Deciding To Overturn Due To Failure To Show Legal And Sufficient Grounds For Resistance Regarding The Reason For Overturning

Deciding To Overturn Due To Failure To Show Legal And Sufficient Grounds For Resistance Regarding The Reason For Overturning

T.C. JUDICIARY CRIMINAL GENERAL ASSEMBLY
2018/3-473 E.
2020/225 K.
DATE 21/05/2020
(art. 21, 22, 86, 87, 89 of the Law No. 5237)

As a result of the trial in the public case filed against the defendant … for the crime of causing injury to a person with conscious negligence, it was accepted that the defendant’s action constituted the crime of injury with probable intent and he was sentenced to 2 years and 8 months imprisonment in accordance with Articles 86/1, 87/1-d, 21/2 and 31/3 of the TPC. Upon the appeal of the judgment dated 12.11.2014 and numbered 520-1039 given by the Bakırköy 3rd Juvenile Court dated 12.11.2014 and numbered 520-1039 by the defendant’s defense counsel and the participant’s attorney, the 3rd Criminal Chamber of the Court of Cassation, which examined the file, dated 26.12.2016 and numbered 2211-21257;

 

“… 1) In the incident where the child dragged into the crime was traveling with the vehicle under the direction and management of the child on the date of the incident, although the red light was turned on for vehicle traffic, he did not stop at the light and continued and hit the minor victim who was trying to cross the road as a pedestrian and caused injury to him, in the face of the understanding that the victim was injured as a result of the fact that the child dragged into the crime continued on his way with the belief that the result would not occur in the concrete event although he foresaw the result, the child dragged into the crime should be held responsible for the crime of injury with conscious negligence in accordance with Articles 89 and 22/3 of the TPC No. 5237 due to the realization of the result despite not wanting the result he foresaw. articles 89 and 22/3 of the TPC no. 5237, the court should be held responsible for the offense of injury with conscious negligence, but the court should be mistaken in the nature of the crime and the court should be sentenced in writing by accepting that the act was committed with probable intent,

 

2) Although the report dated 02.05.2014 and numbered 1951 of the 2nd Specialization Board of the Forensic Medicine Institution dated 02.05.2014 on the minor victim states that ‘no anatomical deficiency or functional disorder was detected in the nature of permanent weakening or loss of the function of one of the organs due to the incident in the case’, in the same report, the victim’s examination on 01.02.2013 revealed ‘difficulty in walking, loss of balance, psychological problems, loss of vision’ and the radiology report of Istanbul Training and Research Hospital dated 31.01. 2014 dated 31.01.2014, the radiology report of Istanbul Training and Research Hospital stated that ‘minimal scoliosis in the lumbar region with the opening to the right and the opening to the left in the dorsal region, in the leg length radiogram: the right femur was found 2 cm longer than the left femur, there was no difference in length between both lower extremities, in total, the right lower extremity was found 2 cm longer than the left’ and in the scientific opinion dated 19.01.2014 issued by Istanbul University Istanbul Faculty of Medicine, Department of Forensic Medicine. 08.2014 dated scientific opinion, permanent incapacity for work (disability) was also reported; the General Assembly of the Forensic Medicine Institution should be asked for an opinion by sending all the treatment documents and radiographs about the victim, and after the contradiction between the reports is eliminated, the legal status of the child dragged into the crime should be determined and appreciated,

 

According to acceptance and implementation;

3) According to the evidence within the scope of the file, since it is understood that the child dragged into crime committed the act with a motor vehicle considered as a weapon, it was decided to be reversed due to the inadequate punishment by not applying Article 86/3-e of the Turkish Penal Code No. 5237 in the judgment established against the child dragged into crime.”

 

Bakırköy 3rd Juvenile Court, which complied with the reason for reversal numbered (3) made by the Special Chamber according to the acceptance and application, with the number 21-142 dated 18.04.2017

 

“…In line with all the reasons stated in our Court’s file dated 12.11.2014 and numbered 520-1039 and briefly summarized above, since it is in the opinion that the crime attributed to the child dragged into crime constitutes the crime of intentional injury, it is decided to resist in terms of the matters specified in subparagraphs (1) and (2) of the reversal decision of the 3rd Criminal Chamber of the Court of Cassation dated 26.12.2016 and numbered 2211-21257, and to resist in terms of the matters specified in subparagraphs (1) and (2) of the reversal decision of the 3rd Criminal Chamber of the Court of Cassation due to the fact that our Court accepted the action of the child dragged into crime as intentional injury. Criminal Chamber of the Court of Cassation due to the fact that our Court considers the act of the child dragged into crime as intentional injury and the crime of intentional injury committed by the child dragged into crime was committed with a motor vehicle which is considered as a weapon, the right of additional defense was granted and the sentence was increased by 1/2 in accordance with Article 86/3-e of the Turkish Penal Code. ” and decided to sentence the defendant to 4 years imprisonment for the offense of wounding with probable intent in accordance with Articles 86/1, 86/3-e, 87/1-d, 21/2 and 31/3 of the TCC.

 

Upon the appeal of this judgment subject to the decision of resisting by the defense of the defendant, the file was sentenced to the Chamber whose decision was resisted pursuant to Article 307 of the Code of Criminal Procedure No. 5271 amended by Article 36 of the Law No. 6763, with the notification of the Chief Public Prosecutor of the Court of Cassation dated 14.11.2017 and numbered 56281 with the request of “reversal”. The file, which was sent to the Chamber whose decision was resisted pursuant to Article 307 of the Code of Criminal Procedure No. 5271 amended by Article 36 of the Law No. 6763, and which was returned to the First Presidency of the Court of Cassation by the 3rd Criminal Chamber of the Court of Cassation, which examined it pursuant to the same article, with the number 19898-13752 dated 26.09.2018 and dated 26.09.2018, upon the decision to resist was not deemed appropriate, was evaluated by the Criminal General Assembly and decided for the reasons explained.

ON BEHALF OF THE TURKISH NATION

CRIMINAL GENERAL ASSEMBLY DECISION

Conflicts between the Special Chamber and the Local Court that need to be resolved by the Criminal General Assembly;

1- Whether the defendant’s action constitutes the offense of injury with probable intent or the offense of causing injury to a person with conscious negligence,

2- Whether the Local Court’s decision of resistance regarding the reason for reversal numbered (2) of the Special Chamber contains legal and sufficient justification

3- In case it is accepted that the Local Court’s decision to resist contains legal and sufficient justification regarding the reason for reversal numbered (2) of the Special Chamber, whether the report of the 2nd Specialized Board of Forensic Medicine dated 02.05.2014 and numbered 1951 contains a contradiction, and in this context, whether the judgment was established with incomplete research,

It is about determination.

