TO THE PRESIDENCY OF THE HIGH CRIMINAL COURT
CASE NO.:
VICTIM:
:
ATTORNEY:
CRIME: Attempted Murder – Threats – Violation of the Right to Peaceful Residence.
DATE OF CRIME:
DATE OF ARREST:
Brief Summary of the Incident: The suspect ES is my client’s son-in-law. Due to the deterioration of his relationship with my client’s daughter and the resulting incompatibilities, while their marriage was still ongoing, my client’s daughter left her home and began staying at my client’s residence. Previously, while the marriage was still intact, ES sometimes caused serious incompatibility; within the framework of these relationships, my client FK and his wife mediated and reconciled at every opportunity and were constructive for the marriage in question; however, due to the uncompromising and unchanging personality of the suspect victim ES, as a result of the incidents caused by ES;
While my client was staying at his daughter’s house, the suspect ES arrived in front of my client’s house at around 2:00 a.m. on the night of the incident, in a drunken state, damaged my client’s car by hitting it in various places with a hard object, and then headed towards my client’s house and advanced towards the stairs.
The suspect hurled insults and threats at my client and his wife CK, saying, “I’ll beat your mother and daughter, I’ll kill you, I won’t let you live,” and attempted to enter the house with the thought and intention of harming my client and his family. While trying to prevent the suspect from entering, my client pushed him towards the stairs with the iron bar in his hand, causing CK to fall to the ground and sustain some scratches on his body. Shouting, “He’s going to kill us,” my client fired at the suspect ES from very close range without aiming, in order to deter and scare him. The suspect was armed with a licensed firearm and intended to repel a possible attack and protect his family members. It was understood that the suspect fled.
As a result of the preliminary investigation conducted by the Karşıyaka Chief Public Prosecutor’s Office, a criminal case was brought against my client in accordance with Articles 81, 35/2, 29, 53, 54, and 63 of the New Turkish Criminal Code.
OUR DEFENSE REGARDING THE INCIDENT AND THE GROUNDS FOR RELEASE:
A- Evaluation of my client’s actions in terms of the conditions for legal defense:
As summarized above, if we evaluate my client’s actions within the framework of the findings in the case file, it can be understood from the alcohol report of the suspect ES that he came to my client’s house drunk and damaged his car; not content with that, he forcefully entered my client’s house and started climbing the stairs. His request to be stopped by my client’s spouse was rendered ineffective by being pushed with a hard object; however, it is clear and obvious that my client fired his licensed weapon randomly, without harming the defendant, in order to repel the unjust and ongoing attack, prevent his actions, and intimidate the other complainant.
When my client’s action is evaluated in light of the statements of the defendants in the file and the witness statements heard, it is clear that his action was taken within the conditions of legal defense.
As your Court is aware, the duty of defense must be determined according to the nature of each case. What matters is the existence of an attack that has begun and has not yet ended.
In this context, the complainant defendant ES has committed an act that is ongoing and continues with determination, and from a legal defense perspective, the complainant defendant ES is subject to a concrete attack carried out by the Turkish Armed Forces that has not yet ended.
In this case, we believe that my client should not be punished on the grounds that his actions gave rise to an obligation. My client acted to protect himself and his family members from possible danger because they were unjustly attacked.
As stated in the ruling of the Criminal General Assembly of the High Court dated 09.06.1998 and numbered 1/120-210, “For the acceptance of legitimate defense as regulated in Article 49 of the Turkish Criminal Code; there must be a material and unjust attack, the attack must be directed at life or limb, both the attack and the defense must occur within a specific time frame, the defense must be carried out while the attack is ongoing, the defense must be necessary, and there must be a reasonable proportion between the attack and the defense, taking into account the rights of the victim and the means used.” These conditions will enable us to begin to understand the existence of an attack in a broad sense.
It is necessary to consider an attack that has definitely begun and an attack that has ended but is feared to be repeated, even if it has not yet ended.
