SUPREME
General Assembly of Punishment
Based on: 2012/1-560
The Verdict: 2012/227
Decision Date: 12.06.2012
INTENTIONAL KILLING – DEFENDANT’S DEFENSE THAT THE VICTIM MADE THREATENING AND INSULTING REMARKS TO HIM – FAILURE TO PAY ATTENTION TO THE APPLICATION OF UNFAIR INCITEMENT PROVISIONS – VIOLATION OF THE PROVISION
SUMMARY: Defendant H., in the argument between the Decedent and the victim, which apparently took place before the murder incident, defendant H. he claimed that the victim had said threatening and insulting words to him. Defendant M.according to the defense of , since the statements confirming this defense cannot be proven otherwise, defendant H. with the verdict in his favor, the defendant H.it was concluded that unfair driving provisions should therefore be taken advantage of. According to this, the local court decided that the provision of resistance, defendant H. about driving the implementation of the provisions had not been broken because of unfair attention to be decided that should be ruled.
(5237 PK m. 29, 82) (5271 Pp. K. m. 209) (CARL. 16.02.2010 T. 2009/1-251 E. 2010/25 K.) (CARL. T. 13.11.2001 2001/1-239 E. 2001/247) K.) (YCGK. 15.12.2009 T. 2009/1-2009 E. K. 2009/290) (CARL. 02.02.2010 T. 2009/1-239 E. K. 2010/14)
Case: According to the decision that HB and MB 5237 numbered 82/1 tcy-a verdict for manslaughter by design is contrary to the truth and sentenced to life imprisonment and Ankara 12-57 Heavy Penal Court 11.09.2008 day and ex officio appeal path is open, the defendant’s attorney and his deputies upon appeal by the Supreme Court of Appeal 1 who looked at the file. By the decision of the Directorate of Criminal Department dated 10.02.2010 and numbered 2929-724;
<… CMK 209/1 by clearly reading the minutes of the death examination and autopsy based on the verdict given in court and forming the verdict without asking what the defendants and their supporters will say. violation of the article…>,
It has been decided that it will deteriorate without examining other aspects of the fault.
15.04.2010 In the decision of the Ankara High Criminal Court to overturn 16-28 days and numbered; as in the first provisions, the defendants were sentenced to aggravated life imprisonment in accordance with Article 5237 82/1 tcy-a, the path of appeal was initiated, the sentence was finalized, the attorneys of the accused and the lawyers of the Court of Cassation on the appeal of those who were present to review the file 1. According to the violation decision of the Criminal Department dated 02.03.2011 and numbered 4648-1213;
<… 2) Defendants H. and M. in terms of murder offences;
a) Since it is understood that the defendants decided on the action before the date of the incident, persistently and persistently implemented the plan they made, there is no evidence that they did not renounce their Decrees during the period between the designed action and its execution, the defendants H . Dec. and M.to establish a conviction provision for manslaughter by design with a misspelled letter, instead of being punished for intentional manslaughter that matches the action of,
b) 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.the defendant H was injured with a beer bottle and a knife, but in accordance with the rules of rights, justice and mercy, taking into account the fact that the attack was more severe and the consequences.to determine the excessive punishment by not applying the written punishment instead of making a reasonable discount on the punishment given for the crime of incitement,
it was decided that they should be considered impaired due to their lack of accuracy.
Local court with the date of 28.04.2011 and 10-26 days and numbers;
<… The actions of defendants HB and MB, as our court has shown in writing, that is, the victims of defendants HB and MB are ESJul, Jul and J.Jul Jul, the reason was that they had decided to kill and had procured a shotgun to carry out their actions, they had bought a shotgun while procuring a shotgun. D.from the, they demanded two shotgun flares, again witness NBAs can be seen from witness Y’s statement. In response to the statement of the accused MB, witness Y.of D.despite the testimony of, witness NBin, Y .if you confirm our statement directly in court, when asked about this issue, it was in the form of a statement that we were talking about this issue, I don’t remember where, therefore, a, in theory, was tried to explain with the theory of plan formation and compromise,,
in our Supreme Court application, the plan was put forward by combining the theories of compromise and compromise, and the design criteria in an application were determined by the Supreme Court; the defendant’s final and unconditional decision to commit a certain crime against a person, this decision should not be executed immediately, and a period of time elapsed between the decision to commit a crime and the actual performance and calmness against the perpetrator, this decision was reached after negotiations to ensure spiritual peace during this period, the defendants should not insist on the actual process, HB and MBin decided to kill the victim ES due to the lack of material evidence related to the incident, Ş.