From the scope of the file examined;

05.06. 2012 dated traffic accident report; the accident occurred at the pedestrian crossing on Atatürk Boulevard in Istanbul province, Başakşehir district, Istanbul province, in the open air, on a dry, slope-free, flat asphalt road, during the daytime, from the Mobese record of the accident … plate Volkswagen brand, … It was determined that the defendant, who was the driver of the model vehicle, was traveling towards the airport direction, without taking any precautions to prevent the accident even though he was given a red light, he passed through the red light and hit the victim … who was crossing the green light by using the left front corner and side parts of his vehicle and the pedestrian crossing,

In the expert report dated 12.10. 2012 dated expert report; the defendant drove without a driver’s license, did not obey traffic lights and markings, did not stop at red lights, drove at a speed of 110 km/h in a residential area where the speed limit is 50 km/h, hit the pedestrian crossing the pedestrian crossing the pedestrian crossing at excessive speed, did not take any measures to prevent the collision and accident, It was stated that the defendant violated Articles 36, 47/b-c-d, 51, 52/b, 81/d and 84/a of the Highways Traffic Law No. 2918, that he was at primary fault in the accident, that he violated Articles 36, 47/b-c-d, 51, 52/b, 81/d and 84/a of the Highways Traffic Law No. 2918, that he was at primary fault in the accident, that the victim … ‘s crossing the road using traffic lights and markings and obeying pedestrian rules in the accident that occurred, it was determined that he was flawless in the accident that occurred,

In the report dated 08.06. In the report dated 2012; tenderness and limitation of movement in the right shoulder, right wrist and left femur, diffuse tenderness in the right tibia and abdomen, slight ecchymotic area in the right lumbar, edema in the right periorbital, lower internal fracture of the left tibia, large skin incision in the posterior left knee, femur shaft fracture on the right and humerus upper end fracture on the left, that the current injury is a situation that endangers the life of the person, that the effect of bone fractures in the body on life functions is classified as mild (1), moderate (2-3) and severe (4-5-6); that the fracture detected in the person was of a nature that would affect life functions at a severe (6) degree,

The court asked the 2nd Specialized Board of the Forensic Medicine Institution whether the victim’s injury was in the nature of permanent weakening or loss of the function of one of his organs, and in the report dated 02.05.2014 prepared by examining all the reports and medical documents about the victim; in the examination performed, it was determined that there was minimal detachment in the right lower 2 and 3. teeth, subjective pain in the old fracture wounds, no dizziness and nystagmus, neurological examination revealed that there was no neurological deficit; in the examination of the radiographs of the victim; fracture in the neck of the right humerus, fracture in the distal end of the right radius, fracture in the ulna, increased opacity in the upper lobe of the right lung compatible with contusion in the foreground with a ground glass appearance, fracture in the lower diaphysis of the left femur, fracture in the distal end of the right fibula, it was reported that it was unanimously concluded that no anatomical deficiency or functional disorder was detected in the victim in the nature of permanent weakening or loss of the function of one of the organs due to the incident in the case,

Upon the application of the participant …. to the Department of Forensic Medicine of Istanbul University Faculty of Medicine, requesting a scientific opinion pursuant to Article 67/6 of the Law No. 5271 on whether her daughter, the victimized participant …. suffered loss of work and strength as a result of the injury and whether there is a temporary and permanent incapacity for work due to the incident. In the scientific opinion dated 19.08.2014 prepared by three forensic medicine experts working at Istanbul University Faculty of Medicine, Department of Forensic Medicine; it was stated that the injury that caused 2 cm shortness and minimal scoliosis in the left lower extremity due to the incident caused permanent incapacity (disability) at a rate of 20.7% due to her age at the date of the incident and the report date,

In the report dated 05.06.2012, it was determined that the defendant was not intoxicated according to the measurement made with a breathalyzer at 15.19,

It is understood.

The victim participant …, in his statement dated 06.06. In his statement dated 2012; on the day of the incident, he and his uncle … went to the market at noon, after shopping, they were going to leave the market and return to his uncle’s workplace across the road, they pressed the button of the traffic light at the pedestrian crossing and waited for the green light to turn on, when the green light turned on, they crossed the road until the middle refuge, when they came to the middle refuge, a few vehicles were waiting at the red light in their direction, but the black vehicle driven by the defendant came very fast, when he stepped on the road thinking that the vehicle would stop, the vehicle hit him, he did not remember what happened after that,

Witness … stated similarly before the police and the Court that he was the uncle of the victim, that on the day of the incident he and his nephew, the victim, went to the supermarket around 12. 00, he pressed the button of the traffic light to cross the road and waited for the green light to turn on, when the green light turned on, the vehicles going in the direction of Başakşehir stopped, they crossed the road until the middle refuge, both vehicles going in the direction of the airport stopped, but the defendant was coming fast from the empty lane, he signaled with his hand to slow down, However, the defendant did not slow down, did not press the brake, hit the victim, his nephew, who was on his left and a few steps ahead of him, at an excessive speed and threw him 2-3 meters to the left of the road, the defendant again fled the scene without slowing down, his nephew’s feet and shoulder were shattered, he was lying on the ground in blood, they took the victim to the hospital by means of a lifeguard who coincidentally passed by the scene,

The participant … similarly stated in the police and in the Court that she was the mother of the victim, that she did not see the incident, that she complained against the defendant, that she did not want to reconcile,

Witness … told the police that he worked as a valet at the place where the incident occurred, that a car with a speed of approximately 100-120 km per hour hit the victim who tried to cross the road using the pedestrian crossing at a green light and fled,

They testified.

The defendant … testified similarly at the Chief Public Prosecutor’s Office and at the Criminal Court of Peace to which he was referred with a request for his arrest; that he was 16 years old, that he did not have a driver’s license, that on the day of the incident, he drove from his house in Başakşehir 5. Etap, where he resided, to his father who had a business in ISTOÇ, his speed was probably 50-60 km per hour, when he arrived at the scene of the incident, he was given a green light, the victim suddenly threw himself on the road, when he warned with the horn, the person next to the victim pulled him back, but the victim got rid of this person and got on the road again, he pressed the brake, broke the steering wheel but could not stop and hit the victim with the side of his vehicle, he was afraid of the shouting of the person next to the victim and fled the scene,

In the court; on the day of the incident, he got into his brother’s car which he found the keys at home to go to his father, the scene of the incident was a wooded area, the victim jumped on the road, he could not stop but he swerved, he hit the victim with the left side of his vehicle, when he came to the lights, he had a green light, he did not have a driver’s license, he drove a car for the first time on the day of the incident, he fled the scene because he was scared,

Defended.

