Defendant Who Cut His Brother’s Hair Committed The Offence Of Ill-treatment
Criminal General Assembly 2016/1412 E. , 2020/8 K.
“Case Law Text”
Decision Maker
Court of Cassation Chamber : 18th Criminal Chamber
Court :Criminal Court of Peace
Number : 25-670
Upon the appeal of the judgement dated 11.10.2013 and numbered 25-670 given by the 3rd Criminal Court of Peace in Alanya (Closed) dated 11.10.2013 regarding the punishment of the defendant … with a judicial fine of 1000 TL in accordance with Articles 232/1, 62, 50/1-a and 52/2-4 of the Turkish Penal Code and the instalment of the judgement dated 11.10.2013 and numbered 25-670, upon the appeal of the defendant, the Supreme 18th Criminal Chamber, which examined the file, dated 04.05.2016 and numbered 24354-9583;
“In order for the crime of ill-treatment regulated in Article 232 of the Turkish Penal Code to occur, the acts against the victim must be continuous and differentiate from the acts regulated in the law, and in the concrete case, the defendant’s action of cutting the hair of the victim, who had previously run away from home and was his sister, in order to scare her and prevent her from running away from home, constituted the crime of intentional injury in Article 86/3-a of the Turkish Penal Code,
The Chief Public Prosecutor’s Office of the Court of Cassation dated 23.06.2016 and numbered 511
“…In the concrete case, the defendant’s act of cutting the hair of the victim, who was his sister and had run away from home before, in order to scare her and prevent her from running away from home is fixed. The dispute between the Supreme Chamber and our Chief Public Prosecutor’s Office is about the characterisation of this act.
The offence of ill-treatment is defined in Article 232 of the Turkish Penal Code as follows: ‘(1) Anyone who ill-treats one of the persons living together in the same dwelling shall be punished with imprisonment from two months to one year
(2) A person who abuses the disciplinary authority arising from the right of upbringing over a person who is under his/her authority or whom he/she is obliged to raise, educate, care for, protect or teach a profession or art, shall be sentenced to imprisonment up to one year’,
The offence of intentional injury is defined in Article 86 of the Turkish Penal Code as follows: ‘(1) A person who intentionally inflicts pain on the body of another person or causes deterioration of health or perception shall be sentenced to imprisonment from one year to three years.
(2) (Additional paragraph: 31/03/2005 – 5328 S.K./4.mad) If the effect of the act of intentional injury on the person is mild to the extent that it can be eliminated by a simple medical intervention, upon the complaint of the victim, imprisonment from four months to one year or a judicial fine is sentenced’.
According to the justification of Article 232/1 of the TPC applied in the concrete case; not all kinds of ill-treatment make it possible for the offence to occur. Maltreatment must be incompatible with mercy, pity and compassion. However, if this form of ill-treatment has caused an effect on the person beyond the extent that can be eliminated by a simple medical intervention, punishment should be imposed for the offence of intentional injury. It is possible to give examples of ill-treatment such as starving or dehydrating the victim, depriving him/her of sleep, forcing him/her to work under difficult conditions.
As can be seen, even if it is accepted that the acts against the victim should be differentiated from the acts regulated in the law, there is no regulation that these acts should be continuous and there is no point point pointing to this in the justification of the article.
On the other hand, the offence of intentional injury is defined in Article 86/1 of the …nun as ‘intentionally causing pain to the body of another person or causing deterioration of health or perception ability’.
It is fixed by general experience that the defendant’s act of cutting hair does not have the feature of causing pain to the victim’s body. Considering that there is no forensic report that this action impairs the victim’s physical or mental health or perception ability, the defendant’s action does not comply with the type of intentional injury crime that finds its meaning in Article 86/1 of the Turkish Penal Code, and in the absence of a legal regulation stating that the actions constituting the crime of ill-treatment must be continuous, the defendant’s action complies with the type of ill-treatment crime written in Article 232/1 of the … because it involves a behaviour that cannot be reconciled with feelings of compassion and compassion.”
The file, which was sent to the First Presidency of the Court of Cassation by the 18th Criminal Chamber of the Court of Cassation, which conducted an examination pursuant to Article 308 of the Code of Criminal Procedure, with the number 14985-15838 dated 12.10.2016 and number 14985-15838, on the grounds that the reasons for objection were 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
The dispute between the Special Chamber and the Chief Public Prosecutor’s Office of the Court of Cassation, which must be resolved by the General Assembly of Criminal Chambers, is about determining whether the defendant’s act constitutes the offence of intentional injury within the scope of Article 86/2-3-a of the TCC or the offence of ill-treatment in accordance with Article 232/1 of the same Law.
