. S. on Wednesday, Dec. 05.09.2007, we sat at the bar I was running between 13:00 and 15:00, I then went home, when I arrived at the bar I was running around 19:00 E.S. he was there, and he and I sat down for another hour or so, around 20:00 E.S. he made a phone call, then the bakers called Ece They were at the hotel, they called him to have a drink, he said that you have the best care tonight, but he didn’t say by name who was calling, but from the bakery’s word E.S.H., with whom he had quarrelled before.B. I understand that you have a named person, E.S. although I don’t remember the exact time, he left me between 20:00 and 21:00 and went to drink with people named bakers Dec he was talking about, E. He said they were calling him to the motel, except that E.S.I didn’t meet with him after he broke up with me, E.S. the last time I saw him, we talked about everyday events with him, only the bakers told me that they would take back their complaints, he said they were running away from me, he said it at noon>>,
Witness Y.D. in summary; <towards evening on the day of the incident, my wife was not at home, my brother-in-law, M.B. the shotgun came up to me he wanted his wife was at the door, where I told him, he took the shotgun, you took two bullets from the bag beside him, at that moment I don’t remember what he said (in two rounds would be enough testimony that the prosecution saying that disagreeing), fast and he took a lively manner, the car was waiting at the door, I didn’t look at who is next to me he said he was going on a hunt for a pig, after the incident on the rifle is not a license for a shotgun that I kept I’m worried because the flares> format,
Witness N.B. in a nutshell; <event day M.B. Y.D.’increasingly going hunting for a hog, a shotgun and flare wanted, you took two bullets, just himself <I can’t give you more than you two just> says Mehmet <our pig, we’ll kill two fireworks enough, even just one> said, and even Enough <M.B.’will I get in trouble for giving a firecracker,’ he asked. And I said <if you don’t have your fingerprints, you’ll be fine>>,
Witness L.Sh. in a nutshell; <E before we happened. H., with whom there is enmity, Dec.B.’we’ve beaten him, H., E. D. and M.B. with B. B. they caught me and beat me, they gave me an E.’they told me not to go out with LA, that they would beat me worse if I went out, and E.they said they would make it worse. Then they reconciled and began to meet, after which they did not bother with me. Some time after the fight, one day E. In the car on the beach. D. with H.B.’reputation e.’i’ve heard them threaten and swear, and I’ve heard that they’ve made up after a while,’ he said in the format of >.
Defendant M. in summary; <I went to the coffee shop in Kumluca Village after leaving work at 14:30 on the day of the incident. At about 16:00 h.B. he came and called me and said let’s take a walk. H.B.we got into the car belonging to the, drank some beer there. Afterwards, we went to Gideros Location and had some more beer. Then we went to the beach in the same car to buy beer. We bought some more beer. We had a beer on the way to Memiş Village. Then we went to the Ovaaltı location. It’s evening, it’s getting dark. I wanted to go home, but H. <you have a shotgun too, bring it to me, pigs are coming to my house> he said. He took me down in front of my house. This is my brother C.he was at the house of his wife, Y.i got the rifle from the. I also got the bag of firecrackers. This rifle was firing flares with 9 large ridiculous grains. Meanwhile, Y. he told me that my brother and uncle were cooking fish on the beach. So I thought I’d go to them. I took the shotgun and two firecrackers and went downstairs. H.I gave it to E. H. he put these in the trunk. <I’m going to my uncle’s on the beach> I said. And he said, I’m coming too. We went to Irmak Village together. There was my uncle’s house there. My Brother C. together with my uncle H.B. they had a barbecue. We stopped eating fish because the barbecue wasn’t lit yet. H. we decided to walk along the beach together. E… Near your hotel, E.’we’ve seen it, we’ve stopped. E.H.’e <you were going to come yesterday, you were going to drop your complaint> he said. H. he said, “I was busy, I couldn’t make it.” Then he got into our car, although we were against it. i h.in E. I didn’t want him to get in the car because I knew there was animosity between him and Dec. Afterwards, we drank beer together and went towards Kapusuyu Village. We checked to see if he was drinking. Seeing that it was not, we decided to return to Cide. After arriving at the village of Kalafat in the district of Cide, e. he told me I was drunk, that I should wash my hands and face. So I washed my hands and face. Later, e.’la H. they had a bit of an argument. They were arguing about dropping the complaint. I told them not to do that, if they did that, I would leave. I passed out because I was too drunk at the time, they put me in the car. E. In the Vehicle he woke me up with a slap. He told me <you’re so drunk, go to bed if you want>. H.he was leaning against the trunk of the car, looking at us. At that time, E.H.he walked towards and retreated. Because it’s dark, H.I don’t know if he had a gun in his hand, and the gun went off twice in a row, E. he collapsed. There was a cliff where it collapsed, and it rolled down from there. I <H. what did you do,> I said. And he said to me, let’s go quickly. H.I didn’t notice the rifle in his hand, because it was dark and I was drunk, but I know he put it in the trunk. H. he told me <don’t tell anyone about the incident, so that no one knows>>,
