T.C. SUPREME
Criminal General Assembly
Based on: 2012/1-560
Decision: 2012/227
Date of Decision: 12.06.2012
INTENTIONAL HOMICIDE – THE DEFENDANT’S DEFENSE THAT THE VICTIM MADE THREATENING AND INSULTING REMARKS TO HIM – FAILURE TO OBSERVE THAT THE PROVISIONS OF UNFAIR INCITEMENT SHOULD BE APPLIED – VIOLATION OF THE PROVISION
SUMMARY: Defendant H. in the discussion between the decedent and the victim, which is understood to have occurred before the murder incident, the defendant H. said that the victim had made threatening and insulting remarks to him.with the defense of the defendant M.since the statements of the , which confirm this defense, cannot be proven otherwise, the defendant H. judging in his favor, defendant H.for this reason, unfair driving provisions should be taken advantage of. Accordingly, the local court has decided that the provision of resistance, defendant H. it should also be decided that it will deteriorate due to the failure to observe that unfair driving provisions should be applied to it.
(5237 P. K. m. 29, 82) (5271 Pp. K. m. 209) (YCGK. 16.02.2010 T. 2009/1-251 E. 2010/25 K.) (YCGK. 13.11.2001 T. 2001/1-239 E. 2001/247 K.) (YCGK. 15.12.2009 T. 2009/1-2009 E. 2009/290 K.) (YCGK. 02.02.2010 T. 2009/1-239 E. 2010/14 K.)
The case: The defendants on the charge of premeditated murder by designing H.B. and M.B.’s No. 5237 of 82/1 tcy-a lack of truth and they are punished with life imprisonment in accordance with regarding the Ankara Heavy Penal Court No. 12-57 11.09.2008 by day and ex-officio the provision, which is subject to appeal, the attorney and counsel on appeal by the accused attendees of the Supreme Court of viewing the file 1. By the Criminal Department on 10.02.2010 day and number 2929-724;
<… By reading the death examination and autopsy minutes based on the verdict clearly at the trial and establishing the verdict without asking what the defendants and their supporters will say, CMK 209/1. violation of the article…>,
It has been decided that it will deteriorate without examining other aspects of its failure.
15.04.2010 Ankara Heavy Penal Court 16-28 break up the day and number; as in the first provisions, the defendants No. 5237 of 82/1 tcy-a in accordance with, they are punished with life imprisonment, and inequality, it is decided an appeal on its own motion, which is subject to a judgment, the defendants counsel and attorney of the Supreme Court on the appeal of the attendees viewing the file by 1. By the Criminal Department on 02.03.2011 day and number 4648-1213;
<… 2) Defendants H. and M.in terms of murder crimes;
a) It is understood that the defendants decided on the action before the date of the incident, persevered and persistently implemented the plan they had made, and there was no evidence that they did not abandon their decision in the time between the designed action and its execution, the defendants H. Dec. and M.instead of being punished for intentional manslaughter that complies with the actions of, the establishment of a conviction for manslaughter by designing it incorrectly in writing,
b) The victim before the date of the incident E. and his friend L.Sh.at the exit of the bar on 20.07.2007, defendant H.it is understood that they injured him with a beer bottle and a knife, but given the more serious attack and the consequences, in accordance with the rules of rights, justice and grace, defendant H.’e determination of excessive punishment by not applying written punishment instead of a reasonable discount on the punishment sentenced for incitement…>,
It has been decided that they will be corrupted by their lack of accuracy.
The local court is on 28.04.2011 with days and numbers 10-26;
<… Defendants H.B. and M.B.that ’s actions were, as our court has shown in writing, , that is, defendants H.B. and M.B.’s victim E.S.Jul, Jul, and J., who had decided to kill and, to carry out their actions, procured a shotgun, while procuring a shotgun, had taken a shotgun.D.’tan, they asked for two shotgun shells, again witness N.B.as can be seen from the statement of witness Y.in response to the statement of , defendant M.B.although witness Y. made a statement that D., witness N.B.in, Y.’for himself described the situation this way, directly if you verify our statement in the court, when asked about this issue, this topic is in the form of statement that we talked about I don’t remember where, therefore, a , in theory, the plan has been tried to be explained with the theory of setting up and composure, in our application the High Court, the plan is revealed by combining the theories of composure and setting up an application, and design criteria that are determined by the High Court; the defendant to commit a specific crime against a person and unconditional firmly decide, given immediately failure to enforce this decision with the decision to commit a crime and go through a period of time between the actual performance and calm composure against the perpetrator in this time of spiritual peace reached after deliberation to this decision, the decision not only to insist on the actual process that the defendants contingent events could be summarized as the lack of material we H.B. and M.B.in, victim E.S.the fact that they decided to kill E. S.L., who is an intimate friend ofSh.’i’m the victim, E.the witness of this matter, whom they removed from the side of L.Sh. according to the statement, it was fixed, then they provided a shotgun on the day of the incident and the victim was Jul E.S.defendant H.B.he said that he wanted to meet the victim by phone and that they met at around 21:00 and the defendant H.B.according to the article, the accused received the victim by means of the ‘s vehicle, then the accused, M from the accused.B.as can be seen from the wife’s statement, they returned to their home at about 03:00, during which time the defendants were the victims of E.S.between the decision to kill and the execution of the decision, a reasonable period of time elapsed, but despite this, the defendants considered it with composure and decisiveness, since it is understood that they did not renounce their actions, insisted on committing the act and carried out their actions, so that all the evidence covered by the file in our material case was designed from the beginning, the actions of the defendants, and in accordance with this design, the conditions set by the Supreme Court of Cassation were formed…>,
He resisted the first provision with his opinion.
