T.C. Supreme Court 3.CRIMINAL DEPARTMENT BASIC NO: 2010/1412 DECISION NO: 2010/2472 DECISION DATE: 17.02.2010
Summary: it is a legal obligation to investigate the consequences of injury crimes by the investigative and judicial authorities in a concrete case. But these results must comply with the principles established by the Forensic Medical Institution. According to forensic criteria, it was determined which injury was mild to the extent that it could be decayed by simple medical intervention, and it is seen that the fracture in the nose is not counted among the injuries that can be eliminated by simple medical intervention. Since there is a possibility that articles 86/1, 87/3 of the TCK will be applied against the defendant, who is alleged to have caused a bone fracture and dislocation of the injury, the task of looking at the case file subject to review ….. Mahkemesin Is Criminal.
(5237 P. K. m. 61, 86, 87) (5235 P. K. m. 11) (5271 P. K. m. 309)
Case: accused of wounding and insulting….. as a result of the trial against them, the accused … since the act of wounding 5237 falls within the scope of articles 86/1, 87/3 of the Turkish Criminal Code, the assessment of this must be made by the Criminal Court of First Instance, the court’s duty with betting, the file…. As for sending him to the Criminal Court of First Instance,….. On the acceptance of the appeal made to the decision of the magistrate’s Criminal Court dated 27/05/2009 and numbered 2009/516-595, on the abolition of the magistrate’s non-duty decision …. Ministry of Justice General Directorate of Criminal Affairs against the decision of the Criminal Court of First Instance dated 14/07/2009 and 2009/211 amended business 21/12/2009 day and B.03.0.CTG.0.00.00.04-105-74-7245-2009/14760/72505 since the request to violate the law was made in the interest of the article No., the case file for this work was sent to our office with the communique no. 2009/296850 dated 11.01.2010 of the Prosecutor General’s Office of the Supreme Court;
DECISION: in the aforementioned notice;
….. Due to the fact that the decision of the Criminal Court of First Instance dated 14/07/2009 and 2009/211 was final,….. In the examination conducted by accepting that the decision of the Heavy Criminal Court dated 29/07/2009 and 2009/737 different business no.,
According to the entire file scope;
Defendant …..according to the report dated 21/01/2009 and numbered BIO4ISM4740013/154-02/1182, the head of the Bartın State Hospital was injured in such a way as to be corrected by simple medical intervention on the grounds that he was injured 5237 of the Turkish Criminal Code 86/2-3, e, 87/3. in accordance with Articles 11 of law 5235, the action of the accused shall remain within the scope of articles 86/1 and 87/3 of the law 5237. according to Article 309 of CMK 5271, since there is no hit in the decision to accept it, while the decision to reject the appeal should belong to the Criminal Court of First Instance. according to the article, it was understood that the need to remove the said decision was notified.
As necessary, discussed and considered;
…… Due to the fact that the decision of the Criminal Court of First Instance dated 14/07/2009 and 2009/211 different business numbered is final, the decision of the Heavy Criminal Court of Bartın dated 29/07/2009 and 2009/737 different business numbered is not in effect.,
13.2.2007 date and 2006/5-350 E. of the General Assembly of punishment 2007/30 K. in resolution <61/1 of Law No. 5237. in accordance with the article, in accordance with the principles and principles set out in the paragraph, the basic penalty should be determined first, in case of reasons for increase and discount, the result penalty should be determined by applying the reasons for increase and then discount.> by saying that my criminal judge is guided by how to determine the punishment when making a sentence. Accordingly, the judge shall determine the basic penalty between the lower and upper limits of the penalty provided for in the legal definition of the crime in accordance with Article 61/1 of the TC Dec.
As a result, aggravated injury crimes are the 87th of the TCK. in the article are arranged. Articles 1 and 2. its paragraphs foresee increases at different rates. There is no doubt that these increases will be made on the basic penalty set within the lower and upper limits provided for in Article 86/1 of the same law in accordance with Article 61/1 of the TCK. In fact, the admission of an injury that causes severe consequences as a minor injury that can be eliminated by simple medical intervention is contrary to the way in which the crime of intentional injury is regulated in law and the purpose of the legislator.
Injuries that cause bone fracture or dislocation in the body were seen as aggravated injuries due to the result and are regulated in Article 87/3 of the TCK. Article 87/3 of TCK No. 5237, which came into force on 1.6.2005, was a separate criminal article containing a criminal provision specified in the lower and upper limits (from 1 to 6 years). However, article 87/3 of the TCK was amended by Law No. 5560 on 19.12.2006 if deliberate injury causes bone fracture or dislocation in the body, the penalty determined in accordance with the above article is increased to half according to the impact of fracture or dislocation on life functions and is removed from being a separate penalty article and turned into an increase article. If an injury after a change causes a bone fracture and dislocation, the basic penalty is determined in accordance with Article 86/1 of the TCK, and if there is an opportunity to apply it, the same article 3. after the increase in the paragraph is made, an increase of up to half of the penalty may be made according to Article 87/3 according to the effect of bone fracture or dislocation on life functions.
It is a legal obligation for Investigative and judicial authorities to investigate the consequences of wounding crimes. But these results must comply with the principles established by the Forensic Medical Institution. According to forensic criteria, it was determined which injury was mild to the extent that it could be decayed by simple medical intervention, and it is seen that the fracture in the nose is not counted among the injuries that can be eliminated by simple medical intervention.
Since there is a possibility that articles 86/1, 87/3 of the TCK will be applied against the defendant, who is alleged to have caused a bone fracture and dislocation of the injury, the task of looking at the case file subject to review ….. Mahkemesin Is Criminal.
Conclusion: accordingly, since the thought put forward in the communique based on the article of the Ministry of Justice seeking to violate the law is seen in place ….. Date of the Criminal Court of First Instance and Decision No. 2009/211 of CMK 309. in accordance with the article, it was unanimously decided on 17.02.2010 to break the law for the benefit of the law, to carry out subsequent transactions by the court, to return the file to the district attorney’S Office of the Supreme Court.
