Attempted Manslaughter – Threat – Violation Of Residential Immunity At Night Petition
…PRESIDENCY OF THE HEAVY CRIMINAL COURT
CASE NO:
SUSPECTED VICTIM :
AGENT :
CRIME :
Attempted Manslaughter – Threat – Violation of Residential Immunity at Night.
DATE OF CRIME :
DATE OF ARREST :
Brief Presentation of the Incident: E.S., one of the suspected victims, is the son-in-law of my client, while their marriage union was continuing, as a result of the deterioration of their relationship with the client’s daughter and the incompatibilities experienced, he left the house of my client’s daughter and started to stay at the client’s house, in fact; E.S. ‘s marital relationship, within the framework of these relationships, the client F.K. and his wife have always and on every occasion mediated and reconciled, and have been constructive for the marriage to work, but as a result of the events caused by the suspicious victim E.S. due to his irreconcilable and unchanging personality structure;
While my client was staying at his daughter’s house, the suspected victim E.S. came in front of my client’s house at night and on the day of the incident around 02.00 in an alcoholic state, damaged my client’s vehicle by hitting it with a hard object in different parts, and then headed towards my client’s house and headed towards the stairs, in the meantime, my client said to himself and his wife C. K. with insults and threats such as “I will kill your mother, I will kill you, I will not let you live”,
acting with the thought and intention of harming my client and his family, he tried to enter the house, while my client’s wife C.K. tried to prevent the suspected defendant E.S. from entering. ‘s attempt to prevent the suspected defendant E.S. from entering the house, he threw him towards the stairs by pushing him with the iron bar in his hand and as a result of this, C.K. fell to the ground and some abrasions occurred on his body, and following this, the suspected defendant E.S. ‘s actions caused by the suspicious defendant E.S. Due to the fact that his grandchildren,
who were sheltering in my client’s house due to the actions of the suspicious defendant E.S., entered into a great panic saying “Grandfather will kill us” upon seeing the events, it was understood that my client, with the thought of repelling a possible attack and protecting family members, shot the suspicious defendant E.S., who was mobile with his gun with a possession license, from a very close distance without targeting in order to deter and scare him from his action, whereupon the suspicious defendant ran away.
As a result of the preparatory investigation conducted by the Karşıyaka Chief Public Prosecutor’s Office, a public case has been filed for the punishment of my client in accordance with Articles 81, 35/2, 29, 53, 54, 63 of the new Turkish Penal Code.
OUR DEFENSES REGARDING THE CASE AND REASONS FOR REQUESTING RELEASE:
A- Evaluation of my client’s action in terms of legal defense conditions:
If we evaluate my client’s action as we summarized the incident above, within the framework of the minutes in the file and the determinations made, the suspected defendant E.S. As it can be understood from the alcohol report, the suspect defendant E.S. came to my client’s house in an alcoholic state and damaged his vehicle, not content with this, he entered my client’s house in a concentrated intention and started to climb the stairs, upon being prevented by my client’s wife, he was neutralized by being pushed with a hard object, but; it is clear and obvious that my client fired indiscriminately with his licensed gun in order to repel the unjust and existing attack, without harming the other complainant defendant, in order to break and frighten his action.
Considering the statements of the complainant defendants in the file and the witness statements heard, when my client’s action is evaluated, it is clear that his action was taken within the conditions of legal defense.
As it is known by your court; the necessity of defense must be determined according to the characteristics of each case. What is important is the existence of an attack that has started and has not yet ended.
In this respect; there is an act of the complainant defendant E.S. that has not ended and continues the attack in a determined action, and in terms of legal defense, there is a concrete attack by the complainant defendant E.S., which has not yet ended.
In this case, we are of the opinion that no penalty should be imposed as there is necessity in my client’s action. My client took action to protect himself and his family members from a possible danger due to an unjustified attack.
As stated in the case law of the Criminal General Assembly of the Court of Cassation dated 09.06.1998 and numbered 1/120-210, “In order to accept the legal defense (self-defense) regulated in Article 49 of the Turkish Criminal Code; there must be a material and unjustified attack, the attack must be directed against the soul or rape, the defense and the attack must be at the same time, the defense must be made while the attack continues, the defense must be compulsory, and there must be an appropriate ratio between the attack and the defense according to the subject of the attacked right and the means used. Understanding the existence of the attack in a broad sense, it is obligatory to consider an attack that is certain to begin as having begun, and an attack that is feared to be repeated even though it has ended as not yet ended.
