CRIMES AGAINST LIFE

(TCK art. 81-82-83-84-85)

The legislator addressed Crimes Against Persons in the Second Part of the Special Provisions Section of the Turkish Penal Code No. 5237. The First Part of the crimes committed against persons covers Crimes Against Life, a person's most important value. The right to life is a right that is more important than all other rights. In countries where the right to life is not adequately protected, problems arise in the exercise of all other rights. In other words, the right to life is necessary for the exercise of all other rights. This right is also guaranteed in Article 17 of the Constitution of the Republic of Turkey. According to the said article, “Everyone has the right to life and to protect and develop his or her material and spiritual existence.” Accordingly, everyone has the right to life. In this respect, the Turkish Penal Code prioritizes the right to life over all other rights and stipulates that the harshest penalties be applied to those who violate this right. A person's right to life ends with death as a result of the crimes of Negligent and Intentional Killing and the crime of Incitement to Suicide discussed in this section. Under this section, the legislator, respectively: It regulates the crimes of intentional murder (Article 81), intentional murder through negligence (Article 83), incitement to suicide (Article 84) and negligent murder (Article 85).

1-) Crime of Intentional Murder (TCK Art. 81-82)

This crime occurs when a person knowingly and intentionally ends another's life through an executive act. The legal value protected by this legal norm is the individual's right to life. This crime is a free-flowing crime, and the manner in which the crime is committed or the relationship between the perpetrator and the victim does not constitute the crime itself, but rather its qualified form. The legislator has regulated the basic form of the crime in Article 81 of the Turkish Penal Code, and the qualified forms of this crime in Article 82 of the Turkish Penal Code.

TCK Article 81 – A person who intentionally kills a person shall be punished with life imprisonment. TCK Article 82 - (1) The crime of intentional murder;

a) By design,

b) With monstrous feelings or by causing torment,

c) By fire, flood, destruction, sinking or bombing or by using nuclear, biological or chemical weapons, d) Against a direct descendant or descendant or a spouse, ex-spouse or sibling, e) Against a child or a person who is physically or mentally unable to defend himself/herself,

f) (Amended: 12/5/2022-7406/2 art.) Against women, g) Because of the public duty performed by the person,

h) In order to conceal a crime, to destroy evidence or to facilitate its commission or to avoid being caught,

(i) (Added: 29/6/2005 - 5377/9 art.) Out of anger at not being able to commit a crime, (j) With the motive of blood feud,

(k) For the sake of custom,

If committed, the person is punished with aggravated life imprisonment.

In the crime of intentional homicide, if the perpetrator's actions were likely to kill the victim but the victim did not die, then attempted intentional homicide occurs. Accordingly, TCK Article 81—and if there are aggravated circumstances, Article 82—is applied in conjunction with TCK Article 35. In terms of participation, all forms of participation in intentional homicide are possible. Participation is regulated in TCK Article 37. If this crime is committed by more than one perpetrator, each perpetrator is punished separately under TCK Article 81 and is punished with life imprisonment. The status of an accomplice who participates in the crime as an aider is assessed under TCK Article 37. In terms of collective action, the provisions for consecutive offenses do not apply to intentional homicide, and true conjunction is applied, with each offense being punished separately.

Investigations and prosecutions for the crime of premeditated murder are not subject to complaints. Investigations and prosecutions for this crime are conducted ex officio. The competent court for this crime is the court where the crime was committed, and the High Criminal Courts are the competent courts. Finally, the statute of limitations for this crime begins after the crime is committed, and while the basic form is 25 years, it is 30 years for the aggravated form.

COURT OF APPEALS 1ST CRIMINAL CHAMBER 2016/148 E., 2017/2873 K.

CRIME: ATTEMPTED MURDER

According to the file, the defendant and the victim started living together without an official marriage about ten years before the incident, and a daughter was born from their relationship. After five years of being together, the defendant moved into the house where his father, the defendant, and his brother shared a common residence because of the victim’s violence against him. During this period, the victim constantly pressured the defendant to return to her by threatening her. Despite returning to the shared house, the victim continued to use violence against the defendant. About a year and a half before the incident, the defendant returned to his father and brother’s house because of the victim’s violent acts against him, and after a while, she officially married the defendant. Despite this, the victim persistently committed threatening and insulting acts against the defendant and his family. Finally, on the day of the incident, the victim came to the front of the defendant’s house in a borrowed car, shouted and shouted threatening and insulting words, and the defendant attempted to kill the victim by shooting him with a shotgun.