It is useful to address the issues in dispute in order.

1- Whether the defendant’s action constitutes the offense of injury with probable intent or the offense of causing injury to a person with conscious negligence;

In order to reach an accurate legal solution on the dispute, it is necessary to address “direct intent”, “probable intent”, “negligence” and “conscious negligence” and to reveal the criteria that distinguish them from each other.

Article 21 of the TPC No. 5237 titled “Intent”

“(1) The occurrence of a crime depends on the existence of intent. Intent is the knowing and willful realization of the elements in the legal definition of the crime.

(2) In case the person commits the act despite foreseeing that the elements in the legal definition of the crime may occur, there is probable intent. In this case, life imprisonment shall be sentenced for crimes that require aggravated life imprisonment, and twenty to twenty-five years imprisonment for crimes that require life imprisonment; in other crimes, the basic penalty shall be reduced from one-third to one-half”, and direct intent is defined in the second sentence of the first paragraph of the article and probable intent is defined in the first sentence of the second paragraph.

In the justification of paragraph 2 of Article 21 of the TPC, where probable intent is defined; “…In case of probable intent, the person commits the act even though it is foreseen that one of the elements in the legal definition of the crime may occur in the concrete event. In other words, the perpetrator accepts the occurrence of the elements. It will be useful to give some examples from the practice regarding probable intent, which is a new concept introduced to our legislation.

A bus driver traveling on the road wants to pass through an intersection without stopping even though the traffic light is red; however, he hits pedestrians crossing the intersection with a green light and causes the death or injury of one or more of them. The driver, whose traffic light was red, saw that someone was crossing the crosswalk at any moment, but nevertheless did not stop at the intersection and continued on his way. In this case, the bus driver foresaw the possibility of the consequences of death or injury and accepted them.

In a wedding party’s house, while the participants of the ceremony were firing their pistols one after the other towards the ceiling of the room, one of the participants of the ceremony was hit in the forehead of one of the participants of the ceremony by a bullet from one of the shots fired parallel to the ground as a result of losing the course of his hand due to the effect of the alcohol he had consumed. In this case, the perpetrator foresaw that the bullets from the shots he fired could hit anyone present; however, he continued to fire his weapon. Here, too, the perpetrator accepted the consequences of injury or death while firing his weapon.

In these examples, it must be accepted that the person acted with probable intent.” and sample cases regarding probable intent are shown.

Accordingly, direct intent is the will to perform the act that is foreseen and constitutes a crime, and it occurs when the act defined as a crime in the law is performed knowingly and willingly. If the perpetrator knows and wills that his/her act will realize the legal type, he/she will have acted with direct intent; on the other hand, if the perpetrator commits the act by accepting the possible result despite foreseeing that the act he/she has committed may cause some possible consequences and envisioning the realization of these consequences as possible and probable, possible intent will be in question.

The most prominent element that reveals the difference between probable intent and direct intent is the element of knowledge in direct intent. If the perpetrator knows that his act will realize the legal type, it must be accepted that he acts with direct intent. Again, along with the direct consequences that the perpetrator aims for with his/her act, the obligatory or inevitable consequences of the act should also be considered within the scope of direct intent, even if they are not explicitly intended. If the act aimed at the realization of a certain result is certain to cause some other consequences according to daily life experiences, it should be accepted that the perpetrator acts with direct intent in terms of these consequences.

The other criterion that distinguishes probable intent from direct intent is that the realization of the elements in the legal definition of the crime is not certain but probable. In such a case, the perpetrator accepts the occurrence of the consequence, which is not necessarily but most likely to occur, and takes the risk with the thought of “whatever happens”; he does not make any effort to prevent the consequence from occurring. In probable intent, although it is considered probable that the act will cause an outcome defined in the law to occur, the occurrence of this outcome is accepted by the perpetrator.

In the theory of crime, which was taken as a basis in the preparation of the TPC No. 5237, the crime, which is expressed as “the injustice defined in the law”; as a rule, it can only be committed with intent, and in cases clearly indicated in the law, it can also be committed with negligence. In negligence, which is an exceptional form of culpability, there must be a clear regulation in the law in order for the perpetrator to be punished. Article 22/2 of the TPC No. 5237 defines negligence as “the realization of an act without foreseeing the consequence specified in the legal definition of the crime due to violation of the obligation of attention and care”.

In negligent offenses, both the executive and negligent act must be voluntary and the result must be foreseeable. In the absence of a voluntary behavior, negligence cannot be mentioned, and in the event of an unforeseeable result, the perpetrator cannot be held responsible for the negligent crime.

In the event that the victim’s negligent behavior also has an effect on the realization of the result, this will not eliminate the responsibility of the perpetrator as long as the other negligent behavior does not interrupt the causal link, nor will it change the nature of negligence. Since the Turkish Penal Code does not provide for any reduction of the penalty by grading the fault, this situation can only be taken into account in determining the basic penalty.

In the Turkish Penal Code, negligence is divided into “simple” and “conscious” negligence, and in the third paragraph of Article 22, conscious negligence is defined as “the occurrence of the consequence despite the fact that the person does not want the foreseen consequence”, and in this case, it is stipulated that the penalty for the negligent crime will be increased from one third to one half.

The distinguishing criterion between simple negligence and conscious negligence is that in negligence, the perpetrator does not foresee the foreseeable consequence, whereas in conscious negligence, the perpetrator foresees this consequence.

In conscious negligence, the result is not intended by the perpetrator even though it was foreseen. The dangerousness of the person who acts by relying solely on luck or other factors, or even on his own skill or knowledge, even though he actually foresaw the result, cannot be equated with the dangerousness of the person who could not have foreseen it. The person who foresees the consequence is obliged not to act in a way that will bring about this consequence, no matter what.

In the second paragraph of Article 21 of the Turkish Penal Code, probable intent is defined as “the person commits the act despite foreseeing that the elements in the legal definition of the crime may occur” and no other distinctive elements are included, and in the third paragraph of Article 22 of the same Code, probable intent is defined as “the person commits the act despite foreseeing that the elements in the legal definition of the crime may occur”. In the third paragraph of Article 22 of the same Law, it was expressed in the doctrine that the conscious negligence defined as “there is conscious negligence if the result occurs despite the fact that the person does not want the result he foresees” would be confused, and the legislator also explained the measure of “acceptance”, which he did not include in the text of the article, in the justification of the same article; “In case of probable intent, although it is foreseen that one of the elements in the legal definition of the crime will occur in the concrete event, the person commits the act, in other words, the perpetrator accepts the occurrence of the elements”, and thus, the criterion to distinguish probable intent from conscious negligence has been set forth.