The necessity of defense must be evaluated by taking into account the concrete characteristics of each case. The perpetrator who is attacked cannot be obliged to flee and cannot be asked to escape. It cannot be taken into consideration whether the perpetrator has the possibility to escape or not. Moreover, in order for the provision on legal defense to be applied, it is not necessary for the attacked person to be the perpetrator himself, and it is possible for the conditions of legal defense to be realized in case a third person is attacked. ” clearly and clearly supports that my client legitimized his action and carried out his action within this framework.
Undoubtedly, your Honorable Court will appreciate whether the conditions of legal defense are met in my client’s action, taking into account the nature of the incident.
B- Evaluation of my client’s action in terms of provocation:
In the face of the fact that the unjust provocation, the existence of which is not disputed in the incident, occurred long before the moment of the incident, that the other suspect defendant, after damaging his vehicle with an iron bar, climbed the stairs, attacked the client’s wife who wanted to prevent the incident and pushed her to the ground, and continued his continued actions in the same way, under this effect that he created in my client,
It has been understood that my client fired without targeting the other suspect defendant in order to protect himself and his family in order to prevent a more severe action against his household and himself, however, due to the fact that the unjust and unlawful acts committed by the other suspect defendant against him and his family came from the victim, we think that it would be fair to apply the maximum discount rate of Article 29 of the TPC No. 5237 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 incident. We believe that your court will evaluate my client’s state of mind and his action in this state of mind in a way that best suits justice. As stated in the case law of the Criminal Board of the Court of Cassation dated 21.04.1998 and numbered 1/3-139, “…. The mental state of the accused must be taken into consideration. Paragraph 1 of Article 51 of the Penal Code stipulates that the offense is committed under the influence of anger and severe grief caused by an unjust provocation, and the second paragraph regulates the cases where the unjust provocation is heavy and severe.
With the article, it has been accepted that the provocation may be light or heavy, but it has been left to the practice by not showing the measure and the criteria to distinguish from each other…. the event that caused the crime to be committed; If the event that caused the crime to be committed causes a severe elimination and a great anger on the mental structure of the defendant and reaches significant dimensions in terms of its nature and the way it was committed, there is an unjust, severe provocation.” We hope that the Court will evaluate this issue, as the appearance overlaps with the action of our client.
When all the evidence in the file is evaluated together; The other complainant defendant E.S. came to my client’s house at night in an alcoholic state and damaged my client’s vehicle by hitting various parts of it and continued his actions, gradually harming my client’s wife, not content with this, the complainant defendant E. ‘s actions by continuing his heavy swearing and threats, in this respect, it is clear that in the event that the client is sentenced in the future, the referral articles regarding the provocation provisions in Article 29 of the new Turkish Penal Code will be applied to him.
The Prosecution has also requested the application of this article for my client.
As it is known, according to the well-established case law of the 1st Criminal Chamber of the Court of Cassation and the Criminal General Assembly of the Court of Cassation, in order for the provisions of unjust provocation to be applied,
a- The occurrence of an act constituting provocation,
b- This act is unjustified,
c- The perpetrator was under the influence of anger or severe grief,
d- The offense committed by the perpetrator is a reaction to this state of mind,
e- The act constituting unjust provocation is committed 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 constituting the provocation.
We believe that all these conditions have been fulfilled in our case with all their elements.
As explained, we believe that Article 29 of the new Turkish Penal Code will be applied to our client by considering the margin and rate of appreciation, with the belief that your court will undoubtedly evaluate it in the best way.
C- Evaluation of my client’s action in terms of the element of intent:
When all the evidence obtained during the preliminary investigation, the reports in the file, the statements of my client and the other complainant defendant, and the witness statements are evaluated, we believe that my client, within the conditions of legal defense and under the influence of heavy provocation, shot with the intention of intimidating the other complainant defendant in order to make him give up his action and to eliminate a possible attack.
However, your Honorable Court’s acceptance is based on my client’s intent to commit a crime, and if it does not evaluate it in this way, it is clear that my client’s act was intended to injure.