a-) During the application of Article 29 of the Turkish Penal Code, which provides for a penalty reduction from 1/4 to 3/4, taking into account the extent of the words and behaviors directed from the victim to the defendant and creating continuity, instead of a reasonable penalty reduction, an excessive penalty was determined by making a 1/3 reduction in writing, by making a mistake in the degree of provocation.

b-) There is a necessity to re-evaluate the legal situation of the defendant in terms of the sections of Article 53 of the Turkish Penal Code No. 5237 that were annulled by the Constitutional Court's decision dated 08.10.2015 and numbered 2015/85,

RESULT: Since the appeal of the defendant's defense was deemed appropriate and it was deemed necessary to overturn the decision, it was unanimously decided on September 26, 2017, to REVERSE the decision as per the opinion in the notification.

2-) Committing Intentional Murder by Negligence (TCK Art. 83)

A perpetrator can end another's life through an act of negligence, just as they can through an act of negligence. The legislature has specifically regulated the taking of another's life through an act of negligence. The existence of a negligent act can only be determined by the existence of a norm that prohibits negligence. In other words, negligent act occurs when a commanded action is not performed. In Article 83, the legislature has defined the crime of intentional homicide as committed by negligence.

TCK Article 83 - (1) In order for a person to be held responsible for the death that occurs as a result of not performing a certain performance act for which he is obliged, the negligence of the obligation that caused this result must be equivalent to the performance act. (2) In order for negligence and performance act to be considered equivalent, the person;

a) There is an obligation arising from legal regulations or contracts to perform a certain executive action,

(b) The previous act must have created a dangerous situation for the lives of others. (3) For a person who causes death by negligence of a certain liability, the basic penalty may be a sentence of twenty to twenty-five years' imprisonment instead of aggravated life imprisonment, fifteen to twenty years' imprisonment instead of life imprisonment, and in other cases, a sentence of ten to fifteen years' imprisonment, or no reduction in the sentence.

As stated in the law, in the event of a person causing death due to negligence, the sanction must be assessed under Article 83 of the Turkish Penal Code, in which case the person must have failed to fulfill a legal or contractual obligation or must have caused a preceding dangerous act. If these conditions are not present, the person will not be criminally liable under Article 83 of the Turkish Penal Code.

In the crime of Negligent Murder, if the perpetrator's actions were likely to kill the victim but the victim did not die, an attempt to commit Negligent Murder occurs. Accordingly, TCK Article 83 is applied in conjunction with TCK Article 35. In terms of participation, all forms of participation in the crime of Negligent Murder are possible. Participation is regulated in TCK Article 37. If this crime is committed by more than one perpetrator, each perpetrator is punished separately according to TCK Article 83. The status of an accomplice who participates in the crime as an aider is assessed under TCK Article 37. In terms of grouping, the provisions for consecutive offenses do not apply to the crime of Negligent Murder, and true grouping is applied, with each offense being punished separately.

Investigation and prosecution for the crime of Negligent Murder are not subject to a complaint. Investigation and prosecution for this crime are conducted ex officio. The competent court for this crime is the court where the crime was committed, and the competent court is the High Criminal Courts. Finally, although the statute of limitations for this crime begins after the crime is committed, sentences ranging from 20 to 25 years are imposed instead of aggravated life imprisonment, and from 10 to 15 years are imposed instead of life imprisonment.

COURT OF APPEALS 1ST CRIMINAL CHAMBER 2017/1313 E., 2018/4324 K.

CRIME: INTENTIONAL MURDER BY NEGLIGENCE

“1- In the public lawsuit filed against the defendant … for the crime of qualified premeditated murder of her newborn baby, the Ministry of Family and Social Policies is the injured party of this crime in accordance with the articles 2/1-d and 20/2 of the Law No. 6284, and although it should have been informed of the hearing in order to participate in the case and exercise its other rights during the prosecution phase in accordance with the articles 233 and 234 of the Criminal Procedure Code, it was notified of the case and hearings in order to participate in the case and to exercise the rights stipulated by the Criminal Procedure Code for the victims and participants.

Continuing the trial without providing the opportunity to benefit from it and rendering a written verdict,

2- Although it was stated in the reasoned decision that the defendant ... "was accepted as proven that he deliberately killed his descendants who were physically and mentally incapable of defending themselves", in the next paragraph it was stated that he committed the crime of murder by negligence by not fulfilling his duty of care towards his newborn baby, and in the judgment paragraph, a penalty was determined in accordance with Article 83/2-a-3 of the Turkish Penal Code, thus causing confusion within the reasoning itself and between the reasoning and the judgment.