The necessity of defense must be assessed taking into account the specific characteristics of each case. The person carrying out the attack cannot be forced to flee, and it cannot be expected that they will escape by fleeing. Whether the attacker has the opportunity to flee cannot be taken into account. Furthermore, for the provision on legal defense to be applicable, the person subjected to the attack does not have to be the aggressor themselves. The view that “my client is legitimizing his action and has carried it out clearly and unambiguously within this framework” supports this view.
There is no doubt that your honorable Court, taking into account the nature of the case, will determine whether the conditions for legal defense have been met in my client’s case.
B- Evaluation of my client’s actions in terms of provocation:
The effect on my client, the fact that the undisputed provocation occurred long before the incident, the fact that the other defendant damaged his vehicle with an iron bar and then went upstairs and attacked my client’s wife, who was trying to prevent the incident, pushed her to the ground, and continued his actions in the same manner, it is understood that my client fired without targeting the other defendant in order to protect himself and his family and to prevent a more serious act against his household and himself; however, this action was determined due to the unjust and unlawful actions of the other defendant against him and his family.
When imposing the basic sentence on my client, considering the gravity of the case, we believe that it would be fair to apply the maximum reduction rate in accordance with Article 29 of the Turkish Penal Code No. 5237. We believe that your Court will assess my client’s state of mind and his actions in that state of mind in the most appropriate manner for justice. As stated in the ruling of the High Criminal Court dated 21.04.1998 and numbered 1/3-139, “…the defendant’s mental state must be taken into account.
While the first paragraph of Article 51 of the Criminal Code states that a crime is considered to have been committed under the influence of anger and intense pain resulting from unjust provocation, the second paragraph specifies that the provocation must be severe and intense. The article accepts that provocation may be minor or severe, but it does not distinguish between the magnitude and cause of the event leading to the crime; the existence of unjust and severe provocation is relevant when it causes serious disturbance and great shock to the defendant’s mental state and reaches significant proportions in terms of its nature and manner of occurrence.”
When all the evidence in the file is evaluated together; the other complainant, E.S., came to my client’s house drunk at night, damaged various parts of his vehicle, and then turned on my client’s wife. Not content with this, the complainant, E.S., continued his actions with severe profanity and threats. In this context, it is clear that if a penalty is imposed in the future, the referral provisions regarding provocation in Article 29 of the new Turkish Penal Code will apply to the client.
The Honorable Prosecutor also requested the application of this article in relation to my client.
As is known, according to the established case law of the 1st Criminal Chamber of the Court of Cassation and the General Criminal Council of the Court of Cassation, for the provisions on unjust provocation to be applicable,
a- An act constituting provocation must have occurred,
b- This act must have been determined to be unjust,
c- The perpetrator must have been under the influence of anger or intense grief,
d- The crime committed by the perpetrator is a reaction to this mental state.
e- The act causing unjust provocation is committed by the victim or the victim has a responsibility to prevent this act.
f- The crime must be directed at the person who committed the act causing the provocation.
We believe that all of these conditions, with all their elements, are met in our case.
As explained, we believe that Article 29 of the new TPC applies to our client, and we trust that your court will undoubtedly evaluate this in the best possible way, taking into account the increase in value and the margin rate.
C- Assessment of my client’s action in terms of intent:
Having evaluated all the evidence obtained during the preliminary investigation, the reports in the file, the statements of my client and the other defendant, and the witness statements, we believe that he fired under conditions of legal defense and under the influence of severe provocation, with the aim of forcing the other complainant to withdraw from the case and preventing a possible attack.
However, even if Your Honour does not accept this assessment of my client’s intent to commit a crime, it is clear that the purpose of my client’s
Min’s action was to cause harm.
As explained in doctrine and the established case law of the Supreme Court;
“Although the system of intent is essentially related to the inner world of the human being, the determination of intent is based on the objective events and facts that occur in the external world. Intent is also determined using similar criteria in the legal systems of foreign countries.” (Ayhan Önder, Crimes Against Persons and Property, Istanbul 1994)
“In diagnosing the moral element in human behavior, particularly in crimes committed against persons, it is necessary to look at the form of the act and the results it produces, independent of the defendant’s speculations, which may differ and aim to conceal the real purpose, and to use objective data that best determine the perpetrator’s intent, namely tests that reveal intent.” (Italian Supreme Court, 22.02.1989, E/Ö Erman, 24, n. 43)
We find it useful to provide an explanation based on judicial decisions at the stage of determining intent in order to shed light on the incident.