Regarding the distinction between probable intent and conscious negligence, the doctrine states that “The Frank formula should be applied in order to determine the distinction between both. Accordingly, if we can say ‘in one way or another, the perpetrator would have performed the act in any case’, we speak of probable intent; if we can say ‘if he knew that the result would occur, he would not have performed the act’, we speak of conscious negligence…In order to make a distinction between both, it seems necessary to make an assessment as to whether the perpetrator can also be considered to have risked and accepted the result in terms of each concrete event.” (Bahri Öztürk-Mustafa Ruhan Erdem, Uygulamalı Ceza Hukuku ve Güvenlik Tedbirleri Hukuku, Seçkin Akademik ve Mesleki Yayınlar, 17th Edition, Ankara 2017, pp. 303-304.)

In case of indifference to the occurrence of the foreseen probable consequence, probable intent will be in question, and conscious negligence will be in question in cases where the occurrence of the foreseen probable consequence cannot be prevented despite the fact that the occurrence of the foreseen probable consequence is not desired. In other words, although the perpetrator does not want the consequence but knows that the consequence is likely to occur, if the perpetrator accepts the probable consequence by continuing his/her action by remaining indifferent to the situation, probable intent will be in question, and if the perpetrator continues his/her action by taking the necessary precautions to prevent the probable consequence from occurring when necessary by relying on his/her skill, luck, experience or any other factor and believing that the consequence will not occur, although he/she foresees the consequence, conscious negligence will be in question.

At this stage, it is useful to mention the relevant traffic legislation.

Highway Traffic Law No. 2918 as in force as of the date of the incident;
The first paragraph of Article 36 titled “Obligation to obtain a driver’s license”

“It is forbidden to drive and allow motor vehicles to be driven on highways by persons who do not have a driver’s license.”,

The first paragraph of Article 47 titled “Obligation to obey traffic signs and rules”;

“Those who utilize the highways shall, in the following order;

a) To the warnings and signs of the traffic police officers in charge of traffic regulation and control or other authorized persons wearing special clothes or carrying signs,

b) Traffic lights,

c) The matters indicated or indicated by traffic signs, devices and ground markings,

d) Other rules, prohibitions, obligations or liabilities related to traffic safety and order and specified in the regulation,

They must comply.”

The first paragraph of Article 51 entitled “Obligation to comply with speed limits”;

“Drivers are obliged not to exceed the speed limits specified in the regulation, unless a contrary decision has been taken and marked.”,

Article 52 titled “Ensuring that the speed complies with the necessary conditions”

“a) Reduce their speed when approaching intersections, entering curves, approaching hill tops, driving on winding roads, approaching pedestrian crossings, level crossings, tunnels, narrow bridges and culverts, entering construction and repair areas,

b) To adapt their speed to the load and technical characteristics of the vehicle they are driving and to the conditions required by visibility, road, weather and traffic conditions,
…

They are obliged to do so”,

Article 81 titled “Rules concerning those involved in traffic accidents”

“Those involved in traffic accidents

a) If they are in motion, to stop immediately so as not to create an additional danger for traffic, to take the necessary measures for traffic safety at the scene of the accident,

b) If there is death, injury or material damage in the accident, if this accident does not affect traffic, safety of life and property, not to change the situation at the scene of the accident, including evidence and traces that will be useful in determining responsibility,

c) If requested by the persons involved in the accident, to report and show their identity, address, driver’s and registration license and insurance policy date and number,

d) Reporting the accident to the authorized and responsible officers and not leaving the accident site until they arrive or without their permission,
…
They are obliged.”,

Paragraph (a) of Article 84 titled “Determination of driver defects in traffic accidents and cases considered as primary defects”

“Vehicle drivers in traffic accidents; a) Running a red traffic signal or a stop sign of an authorized officer,
…
In their cases, they are deemed to be primarily at fault.”

On the other hand, while determining the legal status of the defendant in criminal law, the facts should be handled factually. An evaluation should be made according to the characteristics of each concrete case in terms of the subjects, events, the number of defendants, the behavior of the defendant before, during and after the incident, and the manner of execution of the crime; it should not be overlooked that the effort to compare an incident with different subjects, events and execution, with different defendants, with another incident, even if partially similar, and to draw conclusions about the criminal responsibility of the defendant based on this unhealthy comparison may lead to erroneous results.
In the light of these explanations, when the first dispute issue is evaluated;
The defendant …, who was 16 years old on the date of the incident, got into a Volkswagen brand, … model vehicle with the license plate number …, registered in the name of his older brother, and drove from Başakşehir district, 5th Etap, where he resided, towards Istanbul Wholesalers Bazaar where his father’s workplace was located, his speed was 110 km per hour as detected and calculated by the Mobile Electronic System Integration (MOBESE) cameras on Atatürk Street, while the defendant was traveling on Atatürk Street with his vehicle under the direction and management of the defendant, the victim child …, who was crossing the pedestrian crossing with his uncle, was hit by a red light for the vehicles in his direction, but according to the accident report, at 12. 30 at noon on the road where the weather was clear and there was no obstacle to visibility, without reducing the speed and without applying brake measures, the victim’s life was endangered as a result of the left tibia lower internal fracture, large skin incision in the posterior of the left knee, femur shaft fracture on the right, humerus upper end fracture on the left, it was stated that the fractures detected in the victim were of a nature that would affect the life functions at a severe (6) degree, and it was stated that the Traffic Expert prepared by the Traffic Expert on 12. 10. 2012 dated expert report; he drove without a driver’s license, did not obey traffic lights and markings, did not stop at red lights, drove at a speed of 110 km/h in a residential area where the speed limit is 50 km/h, hit the pedestrian who was crossing the pedestrian crossing on the pedestrian crossing at excessive speed, did not take any measures to prevent the collision and accident, that the defendant, who was stated to have endangered the safety of people’s lives in traffic and caused the accident with these faulty behaviors, violated Articles 36, 47/b-c-d, 51, 52/b, 81/d and 84/a of the Highways Traffic Law No. 2918, that he was at fault for the accident, that the victim … ‘s crossing the road using traffic lights and markings and obeying the pedestrian rules in the accident that occurred, it is understood that it was stated that he was flawless in the accident that occurred;