Upon appeal of this provision, which is subject to formal appeal, by the defendants’ defense counsel and the Public prosecutor of that place, the Supreme Court C.The file sent to the First President of the Supreme Court with the notification of the Attorney General’s Office dated 22.03.2012 and numbered 310919 was evaluated by the General Assembly of the Punishment and decided on the grounds described:
Verdict: Review, defendants H.B. and M.B. it was made limited to the provisions established about it.
Defendant H.B. although the appeal was appealed by the defense counsel asking for a trial examination of the verdict, there is no provision in the Criminal General Assembly of the Supreme Court that the appeal review will be held in a trial, since the defendant’s defense has refused the request for a trial examination to review the file;
There is a dispute between the Special Department and the local court regarding the fact that the act of premeditated murder was committed by the defendants, and there is no decency in this admission as of the contents of the file. The dispute between the Special Department and the local court, which must be resolved by the General Assembly of the Criminal Court; whether the defendants committed the crime of intentional homicide by decrying and accused H. in addition, it is related to determining whether the conditions for the application of unfair driving provisions have been established.
From the contents of the examined file;
Victim E.S. with his friend L.Sh.on 20.07.2007, defendant H.B.an investigation has been launched against them for allegedly injuring a person with a weapon in a way that can be eliminated with a simple medical intervention, but at the investigation stage, E.S.it was decided that there is no room for october prosecution against him because he is dead, L.Sh. as for the 86/2 and 86/3-e of TCY No. 5237. a public lawsuit was filed on 08.04.2008 with a request to be punished in accordance with the articles,
Defendant H.B. and E. D. about the victim E.S.on 24.07.2007, a public lawsuit was filed against the accused on 30.09.2007, accused H. on 20.02.2008, for having committed the crime of threats and insults against the bet on 24.07.2007, accused H. on 30.09.2007, accused H. on 20.09.2007, accused H. on 20.09.2008.B.for the acquittal of the charged crimes, e. D.on the other hand, it was decided that his conviction for both crimes and the disclosure of the provision about him should be left undone,
On the day of the incident, the victim’s line 0 539 was called from an undetected number at 20:34,
At 20:39 on the same day on the victim’s line 0 539, defendant H.he called 0 538 and they had a 13-second conversation,
In addition, the defendant H. at 12:08 on the victim’s 0 539 line on the same day.he sent a message to the line 0 538, which he uses,
Participating F.S. in a nutshell; >,
Witness D. D.in summary; , he did not give names. He washed the clothes himself at the tap, put them in the attic dec dec and took them out of there and threw them in the trash, because they couldn’t find the shirt there during the search> format,
Witness S. K. in a nutshell; >,
Witness Y.D. in summary; format,
Witness N.B. in a nutshell; , Mehmet said , even Enough > in the form,
Witness L.Sh. in a nutshell; .
