…TO THE PRESIDENCY OF THE HIGH CRIMINAL COURT
ESSENTIAL NO:
DOUBT VICTIM:
:ATTORNEY:
CRIME : Attempted Murder – Threat – Violation of Nightly Housing Immunity.
CRIME HISTORY:
DATE OF ARREST:
Brief Presentation of the Incident: E.S., one of the suspected victims, is my client’s son-in-law, and as a result of the deterioration of his relations with the client’s daughter and the incompatibilities experienced, while their marriage relationship continues, my client’s daughter left her house and started to stay at her client’s house; Previously, while maintaining the marital union, ES sometimes caused results that led to severe incompatibility, within the framework of these relations, the client FK and his wife always mediated and reconciled on every occasion, they were constructive for the marriage in question, however, As a result of the events caused by the suspected victim ES due to his irreconcilable and unchanging personality structure;
While staying at my client’s daughter’s house, the suspect ES came in front of my client’s house in the night and at around 02:00 on the day of the incident, intoxicated, damaged my client’s car by hitting different parts of it with a hard object, and then headed towards my client’s house and headed for the stairs. My client tried to enter the house with the thought and intent of harming my client and his family by making insults and threats to him and his wife CK, saying, “I will smack your mother and your mother, I will kill you, I will not let you live”. While trying to prevent the suspect from entering, he threw it towards the stairs by pushing with an iron bar in his hand, and as a result, some scratches occurred on his body due to CK falling to the ground. e, it will kill us”, my client fired without aiming at very close range in order to deter and intimidate the suspect accused ES, who was mobile with his licensed weapon, with the intention of repelling a possible attack and protecting his family members, it was understood that the suspect had fled.
As a result of the preliminary investigation carried out by Karşıyaka Chief Public Prosecutor’s Office, a public lawsuit was filed to punish my client in accordance with the articles 81, 35/2, 29, 53, 54, 63 of the new TCK.
OUR DEFENSE RELATING TO THE EVENT AND THE REASONS RELATED TO THE REASON FOR EVACUATION:
A- Evaluation of my client’s action in terms of legal defense conditions:
As we have summarized the case above, if we evaluate my client’s action, according to the minutes in the file, within the framework of the determinations made, as it can be understood from the alcohol report of the suspect accused ES, he came to my client’s house intoxicated and damaged his vehicle, not content with that, he entered my client’s house with a concentrated caste and started climbing the stairs. Upon my client’s request to be prevented by his wife, it was rendered ineffective by being pushed with a hard object, but; It is clear and distinct that my client fired aimlessly with his licensed weapon in order to repel the unjust and existing attack, in order to break his action and frighten the other complainant, without harming the accused.
When my client’s action is evaluated by considering the statements of the accused defendants in the file and the witness statements heard, it is clear that his action was made within the conditions of legal defense.
As known by your court; The obligation to defend must be determined according to the nature of each case. The important thing is the existence of an attack that has begun and has not yet ended.
In this respect; The complainant defendant E.S. has an act that has not ended and continues the attack in a determined action, and in terms of legal defense, the complainant defendant E.S. There is a tangible attack carried out by the Turkish Armed Forces that has not yet ceased to exist.
In this case, we think that a penalty should not be assigned because there is an obligation for my client’s action. My client has taken action to protect himself from a possible danger, completely because he and his family members have been unjustly attacked.
As stated in the case-law of the Supreme Court Criminal General Assembly dated 09.06.1998 and numbered 1/120-210, “For the acceptance of the legal defense (legitimate defense) regulated in Article 49 of the TCK; there must be a material and unjust attack, the attack must be directed against the soul or the vice, the defense and the attack are both time and the defense must be done while the attack is in progress, the defense must be mandatory and there must be a suitable ratio between the attack and the defense according to the subject of the right being attacked and the tools used. It will begin to understand the existence of the attack in a broad sense.
It is obligatory to consider an attack that is now certain to have started, and an attack that is feared to be repeated even though it has ended, has not yet ended.