The fact that the accused was traveling at a speed of approximately 110 km per hour in a residential area, in an area where the maximum speed limit is 50 km per hour, far above the maximum speed stipulated by the Law, and that the accused hit the victim child, who was crossing the road by using the pedestrian crossing at the pedestrian crossing at the green light at that time, at a great speed by passing through the red light, despite the red light for the vehicles in his direction, is the most important principle that constitutes the essence of conscious negligence and distinguishes conscious negligence from probable intent, The fact that the foreseen and realized result was not desired and that he did not make any effort to brake or reduce his speed in order to prevent the result, that there was no effort to prevent the possible result he foresaw in this way or that he did not risk the result, in other words, he accepted the possible result by being indifferent to the possible result, in addition, it should be accepted that the defendant’s action constitutes the crime of injury with probable intent, in the face of the understanding that the concrete event occurred as in the sample event specified in the justification of the article in which the probable intent was regulated by the legislator.
In this respect, it should be accepted that the Local Court’s reason for resisting that the defendant’s action constitutes the offense of wounding with probable intent is correct.

The Member of the Criminal General Assembly who disagrees with the majority opinion …; “A dispute has arisen between us and the esteemed majority of the Supreme Criminal General Assembly of the Supreme Court of Cassation, which characterizes the action of the child dragged into crime …, which consists of causing injury by hitting the minor victim who tried to cross the road as a pedestrian by not stopping at the red light while driving with the vehicle under the direction and management of …, as injury with probable intent.

In order to resolve the dispute in a healthy way, first of all, the provisions of ‘negligence-conscious negligence and probable intent’ should be examined and it is necessary to determine whether the conditions defined in Article 21/2 of the TPC are met in the concrete case due to the action subject to trial in the light of the jurisprudence of the Supreme Criminal General Assembly of the Supreme Court of Appeals and various departments in similar cases by making use of the opinions adopted in the doctrine.

In criminal law, understanding the stages that the defendant goes through in his/her mind while committing the crime and determining what the defendant actually intended by his/her actions is a problem related to the law of proof. Since it is not possible to know the state of mind of the perpetrators directly, it is necessary to rely on tangible data to recognize them and determine their intentions. Whether the act was committed negligently or intentionally can be determined by external evidence, such as crime scene sketches, investigation reports, statements of the victim or the complainant, camera recordings, scientific and technical findings, or by evidence that is completely independent of external evidence, such as a confession. On the other hand, although both forms of liability are different from each other, there cannot be a gap between these concepts in terms of the legal meaning of intent and negligence. In this respect, the definition of negligence must necessarily have a common boundary with the definition of intent and must depend on the definition of intent. As mentioned before, negligence is distinguished from intent by the fact that the will of the perpetrator does not cover the result that will arise from the behavior, in other words, the result is not intended.

In practice, if there are two terms that are often confused by citizens and cannot be differentiated, these are the concepts of probable intent and conscious negligence.

Conscious negligence and probable intent are two concepts that follow the same path up to a certain point and then diverge from each other. Although both concepts seem to be the same, they have completely different meanings. For the acceptance of intent, the result must be known and intended. In conscious negligence, the perpetrator foresees that his/her act may cause an unlawful consequence. Up to this point, the two concepts are similar to each other, and the difference starts from this point.

In conscious negligence, the perpetrator believes that the consequence will not occur, but does not want the consequence to occur and does his best to prevent it from happening. If he accepts the existence of the possibility and probability of realization, he spontaneously ceases to act. In other words, in conscious negligence, the perpetrator attaches the necessary importance to the non-occurrence of the consequence and takes this matter seriously. He is in the desire, thought and expectation that the consequence will not occur.

In probable intent, although the perpetrator foresees that his/her act may cause an unlawful result, the possible and probable result does not prevent him/her from doing the act. In other words, if the foreseen consequence occurs, the perpetrator has already accepted this consequence.

As a result, if the perpetrator thinks and foresees that the consequence may occur and does not give up his/her action in the face of the possibility and probability of this consequence, it should be accepted that he/she has probable intent. On the other hand, in cases where we can say that the perpetrator would not have acted against the possibility of the consequence, we can say that the perpetrator acted not with intent but with conscious negligence.

It is possible to summarize the opinions adopted in the doctrine on the concepts of probable intent and conscious negligence, which constitute the subject of the dispute, as follows.

Prof. Dr. Ayhan ÖNDER;

Even if the consequence is not intended, the perpetrator who takes the risk of realization is deemed to have acted with probable intent, and the perpetrator who acts with the hope that the consequence will not occur is deemed to have acted with conscious negligence.

Prof. Dr. Ersan Şen;

‘We see that probable, i.e. possible intent is regulated in Article 21/2 of the TPC. In the legal definition, probable intent is when a person commits an act even though he/she foresees that the elements of the crime in the legal definition may occur.

Article 22/2 of the TPC defines conscious negligence as the occurrence of the result even though the person did not intend the foreseen result.

According to these definitions, probable intent can be explained as foreseeing the result that may arise from the act that the person does knowingly and willingly, saying ‘whatever happens’ for this result and not caring whether the result occurs or not.

Conscious negligence, on the other hand, is when a person knowingly and willingly foresees the result that may arise from his/her act, but thinks that the result will not occur, makes an effort to prevent the result from occurring or trusts himself/herself, in a sense, risking the result with the belief that the result will not occur.

When does probable intent exist and when is the act considered conscious negligence? It is not easy to measure this according to the ‘intention’ sub-element of the moral element. In fact, in probable intent, it cannot be said that the perpetrator’s will towards a clear, i.e. crystallized, outcome is determined. If the perpetrator has a will to will, this is already considered as subjective responsibility arising from intent. In the legal definition, in probable intent, the perpetrator foresees that the elements in the legal definition of the crime may occur, but does not want it, but still continues to commit the act, that is, in a sense, he says ‘whatever happens’ for the outcome of the crime. In conscious negligence, on the other hand, the perpetrator does not say this, but cannot prevent the realization of the foreseen consequence by means of an unacceptable defective executive act or acts. In a sense, the perpetrator risks the consequence or thinks that the consequence will not occur. Indeed, it is very, very difficult to realize or find this theoretical difference in practice”.

In the case law of the Supreme Criminal General Assembly of the Court of Cassation dated 19/04/2011 and numbered 2011/1-840/2012/214 K, after defining direct intent, probable intent and conscious negligence; the criteria to distinguish the concepts that are very close to each other are stated.