With this in mind;
The perpetrator’s behavior before, during, and after the incident should be considered as a criterion in determining intent. According to Supreme Court decisions, the main criteria distinguishing attempted murder from assault are the reason and nature of the hostility between the perpetrator and the victim, the nature of the weapon used by the perpetrator, the number and distance of shots or blows, the location, nature, and characteristics of the wounds on the victim’s body, whether there was a possibility of targeting, the course and cause of the incident, and whether there was a situation that prevented the perpetrator from committing the crime he intended to commit” (Supreme Court Decision 14.12.1999, 1-278/308; for this and other decisions on this subject, see Meran, 363 ff.).
“If the cause of an act, the defendant’s arrival at the scene, the purpose, nature, and severity of the act, the type of weapon used in the crime, the location of the wound, the vital importance of the organs affected by the act, and the course of events have made death an ”expected result,” the perpetrator is deemed to have acted with intent to kill. You must accept this.” (CGK, 06.02.1996, 1-380/4; CGK, 09.06.1998, 1-126/218.) (Source: Intentional Homicide Crimes, TCK 81-82-83, Associate Professor Hakan Hakeri, Ş, 31, Seçkin Publishing House, Ankara, 2006)
Similarly, within the framework of the Supreme Court precedents listed below, it is indisputably clear that my client’s action was intended to cause harm.
“Even if multiple blows were struck, if the impact of the blows was minimal, the intent to kill may be rejected. In a case where the perpetrator stabbed the victim seventeen times, the Supreme Court ruled that there was no intent to kill because the perpetrator did not continue his actions despite the absence of a compelling reason and because the blows were very superficial.” (CGK, 16.11.1987, ‘ 344/542)
“The distance between the perpetrator and the victim and the characteristics of the scene play an important role in both armed and unarmed shooting incidents (stones, etc.). The fact that the perpetrator did not shoot at vital areas despite being close to the victim may indicate that there was no intent to kill.” (1. CD. 25.03.1970, 2445/1308.)
“How the incident unfolded and ended is also important in determining intent.” (CGK 19.1.1970, 596/19)
“The perpetrator’s failure to continue firing when given the opportunity may be considered as intent to injure.” (CGK 03.04.1990, 418-872)
In light of all these explanations, the defendant ES, who was the victim of the incident, stated in his defense at the Karşıyaka 1st Criminal Court of Peace on 15.01.2006, “…he was about 2 meters away, fired six shots into the air with the gun in his hand, one of the bullets grazed my chest, then the same bullet grazed my left arm, he did not shoot to kill me. If he had wanted to kill me, he could have done so because the distance between us was very short. I believe the defendant’s intention was to scare me.” In his statement regarding the severity of the incident, he explained without a doubt that his client’s actions occurred in this manner.
D- Our assessment regarding the existence of an element of doubt in the evaluation of my client’s actions within the framework of the material evidence in the file.
As Your Honorable Court is aware, when the perpetrator is identified based on material evidence, all evidence must be conclusive and convincing in order for a decision to be made in good conscience. Furthermore, if the perpetrator’s intent cannot be determined beyond a reasonable doubt, the universal rule that “the benefit of the doubt goes to the accused” must be applied.
“According to the principle that the defendant benefits from doubt, which is accepted in every state governed by the rule of law and is closely related to the presumption of innocence, if it is not 100% proven at the end of the criminal proceedings that the act was committed by the defendant, an acquittal decision is rendered. (Constitution Article 38/4, Universal Declaration of Human Rights Article 11, European Convention on Human Rights Article 6/2, International Covenant on Civil and Political Rights Article 14/2). The reason for adopting this principle is to prevent the guilty from going unpunished.”
It is better than convicting an innocent person; in other words, it is the presumption of innocence” (CMK Justice Commission Report).