As explained in the doctrine and established case law of the Court of Cassation;
“Although intent is essentially related to the inner world of man, it is tried to determine the intent according to the objective events and facts that appear in the external world. In the legal systems of foreign countries, intent is determined with similar criteria.” (Ayhan Önder, Crimes Against Persons and Property, Istanbul 1994,)
“In the identification of the moral element in human behavior, especially in crimes against the person, it is necessary to treat the objective data, which by their nature are best suited to determine the intent of the perpetrator, as tests to reveal intent, and to look at the content of the act, the manner in which it was committed and the consequences it produced, without regard to the speculations of the accused, which may be varied and intended to conceal the real intent” (Italian Court of Cassation, 22.02.1989, E/Ö Erman, 24, from note 43)
We consider it useful to make an explanation based on judicial decisions at the point of determining intent in order to shed light on the case.
With this thought;
“The behavior of the perpetrator before, during and after the incident should be taken as a measure in determining the intent. According to the established decisions of the Court of Cassation, the main criteria that distinguish the crimes of attempted manslaughter and wounding from each other are the cause and nature of the animosity between the perpetrator and the victim, the nature of the assault tool used by the perpetrator in the crime, the number of shots or blows and the distance, the location, quality and quantity of the wounds inflicted on the victim’s body, the possibility of choosing a target, the flow and cause of the event, and whether there is an obstacle to the occurrence of the crime that the perpetrator intended to commit against his will.” (CGK 14. 12.1999, 1-278/308; for this and other decisions on this subject see Meran, 363 et al.)
“If the cause of an act, the defendant’s coming to the scene in preparation, the voluntariness, quality and severity of the act, the type of the means used in the offense, 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 result”, it is necessary to accept that the perpetrator acted with the intent to kill. ” (CGK, 06.02.1996, 1-380/4; CGK, 09.06.1998, 1-126/218.) (Source: Kasten Öldürme Suçları, TCK 81-82-83, Assoc. Prof. Hakan Hakeri, Sh, 31, Seçkin Publishing House, Ankara, 2006)
Likewise, within the framework of the case law of the Court of Cassation, which we will list below, it is indisputably clear that my client’s action was intended to injure.
“If, despite a large number of blows, they are less effective, the intent to kill may be rejected. In a case where the perpetrator stabbed the victim seventeen times with a knife, the Court of Cassation ruled that there was no intent to kill because the perpetrator did not continue his act despite the absence of a 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 even though he is near the victim may indicate that he does not intend to kill. ” (1ST CD. 25.03.1970, 2445/1308.)
“How the incident developed and ended is also important in determining intent.” (CGK 19.1.1970,, 596/19)
“The fact that the perpetrator did not continue to fire despite the opportunity can be considered as intent to injure.” (CGK 03.04.1990, 418-872)
Within the framework of all these explanations, the suspect defendant E.S., who is the victim of the incident, stated in his defense dated 15.01.2006 before the Karşıyaka 1st Criminal Court of Peace, ” … there were about 2 meters, he fired 6 times in the air with the pistol in his hand, one of the bullets grazed me under my left breast and then the same bullet grazed my left arm, he did not shoot to kill me. If he wanted to kill me, he could have killed me because the distance between us was very close, I believe that the plaintiff’s aim was to scare me”, in his statement given in the heat of the event, explains beyond any doubt that my client’s action manifested in this way.
D-Our assessment of the existence of doubt 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 based on the material evidence, all evidence must be conclusive and convincing in order to form a conscience. In addition, if the intent of the perpetrator cannot be determined beyond any doubt, the universal rule of ‘the accused benefits from the doubt’ must be applied.
“According to the principle that the accused benefits from the doubt, which is accepted in every state of law and is closely related to the presumption of innocence, an acquittal decision will be given if, at the end of the criminal proceedings, it is not 100% certain that the act was committed by the accused (Constitution Art. 38/4., Universal Declaration of Human Rights Art. 11, European Convention on Human Rights Art. 6/2, Covenant on Civil and Political Rights Art. 14/2). The reason for the adoption of such a principle is that the impunity of a guilty person is preferable to the conviction of an innocent person; in other words, the presumption of innocence” (Criminal Procedure Code Justice Commission Report).