Although it was not defined in the Turkish Criminal Code No. 765, in the second sentence of paragraph 1 of Article 21 of the Turkish Criminal Code No. 5237, intent is defined as ‘the realization of the elements in the legal definition of the crime knowingly and intentionally’, and in paragraph 2 of the same article of the same law; ‘although the person foresees that the elements in the legal definition of the crime may occur, there is probable intent in case the person commits the act’ by saying that the definition of ‘probable intent’ is included.

Direct intent requires the perpetrator to know and want that his/her act will realize the legal type. However, in addition to the direct consequences that the perpetrator aims with his/her act, the compulsory consequences or inevitable side consequences of his/her act should also be evaluated within the scope of direct intent, even if there is no explicit intention.

Probable intent, which is also referred to as ‘indirect intent,’ ‘unspecified intent,’ ‘indefinite intent,’ ‘indefinite intent,’ ‘irregular intent,’ and ‘intent no matter what’ in the doctrine and practice, is defined as ‘committing the act despite foreseeing it’ in paragraph 2 of Article 21 of the Penal Code No. 5237.

The most prominent elements in the distinguishing criterion between probable intent and direct intent are the elements of knowing and intending in direct intent. If the perpetrator knows that his/her act will realize the legal type and wants this, it must be accepted that he/she acts with direct intent. Again, along with the direct consequences that the perpetrator aims for with his/her act, the obligatory or inevitable consequences of the act should also be considered within the scope of direct intent, even if they are not explicitly desired. If the act aimed at the realization of a certain result is certain to cause some other consequences according to daily life experiences, it should be accepted that the perpetrator acts with direct intent in terms of these consequences. The other criterion that distinguishes probable intent from direct intent is that the realization of the elements in the legal definition of the crime is not certain, but probable. In such a case, the perpetrator acts by accepting the realization of this possibility, with the idea of whatever happens and taking the risk of enduring it, and does not take measures to prevent the possible outcome from occurring.

When we look at the regulation on negligence; as a rule, crimes can only be committed with intent, but crimes can also be committed with negligence in cases clearly indicated in the law. Negligence is defined in Article 22/2 of the Turkish Penal Code No. 5237 as ‘the realization of an act without foreseeing the consequence specified in the legal definition of the crime due to violation of the obligation of attention and care’.

On the other hand, due to the absence of any other distinguishing element, probable intent is defined in the 3rd paragraph of Article 22 of the aforementioned Law as ‘the result that the person foresees’. paragraph 3 of Article 22 of the aforementioned Law; ‘although the person does not want the result that he foresees, there is conscious negligence if the result occurs’, the legislator, in the justification of the article, the criterion of ‘acceptance’, which he did not include in the text of the article; ‘in the case of probable intent, although it is foreseen that one of the elements in the legal definition of the crime will occur in the concrete event, the person commits the act, in other words, the perpetrator accepts the occurrence of the elements’, the legislator has put forward the criterion to distinguish probable intent from conscious negligence.

It is possible to determine the distinctive criteria between probable intent and conscious negligence by taking advantage of judicial decisions and scientific opinions as follows.
In both probable intent and conscious negligence, the outcome is foreseen by the perpetrator.

In conscious negligence, it is hoped that the foreseen consequence will not occur, whereas in probable intent, this consequence is risked and accepted by the perpetrator. In probable intent, the perpetrator accepts the occurrence of the foreseen consequence and does not take any measures to prevent the consequence from occurring, whereas in conscious negligence, although the perpetrator foresees the consequence, he/she acts with the belief that the foreseen consequence will not occur by relying on chance or other factors, or even his/her own knowledge or skill.

After the views summarized in theory, it is necessary to examine the jurisprudence of the Criminal General Assembly of the Court of Cassation and the Supreme 12th Criminal Chamber in similar cases.

In the decision of the Supreme Criminal General Assembly of the Court of Cassation dated 10/05/2016 and numbered 2016/250 K;

On the night of the incident, while traveling on the Trabzon-Giresun highway, he reversed on the divided road in Beşikdüzü district …. In the incident where the defendant, who was driving in the opposite direction on the divided road in the divided road in the neighborhood of Beşikdüzü district of Beşikdüzü and in the safety lane with his headlights on and with 2.70 promil alcohol, hit the vehicle of the participant Hasan, who was driving in the section reserved for them on the same road, causing the injuries of the participants in the vehicle and the death of Serpil; On the road where warning signs and lines are duly present, the defendant knowingly entered the section used by traffic vehicles coming from the opposite direction, continued to drive his vehicle despite knowing that it was in the opposite direction, and although he foresaw that he could cause injury or death by hitting a vehicle coming from the opposite direction, his experience, driving skills, Since it is understood that he trusted that there would be less traffic due to the fact that it was night, especially his luck and that those coming from the opposite direction would be careful to protect themselves, that he acted against the objective duty of care and attention with such a presumption and caused the result he foresaw but did not want, and that he did not accept and desire the result that occurred; The court concluded that the defendant, who did not act in accordance with the objective duty of care in a way to prevent the occurrence of the result that he did not want to occur but foresaw, acted with conscious negligence in his action resulting in the death of one person and the injury of more than one person.

In the case law of the 12th Criminal Chamber of the Supreme Court of Cassation dated 05/04/2012 and numbered 2011/18371 E-2012/5120 K;

In the act of the defendant shooting into the air with an unlicensed pistol in the crowded area where the wedding ceremony was held, the defendant committed the act even though he foresaw that the bullet from the gun could hit one of the people at the wedding place. 22/3 of the Turkish Penal Code No. 5237. Although it is understood that there is a state of conscious negligence expressed in Article 22/3 of the TPC No. 5237 and therefore an increase should be made in the basic penalty determined for the defendant, the court, which made an application according to this acceptance, decided to DISMISS the judgment given by the local court on the grounds that it caused a contradiction in the judgment by stating that there was no information and document in the file that the defendant committed the act with conscious negligence.

As it is understood from the case law of the Court of Cassation; in the distinction between probable intent and conscious negligence; it is not possible to determine a template state of culpability for any event. For example, if the case in question is a traffic accident with death or injury, if statements containing definitive judgments such as conscious negligence or probable intent are included; it would mean drawing certain boundaries through jurisprudence in perhaps the most controversial and ambiguous area of criminal law; it is clear that such a result would not only be contrary to the principle of legality, which is not only included in Article 2 of the Turkish Penal Code, but also against the principle of legality guaranteed by the Constitution, but also against the principle of equity, which is the sine qua non of criminal law from time to time.