The necessity of the defense must be evaluated by considering the concrete features of each case. The perpetrator of the attack cannot be obliged to flee and cannot be asked to escape by escaping. It cannot be taken into account whether the perpetrator has the opportunity to escape. Moreover, in order for the provision regarding legal defense to be enforced, it is not necessary for the attacked person to be the perpetrator himself. The opinion that “my client gives legitimacy to his act and that he has carried out his act within this framework clearly and clearly supports.
Undoubtedly, your esteemed Court will appreciate whether legal defense conditions have been met in my client’s action, taking into account the nature of the case.
B- Evaluation of my client’s action in terms of provocation:
This effect it had on my client, in the face of the fact that the unjust provocation, the existence of which was not discussed in the incident, occurred long before the incident, that the other suspect accused, after damaging his vehicle with an iron bar, climbed the stairs, attacked the wife of the client who wanted to prevent the incident, pushed her to the ground, and continued her actions that continued in the same way. It was understood that my client had fired without targeting the other suspect accused, in order to protect himself and his family, in order to prevent a more serious action against his household and himself, however, this action was determined by the unjust and unlawful actions of the other suspect accused against him and his family. While applying the basic penalty to my client, we think that it would be fair to apply the maximum discount rate, considering the gravity of the case, Article 29 of the TPC No. 5237. We believe that your court will evaluate my client’s state of mind and his actions in this mood in the most appropriate way to justice. As stated in the case-law of the Criminal Board of the Supreme Court of 21.04.1998 and numbered 1/3-139, “…. The mental structure of the accused must be taken into account. In the first paragraph of the 51st article of the penal code, the crime is committed under the influence of anger and severe pain caused by an unjust provocation, and in the second paragraph, the unjust provocation is severe and severe. With the article, it was accepted that the provocation could be light or heavy, but it was left to be implemented by not showing the size and reason to distinguish it from each other. the event that led to the commission of the crime; We hope that the Court will consider this issue, since the appearance of “unjust and severe provocation is present if it causes a severe elimination and a great shock on the mental structure of the accused, and if it reaches significant dimensions in terms of its nature and manner of processing”.
When all the evidence in the file is evaluated together; The other complainant, ES, came to my client’s house drunk at night and damaged my client’s car by hitting various parts of his car and had his actions rectified, gradually harming my client’s wife, and not content with that, the complainant accused E. continued his actions by continuing his heavy swearing and threats, In this respect, it is clear that the referral clauses pertaining to the provocation provisions in Article 29 of the new TPC will be applied to the client in case a penalty is determined in the future.
The Honorable Prosecution also requested the application of this article in terms of my client.
As it is known, according to the well-established case-laws of the 1st Penal Chamber of the Court of Cassation and the General Penal Board of the Court of Cassation, in order for the provisions of unjust provocation to be implemented,
a- The occurrence of an act that constitutes the provocation,
b- This act is found to be unjust,
c- The perpetrator is under the influence of anger or severe grief,
d- The crime committed by the perpetrator is a reaction to this mental state,
e- The act that creates an unjust provocation is caused by the victim or the victim has the responsibility to prevent that act,
f- The offense must be directed against the person who committed the act that created the provocation.
We believe that all these conditions, with all their elements, are fulfilled in our case.
As explained, we believe that article 29 of the new TPC will be applied to the client, with the belief that it will undoubtedly be evaluated in the best way by your court, by considering the margin of appreciation and rate.
C- Evaluation of my client’s action in terms of intent:
Evaluating 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, it was intended to intimidate the other complainant in order to renounce his action and to eliminate a possible attack, within the conditions of legal defense and under the influence of heavy provocation. We believe he fired.
However, the acceptance of your Honorable Court; my client’s intent to commit a crime, if he does not evaluate it in this way, his client
It is clear that the verb min is intended to injure.
As explained in the doctrine and ingrained Supreme Court jurisprudence;
Although caste is essentially related to the inner world of man, it is tried to determine the caste according to the objective events and facts that appear in the outer world. In the legal systems of foreign countries, intent is revealed with similar criteria”. (Ayhan Önder, Offenses Against Persons and Property, Istanbul 1994,)
“In the diagnosis of the moral element in human behavior, especially in crimes against the person, the objective data, which are suitable for determining the purpose of the perpetrator in the best way, as tests that reveal the intention, and regardless of the speculations of the accused, which may be different and aiming to hide the main purpose, the content of the act, the fact that it was committed, It is necessary to look at its forms and the results it creates” (from the Italian Court of Cassation, 22.02.1989, E/Ö Erman, 24, n. 43)
We find it useful to make a statement based on judicial decisions at the point of determination of intent, in terms of shedding light on the event.