The principle of “the accused benefits from the doubt” is a rule of proof that is valid in criminal procedure law and is not stipulated in writing in our legislation. Accordingly, in order to convict a person who is being tried for allegedly committing a crime, it must be 100% certain and proven that the person has committed that crime. Even 1% doubt on this point leads to the acquittal of the accused. Thus, the release of a guilty person is considered superior to 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 or not, that is, to decide on the issue of proof.
The jury is composed of 11 members, and in order for a person to be found guilty of a crime, all 11 members must be convinced that the accused committed the crime. If 10 members vote that the accused committed the crime, but one member votes that the accused did not, the accused is acquitted. This example shows that the defendant should be acquitted because the doubt is not overcome by 100%.” (Source, Kasten Öldürme Suçları Doç. Dr. Hakan Hakeri, Seçkin Yayınları, Ankara, 2006)
The rule that the accused benefits from the doubt is not limited to cases where a verdict of acquittal is required. This rule must be applied if there is a doubt between the intent to kill and the intent to injure (Mustafa Avcı, Measures to Distinguish the Moral Elements of the Offenses of Intentional Killing and Intentional Injury, Khuka 1, Sh. 86-98, 2005) As a matter of fact, there are decisions of our Supreme Court of Cassation that shed light on this idea.
“It is common practice to interpret the doubt regarding intent in favor of the defendant” (1st CD, 02.10.2001, 2064/3474).
“The fact that it is not clear that the defendant fired at the victim Mustafa with the intent to kill, that the statements in this direction are contradictory in the trial phases, that Mustafa himself stated in his statement taken by the prosecutor’s office that “if he had gone up on the wall and fired, he could have killed me”, that the defendant did not prefer a firing suitable for killing, and that the discovery made at the scene both in the investigation and prosecution phase,
In the face of the fact that he did not clarify that the bullet hit the wall behind which he took shelter, considering the basic principle that doubt will be interpreted in favor, instead of punishing the defendant Z with the acceptance that his action against the victim M was a complete attempt to wound with a weapon, the conviction of attempted manslaughter by evaluating the unresolved doubt against him” was made a reason for reversal (1 CD. 22.10.2003, 380/2465).
Likewise, the 1st Criminal Chamber of the Court of Cassation reiterated the same opinion in its case law dated 05.03.2003 and numbered 4223/168.
“In the face of the fact that each defendant, who targeted each other with mutual shots fired in a crowded environment in broad daylight at close range, which does not exceed a few meters and according to the first determination is defined as five meters, failed to hit his opponent, based on the uncertainty created by the fact that these bullets were not lodged in any ground in the back place, and based on the fact that it is not clear which part of the opponent’s body they were aimed at, to accept the action of each defendant as wounding and to accept the action of each defendant as wounding and A. ‘s acting in accordance with the law within the scope of self-defense” (1st CD, 5.3.2003, 4223/168).
In the light of our explanations, considering the absence of a prior animosity between my client and the other suspect, the number of blows to the complainant, the number of blows to the defendant, the fact that he was mobile, the moment of the incident, the attack to which he was exposed, we believe that my client’s action should be accepted as an attempt to injure, within the framework of the reasons we have tried to explain.
E- Reasons for Requesting Release:
1-) In the context of the evidence obtained, our client’s defense, which has not been proven otherwise, and other evidence supporting it, we think that the nature and nature of the crime may change with great probability.
In this respect, taking into account the regulatory provisions regarding the limitation of arrest in Article 100 of the new Criminal Procedure Code, trial without arrest has become the rule,
2-) As of the stage the trial has reached, all the evidence has been collected, in this respect, the possibility of my client to influence the evidence, to obscure the evidence, to steer the trial in another direction has disappeared,
3-) Considering the fact that detention is a precautionary measure and that these conditions have disappeared;
As a result; taking into account the current legal regulations and the regulatory provisions of the new Turkish Penal Code and the new Criminal Procedure Code, as well as the discretionary provisions brought by Article 100 of the Criminal Procedure Code to your Honorable Court, I request that my client, the suspected defendant F.K., be released with a bail or unconditional release to be deemed appropriate by your Court.
Sincerely yours …
Suspected arrested defendant
Deputy
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