Although the consequence is foreseen in both probable intent and conscious negligence, there is no doubt in practice and doctrine that in conscious negligence the consequence is never desired, while in probable intent the consequence is not cared for, in other words, it is accepted. However, since intent is related to the inner world of the person, inferences should be made from the rules of experience towards the moral element of the act. As explained in detail above; in the light of the opinions adopted in theory, the legal regulations, the criteria determined by the Supreme Criminal General Assembly of the Court of Cassation and the case law in similar cases; it is possible to summarize the criteria that will distinguish probable intent from conscious negligence as follows.

1-) There is acceptance if the perpetrator performs the action despite the lack of any concrete data that the action will result in a good outcome and despite its dangerousness, or if he leaves the realization or non-realization of the danger he foresees to chance.

2-) The state of trust that a fatal outcome will not occur, in the process foreseen as a result of the act, if it is plausible that the result of death will occur, and if it is left to miracles that this will not happen; in other words, as the degree of probability for the result of death increases, the perpetrator’s claim that he does not accept the resulting death will weaken.

3-) If the perpetrator thinks and foresees that the result may occur and does not give up his/her action in the face of the possibility and probability of this result, it should be accepted that he/she has probable intent. On the other hand, in cases where we can say that the perpetrator would not have acted against the possibility of the consequence occurring, we can say that the perpetrator acted with conscious negligence, not with intent.

In the action subject to the trial; at a time when the red light was on for vehicles; it is clearly understood from the camera records at the scene that the child dragged into the crime, who was traveling at a speed well above the speed limit in the city with the vehicle under his direction and management, while trying to pass quickly on the right side of the road, which was empty for that moment according to him, while trying to cross the road with his uncle, hit the underage victim who wanted to cross the opposite side as soon as possible by running with a sudden movement after the center refuge, causing the victim to be seriously injured.

In the light of the opinions adopted in the doctrine and jurisprudence; when we look at our concrete case; according to the available data and especially the camera recordings, it cannot be said that the child dragged into crime did not care about the occurrence of the result. However, it may not always be possible to solve concrete cases by starting from the difference between the term “not caring or risking” in probable intent and the term “not wanting the result” in conscious negligence. For example, a person who plants a bomb on an airplane to kill his adversary may not want the death or injury of the people on the same plane with his adversary. There may even be some people on the plane who would be very upset. However, even in such a case, if the failure of the outcome to occur depends on miracles, the defendant may be guilty of intentional manslaughter, if the outcome is highly probable, of probable intent, if the probability of the outcome is less than the probability of non-occurrence, in other words, if there is confidence that the outcome that can be objectively prevented can be prevented, it may be necessary to speak of conscious negligence according to the evaluation to be made together with other criteria.

The concepts of probable intent and conscious negligence are the most controversial concepts of the penal code and it is extremely difficult to determine the boundary between them. Although there is a very thin border between the concepts of ‘recklessness or recklessness’ leading to probable intent and ‘unwillingness’ leading to conscious negligence, the fact that there are exorbitant differences between the penalties puts the practitioners, whose work is already very difficult, in a much more difficult situation. In our concrete case, although there is only the possibility of a judicial fine in case of the application of the provisions on conscious negligence, the minimum penalty that can be imposed in case of the application of the provisions on probable intent is 2 years, 2 months and 20 days of imprisonment if Article 62 of the TPC is not applied. In the case of the incident that resulted in the death of five people, the total of the penalties that can be imposed in the event of the application of the provisions of probable intent can be 5 separate life imprisonment or 100 years of imprisonment, while in the case of the application of the provisions of conscious negligence; a maximum of 22 years and 6 months of imprisonment can be imposed. Another issue that offends the sense of justice is that negligent crimes can often have consequences as grave as, or perhaps even more grave than, intentional crimes. For example, it is known that accidents that will cause hundreds of people to lose their lives by constructing buildings in violation of earthquake regulations or by not taking adequate safety measures for miners working underground are frequently experienced in our country. The person or persons who cause these extremely sad incidents may be extremely well-intentioned, or they may have a lifelong remorse for the consequences of their mistake. However, the regrets experienced after the sad consequences may not alleviate the suffering of the relatives of the deceased and the injured, and even the maximum penalties imposed as a result of the trial may be insufficient in the face of the victimizations experienced. The legislator’s job is also not very easy. Because, although committing an intentional offense is entirely a product of human will, committing a negligent offense may often not be a product of human will. Of course, negligent behavior is needed for negligence to be punished. However, despite acting with the utmost goodwill, the slightest negligence or a momentary wrong choice can lead to very grave consequences. For example, a person who takes a person who is stranded in the cold or who is ill due to a sudden illness into his/her vehicle in order to take him/her to the hospital may, as a result of his/her negligent behavior, cause the people he/she takes into his/her vehicle in order to help them to lose their lives or be seriously injured, even though he/she acts with the utmost humanitarian considerations. Of course, the legislator must objectively consider all these possibilities and determine the appropriate punishment for the act. However, it will not be easy to find a middle ground. In fact, what needs to be done, besides the proper use of the art of judging in the concrete case, is to narrow the gap between the penalties that can be determined in terms of the provisions of conscious negligence and probable intent, or to add such serious violations to the article of law as probable intent by the legislator himself. Even if the ultimate goal of criminal procedure law is to achieve justice, our legal system, which never compromises the rule of law, cannot be expected to allow practitioners to depart from the principle of legality, which is the sine qua non of criminal law, and act according to their own understanding of justice. In such a case, since everyone’s understanding of justice will naturally be different, it will not be possible to ensure the principle of legal security. In order to prevent such drawbacks, the principles of interpretation, which do not have a positive basis but arise from the nature of things, should be followed during the interpretation of legal norms. In the words of Prof. Dr. Kemal GÖZLER, law will deserve the title of ‘science’ only on the day when principles with self-evident truth, like Euclid’s theorems, are developed and these principles are adopted by all jurists and applied as a standard. Only on that day, legal problems will be solved in the same way by all jurists. In such a system, court decisions will also be accurately predicted in advance. Only in such a system will the principle of legal security and therefore the rule of law be realized.

