Court Of Cassation Decision On Unjust Provocation

Court Of Cassation Decision On Unjust Provocation

Court of Cassation Decision – 1st CD, E. 2017/2613 K. 2019/2290 T. 16.4.2019

– underage
– Threat
– intentional killing
– legitimate defense
– unjust provocation
– insult

COURT :
Serious Criminal Court

CRIME :
Premeditated murder, concealing evidence of a crime

JUDGMENT :
1-) 4 months imprisonment and deferment of the announcement of the verdict against the child dragged into crime … in accordance with Articles 281/1, 31/3 of the TPC, 231 of the Code of Criminal Procedure and 23 of the Law No. 5395

2-) Acquittal of the child dragged into the crime … since it is established that he did not commit the offense of intentional killing, pursuant to Article 223/2-b of the Code of Criminal Procedure,

3-) 10 years imprisonment sentence for the child dragged into crime … pursuant to Articles 81/1, 29, 31/3 of the TCC,

4-) Acquittal of the defendant … for the offense of intentional killing pursuant to Article 223/2-e of the Code of Criminal Procedure.

ON BEHALF OF THE TURKISH NATION
With the petition dated 03.09.2018 submitted by …, the father of the child dragged into crime …, it was requested that the sentence against his son … be upheld; however, since …, who has turned 18 as of the date of the petition, has no will in this direction, it was decided to reject the request of …; since the attorney for the participants was not authorized to appeal the verdict established for the crime of concealing the evidence of crime against the child dragged into crime …, it was decided to reject the appeal request of the attorney for the verdict established for this crime in accordance with Article 317 of the Code of Criminal Procedure. Accordingly, the review was limited to the appeal requests of the defenses of the child dragged into the crime … and the defendant … and the attorneys of the participants.

The collected evidence was examined at the decision, the crime of intentional murder of the deceased … by the child dragged into the crime was accepted, the nature of the crime was determined in accordance with the occurrence and the results of the investigation, the existence of unjust provocation without prejudice to the reasons affecting culpability and the nature and degree of the reasons affecting culpability regarding the minority of age and the reason for discretionary reduction were appreciated, the defense was rejected with convincing reasons, the child dragged into the crime … and the defendant … It has been accepted and appreciated by showing the grounds that the evidence obtained from the crime of intentional killing against him is not of sufficient quality and degree to convict in accordance with Article 223/2-e of the Code of Criminal Procedure No. 5271, and since there is no inaccuracy in the judgments given according to the examined file, except for the reason for correction and reversal, the participant’s attorney … … and … should be convicted, the self-defense and discretionary discount provisions of the defense of the child dragged into crime … should be applied, and that there was a heavy provocation and other objections of appeal that are not deemed appropriate are rejected,

1-Failure to observe that the acquitted defendant … should be awarded an attorney’s fee in his favor in view of the fact that he represented himself with a power of attorney in the hearings, although it is contrary to the law, since this issue does not require a retrial, since the appeal of the defendant …’s defense counsel limited to the attorney’s fee is therefore deemed appropriate, based on the authority of Article 322 of the Code of Criminal Procedure, it was added to the specific section of the paragraph of judgment as “since the acquitted defendant … represented himself with a power of attorney. Based on the authorization in Article 322 of the Code of Criminal Procedure, the acquittal verdict and the acquittal verdict against the child dragged into crime … with the acquittal verdict CORRECTED by adding the phrase “since the acquitted defendant … represented himself with a power of attorney, according to the Attorney Minimum Fee Tariff in force on the date of the verdict, the 3.000 TL fixed attorney fee shall be taken from the treasury and given to the acquitted defendant …” to the private section of the verdict paragraph, shall be APPROVED as the opinion in the notification,

2-In the examination of the conviction of the child dragged into the crime … for the offense of intentional killing;

According to the facts, the scope of the file and the court’s acceptance, the deceased insulted and threatened the defendant by calling the defendant by phone during the day…. In the incident where the defendant, who saw the deceased in the transformers next to the mosque, directly attacked the deceased with a knife upon seeing a shiny object in his hand according to his defense that could not be proved otherwise, and caused his death with 17 stab wounds, 6 of which were lethal on their own; considering the extent of the words and behaviors directed from the deceased to the defendant, which constituted unjust provocation, the 29th article of the Turkish Penal Code, which regulates the application of unjust provocation, which stipulates a prison sentence from 12 years to 18 years, was applied. Instead of determining the penalty from the upper limit during the application of Article 29 of the TPC, which regulates the application of unjust provocation, determining an incomplete penalty by sentencing 15 years imprisonment as written;

Since the appeal objections of the participants’ attorneys were deemed appropriate in this respect, it was decided unanimously on 16.04.2019 that the verdict be reversed in accordance with the opinion in the notification.