Defendant M. in summary; he said. He took me down in front of my house. This is my brother C.he was at the house of his wife, Y.i got the rifle from the. I also got the bag of firecrackers. This rifle was firing flares with 9 large ridiculous grains. Meanwhile, Y. he told me that my brother and uncle were cooking fish on the beach. So I thought I’d go to them. I took the shotgun and two firecrackers and went downstairs. H.I gave it to E. H. he put these in the trunk. I said. And he said, I’m coming too. We went to Irmak Village together. There was my uncle’s house there. My Brother C. together with my uncle H.B. they had a barbecue. We stopped eating fish because the barbecue was not lit yet. H. we decided to walk along the beach together. E… Near your hotel, E.’we’ve seen it, we’ve stopped. E.H.’e he said. H. he said, “I was busy, I couldn’t make it.” Then he got into our car, although 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 drank beer together and went towards Kapusuyu Village. We checked to see if he was drinking. Seeing that it was not, we decided to return to Cide. After arriving at the village of Kalafat in the district of Cide, e. he told me I was drunk, that I should wash my hands and face. So I washed my hands and face. Later, e.’la H. they had a bit of an argument. They were arguing about dropping the complaint. I told them not to do it like this, if they do it like this, I’ll leave. I passed out because I was too drunk at the time, they put me in the car. E. In the Vehicle he woke me up with a slap. He told me . H.he was leaning against the trunk of the car, looking at us. At that time, E.H.he walked towards and retreated. Because it’s dark, H.I don’t know if he had a gun in his hand, and the gun went off twice in a row, E. he collapsed. There was a cliff where it collapsed, and it rolled down from there. I I said. And he said to me, let’s go, let’s go quickly. H.I didn’t notice the rifle in his hand, because it was dark and I was drunk, but I know he put it in the trunk. H. he told me >,
Defendant H., who stated that he did not accept the charge in his defense at the investigation stage. in summary in court; . And I didn’t want him to get in the car because he was drunk. He was losing it when he drank it. Persistently, he also got into the car. We went to the Kapusuyu location, searched the drinking restaurants there. When we couldn’t find it, we went back to Gideros Hill. And there we had a beer, we argued, he insulted me, the reason for our quarrel was to withdraw my complaint. He was telling me to take my complaint back, but he was insulting me, using words like . We went down to the fountain. And there he swore at me, and 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, fainted. We carried him to the car, then E.’we continued to argue together, he was saying that if I didn’t get my complaint back, he would cut me off or something, and he was also saying insulting words like . So I nervously grabbed the gun in the car and fired. I fired twice. Meanwhile, E.’dec’s face was turned to me, I don’t know how much distance there is between us. There was a distance of about 5-10 meters. E. it rolled. We were at the fountain at the time. This fountain is located in Gideros. E. it rolled down from a place like a slope, where we were was a place like a slope. I didn’t look if he was dead or not and I told Mehmet . We got in the car and went home. M.I didn’t tell e anything about not telling anyone. E. he didn’t call me before I saw him on the beach, so I didn’t call him>, It is understood.
Whether the defendants committed the crime of premeditated murder by designing;
In some crimes, , which is regulated as an aggravating factor, is not described in the Turkish Criminal Code, and this issue is left to teaching and practice.
28.04.1998 day and punishment of the General Assembly of 117-155, 239-247 13.11.2001 and day, day and 03.10.2006 30-210, 15.12.2009 200-290 and day, day and and day with the decision of 02.02.2010 239-14 16.02.2010 251-25 as it is accepted in a private apartment with the decision of the resident, designing, Caste Caste belongs to remain outside and thought of the type of sudden. Although its legal nature is controversial in the teaching, according to the non-stop practice of the Supreme Court, in order to be able to mention the design:
1- The perpetrator steadfastly and unconditionally decides to take action against the right to life or the integrity of the body of a person,
2- The perpetrator does not give up this decision despite the fact that a reasonable period of time has elapsed before committing the crime he has thought about and planned, and despite the spiritual calm he has achieved, he begins to perform his act with perseverance and persistence,
3- The perpetrator must perform the act that he plans to perform within the established fiction.
In the case of designing, the perpetrator does not make an instant decision and commits the act, and a sufficient period of time passes between the decision to commit the crime and the execution of the act so that he can think decently. During this period, the perpetrator thinks about whether he has committed the crime or not and does not stop committing the crime. There can be no mention of the fact that the perpetrator ceases to commit the crime and, but for another reason and with another sudden decision, designs it in his actual act. It should be determined by the available evidence at what level and when the decision to commit a crime was made for the act and how long the act was committed after this non-conditional determination, and it should be assessed whether spiritual calm can be achieved within the time frame between the decisiveness and the act.
In the light of these explanations, the subject of the dispute is evaluated;
Acting together with the defendants, E.S.the fact that they intentionally killed is certain in a way that does not give any doubt, and in an event where there are no eyewitnesses, it is necessary to determine whether the defendants committed the crime of intentional killing by designing or not 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, the purpose of which is to reveal the material truth, is the principle (in dubio pro reo). The essence of this principle is that the suspicion of any issue that should be taken into account in terms of punishing the defendant in a criminal case is assessed in the best interests of the defendant. This rule, which has a fairly wide scope of application, applies if there is doubt about whether a crime has actually been committed or, if it has been committed, the way it was committed, as well as the circumstances of the case.