From the scope of the examined file;
The investigation started upon the complaint of the victim ….’s mother …. because the victim …. ran away from her house with a friend, and the victim was found on 01.01.2009 by her brother, the defendant …,
The report of the victim about the incident;
According to the report of Alanya State Hospital dated 02.01.2009 and numbered 48; there is no trace of beating and force except for many superficial skin incisions on the left wrist,
According to the report dated 02.01.2009 and numbered 2 issued by Alanya State Hospital Gynaecology and Obstetrics Specialist Dr. …, the hymen (hymen) was intact and there was no actual livata,
A.ccording to the report dated 02.01.2009 and numbered 85 issued by Alanya State Hospital Psychiatry Specialist Dr. …no psychopathology was detected in the victim who declared that no incident occurred against his will and that he did nothing,
According to the population registration sample taken from the UYAP system; the victim died on 04.03.2010 during the prosecution phase,
In the statements of the witness …. taken during the investigation phase; he did not have any statement about the incident of cutting the hair of the victim, who is his daughter, and his statement could not be consulted during the prosecution phase because he could not be reached,
It is understood.
Victim … stated at the investigation stage on 02.01.2009 at 17.45 that he left his house with his friend … on 29.12.2008 at around 17.00, that they stayed in other places for three nights, that on 01.01.2009 in the afternoon they were seen by …’s mother and the defendant’s brother while they were walking in the Friday Bazaar area and that they were brought to their house, that while they were at home at around 23.00, the defendant came to him with scissors and cut his hair randomly and said “It is forbidden to leave the house again, this is a punishment for you,
I will tie you to the house with a chain. 00, the defendant took a pair of scissors and came to her and cut her hair randomly and said “It is forbidden to leave the house again, this is a punishment for you, I will tie you to the house with a chain.” She could not call the police because she was afraid and had no means, she did not want to return home because she was subjected to pressure and violence, she wanted to be taken under state protection and stay in an orphanage for girls,
At the investigation stage, on 02.01.2009 at 23.55; although in her statement taken at around 17.30 on the same day, she said that she did not want to go home because she was subjected to pressure and violence at home and that she wanted to be taken under state protection and stay in a girls’ orphanage, there was no ill-treatment or violence against her at home, that she cut her hair herself while taking a bath, that she did not complain about the defendant, who was her brother,
At the investigation stage, on 22.05.2009, he stated that on the day he ran away from home, the defendant, who was his brother, found him and brought him home, that he had attempted to run away from home before, that on the day of the incident, the defendant cut his hair randomly by force when he got angry with him, and that he gave his statement dated 02.01.2009 at 23.55 because he was scared,
He declared.
The defendant stated on 02.01.2009 at the investigation stage that the victim’s sister had psychological problems, that she ran away from home from time to time, that she found the victim, who had run away from home on 29.12.2008, on 01.01.2009 around 18:00 and brought her home. 00 at around 18.00 on 01.01.2009, he found the victim who ran away from home on 29.12.2008 and brought her home,
he told her that what she did was wrong and could cause trouble for her, he asked his sister to take a bath because her clothes were dirty and smelled bad, after about ten minutes he came out of the bathroom and saw that the victim’s hair was cut, when he asked her why she did that she said “You don’t want me anyway, I cut my hair because I am dirty or I might have lice”, he did not cut the victim’s hair and he did not say that he would chain her up,
During the investigation phase on 22.05.2009; the victim ran away from home before the date of the incident, there were attempts to run away from home before, he cut his hair with scissors in order to scare the victim and prevent him from running away from home again, but he did not have any force while cutting his hair, he cut it with the consent of the victim, he did not make a statement that he would tie the victim with a chain,
At the stage of prosecution; the victim died about a year ago, she had previously run away from home due to psychological problems, and on the date of the incident, he cut her hair at the request of the victim because he did not want her to run away from home,
Defence.
In order to resolve the dispute in a healthy way, it is necessary to focus on the offences of “intentional injury” and “ill-treatment”.
The offence of intentional injury is defined in Article 86 of the TPC;
“(1) A person who intentionally inflicts pain on another person’s body or causes deterioration of health or perception shall be sentenced to imprisonment from one year to three years.
(2) If the effect of the act of intentional injury on the person is so slight that it can be eliminated by a simple medical intervention, upon the complaint of the victim, imprisonment from four months to one year or a judicial fine shall be imposed.
(3) The offence of intentional injury
a) Against a superior, subordinate, spouse or sibling,
b) against a person who is physically or mentally incapable of defending himself/herself,
c) Due to the public duty fulfilled by the person,
d) By abusing the influence of a public official,
e) With a weapon,
If it is committed, the penalty to be imposed shall be increased by half without the need for a complaint.”
In the first paragraph of the article, the definition of the offence of intentional injury is made, the basic form of intentional injury is regulated, every act that causes pain to the person’s body or causes deterioration of health or perception ability is accepted as injury, and this point is clearly emphasised in the preamble of the article. The fact that the effect of the act of intentional injury on the person is to the extent that it can be eliminated by a simple medical intervention is regulated in the second paragraph, and in this case, a prison sentence less than the prison sentence in the first paragraph or a judicial fine as an option is envisaged as the sanction of the offence.