The accused should not insist on the actual process, HB and MBin decided to kill the victim ES due to the lack of material evidence about the incident. Dec.e, who is a close friend of .the victim of the , who was a witness of this incident, L .Sh.it is the removal of from the side of . according to the statement, he was pinned down, then on the day of the incident they gave him a shotgun and victim Jul ES accused H asked to meet the victim by phone and they met at around 21:00 and according to the article accused H, the accused picked up the victim in the victim’s vehicle, then accused M from accused B.
As can be understood from the wife’s statement, they returned home around 03:00, at which time the defendants became victims of ES a reasonable time elapsed between the Decrees of murder and the execution of the verdict, but despite this, the defendants evaluated it with calmness and determination, because it seems that they did not give up their actions, insisted on doing the act and carried out their actions, so that all the evidence covered by the file in our material case, the actions of the defendants and the conditions set by the Supreme Court in accordance with this design were created from the very beginning…>,
He opposed the first provision with his own opinion.
Due to the fact that this provision is subject to the course of law, upon appeal by the defense of the accused and the Public prosecutor of that place, the Court of Cassation C.C. The file sent to the First President of the Supreme Court by the communiqué of the Chief Public Prosecutor’s Office dated 22.03.2012 and numbered 310919 was evaluated by the Criminal General Assembly and decided on the grounds described:
Decision: The examination was conducted on the defendants HB and MB, limited to the provisions established about them.
Although the defendant HB’s application for appeal was appealed by the defense lawyer with the request for a trial examination of the sentence, there is no provision that the appeal examination will be conducted at the General Assembly of the Criminal Court of Cassation due to the refusal of the defendant’s defense’s request for a trial examination of the file;
There is a dispute between the Special Chamber and the local court regarding the fact that the defendants committed Deceptive manslaughter, and there is no conformity in this confession as of the content of the file. The dispute between the Special Chamber and the local court, which must be resolved by the General Assembly of the Criminal Court; the Decriminalization of the defendants for intentional manslaughter, H . against and accused H. it is about whether they have committed crimes against him, and it is also about determining whether the conditions have been created for the application of unfair driving provisions.
From the contents of the examined file;
The victim ES with his friend L.Sh. on Dec. 20.07.2007, defendant H.B. an investigation was launched against him for allegedly injuring a person with a gun in a way that could be eliminated with a simple medical intervention, but at the investigation stage it was decided that there was no room for prosecution against him because ES was dead, L.Sh. a public lawsuit was opened on 08.04.2008 with the request that he be punished in accordance with Articles 86/2 and 86/3-e of the Turkish Penal Code numbered 5237,
About the accused HB and ED on 24.07.2007 about the victim ESon, about the accused on 30.09.2007 about the accused H. about the defendant H. the grounds that he committed the crime of threatening and insulting betting on 20.02.2008, on 24.07.2007. about On 30.09.2007, the defendant H. about On 20.09.2007, the defendant H. a public lawsuit was filed against him on 20.09.2008, B. the decision to acquit him of the crimes charged against him, e. D. as for him, the postponement of his conviction for both crimes and the announcement of the verdict against him,
On the day of the incident, the victim’s line 0 539 was called from an unidentified number at 20:34.
On the same day, at 20:39, defendant H called the victim’s line 0 539.he called the line 0 538 and a 13-second conversation took place between Dec.,
Also the defendant H. on the same day, at 12:08, he sent a message to the 0 538 line used by the victim from the 0 539 line,
Summary of the participant FS; >,
The witness did not give a name in the DDin summary. He washed the clothes himself on the tap, put them in the attic and Decanted them from there and Decanted them in the trash, because during the search they did not find the shirt there> format,
To briefly summarize the witness SK; >,
Witness YD in summary; format,
Witness NB in a nutshell; , Mehmet said, Even in the form of > Enough,
The Witness L.Sh . in a nutshell;
Defendant M. in summary, he said. He landed me in front of my house. This brother C. his wife was in the House, Yi took up the rifle. I also took the bag full of fireworks. This rifle is big stupid 9-grain was throwing firecrackers. By the way, Y. Dec. cook the fish on the beach, me my brother and my uncle said. I’ve thought about going with them. I went down and took a rifle and two firework. H. gave it to EH, and he put them in the trunk. I said. And he said, I’m coming too. We went to the village along the river. Had my uncle’s house there. Brother C. HB they made a barbecue with my uncle.
