4-238 E of the Criminal General Assembly of the Supreme Court. /367 K. its decision dated 22.10.2002
SUMMARY: Effective actions against each other and as indicated in the doctor’s reports
apart from the conflicting accounts of the injured defendants, which one made the first unjustified attack and started the fight
it is clear that it is not possible to determine with certainty who started it.
(765 Pp. K. m. 51, 59, 456, 457)
Case: Mehmet Alin, accused of effective action TCYnin 456/2, 457/1, 59. in accordance with the articles
regarding the punishment of Elazig 2. By the Criminal Court of First Instance on 7.11.2000 days and by the number 286-587
upon appeal of the verdict by the defendant, the Court of Cassation, which examined the file, 4. Punishment
With 24.04.2001 days and 3796-4780 issues by the apartment;
According to the defendant’s defense, which cannot be proven otherwise, in order to water the animals of the complaining Mehmet
the application of the provisions of unjust suppression for the benefit of the accused by cutting off the water of the field
a decision must be made without weighing whether it will require a decision on the violation of the provision for non-compliance
it has been given.
The local court, on the other hand, with the date of 18.9.2001 and the number 369-443; As is known, is a legal and general punishment reducing
the incitement caused is an act of anger or a violent act caused by an unjustified act of the perpetrator under the influence of
it is defined in the form of a criminal transaction. TCYnin 51. in order for the clause to be applied, the verb wrath
or that the justified act was committed under the influence of depression and fear, and that it was caused by unjustified incitement
is required.
However, in our concrete case, which is determined to have taken place as stated above, the defendant’s wrath or justified
it cannot be said that his action was influenced by the depression and fever. Because there is no claim and all
narratives during the fire, the defendant used to irrigate the land and the water coming from the arc was used by the other defendant
the fact that it is cut is not fixed. When the defendant sees the other defendant with a herd of animals, the other defendant
he tied it up without any effect, tied it up and asked him to take his flock away, he is again personally accused
even in his defense in our court, when the other defendant says what are you doing, the trial and
the subject of the judgment has performed effective action with the weapon. In other words, the other defendant Mehmet
the defendant does not yet know that he was cut by. Response and reaction to a shouting rebuke
in addition to being told what you are doing in your nature, there is swearing and insulting him
is not.
In this case, it was not considered possible to apply the incitement provisions in favor of the defendant and essentially the previous
5 of part 5 of the evidence and evaluation of the provision. in its paragraph, both defendants in the incident are charged in terms of
a justification and determination have been made that there is no legal discounting reason in terms of incitement. grounds
he resisted the previous provision.
Upon appeal of this decision by the defendant, the file is filed with the Supreme Court C. Corruption of the prosecutor’s office
the request was sent to the First Presidency with a notification dated 12.7.2002 by the General Assembly of Penalties
read, discuss and think about the necessary:
Decision: In the concrete case where it is decided to punish the accused for the crime of effective action, with the special department
non-compliance between the local court, whether the decriminalization provisions about the accused are applied
it is collected at the point of determining that it cannot be applied.
According to the contents of the reviewed file;
in the minutes of the crime scene determination held on 21.5.2000; K. The village headman Salutes you by phone
an examination of the scene after reports of a fight found water in the upper part of the village
the defendant Mehmet Ali, who irrigated his garden by carrying the water coming out of the source through the soil channel, met with
the argument between Mehmet, who wanted to get water from the same place, turned into a fight, dec accused Mehmet
Mehmet, who was injured after ali hit him with a shovel, was hospitalized, the defendant Mehmet
Ali was injured in the press and was found at the scene, the sphere used in the incident was confiscated
it was stated that the minutes were also signed by Selami, the village headman, and Mehmet Ali, the defendant. Which had been done
as a result of the preparatory investigation, the accused took effective action against Mehmet Ali and Mehmet
a public lawsuit has been filed to punish them for their alleged presence.