This decision, rendered on 16/04/2019, was duly and openly explained on 18/04/2019 in the presence of the Court of Cassation Public Prosecutor… and in the absence of the defendant… defense attorney…, who made his defense at the hearing.

 

Court of Cassation Decision – 3rd CD, E. 2019/5757 K. 2019/13955 T. 27.6.2019

– wounding
– legitimate defense
– unjust provocation
– insult
– exceeding the limit
– intentional injury

COURT :
Criminal Court of First Instance

JUDGMENT :
No penalty to be imposed

The judgment given by the local court was appealed and the documents were read;

It was discussed and considered:

In order for Article 27 of the TPC to be applied, first of all, there must be a right that can be protected by self-defense, the conditions regarding the attack must exist, the condition of “proportionality”, which is one of the conditions regarding the defense, must be exceeded by violating the limit in favor of the defense, the “exceeding the limit” must be caused by excusable excitement, fear or panic, and the conditions must occur, in the concrete case; In the concrete case, the victim, who saw the defendant arguing with a woman, intervened and insulted the defendant, the defendant told the victim to go away, saying that the woman in question was his wife, and when the victim grabbed the throat of the defendant, the defendant injured the victim with a knife he took out of his pocket and the 2nd Specialized Committee of the Forensic Medicine Institution. Specialized Committee of the Forensic Medicine Institution dated 16.04. 2014 dated 16.04.2014 and numbered 2663 of the 2nd Specialized Committee of the Forensic Medicine Institution, it is understood that the injury causing rupture of the spermatic cord in the right groin area and bleeding in the spermatic cord in the same area is a life-threatening situation and that the absence of the organ caused by the removal of the right testicle due to this injury is in the nature of the loss of the function of one of the organs, Considering the nature and location of the wound on the victim and the intensity of the defendant’s intention, instead of punishing the defendant for the crime of intentional injury under unjust provocation, it was decided that the defendant should not be sentenced by exceeding the limit in self-defense, which has no place of application in writing,

Since it required to be reversed and the objections of the Public Prosecutor of that place were deemed appropriate in this respect, it was decided unanimously on 27.06.2019, pursuant to Article 321 of the Code of Criminal Procedure No. 1412, which is in force with Article 8/1 of the Law No. 5320 amended by Article 33 of the Law No. 6723, that the judgment be reversed in accordance with the request.

Court of Cassation Decision – 1st CD, E. 2018/5387 K. 2019/270 T. 23.1.2019

– state of necessity
– intentional killing
– legitimate defense
– exceeding the limit

COURT :
Serious Criminal Court

CRIME :
Intentional Killing

JUDGMENT :
18 years imprisonment pursuant to Articles 81, 29, 53, 58, 54, 63 of the Turkish Penal Code.

ON BEHALF OF THE TURKISH NATION
In the examination made by deciding to reject the request of the participants’ attorneys, who do not have legal rights, for a trial review in accordance with Article 318 of the Code of Criminal Procedure;

The collected evidence was examined at the decision and it was concluded that the defendant … ‘s crime of intentional murder was accepted, the nature of the crime was determined in accordance with the occurrence and the results of the investigation, the defense was rejected with convincing reasons, since there was no inaccuracy in the conviction sentence given according to the examined file, except for the reason of reversal, the defendant’s sentence was excessive, discretionary discount provisions should be applied in his favor, the objections of the defendant’s defense counsel in favor of the defendant that the provisions of legitimate defense, exceeding the limit in legitimate defense, state of necessity should be applied and a verdict of acquittal should be given for the defendant, discretionary discount provisions should be applied, the provocation provisions should not be applied in favor of the defendant, and the objections of the participants’ counsel to the nature of the crime, which are not deemed appropriate, are rejected, however;

There was a quarrel between the defendant and the deceased one month before the incident subject to appeal due to pastry and tea service, and during the incident, the deceased came to the same workplace where the defendant worked and addressed the defendant abusively and took a sharpened screwdriver called ‘miz’ in his hand and mutually attacked each other.