In our concrete case; the child dragged into the crime is gravely negligent. In the event that the provisions on conscious negligence are applied, the sentence that may be imposed may not satisfy the sense of justice. However, this is the choice of the legislator. When we evaluate the law as a whole, in order to ensure justice in a case, if the nature of the act is changed by interpreting the penal norms against, the systematic of the law itself will be disrupted, and this time, the principle of proportionality and equality may be disrupted in terms of the penalties that may be imposed for similar violations or more serious violations according to the different understanding of justice of different courts. For example, in our concrete case, if the child dragged into crime had intentionally injured any person with his fist in the same way, he would have been sentenced to at least 2 years of imprisonment under Articles 86/1, 87/1, 31/3 of the TCC and as a result, he would have damaged the sense of justice by staying below the minimum 2 years 2 months and 20 days of imprisonment that could be imposed for the crime of causing injury with probable intent in our concrete case. According to the Turkish Penal Code No. 5237, which adopts the principle of fault, it is clearly regulated by the legislator that the state of fault in crimes committed with intent is much more severe than the state of fault in crimes committed with probable intent (Article 21/2 of the TPC). When interpreting the legal norms set by the legislator, who has the authority and duty to determine the penal policy, a conclusion should be reached in a way to ensure that every practitioner reaches the same interpretation in the face of the same event by aiming for justice and equity as much as possible. The child dragged to the crime, as seen in the camera records, may not have reduced his speed despite the red light, thinking that he could pass through the empty part of the road because he did not see the victim who suddenly started running from the middle of the road. It is also possible that if he braked at the current speed, much more regrettable consequences would have occurred. In this case, the fact that the child dragged to crime did not press the brake cannot be an indication that he did not take any precautions and accordingly risked the consequences. Because if he/she brakes or slows down at a distance where he/she cannot stop, there is also the possibility of much sadder consequences. The thought of the child dragged to crime to pass quickly on the right side of the empty road thinking that he could not stop when he suddenly saw the minor victim running can also be interpreted as a measure taken according to his own life experience. However, the fact that he did not have a driver’s license until he reached this situation, that he was underage, that he did not stop despite the red light when entering the intersection and that he traveled well above the speed limit in the city are very serious defects. Although the penalty that will arise as a result of the application of the provisions of conscious negligence despite such serious defects does not satisfy the conscience of the public opinion, in our opinion, the application of the provisions of probable intent, even if it is due to an extremely lofty idea such as the establishment of justice, in contradiction with the systematics of the law and the jurisprudence in similar cases, will also be contrary to the principles of legality and equality. For example, in our concrete case, it will be a known fact that the action of the child dragged into crime is not more severely negligent than the action of the defendant who entered the divided road from the opposite direction, was extremely intoxicated, even turned off the headlights of the vehicle and hit the vehicle coming from the opposite direction in the middle section of the road, in the incident subject to the decision of the Supreme Criminal General Assembly of the Supreme Court of Appeals No. 2016/250 K. Because it is clear that the possibility of the defendant, who entered the divided road from the opposite direction and turned off the headlights of the vehicle in an extremely alcoholic state and traveled close to the middle section of the road, to cause an accident may be much more than the possibility of the accident in our concrete case. In the judgment numbered 2016/250 K; while the action of the defendant who committed three serious violations was evaluated as conscious negligence, in our opinion, the evaluation of the action of the child dragged into crime in our concrete case as possible intent will lead to the damage of the principle of legal security.

As a result; in our concrete case, while the application should be made with articles 89/1, 22/3, 31/3 of the TPC against the child dragged into crime, the decision of the local court to resist should be reversed on the grounds that the action was committed with probable intent, while the decision to resist should be reversed, the opinion of the majority of the Supreme Criminal General Assembly of the Supreme Court of Appeals regarding the sending of the file to the 3rd Criminal Chamber of the Court of Cassation for the supervision of the application on the grounds that the decision to resist is appropriate has not been participated for the reasons presented and explained above.”

2- Whether the Local Court’s decision of resistance regarding the reason for reversal numbered (2) of the Special Chamber contains legal and sufficient justification,

As a result of the trial held by the Local Court after the reversal, it is understood that the Special Chamber decided to resist without showing any reason for resistance regarding the reason for reversal numbered (2) regarding “the establishment of a judgment with incomplete examination without eliminating the contradiction between the report of the 2nd Specialization Board of the Forensic Medicine Institute and the scientific opinion dated 19.08.2014 issued by the Istanbul University Istanbul Faculty of Medicine, Department of Forensic Medicine” and without explaining why this reason for reversal was not followed.

Pursuant to Articles 141 of the Constitution and 34 of the Code of Criminal Procedure No. 5271, court decisions must be reasoned. There is no doubt that making a decision without a legal, sufficient and valid justification will not be in accordance with the purpose of the legislator and will lead to arbitrariness in practice. As a matter of fact, according to the established practices of the General Assembly of Criminal Chambers, since a decision is completely annulled by being reversed, the local court is required to re-establish a judgment in accordance with Articles 34, 230 and 232 of the Code of Criminal Procedure, as well as to show the justification for the resistance.

In the evaluation made regarding the second dispute in the light of these explanations;

It is understood that the Local Court, as a result of the trial held after the reversal, decided to resist without showing any reason for resistance regarding the reason for reversal numbered (2) of the Special Chamber regarding “the establishment of a judgment with incomplete examination without eliminating the contradiction between the report of the 2nd Specialization Board of the Forensic Medicine Institute and the scientific opinion dated 19.08.2014 issued by the Istanbul University Istanbul Faculty of Medicine, Department of Forensic Medicine” and without explaining why this reason for reversal was not complied with.

In this respect, the judgment subject to the decision of resistance should be reversed due to the injustice of not showing a legal and sufficient reason for resistance regarding the reason for reversal numbered (2) of the Special Chamber regarding the establishment of a judgment with incomplete research.

In the face of this conclusion, the third point of dispute regarding whether the report of the 2nd Specialization Board of the Forensic Medicine Institution dated 02.05.2014 and numbered 1951 contains contradictions, and whether the judgment was established with incomplete research in this context, has not been evaluated.

Conclusion For the reasons explained;

1- The justification of the Bakırköy 3rd Juvenile Court’s judgment of conviction dated 18.04.2017 and numbered 21-142; that the defendant’s act constitutes the offense of injury with probable intent is RATIONAL,

2- The conviction of Bakırköy 3rd Juvenile Court dated 18.04.2017 and numbered 21-142 is DISMISSED due to the fact that the Special Chamber did not include a legal and sufficient reason for resistance regarding the reason for reversal numbered (2) regarding the establishment of a judgment with incomplete research,

3- In the discussion held on 21.05.2020, it was decided unanimously in terms of the first dispute issue and unanimously in terms of the second dispute issue that the file be referred to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to its place.

 

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