YARGITAY Criminal General Assembly, Esas: 2008/1-88, Decision: 2008/184, Date of Decision: 08.07.2008:
“The distinguishing criterion between the offence of effective action and the offence of attempted intentional homicide is based on the difference in the moral element. In the first case, only a lesser consequence (beating and wounding) is desired and not a more severe consequence (death). If the perpetrator intends a more severe consequence, the intention is considered to be directed towards killing a human being.
Intent, which is the will to commit the act knowing and willingly and which concerns the inner world of the perpetrator, must be determined by taking into consideration the behaviour of the perpetrator before, during and after the incident. The existence of the intent to kill
a) Whether there is an animosity between the perpetrator and the victim based on the pre-incident, which requires killing,
b) Whether or not the means used in the incident was suitable for killing,
c) Number and severity of blows to the victim,
d) Whether the area of impact is vital,
e) Whether the perpetrator ceased to act spontaneously or because of an obstacle,
f) The behaviour towards the victim after the incident, in other words, all the specific features of the incident should be taken into consideration.
When the concrete case is evaluated in the light of these explanations; since there is no evidence that the defendant, who injured the victim at night, in the lively environment of the fight, with a single knife blow he randomly swung, in a way that did not cause internal organ injury, specifically chose the vital areas and there is no evidence that there is a condition preventing him from continuing his action, it must be accepted that he acted with the intent to injure in the incident. In this respect, the local court’s judgement of resisting should be reversed.”
YARGITAY Criminal General Assembly Esas: 2003/1-149, Decision: 2003/196, Date of Decision: 24.06.2003:
“In order to determine the nature of the perpetrator’s intention concerning his inner world, it is possible to draw conclusions based on his behaviour reflected in the outer world. The behaviour of the perpetrator before, during and after the incident should be taken as a measure in determining his intention.
In this case
a) Whether there was an enmity between the perpetrator and the deceased before the incident, which requires killing,
b) Whether the vehicle used by the perpetrator in the incident was suitable for killing,
c) Number and intensity of pulses in the scale,
d) The vital importance of the area of impact,
e) Whether the perpetrator ceased his behaviour spontaneously or under the influence of an obstacle,
f) The manner in which the perpetrator used the vehicle,
g) After the incident, the perpetrator’s behaviour towards the deceased (or the victim) should be taken into consideration and his intention should be revealed.
In the concrete case, there was no enmity between the parties that would require killing. After the attack against him, the defendant was contented with only one knife blow to both participants in the lively atmosphere of the fight, did not continue his knife attack even though there was no reason to prevent it, and left the scene after witness Kazım heard the incident and came from his field 400 metres away. In this respect, the Local Court’s resisting verdict, which characterises the actions of the defendant, who is understood to have acted with the intent to injure, as a complete attempt to kill, is inaccurate and should be reversed.” 04.12.2021
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