It was unanimously decided on 24.10.2018 that the appeal objections of the public prosecutor, the representative of the Ministry of Family and Social Policies who was harmed by the crime and the defense counsel of the defendant … were found to be valid in this regard, and that the verdict, the other aspects of which were not examined, and the acquittal verdict given for the crime of destroying criminal evidence against the defendant … due to the connection between them, be REVERSED, as per the opinion in the notification, primarily for these reasons.”

3-) Crime of Inducing Suicide (TCK Art. 84)

Suicide is the act of ending one's own life. The act of suicide is not sanctioned under Turkish Penal Code No. 5237. However, those who encourage, direct, or instigate another person to commit suicide are punished according to Article 84 of the Turkish Penal Code.

TCK Article 84 - (1) A person who instigates or encourages another person to commit suicide, strengthens another person’s decision to commit suicide, or helps another person in any way to commit suicide shall be punished with imprisonment from two to five years.

(2) In case of suicide, the person is sentenced to imprisonment from four to ten years.

(3) Anyone who publicly encourages others to commit suicide shall be sentenced to imprisonment from three to eight years. (Repealed second sentence: 29/6/2005 – 5377/10 art.)

(4) Those who incite people to commit suicide, whose ability to perceive the meaning and consequences of the act they commit is not developed or has been eliminated, and those who force people to commit suicide by using force or threats are held responsible for the crime of deliberate murder.

As stated in the law, encouraging someone to commit suicide constitutes the basic form of the crime, and if the person encouraged to commit suicide actually commits it, the penalty is further increased. Furthermore, encouraging someone to commit suicide who does not understand the meaning and consequences of the act, or who is under duress or threat, is considered indirect murder, and therefore, those who commit these acts will be criminally liable for premeditated murder.

The crime of incitement to suicide is not a consequential crime. However, if the outcome occurs, the individual's criminal liability will increase. While some scholars believe that attempting this crime is impossible (Koca & Üzülmez), others believe that attempting this crime is possible. If the victim attempts suicide but fails to achieve it, the legal norm under which the perpetrator will be held criminally responsible is debatable. If the victim, instigated by the perpetrator and intends to commit the act stipulated in Article 84/2 of the Turkish Penal Code, but is unable to achieve it due to circumstances beyond their control, then, in accordance with the Supreme Court's view, attempting to qualify is possible, and the perpetrator can be punished for attempting the crime under Article 84/2 of the Turkish Penal Code. By its nature, incitement to suicide is not a crime suitable for indirect or joint perpetration, but the perpetrator may participate in the act as an accomplice. In terms of concurrence, if multiple individuals are incited to commit suicide through the same act, the provisions of a chain of crimes apply.

Investigation and prosecution for the crime of Suicide Incitement are not subject to a complaint. Investigation and prosecution for this crime are conducted ex officio. The competent court for this crime is the court where the crime was committed, and the competent court is the Criminal Court of First Instance. However, if the act under Article 84/4 of the Turkish Penal Code has been committed, the competent court will be the High Criminal Court. Finally, the statute of limitations for the simple form of this crime begins after the crime is committed and is eight years, while the statute of limitations for the aggravated form is 15 years.

COURT OF APPEALS 1ST CRIMINAL CHAMBER 2013/4118 E. 2013/7481 K.

CRIME: ASSISTANCE TO SUICIDE

"...After the families of the 31-year-old defendant Bilal, who is married and has two children, and the 16-year-old victim Kader did not approve of their friendship, Bilal sent a message to Kader's phone on 11.03.2010 and said "Are you up for anything with me?" When Kader replied "yes", this time he asked the victim to bring a drug to kill her, on 12.03.2010 Kader took 4 boxes of medicine from home and met Bilal after school, they went from Mersin to Erdemli together, they stayed in a hostel there, on 14.03.2010 Bilal asked Kader if she had brought the drugs, Kader said she had, so they shared the drugs, Kader started drinking first, Bilal also drank the drugs, after a while they went to the hospital and were revived after treatment, in the incident, the defendant Bilal suggested committing suicide and upon the defendant's request, he took the drugs used in the suicide "It is understood that the victim brought the case by providing it, and without considering that the defendant should be punished for the crime of incitement to suicide that fits his action, a written acquittal decision is made, requiring reversal, and the appeal objections of the Public Prosecutor are accepted in this regard, and the verdict is REVERSED as per the idea in the notification..."