Defendant H, who stated that he did not accept the charge in his defense at the investigation stage. in summary in court; <I went for a walk on the day of the incident. I came to a coffee shop called The place of the letter. In front of the coffee, M.I saw the. I stopped, I said let’s go for a walk together. I bought him. We went for a beer together. We had a beer in Ovaaltı, then we ran out of beer, and then we went back to the direction of Cide to buy beer. We have come to the Ovaaltı location again. We had some beer there too. It was evening, it was getting dark, my friend M. she wanted to go home. I drove him home and asked him for a shotgun, I was going hunting. And he gave me the shotgun, and I don’t know if he took it from his brother’s house or his own house. He gave me 2 firecrackers along with a shotgun. Later, M. he said his uncle had a barbecue and he wanted to go there. We went there together. The barbecue was not ready yet, I picked up Mehmet again, we went to the Ovaaltı location again. We came to Cide to buy beer again, when we came to Cide, E… There’s his hotel E.we have seen the. He told me <I have something to talk to you about>. And I didn’t want him to get in the car because he was drunk. He was losing it when he drank it. Persistently, he also got into the car. We went to the Kapusuyu location, searched the drinking restaurants there. When we couldn’t find it, we went back to Gideros Hill. And there we had a beer, we argued, he insulted me, the reason for our quarrel was to withdraw my complaint. He was telling me to take my complaint back, but he was insulting me, using words like <faggot, asshole>. We went down to the fountain. And there he swore at me, and we had a fight, M. he was trying to separate us. M. he was very drunk, E. when I pushed him, he fell to the ground under the influence of drunkenness, fainted. We carried him to the car, then E.’we continued to argue together, he was saying that if I didn’t get my complaint back, he would cut me off or something, and he was also saying insulting words like <son of a bitch>. So I nervously took the gun in the car and fired it. I fired twice. Meanwhile, E.Dec’s face was turned to me, I don’t know how much distance there is between us. There was a distance of about 5-10 meters. E. it rolled. We were at the fountain at the time. This fountain is located in Gideros district. E. it rolled down from a place like a slope, where we were was a place like a slope. I didn’t look if he was dead or not and I told Mehmet <let’s go>. We got in the car and went home. M.I didn’t tell e anything about not telling anyone. E. he didn’t call me before I saw him on the beach, so I didn’t call him>,
It is understood.
Whether the defendants committed the crime of premeditated murder by designing;
In some crimes, <design (taammud)>, which is regulated as an aggravating factor, is not described in the Turkish Criminal Code, and this issue is left to teaching and practice.
28.04.1998 day and punishment of the General Assembly of 117-155, 239-247 13.11.2001 and day, day and 03.10.2006 30-210, 15.12.2009 200-290 and day, day and and day with the decision of 02.02.2010 239-14 16.02.2010 251-25 as it is accepted in a private apartment with the decision of the resident, designing, Caste Caste belongs to remain outside and thought of the type of sudden. Although its legal nature is controversial in the teaching, according to the non-stop practice of the Supreme Court, in order to be able to mention the design:
1- The perpetrator steadfastly and unconditionally decides to take action against the right to life or the integrity of the body of a person,
2- The perpetrator does not give up this decision despite the fact that a reasonable period of time has passed before committing the crime he has thought about and planned, and despite the spiritual calm he has reached, he persistently and persistently begins to perform his act,
3- The perpetrator must perform the act that he plans to perform within the established fiction.
In the case of designing, the perpetrator does not make an instant decision and commits the act, and a sufficient period of time passes between the decision to commit the crime and the execution of the act so that he can think Decently. During this period, the perpetrator thinks about whether he has committed the crime or not and does not stop committing the crime. There can be no mention of the fact that the perpetrator ceases to commit the crime and, but for another reason and with another sudden decision, does not intend to commit it in his actual act. It should be determined by the available evidence at what level and when the decision to commit a crime was made for the act and how long the act was committed after this non-conditional determination, and it should be assessed whether spiritual calm can be achieved within the time frame between the Decisiveness and the act.
In the light of these explanations, the subject of the dispute is evaluated;
Acting together with the defendants, E.S.the fact that they intentionally killed is certain in a way that does not give any doubt, and in an event where there are no eyewitnesses, it is necessary to determine whether the defendants committed the crime of intentional killing by designing or not by evaluating the information and documents available in the file, as well as the defendants’ defenses and witness statements.
One of the most important principles of criminal proceedings, the purpose of which is to reveal the material truth, is the principle <the defendant benefits from doubt> (in dubio pro reo). The essence of this principle is that the suspicion of any issue that should be taken into account in terms of punishing the defendant in a criminal case is assessed in the best interests of the defendant. This rule, which has a fairly wide scope of application, applies if there is doubt about whether a crime has actually been committed or, if it has been committed, the way it was committed, as well as the circumstances of the case.
