Decision On The Application Of Unfair Provocation In The Case Where It Cannot Be Determined Who Committed The First Unfair Attack
Decision of the Criminal General Assembly of the Court of Cassation dated 4-238 E. /367 K. 22.10.2002
SUMMARY:
Apart from the conflicting statements of the defendants, who committed mutually effective actions against each other and were injured as stated in the medical reports, it is clearly seen that it is not possible to determine which of the defendants committed the first unjust attack and who started the fight.
(765 S. Code Art. 51, 59, 456, 457)
Case:
The defendant Mehmet Alinin for the offence of effective action in accordance with Articles 456/2, 457/1, 59 of the Penal Code sentenced by Elazıg 2nd Criminal Court of First Instance on 7.11.2000 with the numbers 286-587 Upon the appeal of the judgement by the defendant, the Court of Cassation 4th Criminal
Chamber on 24.04.2001 with the number 3796-4780 According to the defence of the accused which could not be proved otherwise, the complainant Mehmet the application of the provisions of unjust provocation in favour of the accused for swearing by cutting off the water of the field the judgement was reversed due to the injustice of making a decision without discussing whether it would require or not
was given.
The local court, on the other hand, with the number 369-443 dated 18.9.2001, stated the following provocation is a provocation that causes the perpetrator to commit an unlawful act under the influence of the fury or violent action caused by the unlawful act. is defined as committing an offence. In order for Article 51 of the Penal Code to be applied, the act of wrath or the righteous act is committed under the influence of the depression and fever and this is caused by unjust provocation the accused must have been guilty of an offence.
However, in our concrete case, which is determined to have occurred in the manner stated above, the accused has been subjected to wrath or justified It cannot be said that his action was under the influence of depression and fever. Because there was no allegation and all
In the light of the statements, the water coming from the arc used by the accused to irrigate the land was used by the other accused the fact that the animals were slaughtered is not established. When the accused saw the other accused with a herd of animals, he asked the other accused he shouted without any influence, he shouted and asked the accused to lead his flock away, again without any influence from the accused himself. even in his defence in our court, the other defendant said, “What are you blabbering about? he committed the effective act with the weapon subject to the judgement. In other words, the other defendant Mehmet
that he had been cut off by the accused. Response and reaction to his shouted reprimand beyond being told what you are blah blah blah, he was sworn at and insulted. is not.
In this case, the application of the provocation provisions in favour of the defendant was not deemed possible and in paragraph 5 of the section on evidence and assessment of the judgement, it is stated that in the case of both defendants
the justification and determination has been made that there is no legal mitigating reason in the sense of provocation. resisted the previous judgement.
Upon the appeal of this decision by the defendant, the case was referred to the Court of Cassation sent to the First Presidency with the notification dated 12.7.2002, the General Assembly of Criminal Offences read, duly discussed and deliberated:
Decision
In the concrete case where the defendant was sentenced for the offence of effective action, the dispute between the special chamber and the local court centres on the determination of whether the provocation provisions can be applied to the defendant.
According to the examined file contents;
On 21.5.2000, in the report of the scene of the incident, upon the report of the headman of K. Village, Selami, that there was a fight by telephone, it was observed that the quarrel between the defendant Mehmet Ali, who irrigated his garden by carrying the water from the water source in the upper part of the village through the earthen canal, and Mehmet, who wanted to get water from the same place, turned into a fight, the defendant Mehmet Ali hit Mehmet with a shovel and Mehmet, who was injured, was taken to the hospital, and the defendant Mehmet was taken to the hospital.
It was stated that Ali was found at the scene with a wound on his head and the shovel used in the incident was seized and the report was signed by the village headman Selami and the accused Mehmet Ali. As a result of the preliminary investigation, a public case was opened against the accused Mehmet Ali and Mehmet for their alleged mutual offence of committing an effective action. In his statement taken by the police, the defendant Mehmet Ali stated that in the morning he was watering the garden to the east of his house and at around 10.30 a.m. Mehmet from the same village drove a herd of animals to the pasture above his house.
When he asked him why he did this, he said that he was going to water his animals, when he asked him not to use the water channel, he responded with swearing and used a shepherd’s stick in his hand.
He stated that Mehmet hit him on the head with a shovel, that he hit him back with the shovel in his hand, that they hit each other, that his nephew Okta came and separated them, that Mehmet had a grudge against him before and that he was the complainant.
In the hearing, when he realised that the water was cut off while watering his garden on the day of the incident, he saw that Mehmet had turned the water off and said, “Why did you cut off the water, you should have cut it off after I watered my garden”, this person said, “What are you blabbering about? He said, “What are you blabbering about?” and hit him with the stick in his hand, took out a pistol from his waist and tried to put a bullet in his mouth, he swung the shovel to prevent him and to drop the pistol in his hand, he did not know where it hit him, his son took the gun that fell to the ground and ran away, he said that he and the other defendant
He stated that they continued to fight, that the defendant Mehmet only said to him that he was blabbering and that he did not say anything else, and when asked about the reason for the contradiction by reminding his statement to the police, he stated that his statement in court was correct and that there had been no quarrel or fight between them before.
The complainant Mehmet, whose conviction was finalised for the offence of simple effective action against the defendant Mehmet Aliye, stated that he went to the pasture to graze his animals on the morning of the incident, that the defendant Mehmet Aliye shouted at him to drive the cattle away, that he was harming me, that there was no water dispute between them, that he had a bag of salt with him to give to the animals, that he did not carry a shepherd’s stick, that the defendant Mehmet Alinin had a shovel in his hand, that he was injured in his arm when he raised his arm for protection when he was going to hit his head, that the defendant Mehmet Alinin’s nephew Oktay held him when he wanted to escape before he was hit, that he did not hit the other defendant at all.
He stated that he withdrew his complaint after the judgement was rendered.
It is understood that the witnesses Önder and Meryem, who are relatives of the parties, do not have any information about the incident.
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