TR
SUPREME COURT
CRIMINAL CHAMBER
2016/2912
2017/3141
10.10.2017
AIDING AND ABETTING MURDER (The Defendant Should Benefit from the Provocation Rulings – The Allegation that the Victim Committed Acts Constituting Sexual Assault Against the Defendant’s Sister and Mother and that These Acts Were Long-Term / The Victim’s Behavior / Unlawful Provocation)
WHO WILL BENEFIT FROM THE UNFORGETTABLE PROVISIONS (Aiding and Abetting Premeditated Murder/Any Additional Punishment for the Defendant – Unjust Provocation Provisions)
APPLICABLE TO ADDITIONAL PENALTIES AGAINST THE DEFENDANT (Allegation of Committing Acts Constituting Sexual Assault Against the Victim’s Sister and Mother and That These Acts Were Long-Term – Defendant’s Benefit from Unjust Provocation Provisions/Aiding and Abetting Premeditated Murder)
DEFINITIONS OF RIGHTS (The Constitutional Court’s Decision to Annul the Application of the Defendant’s Rights Must Be Taken Into Account)
THE COURT MADE A CRIMINAL ERROR (Acceptance that the Defendant’s Conviction for Aiding and Abetting Murder was Wrong)
5237/m.31/3,39,40 62,81,82/1-a
SUMMARY:
Considering the scope and continuity of the victim’s actions constituting sexual assault against the defendant’s sister and mother, and given that this action spanned a long period of time, in the case brought against the defendant for aiding and abetting premeditated murder, and considering the scope and continuity of the victim’s unjust provocation, the imposition of a sentence exceeding the twenty-four years of imprisonment applicable to the crimes committed constitutes grounds for overturning the excessive sentence. Furthermore, the Constitutional Court’s annulment decision must be taken into account in the application of the deprivation of rights provisions against the defendant.
Furthermore, the decision was made with persistence and determination, a reasonable period of time has passed between the decision and its execution, and the necessary conditions for the proposal have been met. According to the rule of fidelity, it must be determined whether the act stems from the personality or characteristics of the perpetrator or the victim, whether the act constitutes the crime of qualified intentional killing based on the perpetrator’s situation, and whether this situation should be extended to the accomplices. Rather than being punished for the crime of “aiding and abetting premeditated murder,” the decision to punish the child for the crime of “aiding and abetting intentional murder” due to an error in the nature of the crime was also considered grounds for reversal.
CASE:
SITUATION:
The file was reviewed and considered for discussion:
DECISION:
Pursuant to Article 318 of Law No. 1412 of the CMUK, it has been ruled that an appeal may be lodged ex officio against the sentence imposed on the defendant for the crime of premeditated murder. In the appeal review conducted in accordance with the provisions of the article,
Considering the conduct of the trial, the contents of the file, the evidence gathered and evaluated in the decision, the formation of the court as a result of the investigation, and the court’s belief and discretion, the acceptance and application of the defendant … and the child involved in the crime, in accordance with the formation and partial characteristics of the murder crimes, the evidence obtained against the defendants … , … , … and … for the crimes of murder is insufficient for their convictions, the public prosecutions against the defendants … and …
have been dropped due to the statute of limitations because of the changing nature of the crimes, based on a legal and sufficient justification, the child involved in the crime was brought before the court without cause by the defendant’s counsel, the nature of the crime, the degree of provocation in the defendant’s defense petition, the lack of planning in the trial, the act constituting the crime of intentional killing, the more advantageous nature of Turkish Criminal Code No. 765, the defense of defendants …, …, …, and … in favor of the defendants, the separate determination of attorney’s fees, and the rejection of the appeals,
A-)
The acquittal of defendants …, …, …, and … on charges of “incitement to intentional homicide,” the rulings established in accordance with procedure and law regarding the dismissal of public prosecutions due to changes in the nature of the crimes of defendants … and …, and the approval of the statute of limitations,
B-) In the examination of the rulings established regarding the crime of “premeditated murder” against the defendant, the child who was driven to commit the crime … assisted in this crime;
According to the formation and scope of the file; despite the significant age difference between the defendant …’s sister … and the victim, they had a relationship that included sexual intercourse, which had been going on for approximately 5-6 years prior to the date of the incident. … married … and, as a result of the defendant …’s warnings upon learning of the situation, the relationship continued. Not satisfied with this, the victim also had sexual intercourse with …’s mother. ‘s mother. Faced with all these events, the defendant decided to kill the victim. Three days before the incident, he told … at the wedding that he would shoot … and obtained a weapon from his close friend … under the pretext of killing the victim, and then was drawn into the crime.
Upon …’s acceptance of this request, they made a plan together to kill the victim. In accordance with the plan, they obtained a vehicle from the defendant … who was unaware of the plan to kill the child. After traveling for a while in this manner, the parties were drawn into the crime.
A-)
The acquittal of defendants …, …, …, and … on charges of “incitement to intentional murder,” the decisions rendered in accordance with procedure and law regarding the dismissal of public prosecution due to changes in the nature of the crimes of defendants … and …, and the confirmation of the statute of limitations period,
B-) In the review of the decisions rendered against the defendant for the crime of “intentional murder,” the child … who was driven to commit the crime assisted in this crime;
According to the information and scope of the file; despite the significant age difference between the defendant …’s sister … and the victim, they had a relationship that began approximately 5-6 years before the date of the incident and included sexual intercourse. … got married, and the relationship continued as a result of the warnings made by the defendant … upon learning of the situation. Not satisfied with this, the victim also had sexual relations with …’s mother. Faced with all these events, the defendant decided to kill the victim. Three days before the incident, he told … at the wedding that he would shoot him and obtained a gun from his close friend … under the pretext of killing the victim, then committed the crime.
4-) According to the acceptance; Article 31/3 of the Turkish Criminal Code. Instead of applying a 1/3 reduction when applying the article, an impossible 1/2 reduction was applied, resulting in an inadequate determination of punishment.
CONCLUSION:
Due to its unlawfulness and the necessity of its violation, the appeals of the defendant’s representative and the representative of … were deemed valid in this regard. The defendant’s counsel’s request for release was REJECTED, taking into account the time frame, and a unanimous decision was made on October 10, 2017.