As stated in the decision of the local court, the victim’s friend, witness L. together with defendant H. A month and a half before the incident.there was a animosity between the parties due to the fact that they had beaten, but the Decedent’s mother was F. according to the testimony of some witnesses, especially the victim and the defendant H.it Dec understood that they reconciled after the previous incident, and even got together several times and had fun together. Although the defendant by the local court is H.although it has been suggested that he planned to take revenge on the victim and kill him, for this purpose he gained his trust by pretending to make up with the victim, telephoning the victim on the day of the incident and calling him to them, firstly, according to the phone records found in the file, the defendant H. he never called the victim on the day of the incident, on the contrary, the victim was accused H on the day of the incident.he called me on the phone and sent me a message the same day. Given all these considerations, on the day of the incident, between the defendants and the victim, the Decedent was accused of H.the defendant in the lawsuit filed for the beating of H.after a discussion about whether to withdraw the complaint of the defendants, E.S.it is understood that they shot and killed the accused with a rifle, and the defendants had the right to E.there is no sufficient evidence in the file for any kind of doubt, certainty and conviction about when they decided to kill persistently and unconditionally, whether they did not abandon the decision to kill despite the spiritual calm they achieved and carried out these decisions.
Therefore, considering that the conditions sought for the existence of the design did not occur in the concrete event, a conviction for intentional homicide should be decided about the defendants in accordance with the decision to disrupt the Private Apartment, while the local court should decide that the provision of resistance should be overturned for this reason, since there is no hit in resisting the old provision.
Defendant H. as for the consideration of the issue of disagreement on whether the conditions for the application of unfair driving provisions have been established in terms of;
Unfair incitement is a violation of Article 29 of TCY No. 5237. article: <Wrongful caused by an act or violent elimination anyone who commits a crime under the influence of rage instead of life imprisonment life imprisonment instead of from eighteen to twenty four years and will be sentenced to imprisonment for twelve years and eighteen years, in other cases punishment than a quarter of three-fourths is downloaded as> in the form of criminal responsibility as a reason to reduce arranged.
Unfair incitement refers to the perpetrator committing a crime by acting under the influence of anger or violent elements caused by an unfair act, in which case the perpetrator is directed to commit a crime as a result of confusion caused by outside influence in his spiritual structure, without making a decision in advance in the direction of committing a crime.
For the enforcement of unfair driving provisions;
a) There must be a wrongful act that constitutes a drive,
b) The perpetrator must remain under the influence of anger or violent selection,
c) The crime committed by the perpetrator must be the reaction of this spiritual state,
d) The act that constitutes unjustified incitement must be loyal to the victim.
Law No. 5237, No. 765 tcy driven in heavy-light propulsion, and put an end to the discrimination of the actual event that constitutes incitement by the judge according to the characteristics of the concrete and the evaluation is done by considering the effect of the will of the defendant between the two limits shown in the article be made at a discount rate specified-shaped arrangement are provided.
As is accepted in the established judicial decisions, if both the perpetrator and the victim commit mutually unfair acts, as a rule in the practice of incitement, the perpetrator who incites the victim by an unjust act cannot claim that he is being provoked due to the reaction he is experiencing. However, if the reaction to which he was subjected has become excessive compared to the action he committed, in other words, if there is a clear disproportion in the reaction, it should be recognized that this reaction is an unfair incitement from the point of view of the perpetrator, since it now takes on an unfair nature in itself.
Considering the concrete incident in the light of these explanations and the assessment of the number one dispute issue; In the decision to disrupt the Private Apartment, the accused of the victim and his friend a month and a half before the murder incident H.defendant H. For wounding me with a beer bottle and a knife. although it was stated that the provisions of unfair incitement should be applied to him, as agreed by the Special Department, defendant H. and in the face of the victim’s understanding that they reconciled after this incident, defendant H. on the basis of this incident, it is not possible to apply unfair driving provisions.
However, defendant H. in the discussion between the Decedent and the victim, which is understood to have occurred before the murder incident, the defendant H. said that the victim had made threatening and insulting remarks to him.with the defense of the defendant M.since the statements of ‘s confirming this defense cannot be proven otherwise, the defendant H. judging in his favor, defendant H.for this reason, unfair driving provisions should be taken advantage of.
Accordingly, the decision of the local court to resist, defendant H. it should also be decided that it will deteriorate due to the failure to observe that unfair driving provisions should be applied to it.
Six Members of the General Assembly who did not agree with the majority opinion voted against it with the opinion that <The grounds for resisting the local court are correct and it should be decided to uphold the provision>.
Conclusion: For the reasons described;
1- Despite the fact that the provision of resistance dated 28.04.2011 and numbered 10-26 of the Inebolu Heavy Criminal Court, the nature of the crime was incorrectly determined and the circumstances of the defendant H. non-application of unfair driving provisions about the DETERIORATION of the,
2- The file was transferred to the Prosecutor General’s Office of the Supreme Court for sending to the scene, it was decided by a majority vote at the negotiation held on 12.06.2012.
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