With this thought;
“The behavior of the perpetrator before the event, during the event and after the event should be taken as a measure in determining the intent. According to the decisions of the Court of Cassation, the main criteria that separate the crimes of attempted murder and injury from each other are the reason and nature of the hostility between the perpetrator and the victim, the nature of the attack device used by the perpetrator, the number and distance of the shot or blow, the location of the wounds on the victim’s body and their quality and characteristics. quantities, whether there is a possibility to choose a target, the flow and reason of the event, whether there is an obstacle against the will of the perpetrator to commit the crime he intends to commit” (CGK 14.12.1999, 1-278/308; for this and other decisions on this subject, see Meran , 363 et al.)
“If the reason for an act, the defendant’s arrival at the scene of the crime, the will of the act, its quality and severity, the type of vehicle used in the crime, the place where the wound occurred, the vital importance of the organs exposed to the act, the course of the event made death an “expected outcome”, the perpetrator acted with the intent to kill. You have to admit that you do. “ (CGK, 06.02.1996, 1-380/4; CGK, 09.06.1998, 1-126/218 .) (Source: Intentional Killing Crimes, TCK 81-82-83, Associate Professor Hakan Hakeri, Sh, 31 , Seçkin Publishing House, Ankara, 2006)
Likewise, within the framework of the case law of the Supreme Court, which we will list below, it is indisputably clear that my client’s action was aimed at injuring.
“Despite a large number of blows, if they are of little effect, intent to kill can be denied. In an incident where the perpetrator stabbed the victim seventeen times, the Supreme Court decided that there was no intent to kill, because the perpetrator did not continue his act even though there was no compelling reason, and the blows were very superficial.” (CGK, 16.11.1987, ‘ 344/542)
“The distance between the perpetrator and the victim and the characteristics of the crime scene play an important role in both armed and unarmed shootings (stones, etc.). The fact that the perpetrator does 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 event developed and ended is also important in determining the caste.” (CGK 19.1.1970, 596/19)
“The fact that the perpetrator does not continue the fire despite having the opportunity can be considered as an intention to injure.” (CGK 03.04.1990, 418-872)
In the framework of all these explanations, in the defense of the suspect ES, who was the victim of the incident, in his defense dated 15.01.2006 before the Karşıyaka 1st Criminal Court of Peace, he said, “… he was about 2 meters away, he fired 6 times into the air with the pistol in his hand, one of the bullets left me. grazed my chest and then the same bullet grazed my left arm, it’s not like he shot to kill me. If he had wanted to kill, he could have killed because the distance between us was so close, I think the purpose of the plaintiff was to scare me,” and in his statement given to the heat of the incident, he explains without a doubt that my client’s action manifested in this way.
D- Our assessment of the existence of suspicion in the evaluation of my client’s action within the framework of the material evidence in the file.
As is well known by your Honorable Court, when the perpetrator is reached on the basis of material evidence, all evidence must be conclusive and convincing, to form a conscience. In addition, if the intent of the perpetrator cannot be determined to a degree that leaves no room for doubt, it is necessary to apply the universal rule of “the suspect benefits from the suspect”.
“According to the principle that the accused benefits from suspicion, which is accepted in every state of law and has a close relationship with the presumption of innocence, if it is not 100% clear that the act was committed by the accused at the end of the criminal procedure, an acquittal will be rendered (Constitution Art. 38/4., Universal Declaration of Human Rights). M. 11, European Convention on Human Rights M. 6/2, Covenant on Civil and Political Rights I. 14/2). The reason for the adoption of such a principle is that an offender goes unpunished.
is preferable to the conviction of an innocent; in other words, it is the presumption of innocence” (CMK Justice Commission Report).