In the face of the fact that they were found, it was understood that the defendant was injured during the incident, without considering that a reasonable discount should be made in favor of the defendant due to provocation, the determination of excessive punishment for the defendant with the written application,

Since the appeals of the defendant and his defense counsel and the attorneys of the participants were deemed appropriate in this respect, it was unanimously decided on 23.01.2019 to VACATE the judgment in accordance with Article 321 of the Code of Criminal Procedure No. 1412 in force with Article 8/1 of the Law No. 5320 for this reason.

 

Court of Cassation Decision – 1st CD, E. 2019/2123 K. 2019/4429 T. 21.10.2019

– intentional killing
– legitimate defense
– exceeding the limit

COURT :
Criminal Chamber

CRIME :
Intentional Killing

JUDGMENT :
To dismiss the appeal against the 25-year imprisonment sentence pursuant to Articles 81, 62 and 53 of the TCC.

ON BEHALF OF THE TURKISH NATION
In the examination made upon the appeal of the conviction of the defendant … against the defendant … for the crime of intentional murder of the deceased … by the defendant’s defense counsel; Since there was no inconsistency in the decision of the 1st Criminal Chamber of the Istanbul Regional Court of Justice dated 24/11/2017 and numbered 2017/1026 E. 2017/934 K., the objections of the defendant’s defense counsel to the exceeding of the limit in self-defense and that the defendant did not intend to kill and the objections of the defendant’s appeal, which were not deemed appropriate, were rejected on the merits,

However;

According to the occurrence and acceptance, there were problems between the defendant’s wife …, who worked as a hostess in the same music hall, and the deceased …’s friend …, and the deceased, who worked in the same place, had an argument and swearing with … for this reason, and on the night of the incident, the defendant’s wife … and his friend …. and left the place, after a while the deceased …. got into his vehicle and started to follow the vehicle driven by the defendant, caught the vehicle of the defendant and stopped in front of the defendant, and when the defendant stopped, his wife …. … got out of the vehicle and attacked the deceased by running with a knife, the defendant who saw the fight and struggle between … and the deceased got out of the vehicle and got involved in the fight, during the fight with the deceased, the defendant hit the deceased in the abdomen with the knife in his hand, and the deceased died as a result of internal bleeding due to a 2.2 cm long sharp piercing instrument wound in the left upper quadrant of the abdomen due to a large vessel cut;

1- Considering that the defendant did not participate in the problems between his wife… and the deceased, did not intervene even though he knew about the problems on the night of the incident, and despite this, the deceased caused the incident by following the vehicle driven by the defendant and standing in front of it and getting into a fight with …, although his main problem was …, the defendant should be given a minimum reduction for provocation in accordance with Article 29 of the TPC,

2- Incorrect writing of the name of the first instance court, the merits and the judgment number in the title of the judgment,

Since the appellate objections of the defendant’s defense were deemed appropriate for this reason, it was decided unanimously on 21/10/2019 that the verdict be reversed in accordance with Article 302/2 of the Code of Criminal Procedure, and the file be sent to the Gebze 3rd Assize Court in accordance with Article 304/2-a of the same Law, and a copy of the Supreme Court of Appeal judgment be sent to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to the 1st Criminal Chamber of the Istanbul Regional Court of Appeals.

Court of Cassation Decision – 1st CD, E. 2018/5360 K. 2019/271 T. 23.1.2019

– wounding
– intentional killing
– legitimate defense
– exceeding the limit
– unjust provocation

COURT :
Serious Criminal Court

CRIME :
Intentional Killing

JUDGMENT :
10 years imprisonment pursuant to Articles 81, 29, 62, 53 of the Turkish Penal Code.

ON BEHALF OF THE TURKISH NATION
The collected evidence was examined at the decision and it was concluded that the defendant … ‘s crime of intentional murder was accepted, the nature of the crime was determined in accordance with the occurrence and the results of the investigation, the nature and degree of the reasons for reducing the discretionary punishment were appreciated, his defense was rejected with convincing reasons, and there was no inconsistency in the conviction sentence given according to the examined file, except for the reason for reversal, The objections of the defendant’s defense counsel that the defendant committed the act against the deceased within the limits of legitimate defense, exceeding the limit in legitimate defense, the nature of the crime, the objections of the participant’s attorney that there was no provocation in the incident, the nature of the crime, the discretionary reduction provisions should not be applied and the objections of the appeals that are not deemed appropriate are rejected, however;

Determining an incomplete sentence for the defendant by reducing the provocation from the highest level as written, without considering that a reasonable reduction of provocation should be made in favor of the defendant, taking into account the extent of the actions in the form of trespassing into the defendant’s residence and injuring the defendant, which were committed by the deceased and targeted the defendant and constituted unjust provocation,

Since the appeals of the defendant’s defense counsel and the participant’s attorney have been deemed appropriate in this respect, the verdict has to be reversed, and for this reason, the verdict has to be reversed in accordance with the number 5320.