In his statement received by the accused Mehmet Ali law enforcement; the garden located to the east of his house in the morning
at about 10.30 am, while watering, Mehmetin from the same village brought a herd of animals to the pasture located on the upper side
that you cut off the water by bringing it in, that you will water your animals when you ask this person why he is doing this
he said that when he asked not to use the water channel, he responded with blasphemy and had a shepherd’s stick in his hand
and that he hit her on the head, and that he met her with a shovel in her hand, and that they hit each other,
then he declared that the only Octave had come and separated him, that Mehmet had harbored animosity towards him before, and that he was complaining.
At the trial, when he realized that the water had been cut off while watering his garden on the day of the incident, Mehmetin turned the water over
when you saw that it was, why did you cut the water, let me water my garden, and then you said that you should cut it off
kinin, what are you whining about? saying that he hit himself with a stick in his hand, a pistol in his waist
he tried to give a bullet to his mouth by removing the shovel to block it and drop the pistol in his hand
that he threw it away, that he didn’t know where he came from, that his son took the gun that fell to the ground and ran away, with the other defendant
that they continue to fight, that the defendant Mehmet said to him that you are just screwing around, that this
when he was reminded of the law enforcement statement and asked about the reason for his disability, he said that he had not said anything else,
that his statement in court was correct, there had been no previous arguments and quarrels between them dec
not told him.
If you finalize the decision on the conviction of the defendant Mehmet Aliya for simple effective action
Mehmet, who complains, is consistent in essence in the asamas, on the morning of the incident, he went to the pasture to graze his animals
that you’re gone, that the defendant Mehmet Ali is driving the case, that you’re getting out of here because you’re hurting me,
dec that there is no water dispute between them, there is a bag of salt to give to animals, a shepherd’s stick
that he was not carried, and the defendant Mehmet Ali had a shovel in his hand, to protect himself when he would hit his head
the defendant was injured in the arm when he raised his arm, when he wanted to escape before receiving a blow
Mehmet Ali’s nephew declared that the Octave was holding him, that he had never hit the other defendant, the first
after the establishment of the provision, he stated that he had given up his complaint.
Witnesses who are relatives of the parties have an eyewitness information about the moment of the incident of the Leader and Mary
it is understood that it does not happen.
When the doctor’s reports of the accused who complained were examined; about Mehmet Elazig State Hospital
in the report dated 6.6.2000, organized by the orthopedist; The left elbow was operated due to an open fracture
it has been stated that he will not have a life-threatening condition and will remain in his work and strength for 45 days, and he will recover in 90 days.
As for Mehmet Ali, the Forensic Medical Institution held by the Elazig Forensic Medical Examiner’s Office on 4.7.2000 days
in the report; about the reports previously organized by the Ministry of health and the State hospital
on examination, it was found that blunt trauma to the head occurred in the left parietal region 2X1 cm.swelling and
an irregular incision with bleeding edges is described in the middle, any incision is made in the dimag area, on the head stone
since the fracture, large vessel nerve, internal organ lesion has not been described, it has been reported that its failure does not endanger his life, it will interfere with his work and strength for 7 days. When all these information and documents are deciphered and evaluated together;
Who take effective action against each other and are injured as indicated in the doctor’s reports
apart from the contradictory statements of the defendants, which one made the first unjustified attack and who started the fight
it is clear that what he started cannot be determined with certainty. No need to Punish the General Assembly
as it is accepted that private apartments are located on land that shows continuity, the first is unfair
taking advantage of the accused in this case, who remains suspicious that it cannot be determined from whom the act originated
thus, it should be recognized that he performed the effective action under a slight unjustified provocation. Then the local
unjustified incitement about the defendant Mehmet Ali on the grounds that the court does not consider it appropriate to the scope of the file
it is incorrect to conclude that there is no place for the implementation of its provisions.
In this regard, the local court should decide on the violation of the provision of resistance.
Conclusion: The decision to resist the local court for the reasons described was OVERTURNED, instead of the file
to be sent to the Supreme Court C. Request in the notification on 22.10.2002, deposited with the Prosecutor General’s Office
accordingly, it was decided by unanimous decision. (¤¤)