COURT OF APPEALS DECISION AT LINK yuksekMahkemedetay
COURT OF APPEALS OF THE REPUBLIC OF TURKEY
1st Criminal Chamber
Docket: 2016/424
Decision: 2017/684
Decision Date: 7.03.2017
SUMMARY: The erroneous assessment, based on the admission that the defendant committed the crime of premeditated murder under the influence of unjust provocation stemming from the victim’s insults and the exchange of insults, and instead of reducing his sentence by a minimum amount in accordance with the provisions of unjust provocation, ruled that the provisions of unjust provocation were not applicable, is unlawful and the verdict should be overturned.
(No. 5237, Law No. 29, 53, 62, 81) (ANY. MAH. 08.10.2015, Date: 2014/140, E. 2015/85, K.)
The collected evidence was examined at the court, and the defendant …’s crime of intentionally killing the victim … was accepted as evidence. The nature of the crime was determined in accordance with the circumstances and the investigation results. It was determined that there were no mitigating circumstances. His defense was rejected on credible grounds. Based on the file reviewed, no other inaccuracies were found in the verdict other than the grounds for reversal. Therefore, the defendant’s defense counsel’s objections, which were based on insufficient examination and the application of Article 62 of the Turkish Penal Code, and other appeals deemed unfounded, were rejected.
However,
Based on the circumstances and the admission; It was understood that the victim invited the defendant to his house to buy alcohol, sent the defendant to the market to buy potatoes and onions, and that an argument broke out between them because the defendant had bought a fishnet, and that they swore at each other during the argument. This was confirmed by the witness ….
It is accepted that the defendant … committed the crime of premeditated murder of the victim … under the influence of unjust provocation stemming from the victim’s insults and the mutual insults. Instead of a minimum reduction in his sentence pursuant to Article 29 of the Turkish Penal Code, it is ruled that this article should not be applied due to the erroneous assessment.
It is necessary to re-evaluate the defendant’s legal situation in accordance with the sections of Article 53 of the Turkish Penal Code No. 5237 that were annulled by the Constitutional Court’s decision dated October 8, 2015, numbered 2014/140 and 2015/85, published in the Official Gazette dated November 24, 2015.
It is unlawful, and the defendant’s defense counsel’s appeals are therefore upheld. It was unanimously decided on 07.03.2017 that the verdict be REVERSED in accordance with the opinion in the notification, and that the defendant …’s request for release be REJECTED, considering the amount of the sentences imposed and the time spent in detention outside of the appeal review.