It was unanimously decided on 23.01.2019 to DISMISS the defendant’s request for release, considering the nature of the reversal, the amount of the sentence imposed and the time spent in detention outside the appellate review, in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which was in force with Article 8/1 of the Law.

Court of Cassation Decision – 1st CD, E. 2019/3723 K. 2020/345 T. 5.2.2020

intentional injury
– wounding with probable intent
– attempted manslaughter
– Carrying a weapon without a license
– Threat
– wounding
– intentional killing
– legitimate defense
– mutual insult
– exceeding the limit
– firearm
– unjust provocation
– insult

COURT :
Serious Criminal Court

CRIME :
Intentional killing, wounding with probable intent, intentional wounding and aiding this crime, threat, insult, opposition to Law No. 6136.

JUDGMENT : 1- About the accused …;

a) On the charge of intentional homicide; 10 years and 10 months imprisonment pursuant to Articles 81, 29, 62, 53 of the Turkish Penal Code,
b) On the charge of wounding … with probable intent; imprisonment for 2 months and 15 days pursuant to Articles 86/2, 21/2, 62, 53 of the TCC.
c) On the charge of intentional injury to the victim …; Acquittal pursuant to Article 223/2-e of the Code of Criminal Procedure,
d) For the offense of insult against the victim … and the deceased; there is no need to impose a penalty in accordance with Article 129/3 of the TPC.
2- About the defendant ..;

a) On the charge of intentional injury to the victim …; 11 months and 7 days imprisonment pursuant to Articles 86/1, 86/3-e, 29, 62, 53 of the TCC,
b) For the offense of intentional injury to the victim; Articles 86/1, 87/3, 29, 62, 53 of the TCC
9 months and 10 days imprisonment.

c) On the charge of threatening the victim …; Acquittal pursuant to Article 223/2-e of the Code of Criminal Procedure,
d) For the offense of insult against the victim … and the deceased; there is no need to impose a penalty in accordance with Article 129/3 of the TPC,
e) For the offense of carrying a weapon without a license; acquittal pursuant to Article 223/2-e of the Code of Criminal Procedure.
3- About the accused ..;

a) 11 months and 7 days imprisonment pursuant to Articles 86/1, 86/3-e, 39, 29, 62, 53 of the TCC for aiding and abetting intentional injury to the victim …,
b) For the offense of intentional injury to the victim; 9 months and 10 days imprisonment pursuant to Articles 86/1, 87/3, 29, 62, 53 of the TCC,
c) For the offense of insult against the victim … and the deceased; there is no need to impose a penalty in accordance with Article 129/3 of the TPC.
4- About the accused ..;

a) On the charge of intentional injury to the victim …; 11 months and 7 days imprisonment pursuant to Articles 86/1, 86/3-e, 87/3, 29, 62, 53 of the TCC,
b) For the offense of carrying a weapon without a license; 10 months imprisonment and a judicial fine of 500 TL in accordance with Article 13/1 of Law No. 6136, Articles 62, 52, 53 of the Turkish Penal Code.
ON BEHALF OF THE TURKISH NATION
Since the participants do not have the authority to request a hearing review, taking into account the amount of the sentence imposed on the defendant …, the request for a hearing review by the attorneys of the participants … and … and the defendant … who participated in the trial, pursuant to Article 318 of the Code of Criminal Procedure,

Since the participants …, … and … do not have the right and authority to appeal the judgments against the defendant … for the crimes of threatening the victim … and violating the Law No. 6136, the appeal request of their attorneys for these judgments was rejected in accordance with Article 317 of the Code of Criminal Procedure.

About the defendant …; since there is no appeal request for the acquittal decision given for the crime of threat against the victim …, it has been understood that this provision is not within the scope of the appeal.