4-) Murder by Negligence (TCK Art. 85)

Negligent behavior is the occurrence of an undesirable outcome resulting from a person's violation of their duty of care and diligence. The legislature has incorporated criminal liability for murder caused by negligence into Article 85 of the Turkish Penal Code.

TCK art. 85 - (1) A person who causes the death of a person by negligence shall be punished with imprisonment from two to six years.

(2) If the act causes the death of more than one person or the death of one or more persons and the injury of one or more persons, the person shall be punished with imprisonment from two to fifteen years.

As stated in Article 22/2 of the Turkish Penal Code, negligence is the unforeseeable consequence of a crime, as defined by the law, due to a breach of the duty of care and diligence. Negligence is a consequence of a breach of the duty of care and diligence as defined in the law. The key point here is that the duty of care and diligence is objective, not subjective. In other words, a breach of the objectively established duty of care and diligence is required. Furthermore, if the consequence resulting from the breach of care and diligence could have been foreseen by a reasonable person, it is considered conscious negligence; if it is not, it is considered unconscious negligence.

Because crimes of negligence are not committed knowingly and intentionally, attempting to commit them is impossible. These injustices are punished according to the resulting consequences. This is because the person has no intention to commit a crime. In terms of participation, since the person lacks the will to commit a crime, only a failure to act with due care and diligence is possible, it is impossible for others to participate in the crime in various capacities. In the context of concurrent negligence, if the same act of negligence results in the death of more than one person, or in the death of one or more people along with the injury of one or more people, the perpetrator is liable under Article 85/2 of the Turkish Penal Code. In other words, in such cases, provisions on consecutive crimes and similar provisions do not apply. However, crimes of negligent homicide generally occur in traffic accidents. In these cases, different types of concurrent negligence may be involved.

Investigations and prosecutions for the crime of negligent homicide are not subject to a complaint. Investigations and prosecutions for this crime are conducted ex officio. The competent court for this crime is the court where the crime was committed, and the competent court is the Criminal Court of First Instance. However, if Article 85/2 of the Turkish Penal Code is applied, the competent court is the High Criminal Court. Finally, the statute of limitations for this crime begins after the crime is committed and is 15 years.

COURT OF APPEALS 1ST CRIMINAL CHAMBER 2016/5983 E., 2017/1508 K.

CRIME: MURDER BY NEGLIGENCE

“The defendant and the victim met because he was doing whitewashing in his house 3 months ago, on the day of the incident the defendant went to the victim’s house, wanted to take the victim’s money and valuables in the house, which the victim did not want to give back, during an argument between them he pushed the victim and knocked her to the ground and rendered her incapacitated, he took the victim’s car keys, vehicle registration, mobile phone and wallet from the house and left the house, he took the victim’s car which was parked in front of the door and left, according to the Forensic Medicine report received, the victim died due to an acute cardiac attack triggered by the argument and the assault between the defendant and the defendant, the defendant intervened in the incident by pushing the victim which could have been remedied with simple medical intervention, but there was a causal link between the death and the defendant’s action;

1-) Considering that the defendant knew the victim before and did the painting and whitewashing of his house, it was investigated whether he knew about the victim's heart disease beforehand and according to the result;

a-) If it is determined that he knew, he will be charged with the crime of conscious negligent homicide in accordance with Article 22/3 and its reference, Article 85,

b-) If it is determined that he did not know, instead of deciding to be punished for the crime of murder by negligence in accordance with Article 22/2 and its reference, Article 85, a verdict should be given for the crime of murder by aggravated wounding due to the result of the incomplete investigation, which was not applicable in the incident;

2-)In the examination conducted in terms of the verdict rendered against the defendant for the crime of theft;

The defendant was found to have taken the victim's car keys, vehicle registration, and mobile phone, which had material value, by disabling the victim before his death, and thus, a criminal error was made, and a written verdict was made for the crime of theft, without considering that a decision should have been made for the crime of robbery.

CONCLUSION: The appeals of the defendant's defense counsel and the public prosecutor were deemed appropriate, and therefore, the judgments rendered against the defendant were REVERSED, contrary to the opinion in the notification, and the request for release of the defendant based on the time he spent in detention was rejected. It was unanimously decided on 11.05.2017.

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