Not because we stopped to eat the fish Mangal burned yet. H. we decided to walk on the beach together. E… Close to your hotel, E.’we saw it, we stopped. He said to EH. H. “I was busy, I couldn’t come,” he said. Then he got into our car, even though 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. Then we had a beer together and went towards Kapusuyu Village. We checked to see if he had been drinking. When we saw that he was not drunk, we decided to return to Cide. When we arrived at the village of Kalafat in the district of Cide, E. he told me that I was drunk, that I should wash my hands and face.
So I washed my hands and face. Later on E.la H. there has been some discussion between. They were arguing about reducing complaints. I told them not to do that, if they do that, I’ll leave. At that point, I loved it because I was very drunk, they put me into the car. E. Woke up by smacking me in the car. He said to me… H. he was leaning against the trunk of the car, looking at us. E. at that time he walked to my side and pulled it back. Because in the dark, hi doesn’t know whether it is in the hands of a weapon, and gun shot he took two times in a row, E. he collapsed. There was a gap in the floor collapsed and rolled down from there.
I said. And he said to me, let’s go, let’s go. HI, rifle in hand, it was dark and I was drunk because I didn’t notice I know, but the rifle was put in the trunk. H. he said to me >,
Defendant H, who declared that he did not accept the charge in his defense during the investigation phase. in a nutshell in court; . And I didn’t want him to get in the car because he was drunk. He passed out when he drank. He insisted that she get in the car too. We went to the Kapusuyu location, we looked for drinking places there.
When we couldn’t find it, we went back to Gideros Hill. And there we drank beer, argued, he insulted me, the reason for our fight was to withdraw my complaint. He was telling me to withdraw my complaint, but he was insulting, . We went down to the fountain. And there he swore at me, 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, passed out. We carried him to the car, then E.we continued to argue with him, he was saying that if I didn’t withdraw my complaint, he would cut me off or something, and he was saying insulting words. So I nervously grabbed the gun from the car and fired. I fired two shots.
By the way, E. Dec.’Dec’s face was turned to me, I don’t know how much distance there is between us. There were about 5-10 meters. E. he rolled over. We were at the fountain at the time. This fountain is located in Gideros. E. he rolled down a place like a hill, where we were, it was a place like a hill. I didn’t see if he was dead or not, and I told Mehmet. We got in the car and went home. MI didn’t say anything to e about not telling anyone. E. he didn’t call me, and I didn’t call him>, apparently.
Whether the defendants committed the crime of premeditated manslaughter by design or not;
In some crimes, the crime organized as an aggravating cause is not defined in the Turkish Penal Code, and this issue is left to teaching and practice.
28.04.1998 day and punishment 117-155, 239-247 day and punishment 13.11.2001 day and punishment 03.10.2006 day and punishment 30-210, 15.12.2009 day and punishment 200-290 day and punishment 02.02.2010 day and punishment 239-14 day and punishment 16.02.2010 day and punishment 251-25 decision of the General Assembly numbered 251-25 as accepted in the private apartment by the decision of the resident with, the Novator, the Caste is the idea that it belongs to being outside the caste and the sudden type. Although its legal nature is controversial in teaching, according to the incessant practice of the Supreme Court, in order to be able to talk about design:
1- The perpetrator’s determined and unconditional decision to take action against someone’s right to life or body integrity,
2- The perpetrator does not renounce this decision despite the fact that a reasonable period of time has passed since he committed the crime he was thinking about and has achieved spiritual tranquility, he continues to do his action persistently and persistently,
3- The perpetrator must perform the act he plans to perform within the specified fiction.
In the design, the perpetrator does not make an instant decision and commit the act, a sufficient amount of time passes between his decision to commit a crime and the realization of the act to be able to think Decently. During this time, the perpetrator considers whether he has committed a crime or not and does not stop committing a crime. It cannot be mentioned that the perpetrator stopped committing a crime and intended it in his actual action for another reason and with another sudden decision. It should be evaluated at what level and when the decision was made for the verb decided to commit a crime, and how long the verb was committed after this unconditional determination, whether spiritual calm can be achieved in the time period between the Decider and the verb.
The subject of the dispute is evaluated in the light of these explanations;
Together with the defendants, in an incident where the crime of premeditated murder is beyond doubt certain, and there is no eyewitness, it is necessary to determine whether the defendants committed the crime of premeditated murder by designing it 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 (in dubio pro reo), the purpose of which is to reveal the material truth, is the principle. The essence of this principle is that the suspicion of any consideration that should be taken into account in terms of the punishment of the accused in a criminal case should be evaluated in the best interests of the accused. This rule, which has a fairly wide range of applications, applies if there is doubt about whether a crime has really been committed or how it was committed if it was committed, and the circumstances of the case.