The collected evidence has been examined at the verdict and it has been concluded that the defendant … was charged with intentional killing of the deceased …, intentional injury to the victim …, the defendant … was charged with intentional injury to the victim … with the act of intentional injury to the participating defendant …, the defendant … was charged with intentional injury to the victim … with the act of intentional injury to the participating defendant …, the defendant … was charged with intentional injury to the victim … with the act of intentional injury to the participating defendant …, the defendant … ‘s act against the participating defendant … and the crimes of violation of the Law No. 6136 were accepted, the nature of the crimes was determined in accordance with the occurrence and the results of the investigation, the nature and degree of the discount reasons related to provocation and discretion were appreciated, the defenses were evaluated and rejected with convincing reasons, the defendants … …, … and …; against the participant … and the deceased, and against the defendant …; it was decided that there was no need to impose a penalty due to the mutual commission of the offenses of insult against the participant …, and against the defendant …; against the participant … It has been accepted and appreciated by the court that the evidence obtained from the crime of intentional injury to the defendant … and the participants … and … … should be sentenced for the crime of attempted murder against …, the defendants should also be sentenced for the crime of insult, the reduction of provocation against the defendant … for the crime of murder is contrary to the law, the participating defendant … The defense counsel argued that the conditions of self-defense or exceeding the limit in self-defense existed in the action against …, that the action against the deceased was established, that the defendant … should be punished for the crime of insult against … and other issues, that the defendant …. rejecting the objections of the defendant’s defense counsel to the lack of intent to kill, the existence of the conditions of self-defense or exceeding the limit in self-defense, the nature of the crime and other issues, and the objections of the defendant …’s defense counsel to the conviction, the need for a verdict of acquittal and other issues,

1- Conviction of the defendant … for intentional murder of the victim … and injury to the victim … with possible intent, of the defendants … and … for intentional injury to the victim …, of the defendant … for violation of Law No. 6136, of the defendants …, … and … for insulting the participant … and the victim, of the defendant … for insulting the participant … and the victim, of the defendant … for insulting the participant … The verdicts of no punishment for the offenses of insult against …, the acquittal of the defendant … for the offense of intentional injury to the participant … were APPROVED in accordance with the opinion in the notification, and the release request of the defendant … was rejected, taking into account the amount of the sentence imposed and the time spent in detention,

2- According to the facts and the scope of the file; during the brawl that broke out between the groups formed by the defendant … and his sons, the other defendants … and …, on the one hand, and the defendant … and his brother, the deceased …, on the other hand, as a result of the discussion environment in which mutual insults took a more tense situation, the defendant … fired a targeted shot from an effective distance with the pistol he carried with him. … was first wounded in the abdomen, … grabbed …’s hand holding the gun with the intervention made by … for his life, in the meantime, as a result of the gun firing again, … was wounded in the foot this time, then …, who seized the gun, hit …’s head with the handle of the gun, and the defendant … … hit …’s head with a stick he grabbed, and it was understood that the defendant … also grabbed ….;

a) In terms of the verdict established against the defendant … for his action against the participant …;
Considering the suitability of the tool used in the crime to kill, the targeted body area, the existence of the disability that manifests itself with the effective intervention of the victim, the defendant, whose intention arising from his action is understood to be intended to kill, instead of being punished with a reasonable penalty for the crime of “attempted murder” by evaluating the gravity of the damage and danger that occurred together, to be sentenced for the crime of “intentional injury” in written form by making a mistake in the nature of the crime,

b) In terms of the convictions against the defendants … and … for the acts of intentional injury to the participant ..;
aa) In the report dated 24/02/2015 of Kırıkkale High Specialization Hospital issued for the participant …; in the face of the report dated 24/02/2015 of Kırıkkale High Specialization Hospital stating that there is a fixed scar on the face due to his injury, and also in the report dated 25/08/2015 of Kırıkkale Forensic Medicine Branch Directorate stating that there is a fracture in the nasal bone, it is not considered that a report should be obtained in these matters in order to determine whether paragraphs 87/1-c and 3 of the TPC will be applied to the defendants,
bb) As it is understood from the statement of the participant …, the statement of the witness … and the scope of the file that the defendant … committed the crime of intentional injury together with the other defendant … by hitting the head of the participant … with a stick, without considering that the defendant … should be punished as “perpetrator” in accordance with Article 37 of the TPC, being sentenced as “a helper” to the aforementioned crime through Article 39 of the TPC in written form by making a mistake in the appreciation of the evidence,
cc) Considering that the participant …. first injured the defendant …. in the abdomen and foot with a firearm, causing a bone fracture, the behaviors arising from the participant …. and constituting unjust provocation towards the defendants
Considering the extent it has reached; during the application of Article 29 of the Turkish Penal Code, which stipulates a reduction from 1/4 to 3/4 of the penalty from the penalty determined for the defendants, instead of making a reasonable reduction, sentencing the defendants to an excessive penalty by making a reduction of 1/4 as written,

As it is contrary to the law and the appeals of the defense of the participating defendant … and the defense of the participating defendant … are deemed appropriate in this respect, it was unanimously decided on 05.02.2020 to VACATE the verdicts in accordance with the idea in the notification.