The principle of “the suspect benefits from the doubt” is a rule of proof valid in criminal law and not stipulated in our legislation in writing. Accordingly, in order to be convicted of a person who is accused of committing a crime, it must be 100% certain and proven that that person has committed that crime. Even a 1% doubt at this point leads to the acquittal of the accused. Thus, the release of a guilty person is preferred over the punishment of an innocent person. As a matter of fact, in the United States of America, where there is a jury system, the only duty of the Jury is to decide whether the accused committed the crime, that is, about the proof. The jury consists of 11 members, and in order to decide that a person has committed the crime, 11 of the 11 members must be convinced that the accused has committed the crime. 10 members of the accused committed the crime; however, if a member votes not to commit, the accused is acquitted. This example shows that the accused should be acquitted because the suspicion is not defeated 100%.” (Source, Crimes of Intentional Killing Assoc. Dr. Hakan Hakeri, Seçkin Publications, Ankara, 2006)
The rule that the accused benefits from doubt is not limited to cases where an acquittal decision is required. If there is any doubt between the intent to kill and the intent to injure, this rule should be applied. (Mustafa Avcı, Measures for Distinguishing the Spiritual Elements of Deliberate Murder and Intentional Injury, Khuka 1, Sh. 86-98, 2005) As a matter of fact, there are also decisions of our Supreme Court of Appeals that shed light on this idea.
“It is a common practice to interpret the suspicion of caste in favor of the accused” (1. CD, 02.10.2001, 2064/3474).
“It is not clear that the accused had fired at the victim Mustafa with the intent to kill him, the statements in this direction were contradictory during the trial phase, and Mustafa’s statement taken by the prosecutor’s office revealed that the accused did not prefer a suitable fire to kill, with the phrase “he would have killed me if he had climbed over the wall to shoot”. In the face of the fact that both the investigation and the discovery made at the scene during the prosecution phase do not clarify that the bullet hit the wall behind which he hides, taking into account the basic principle that the suspicion will be interpreted in favor of, instead of punishing the accused Z by accepting that his action against the victim M was a complete attempt to injure him with a gun, by evaluating the unresolved suspicion against him. judgment without attempting to murder” has been made the ground of reversal (1 CD. 22.10.2003, 380/2465).
Likewise, he repeated the same views in the case-law of the 1st Penal Chamber of the Court of Cassation no. 05.03.2003 and 4223/168.
“Departing from the uncertainty created by the fact that these bullets did not hit any ground in the back area, each defendant, who aimed one after the other with mutual shots fired in a crowded environment during the daytime, from a close distance, which did not exceed a few meters and was defined as five meters according to the first detection, failed to hit his opponent, Based on the fact that it was not clear which part of the opponent’s body it was directed at, and based on the obligation to interpret the suspicion in favor of it, it was necessary to accept the action of each defendant as injury and to accept that A. acted in accordance with the law within the scope of self-defense. (1st CD, 5.3.2003, 4223/168).
In the light of our explanations, the absence of any enmity between my client and the other suspect suspect, the number of blows in the complainant, his being mobile, the moment the client was in the incident, the attack he was exposed to, the act of my client, within the framework of the reasons we tried to explain, the act of attempting to injure. We believe it should be accepted.
E- Reasons for Eviction Request:
1-) In the context of the evidence obtained, our client’s unproven defense and other evidence supporting it, we think that the nature and nature of the crime may most likely change.
In this respect, taking into account the regulatory provisions regarding the limitation of detention in Article 100 of the new CMK, pending trial has become a rule,
2-) As of the stage of the trial, all the evidence has been collected, and therefore, the possibility of my client to influence the evidence, to obscure the evidence and to divert the trial in a different direction has disappeared,
3-) Considering the fact that detention is a precautionary measure and that it has disappeared under these conditions;
After all; Considering the existing legal regulations, the regulatory provisions of the new Turkish Penal Code and the new Code of Criminal Procedure and the discretionary provisions of Article 100 of the Criminal Procedure Code, my client, the suspect F.K., is to be released on bail or unconditionally, which will be deemed appropriate by your Court.
I wish r.
Kind regards …
Suspect arrested accused
Deputy