As stated in the decision of the local court, the victim’s friend, witness L. together with the accused H. A month and a half before the incident.there was a animosity between the parties due to the fact that they had beaten, but the decedent’s mother was F. according to the testimony of some witnesses, especially the victim and the defendant H.it dec understood that they reconciled after the previous incident, and even got together several times and had fun together. Although the defendant by the local court is H.although it has been suggested that he planned to take revenge on the victim and kill him, for this purpose he gained his trust by pretending to make up with the victim, telephoning the victim on the day of the incident and calling him to them, first of all, according to the phone records found in the file, the defendant H. he never called the victim on the day of the incident, on the contrary, the victim was accused H on the day of the incident.he called me on the phone and sent me a message the same day. Given all these considerations, on the day of the incident, between the defendants and the victim, the victim’s decedent was H.the defendant in the lawsuit filed for the beating of H.after a discussion about whether to withdraw the complaint of the defendants, E.S.it is understood that they shot and killed the accused with a rifle, and the defendants had the right to E.there is no sufficient evidence in the file for any kind of doubt, certainty and conviction about when they decided to kill persistently and unconditionally, whether they did not abandon the decision to kill despite the spiritual calm they achieved and carried out these decisions.
Therefore, considering that the conditions sought for the existence of the design did not occur in the concrete event, a conviction for intentional homicide should be decided about the defendants in accordance with the decision to disrupt the Private Apartment, while the local court should decide that the provision of resistance should be overturned for this reason, since there is no hit in resisting the old provision.
Defendant H. as for the consideration of the issue of disagreement on whether the conditions for the application of unfair driving provisions have been established in terms of;
Unfair incitement is a violation of Article 29 of TCY No. 5237. article: in the form of criminal responsibility as a reason to reduce arranged.
Unfair incitement refers to the perpetrator committing a crime by acting under the influence of anger or violent elements caused by an unfair act, in which case the perpetrator is directed to commit a crime as a result of confusion caused by outside influence in his spiritual structure, without making a decision in advance in the direction of committing a crime.
For the enforcement of unfair driving provisions;
a) There must be a wrongful act that constitutes a drive,
b) The perpetrator must remain under the influence of anger or violent selection,
c) The crime committed by the perpetrator must be the reaction of this spiritual state,
d) The act that constitutes unjustified incitement must be loyal to the victim.
Law No. 5237, No. 765 tcy driven in heavy-light propulsion, and put an end to the discrimination of the actual event that constitutes incitement by the judge according to the characteristics of the concrete and the evaluation is done by considering the effect of the will of the defendant between the two limits shown in the article be made at a discount rate specified-shaped arrangement are provided.
As it is accepted in the established judicial decisions, if both the perpetrator and the victim commit mutually unfair acts, as a rule in the practice of incitement, the perpetrator who incites the victim by an unjust act cannot claim that he is under incitement due to the reaction he faces. However, if the reaction he was subjected to has become excessive compared to the action he committed, in other words, if there is a clear disproportion in the reaction, it should be recognized that this reaction is an unfair incitement from the point of view of the perpetrator, since it now takes on an unfair nature in itself.
Considering the concrete incident in the light of these explanations and the evaluation of the number one dispute issue; In the decision to disrupt the Private Apartment, the accused of the victim and his friend a month and a half before the murder incident H.defendant H. For wounding me with a beer bottle and a knife. although it was stated that the provisions of unfair incitement should be applied to him, as agreed by the Special Department, defendant H. and in the face of the victim’s understanding that they reconciled after this incident, defendant H. on the basis of this incident, it is not possible to apply unfair driving provisions.
However, defendant H. in the discussion between the decedent and the victim, which is understood to have occurred before the murder incident, the defendant H. said that the victim had made threatening and insulting remarks to him.with the defense of the defendant M.since the statements of the , which confirm this defense, cannot be proven otherwise, the defendant H. judging in his favor, defendant H.for this reason, unfair driving provisions should be taken advantage of.
Accordingly, the local court has decided that the provision of resistance, defendant H. it should also be decided that it will deteriorate due to the failure to observe that unfair driving provisions should be applied to it.
The six Members of the General Assembly who disagreed with the majority opinion voted against it with the opinion that .
Conclusion: For the reasons described;
1- Despite the fact that the provision of resistance dated 28.04.2011 and numbered 10-26 of the Inebolu Heavy Criminal Court, the nature of the crime was incorrectly determined and the circumstances of the defendant H. non-application of unfair driving provisions about the DETERIORATION of the,
2- The file was transferred to the Prosecutor General’s Office of the Supreme Court for sending to the scene, it was decided by a majority vote at the negotiation held on 12.06.2012. (¤¤)