As stated in the decision of the local court, the friend of the victim, witness L. with the defendant H. they had been together for a month and a half before the incident.There was animosity between the parties because of the beating, but the mother of the Decedent, F. it was. Some of the witnesses, especially the victim and the accused H.according to the statements of , it seemed that they had reconciled after the previous incident, and even got together and had fun a few times. Dec.
Accused by the local court H.although it has been suggested that he planned to take revenge on the victim and kill him, for this purpose he pretended to reconcile with the victim, called the victim by phone on the day of the incident and gained his trust by calling him, first of all, according to the phone records found in the file, defendant H.it was understood that the victim never called the victim on the day of the incident, on the contrary, the victim was the defendant H on the day of the incident, he called me by phone and sent a message on the same day.
Taking into account all these considerations, on the day of the incident, between the defendants and the victim, the Decedent of the victim, H.in the case opened due to the beating of the defendant H.’is. As a result of the discussion about whether the complaint of the defendants should be withdrawn, it is understood that they killed the defendant by shooting him with a rifle, and the defendants’ E .it is understood that they have rights against . There is insufficient evidence in the file to place any doubt, certainty and conviction about whether they decided to kill persistently and unconditionally, reached spiritual tranquility and fulfilled these decisions, but did not give up on the decision to kill.
Therefore, given that the conditions sought for the existence of the design did not materialize in the concrete case, a conviction for manslaughter should be decided on the defendants in accordance with the decision to Disrupt the Private Apartment, while the local court should therefore decide to overturn the provision of resistance, since there is no hit on resistance in the former provision.
Defendant H. as for the examination of the dispute issue regarding whether the conditions related to the application of unfair driving provisions occur in the following aspects;
Unfair incitement is the 29th amendment of the Turkish Penal Code No. 5237. it is a violation of the article. article: It is arranged as a reason to reduce criminal liability.
Unjust incitement is when the perpetrator commits a crime by acting under the influence of anger or violent elements caused by a wrongful act, in this case, the perpetrator is directed to commit a crime as a result of confusion caused in his mental structure by the influence of external influences, without making a decision to commit a crime in advance.
For the application of unfair driving provisions;
a) The presence of a wrongful act of an inciting nature,
b) The perpetrator is under the influence of anger or violent choice,
c) The fact that the crime committed by the perpetrator is the reaction of this spiritual state,
d) The act that constitutes unfair provocation must be faithful to the victim.
Law No. 5237, TCY No. 765 Decrees that the judge should stop distinguishing between a heavy-light driven and an actual event of an inciting nature according to its concrete characteristics, and that the evaluation should be made taking into account the impact of the defendant’s will, with a discount rate as specified in the article shown between the two limits.
As accepted in the established judicial decisions, if the perpetrator and the victim mutually commit a wrongful act, as a rule in the practice of incitement, the perpetrator who incited the victim with a wrongful act cannot claim that he was provoked because of the reaction he faced. However, if the reaction he suffered has become excessive compared to the action he committed, that is, if there is a clear disproportion in the reaction, it must be accepted that this reaction is unjustified provocation from the point of view of the perpetrator, because it has now acquired an unfair character in itself.
In the light of these explanations, given the concrete incident and as a result of the evaluation of the number one dispute issue; In the decision to disband the Special Department, one and a half months before the murder incident, the defendant of the victim and his friend H.although it was stated that the unjust incitement provisions should be applied to him for injuring me with a beer bottle and a knife, in the face of the fact that the Private Office understands that the victim reconciled after this incident, victim H.it does not seem possible to apply unfair incitement provisions based on this incident.
However, the defendant H. he claimed that in the discussion between the Decedent and the victim, which apparently took place before the murder, the victim said threatening and insulting words to him.Defendant M.by the defense of , since the statements confirming this defense cannot be proved otherwise, defendant H. by establishing a verdict in his favor, it was concluded that unfair driving provisions should be used for this reason.
According to this, the local court decided that the resistance provision, defendant H. he also ruled that it should be decided that unfair driving provisions should be applied and that they would be impaired due to lack of attention.
Six members who did not agree with the opinion of the majority in the General Assembly voted against it with the following opinion:
Conclusion: For the reasons explained;
1- Despite the decision of the Inebolu Heavy Penal Court dated 28.04.2011 and numbered 10-26 to resist, the wrong determination of the nature of the crime and defendant H.failure to apply unfair driving provisions due to the situation of,
2- It was decided by a majority vote in the negotiation held on 12.06.2012 to transfer the file to the Chief Public Prosecutor’s Office of the Supreme Court of Appeals for sending it to the crime scene.