The Instruction Of The Instigator Is The Main Thing
Republic of Turkey Court of Cassation 1st Criminal Chamber
Esas No: 2014/6118
Decision No: 2015/3222
K. Date:
Notification No: 1 – 2013/332054
COURT : Adana 4th High Criminal Court
DATE AND NO : 02/05/2013, 2012/239 (E) and 2013/244 (K)
CRIME : Qualified manslaughter, aiding and abetting this crime
The collected evidences were examined at the decision, the crime of intentional killing of the defendant … and the crime of intentional killing of the minor … and the act of the child dragged into the crime … were accepted, the crime qualification of the defendant … was determined in accordance with the occurrence and the result of the investigation, the reason for discretionary discount was appreciated, the defense was evaluated with convincing reasons; the defendants
… for the offense of assisting in the intentional killing of the deceased, it has been accepted and appreciated that the evidence obtained for the offense of assisting in the intentional killing of the deceased … is not of sufficient quality and degree for conviction pursuant to Article 223/2-e of the Code of Criminal Procedure, and since there is no inaccuracy in the verdicts given according to the examined file, except for the reasons for reversal, the objections of the defendant …’s defense counsel to the conviction, qualification and legitimate defense, and the other objections of the participant’s attorney to the conviction in terms of the acquitted defendants, and to the qualification and discretion in terms of the defendants …, which are not deemed appropriate, are rejected;
1- The conviction of the defendant … for the offense of intentional killing of the deceased and the acquittal of the defendants … for the offense of aiding in the intentional killing of the deceased shall be APPROVED as the opinion in the notification;
However,
2- The child dragged to crime … and the deceased … previously worked together at the same workplace, there was a quarrel between them about three weeks before the day of the incident for an unknown reason, the child dragged to crime İlyas was dismissed from work for this reason, and because of this, there was a feud between them, a few days before the day of the incident, there was an argument between them again and the deceased injured the child dragged to crime … in a simple way, on the day of the incident, the child dragged to crime … In the case where, due to the previous incidents between the deceased and the other defendants, they went in front of the workplace where the deceased worked in order to intimidate him, and waited for the deceased to get off work, and when the deceased got off work, ilyas, the child dragged into the crime, first went to him and said “come and talk to you” and took him to the alley, and when a fight broke out between the two here, the defendant …, one of those who came to the scene to intimidate the deceased, caused his death by stabbing him in the chest area as stated in the autopsy report,
a) The intention of Ilyas, the child dragged to the crime, was not to kill the deceased, but to beat him. For this purpose, he brought the defendant … and others to the scene. However, instead of beating the defendant … went beyond the instructions given to him and stabbed … to death.
In this case, since …’s instigation was aimed at beating, he cannot be held directly responsible for killing a human being, and although he should be punished for the crime of killing as a result of injury exceeding the intent in accordance with Article 87/4 first sentence of the TPC No. 5237, he was mistaken in the nature of the crime and sentenced as an aider and abettor to the crime of intentional killing,
b) It is not clear who initiated the previous incidents between the deceased and the child dragged into the crime …, and according to the witness statements, the provisions of unjust provocation against the child dragged into the crime due to the unjust provocation of the deceased in the form of beating the child dragged into the crime before the incident
Determination of excessive punishment by not considering that a minimum reduction should be made in accordance with Article 29 of the Turkish Penal Code No. 5237,
c- Establishing a verdict of conviction in writing with an erroneous evaluation instead of acquitting the defendant, even though there is no convincing material evidence beyond doubt that the defendant … assisted in the murder of the deceased or intentionally injured the deceased;
Since the objections of the defendant … and the child dragged into crime … in their petitions of appeal and the objections of the defendant … and the child dragged into crime … in their petitions of appeal and in the trial examination were deemed appropriate for this reason, the verdicts were (DISMISSED) contrary to the opinion in the notification, and the child dragged into crime … and the defendant … were released from the crimes of aiding to intentional murder, and if they are not under arrest or convicted of any other crime, it was unanimously decided on 20/05/2015 to write a letter to the Chief Public Prosecutor of the Court of Cassation for their release.
This decision given on the day of 20/05/2015 was duly and openly explained on the day of 21/05/2015 in the presence of the Supreme Court of Appeals Public Prosecutor … and in the absence of the defendant İbrahim Güneş defense attorney … who made his defense at the hearing.