Legal benefit protected in the offence of intentional injury is the bodily inviolability and bodily integrity of the person. The subject of the offence is the victim’s bodily or mental existence, which is caused pain or impaired. There is no doubt that the offence of intentional injury will occur if one of the consequences specified in the article occurs as a result of the perpetrator’s action, and it is possible to commit the offence of intentional injury with all actions that are capable of producing this result.
The offence of ill-treatment is defined in Article 232 of the eighth section titled “Offences against family order” of the Turkish Penal Code;
“(1) Anyone who maltreats one of the persons living together in the same dwelling shall be sentenced to imprisonment from two months to one year.
(2) A person who abuses the disciplinary authority arising from the right of upbringing over a person who is under his/her authority or whom he/she is obliged to raise, educate, care for, protect or teach a profession or art, shall be sentenced to imprisonment for up to one year.” It is regulated as follows.
The offence of ill-treatment is the equivalent of the offences of “abuse of the means of upbringing and order and ill-treatment against family members” in Articles 477 and 478 of the abrogated TPC No. 765, and by combining these two types of offences in a single provision, the first paragraph of the regulation includes ill-treatment against the person living together in the same dwelling, and the second paragraph includes the abuse of disciplinary authority arising from the right of upbringing.
The offence in the first paragraph of Article 232 of the TPC is not defined as a specific offence in the Law. Therefore, it is understood that this regulation, which does not foresee a family relationship between the perpetrator and the victim, protects firstly the bodily integrity, health, honour and freedom of the persons living in the same dwelling, and secondly the family order when the systematic of the Law is considered.
Both the perpetrator and the victim of the aforementioned offence are persons living together in the same dwelling. Although there is no definite time criterion for the acceptance of cohabitation, the existence of the will to live together is sufficient.
The actual element of the offence is maltreatment. Although the offence of ill-treatment is committed by acts that harm the person physically or mentally, not all kinds of ill-treatment constitute this offence. This point is stated in the justification of the article, “… Not all kinds of ill-treatment make it possible for the offence to occur. Maltreatment must be incompatible with mercy, pity and compassion. However, if this form of ill-treatment has caused an effect on the person beyond the extent that can be eliminated by a simple medical intervention, punishment should be imposed for the offence of intentional injury.
It is possible to give examples of ill-treatment such as starving or dehydrating the victim, depriving him/her of sleep, forcing him/her to work under difficult conditions.” and the criteria for determining ill-treatment are set forth. Acts such as starving or dehydrating the victim, making him/her walk naked, forcing him/her to work under difficult conditions can be given as examples of ill-treatment. The behaviours that constitute ill-treatment may be physical, directed against the integrity of the body, or may consist of acts directed against moral integrity such as mockery and intimidation.
Based on these explanations, although “continuity” is not listed among the material elements of the offence, considering that the word “treatment” in the expression “ill-treatment” has meanings such as “transaction, behaviour, conduct”, it should be accepted that ill-treatment includes a functioning and process as well as the concept of action, and that the functioning and process here is a totality of actions within the existing conditions, rather than being continuous under all circumstances and continuing uninterruptedly. Therefore, continuity is not necessary in cases where the intention of ill-treatment in an act can be demonstrated beyond doubt. Depending on the nature of the concrete event, it is possible to commit the offence in question with a sudden act that cannot be reconciled with mercy, pity and compassion.
When the subject of the dispute is evaluated in the light of these explanations;
On 29.12.2008, the victim, who was sixteen years old as of 29.12.2008 and who ran away from home on this date and stayed in hotels and other houses with his friends for a while, was accidentally seen by the defendant, who was his older brother, in a market place on 01.01.2009, the date of the crime, and was taken to the house where they lived together, and the defendant, who was angry that the victim ran away from home, cut the victim’s hair randomly using scissors so that he would not do it again;
Although the act subject to the crime was committed as an intervention on the victim’s body integrity and there is a physical damage to the victim, the crime of intentional injury did not occur because the act did not cause pain to the victim’s body and it cannot be said that his mental health or perception ability was impaired, However, it should be accepted that the perpetrator’s behaviour, which cannot be reconciled with mercy, pity and compassion in order to punish his sister, constitutes the crime of ill-treatment due to the fact that its consequences spread over a long period of time, and in this respect, it should be decided to accept the objection of the Chief Public Prosecutor of the Court of Cassation.
One member of the Criminal General Assembly, who disagrees with the majority opinion, has voted against the objection with the opinion that the objection should be accepted with a different reasoning, with the opinion that “the defendant’s action does not constitute a crime”, and four members of the Criminal General Assembly have voted against the objection with the opinion that “the objection should be rejected”.
CONCLUSION:
For the reasons explained;
1- Acceptance of the objection of the Chief Public Prosecutor’s Office of the Court of Cassation,
2- The decision of the 18th Criminal Chamber of the Court of Cassation dated 04.05.2016 and numbered 24354-9583 shall be annulled,
3- It was decided by majority of votes in the discussion held on 16.01.2020 to refer the file to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to the 18th Criminal Chamber of the Court of Cassation for the supervision of the application.
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