Republic of Turkey COURT OF APPEALS
General Criminal Assembly
Docket: 2012/1-560
Decision: 2012/227
Decision Date: June 12, 2012
CRIME OF INTENTIONAL MURDER – DEFENDANT’S DEFENSE THAT THE VICTIM MADE THREATENING AND INSULTING WORDS TO HIM – FAILURE TO APPLY UNFAIR PROvocation PROVISIONS – REVERSED VERDICT
SUMMARY: Since the defendant H.’s defense that the victim made threatening and insulting remarks to him during an argument between the defendant H. and the victim, which appears to have occurred before the murder, and the defendant M.’s statements confirming this defense have not been rebutted, this questionable issue has been evaluated in favor of the defendant H., and the defendant H.’s unjust provocation has been ruled to be unfounded. Therefore, the provisions of the local court should be utilized. Therefore, the local court’s decision to resist should be overturned due to the inaccuracy of not observing that the provisions of unjust provocation should be applied to defendant H. (5237 Law No. 29, 82) (5271 Law No. 209) (YCGK, Date: February 16, 2010, Date: 2009/1-251, Date: 2010/25) (YCGK, Date: November 13, 2001, Date: 2001/1-239, Date: 2001/247) (YCGK, Date: December 15, 2009, Date: 2009/1-200, Date: 2009/290) (YCGK, Date: February 2, 2010, Date: 2009/1-239, Date: 2010/14)
Case: Defendants H.B. for premeditated murder and M.B., pursuant to Article 82/1-a of Turkish Penal Code No. 5237, to aggravated life imprisonment and deprivation of rights, were sentenced by the İnebolu High Criminal Court on September 11, 2008, and numbered 12-57. The case was appealed by the defendants’ attorneys and the defendants’ defense counsel. Upon the appeal, the 1st Criminal Chamber of the Supreme Court of Appeals reviewed the case file and issued a decision on February 10, 2010, numbered 2929-724:
<… Article 209/1 of the Criminal Procedure Code was violated by rendering a verdict without openly reading the obituary and autopsy report on which the verdict was based, and without consulting the defendants and their defense counsel…>
It was decided to overturn the verdict without further review due to its inaccuracy.
The Inebolu High Criminal Court, upholding the reversal, ruled in its decision dated April 15, 2010, numbered 16-28; as in the original judgment, the defendants were sentenced to aggravated life imprisonment and deprived of their rights pursuant to Article 82/1-a of Turkish Penal Code No. 5237. Upon appeal of the judgment, which was subject to appeal, the defendants’ defense counsel and the attorney representing the defendants, the 1st Criminal Chamber of the Court of Cassation reviewed the case file in its decision dated March 2, 2011, numbered 4648-1213;
<… 2) Regarding the murder charges of defendants H. and M.;
a) It was determined that the defendants had decided on the action before the incident, that they persistently and persistently implemented their plan, and that they did not waver from their decision during the period between the planned action and its execution. Therefore, instead of being sentenced for premeditated murder, which is consistent with the actions of defendants H. and M., a verdict of premeditated murder, based on a mistake in qualification, was rendered.
b) It was determined that the victim, E., and his friend, L.Ş., injured defendant H. with a beer bottle and a knife outside a bar on July 20, 2007, before the incident. Considering the more serious attack and consequences, in accordance with the principles of justice, fairness, and fairness, instead of a reasonable reduction in the sentence imposed on defendant H. due to provocation, the sentence was imposed excessively, not because of the written provocation.
The verdict was overturned due to inaccuracies.
The local court, in its decision dated April 28, 2011 and numbered 10-26, ruled:
<… The acts of the defendants H.B. and M.B. were <premeditated murder> as shown in writing by our court, that is, the defendants H.B. and M.B. decided to kill the victim E.S. and in order to carry out their action, they obtained a hunting rifle, and while obtaining the hunting rifle, they asked for two hunting rifle cartridges from Y.D., from whom they had received the hunting rifle, as can be understood from the statement of witness N.B., in response to witness Y.’s statement, <Are two bullets enough for a boar hunt?> the defendant M.B. stated, <One bullet is enough for the boar we will kill.> Although witness Y.D. did not directly confirm that witness N.B. had told him this situation in this way, when asked about this issue in his statements in our court, he stated that he did not remember talking about this issue, therefore, in the act of <Premeditated Murder>, <Premeditation> has been tried to be explained by the theories of planning and cold-bloodedness, and our Supreme Court of Appeals has tried to explain the act by combining the theories of planning and cold-bloodedness in practice. and the criteria determined by the Supreme Court of Appeals in the drafting can be summarized as follows; the defendant must decide persistently and unconditionally to commit a certain crime against a person, this decision must not be made immediately and implemented, a period of time must pass between the decision to commit the crime and the execution of the act and during this period the perpetrator must not give up this decision and insist on committing the act despite the mental peace that he has reached after thinking calmly and calmly and the decision is not conditional, and in our material case; the defendants H.B. and M.B. decided to kill the victim E.S., and before that they took L.Ş., who was a close friend of E.S., away from the victim E., and the witness L.Ş. It was established by the defendant’s statement, that they obtained a hunting rifle on the day of the incident, and that defendant H.B. called the victim E.S. and requested a meeting. They met with the victim around 9:00 PM, and the defendants picked up the victim in defendant H.B.’s vehicle. Furthermore, as understood from the statement of defendant M.B.’s wife, the defendants returned home around 3:00 AM. A reasonable period of time elapsed between the defendants’ decision to kill the victim E.S. and the execution of the decision. However, despite this, the defendants, after thinking calmly and calmly, did not abandon their actions, insisted on committing the act, and carried out their actions. Therefore, all the evidence in the case file indicates that the defendants premeditated their actions and that the conditions for premeditation, as determined by the Supreme Court of Appeals, were met in accordance with this premeditation…>,
He insisted on the initial verdict with his opinion.