The principle of “benefit of the doubt” is a rule of evidence that applies in criminal law and is not explicitly stated in our legislation. According to this principle, in order for a person accused of committing a crime to be convicted, there must be 100% certainty and proof that the person committed the crime. At this point, even 1% doubt leads to the acquittal of the defendant. Therefore, releasing a guilty person is preferable to punishing an innocent person. In fact, in the United States, where the jury system exists, the sole duty of the jury is to decide whether the defendant committed the crime, that is, to decide on the evidence.
The jury consists of 11 members, and in order to decide that a person committed the crime, all 11 members must be convinced that the defendant committed the crime; however, if one member votes that the defendant did not commit the crime, the defendant is acquitted. This example shows that the defendant must be acquitted because the doubt has not been removed 100%. (Source: Assoc. Prof. Hakan Hakeri, Seçkin Yayınları, Ankara, 2006)
The rule that the defendant is presumed innocent in cases of doubt is not limited to situations requiring an acquittal. If there is doubt between the intent to kill and the intent to injure, this rule must be applied. (Mustafa Avcı, Measures for Distinguishing the Mental Elements of Intentional Murder and Intentional Injury, Huka 1, pp. 86-98, 2005) In fact, there are also decisions of our High Court of Appeals that shed light on this issue.
“Interpreting doubt about intent in favor of the defendant is a common practice” (1st Chamber, 02.10.2001, 2064/3474).
“There is no clear evidence that the defendant fired at the victim, Mustafa, with the intent to kill him; statements to that effect were contradictory during the trial, and Mustafa’s statement taken by the prosecution indicates that the defendant did not choose to fire in a manner intended to kill, stating, ‘If he had climbed the wall and fired, he would have killed me.’ Investigations conducted at the scene of the crime during both the investigation and prosecution phases do not clearly establish that the bullet hit the wall where it was hidden;
Taking into account the fundamental principle of interpreting doubt in favor of the defendant, it was argued on appeal that, rather than punishing the defendant for his action against the victim M as an attempt to wound him with a weapon, the unresolved doubt against him should be evaluated as “attempted murder without intent to kill.” (1 CD. 22.10.2003, 380/2465).
Similarly, the Supreme Court of Appeals, 1st Criminal Chamber, reiterated the same views in its decisions dated 05.03.2003 and numbered 4223/168.
“Based on the uncertainty arising from the fact that these bullets did not hit any place in the rear area, each defendant, who fired repeatedly at close range (defined in the initial determination as five meters and not exceeding a few meters) in a crowded environment during daylight hours, failed to hit his opponent. Considering that it is unclear which part of the opponent’s body was targeted and that the doubt must be interpreted in favor of the defendant, each defendant’s action must be considered an injury, and it must be accepted that A. acted in accordance with the law within the scope of legitimate defense. (1st Criminal Court, 5.3.2003, 4223/168).”
In light of our explanations, considering that there was no animosity between my client and the other suspect, the number of blows the victim received, the fact that he was moving, my client’s situation at the time of the incident, the attack he was subjected to, my client’s action, and the reasons we have tried to explain, we believe that this should be accepted as an attempt to cause injury.
Reasons for the Request for Release:
1-) In light of the evidence obtained, our client’s unproven defense, and other supporting evidence, we believe that the nature and form of the crime are likely to change.
In this context, considering the regulatory provisions regarding the limitation of the detention period in Article 100 of the new Criminal Procedure Code, pretrial detention has become the rule.
2-) All evidence has been collected at the trial stage, and therefore the possibility of our client influencing the evidence, concealing evidence, and diverting the case in a different direction has been eliminated.
3-) Considering that detention is a precautionary measure and has been eliminated under these circumstances;
Consequently, in light of the current legal regulations, the regulatory provisions of the new Turkish Criminal Code and the new Criminal Procedure Code, and the discretionary provisions of Article 100 of the Criminal Procedure Code, my client, the suspect FK, shall be released on bail or unconditionally, as deemed appropriate by your court.
Sincerely,
Respectfully yours,
Suspect arrested, accused person
Member of Parliament