 

T.C.

JUDICIARY

CRIMINAL COURT
2016/2912
2017/3141
10.10.2017
THE CRIME OF ASSISTANCE TO PREmeditated KILLING (The Defendant Should Benefit From The Provisions Of Unjust Provocation – Allegation That The Deceased Committed Acts Of Sexual Assault Against The Defendant’s Sister And Mother And That These Acts Covered A Long Period Of Time / The Behavior Of The Deceased / Unjust Provocation)
THE ACCUSED WILL BENEFIT FROM THE UNFAIR INCITEMENT PROVISIONS (Excessive Penalty Determined for the Accused/Assistance to Intentional Homicide – Unfair Incitement Provisions)
EXTREME PENALTY ASSIGNED TO THE ACCUSED (Allegation that the victim committed acts of sexual assault against the defendant’s sister and mother and that these acts covered a long period of time – The defendant should benefit from the Provisions of Unjust Provocation/Assistance to Intentional Homicide)
DEPRIVATION OF RIGHTS (The Annulment Decision of the Constitutional Court should be taken into consideration in the Application of the Deprivation of Rights Provisions on the Accused)
THE COURT MADE A MISTAKE WITH REGARD TO THE NATURE OF THE CRIME (Acceptance that it is erroneous to sentence the defendant for the offense of aiding to intentional killing)
5237/m.31/3,39,40 62,81,82,82/1-a

SUMMARY : In the trial against the defendant for the crime of aiding to premeditated murder, considering the actions of the deceased which constitute sexual assault against the defendant’s sister and mother and the fact that this action covers a long period of time, the extent and continuity of the unfair provocation behaviors of the deceased, it is a reason for reversal to impose an excessive sentence by sentencing the defendant to twenty-four years imprisonment, which has the possibility of application in cases involving less severity, instead of a reasonable sentence. In addition, the annulment decision of the Constitutional Court should be considered in the application of the deprivation of rights provisions on the defendant. It is understood that the child dragged into the crime… made a decision before the date of the incident to carry out the act together with the defendant …, showed persistence and persistence in his decision, a reasonable period of time passed between the decision and the execution, and the conditions for designing were formed, moreover; in accordance with the rule of dependency, whether the act constitutes the crime of qualified intentional homicide, whether it is caused by the act, whether it is caused by the person or characteristics of the perpetrator or the victim, should be determined according to the perpetrator, and it is imperative that this situation should be spread to the accomplices, the defendant… The decision to punish the child dragged into the crime, who assisted in the deliberate murder crime of …, for the crime of “assisting in the deliberate murder” instead of being punished for the crime of “assisting in the deliberate murder” by making a mistake in the nature of the crime, was also considered as a reason for reversal.

CASE :

CASE :
The file was examined, the necessity was discussed and considered:

DECISION :
In the appeal examination made with a hearing in accordance with Article 318 of the Code of Criminal Procedure No. 1412 in terms of the verdict established against the defendant … for the crime of premeditated murder of the deceased and subject to ex officio appeal due to the amount of punishment;

Based on the trial, the contents of the file, the evidence gathered and evaluated in the decision, the formation and the belief and discretion of the court formed as a result of the investigation, the acceptance and application of the defendants … and the child dragged into the crime … in accordance with the formation and partial qualifications of the murder crimes, the defendants …, …, … and …, the evidence obtained in terms of the murder crimes is not sufficient for the conviction of the defendants, the defendants … and … The public cases filed against the defendant … were dismissed due to statute of limitations according to the changed nature of the offense, according to the legal and sufficient justification explained in accordance with the law, the defense of the child dragged into crime … and the defendant … By rejecting the objections of the defense counsel in the petition of appeal, which are not deemed appropriate and which are based on the nature of the crime, the degree of provocation, the absence of design in the trial, that the act constitutes the crime of intentional killing, that the Turkish Penal Code No. 765 is more favorable, and that the defendants …, …, …, … and …’s defense counsel should be assessed a separate attorney fee in favor of the acquitted defendants,

