The Criminal Court Of First Instance Is Responsible For The Case File Against The Defendant Allegedly Causing Bone Fracture And Dislocation By Injury
T.C. JUDICIARY 3RD CRIMINAL CHAMBER OF JUDICIARY NO: 2010/1412 DECISION NO: 2010/2472 DECISION DATE: 17.02.2010
SUMMARY: In the concrete case, it is a legal obligation for the investigation and trial authorities to investigate the results of the injury offenses. However, these results must comply with the principles determined by the Forensic Medicine Institute. According to the criteria of forensic medicine, it is determined which injuries are mild enough to be eliminated by simple medical intervention, and it is seen that the fracture of the nose is not counted among the injuries that can be eliminated by simple medical intervention. Since there is a possibility of applying Articles 86/1, 87/3 of the TPC against the defendant, who is alleged to have caused the bone fracture and dislocation of the injury, the duty to review the case file ….. Criminal Court of First Instance.
(5237 CC Art. 61, 86, 87) (5235 CC Art. 11) (5271 CC Art. 309)
CASE: As a result of the trial against the defendants ….. for the crimes of injury and insult, the defendant ….’s act of injury falls within the scope of Articles 86/1, 87/3 of the Turkish Penal Code No. 5237, and the evaluation regarding this should be made by the Criminal Court of First Instance, the court is out of jurisdiction, the file …. ….. to the Criminal Court of First Instance, ….. …. regarding the acceptance of the objection to the decision of the Criminal Court of Peace dated 27/05/2009 and numbered 2009/516-595, and the lifting of the decision of the Criminal Court of Peace on lack of jurisdiction Against the decision of the Criminal Court of First Instance dated 14/07/2009 and numbered 2009/211 different business, the Ministry of Justice, General Directorate of Criminal Affairs requested a reversal in favor of the law with the letter dated 21/12/2009 and numbered B.03.0.CTG.0.00.00.04-105-74-7245-2009/14760/72505, and the case file pertaining to this matter was sent to our Office with the notification of the Chief Public Prosecutor of the Court of Cassation dated 11.01.2010 and numbered 2009/296850;
DECISION: In the aforementioned notification;
….. Since the decision of the Criminal Court of First Instance dated 14/07/2009 and numbered 2009/211 amended work is final, ….. In the examination made by accepting that the decision of the Assize Criminal Court dated 29/07/2009 and numbered 2009/737 is null and void,
According to the scope of the whole file;
Although it was stated that the defendant ….. injured the other complainant defendant …… on the date of the crime in such a way that a nasal bone fracture occurred according to the report of the Chief Medical Officer of Bartın State Hospital dated 21/01/2009 and numbered BIO4ISM4740013/154-02/1182, a public case was filed in accordance with Articles 86/2-3, e, 87/3 of the Turkish Penal Code No. 5237 on the grounds that he was injured in a way that could be eliminated by simple medical intervention. However, it was understood that the public case was filed pursuant to Articles 86/2-3, e, 87/3 of the Turkish Criminal Code No. 5237, but in the event that the crime attributed to the defendant …… is proven, his action will remain within the scope of Articles 86/1 and 87/3 of the Law No. 5237 and the duty to judge this action will belong to the Criminal Court of First Instance in accordance with Article 11 of the Law No. 5235, it was reported that the aforementioned decision should be abolished in accordance with Article 309 of the Code of Criminal Procedure No. 5271, stating that it was not deemed inappropriate to decide to accept the objection while it should be rejected.
Necessity has been discussed and considered;
…… Since the decision of the Criminal Court of First Instance dated 14/07/2009 and numbered 2009/211 different business is final, the decision of the Bartın Heavy Penal Court dated 29/07/2009 and numbered 2009/737 different business is deemed to be null and void,
Article 86/1 of the Turkish Penal Code states that <The person who intentionally inflicts pain on the body of another person or causes deterioration of health or perceptual ability shall be sentenced to imprisonment from one year to three years> and thus, the legal definition of the crime of intentional injury is made and the lower and upper limits of the penalty corresponding to the crime are determined. In other words, Article 86/1 of the TCC is the basic penalty article of the offense of intentional injury.
In the decision of the Criminal General Assembly dated 13.2.2007 and numbered 2006/5-350 E. 2007/30 K., it was stated that <In accordance with Article 61/1 of the Law No. 5237, the basic penalty should be determined first in accordance with the principles and principles specified in the paragraph, and in the presence of reasons for increase and discount, the final penalty should be determined by applying the reasons for increase and then discount.>. Accordingly, in the event of the conviction of the crime, the judge will first determine the basic penalty between the lower and upper limits of the penalty stipulated in the legal definition of the crime according to Article 61/1 of the TCC.
The crimes of aggravated wounding are regulated under Article 87 of the TPC. Paragraphs 1 and 2 of the article stipulate increases at different rates. There is no doubt that these increases will be made on the basic penalty determined within the lower and upper limits stipulated in Article 86/1 of the same law in accordance with Article 61/1 of the TPC. In fact, it is contrary to the way the crime of intentional injury is regulated in the law and the purpose of the legislator to accept an injury that causes severe consequences as a minor injury that can be eliminated by simple medical intervention.
Injuries that cause bone fracture or dislocation in the body are considered as aggravated injury and are regulated in Article 87/3 of the TPC. Article 87/3 of the TPC No. 5237, which entered into force on 1.6.2005, was a separate penal article containing a penalty provision with lower and upper limits (from 1 year to 6 years). However, Article 87/3 of the TPC was amended on 19.12.2006 by the Law No. 5560 to state that if the intentional injury causes bone fracture or dislocation in the body, the penalty determined according to the above article is increased up to half according to the effect of the fracture or dislocation on life functions, and it was removed from being a separate penalty article and turned into an increase article. After the amendment, if the injury causes bone fracture and dislocation, the basic penalty is determined in accordance with Article 86/1 of the TPC, and if there is a possibility of application, after the increase in paragraph 3 of the same article, the penalty can be increased up to half of the penalty according to Article 87/3 according to the effect of bone fracture or dislocation on life functions.
It is a legal obligation for the investigation and trial authorities to investigate the consequences of injury offenses. However, these results must comply with the principles determined by the Forensic Medicine Institute. According to the criteria of forensic medicine, it is determined which injuries are mild enough to be eliminated by simple medical intervention, and it is seen that the fracture of the nose is not counted among the injuries that can be eliminated by simple medical intervention.
Since there is a possibility of applying Articles 86/1, 87/3 of the TPC against the defendant, who is alleged to have caused the bone fracture and dislocation of the injury, the duty to review the case file ….. Criminal Court of First Instance.
CONCLUSION: Accordingly, since the opinion put forward in the notification based on the letter of the Ministry of Justice requesting reversal in favor of the law is deemed appropriate, ….. The decision of the Criminal Court of First Instance No. 2009/211 dated and numbered 2009/211 shall be reversed for the benefit of the law in accordance with Article 309 of the Code of Criminal Procedure, the subsequent proceedings shall be fulfilled by the court, the file shall be returned to the Supreme Court of Appeals Attorney General’s Office to be returned to its place, it was decided unanimously on 17.02.2010.