A-) The verdicts of acquittal against the defendants …, …, … and … for the crimes of “instigating premeditated murder” and the verdicts of dismissal of the public cases against the defendants … and … due to the changed crime qualifications and statute of limitations, established in accordance with the procedure and the law, are upheld,

B-) In the examination of the verdicts against the defendant … for “premeditated murder” and against the child dragged into the crime … for aiding this crime;

According to the occurrence and the scope of the file; despite the big age difference between the defendant …., his sister … and the deceased, there was a relationship that included sexual intercourse and continued for about 5-6 years from the date of the incident, this relationship continued despite ….’s marriage with … and the warnings of the defendant …. who learned about the situation, and even the deceased was not satisfied with this and …. In the face of all these events, the defendant … decided to kill the deceased, in order to carry out his action, 3 days before the incident, he obtained a gun from the defendant … under the pretext that he would shoot at the wedding, then he told his close friend …, the child dragged into crime, about his intention to kill the deceased and asked for help from him, …, …, …. ‘s acceptance of this request, they made a plan together to kill the deceased, according to the plan made, the child dragged into crime … obtained a vehicle from the defendant … who was unaware of the plan to kill, then the defendant … called the deceased under the pretext of meeting, …. got into the vehicle of the deceased who came there with his own automobile and they moved, the child dragged into crime … got into the vehicle of the defendant …. … followed them from behind with the vehicle driven by the defendant …, after the parties drove for a while in this way, the defendant …, who found the appropriate time, killed the deceased by shooting him with a pistol after the deceased stopped the vehicle, and then fled the crime scene by getting into the vehicle driven by the defendant …, in which the defendant … was waiting for him, and gave the pistol used in the crime back to the defendant … to hide it;

1-) During the application of Article 29 of the Turkish Penal Code, which stipulates a sentence of imprisonment from 18 years to 24 years due to unjust provocation against the defendant …, considering the extent and continuity of the victim’s behavior involving unjust provocation, instead of a reasonable sentence, imposing a sentence of 24 years imprisonment, which has the possibility of application in incidents of less severity, as written,

2-) The necessity to take into consideration the annulment decision of the Constitutional Court dated 08/10/2015 and numbered 2014/140 Esas, 2015/85 published in the Official Gazette dated 24/11/2015 while applying Article 53 of the TCC against the defendant …,

3-) The child dragged into the crime … made a decision before the date of the incident to carry out the act together with the defendant …, showed persistence and persistence in his decision, a reasonable period of time passed between the decision and the execution, and the conditions of designing were formed, moreover; in accordance with the rule of dependency regulated in Article 40 of the TPC, whether the act constitutes the crime of qualified intentional homicide or not, whether it is caused by the act or by the person or characteristics of the perpetrator or the victim, should be determined according to the perpetrator.

In accordance with the rule of dependency regulated in Article 40 of the TPC, whether the act constitutes the crime of qualified intentional homicide, whether it is caused by the act or by the person or characteristics of the perpetrator or the victim, should be determined according to the perpetrator, and it is understood that there is an obligation to extend this situation to the accomplices, and the defendant …’s child dragged into the crime …, who assisted the crime of intentional homicide, was charged with the crime of “assisting in intentional homicide”. … instead of punishing him in accordance with Articles 82/1-a, 39, 31/3, 62 of the TCC, the defendant … was sentenced in accordance with Articles 81, 39, 31/3 and 62 of the same Law by making a mistake in the nature of the crime and being sentenced in accordance with Articles 81, 39, 31/3 and 62 of the same Law,

4-) According to the acceptance; determination of incomplete punishment by making a discount with the rate of 1/2, which is not possible to apply, instead of 1/3 when applying Article 31/3 of the TPC on the child dragged into the crime …, who has completed the age of 17 as of the date of the crime and is understood to be in the 15-18 age group,

CONCLUSION : Since it is contrary to the law and requires reversal, the appeals of the defendant … defense counsel and the defendant … defense counsel are deemed appropriate in this respect, the provisions subject to ex officio appeal in terms of the amount of punishment in terms of the defendant … are DISMISSED in accordance with the opinion in the notification, and the request for release of the defendant … defense counsel was rejected, taking into account the amount of punishment imposed on him and the period of detention, it was unanimously decided on 10.10.2017.

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