This verdict, which was subject to appeal, was also appealed by the defendants’ defense counsel and the local public prosecutor. The file, sent to the First Presidency of the Court of Cassation by the Office of the Chief Public Prosecutor of the Court of Cassation, dated March 22, 2012, and numbered 310919, was evaluated by the General Assembly of Criminal Prosecutors and ruled on the following grounds:
Decision: The review was limited to the verdicts issued against defendants H.B. and M.B.
Although the defendant H.B.’s defense counsel filed a request for a hearing to review the verdict, the General Assembly of Criminal Prosecutors rejected the defendant’s defense’s request for a hearing review. Upon review of the file, the following conclusions were reached:
There is no dispute between the Special Chamber and the local court regarding the act of premeditated murder committed by the defendants, nor is there any error in this acceptance, given the content of the file. The dispute between the Special Chamber and the local court, which must be resolved by the General Assembly of Criminal Prosecutors, concerns whether the defendants committed the crime of premeditated murder and whether the conditions for the application of unjust provocation provisions were met for defendant H.
From the contents of the file reviewed:
An investigation was launched against the victim E.S. and his friend L.Ş. on July 20, 2007, for allegedly inflicting a gunshot wound on defendant H.B. that could have been treated with simple medical intervention. However, due to E.S.’s death during the investigation, a decision was made not to pursue further prosecution. A public lawsuit was filed against L.Ş. on April 8, 2008, requesting that he be punished pursuant to Articles 86/2 and 86/3-e of Turkish Penal Code No. 5237.
Defendant H.B. A public lawsuit was filed against E.D. and E.D. on September 30, 2007, for allegedly threatening and insulting the victim E.S. on July 24, 2007. On February 20, 2008, it was decided to acquit the defendant H.B. of the charges, convict E.D. of both offenses, and postpone the announcement of the verdict.
On the day of the incident, the victim’s 0 539 … … … line was called from an unidentified number at 8:34 PM.
On the same day, the victim called defendant H. from 0 539 … … … at 8:39 PM and had a 13-second conversation.
Furthermore, the victim sent a message from 0 539 … … … to defendant H.’s number, 0 538 … … …, at 12:08 PM.
The participant, F.S., stated in summary: “My son E. and the defendants had previously had a fight, and they frequently pressured my son. They later reconciled. My son told me that H.B. would file a petition to withdraw his complaint. They met several times after that and went out drinking. E. told me that H. had a rifle in the trunk of his car. I told him he might harm himself. My son said he didn’t get into his car alone. He left home in the morning on the day of the incident and returned home in the afternoon to say that H. had promised to withdraw his complaint but hadn’t shown up.” She even said she saw him passing by, but he didn’t come, didn’t answer his phone, and didn’t answer his phone, claiming his battery was dead. I told him not to be too hard on her. He came home that evening, ate dinner around 8:30 a.m., and left, saying he didn’t want to drop H.B.’s complaint. Later, our friend N.I. called me. It was around 9:00 or 9:30 p.m. He said he’d spoken to E. and was coming home. I waited, but he didn’t come home, and I learned he’d been killed.
Witness D.D. summarized: “On the day of the incident, my wife and H.B. arrived around 8:00 p.m. They took the shotgun from my sister-in-law, Y., and put it in the trunk together. When I asked, they told me they were going to shoot a pig. That night, my wife arrived around 2:30 or 3:00 a.m., covered in blood. When I asked what had happened, she said, ‘We killed a man,’ without giving any names.” He washed the clothes himself, put them in the attic, and then threw them in the trash because they couldn’t find the shirt there during the search.
Witness S. K. summarized: “I know E.S. and he’s my friend. E.S. had a fight with H.B., a baker in Kumluca Village, about two months ago. They later reconciled. I manage a bar called Hodri Meydan on the beach in the Cide district. E.S. also comes to this place we run frequently. After H.B. and I reconciled, E.S. came to my workplace and had drinks together. They came about three or four times and drank together. E.S. and I sat at the bar I manage between 1:00 PM and 3:00 PM on Wednesday, September 5, 2007. I went home afterward. When I arrived at the bar I manage around 7:00 PM, E.S. He was there, and we sat together for another hour. Around 8:00 PM, E.S. made a phone call. Later, the bakers were calling. They said they were at the Ece Hotel. They were inviting me for a drink. He said, “Maintenance is good tonight, you should come too.” He didn’t say who was calling by name. However, from the mention of the bakery, I realized it was H.B., whom E.S. had previously had an argument with. Although I don’t remember the exact time, E.S. left me between 8:00 PM and 9:00 PM and went out drinking with the bakers he mentioned. E. said they were inviting me to the motel. Other than that, I didn’t see E.S. after he left. The last time I saw E.S. was the day I talked to him about daily events. He only said the bakers had told me they would withdraw their complaints and were avoiding me. He said this around noon.
Witness Y.D. summarized: “On the day of the incident, my wife wasn’t home in the evening. My brother-in-law, M.B., He came and asked me for a shotgun. His wife was also at the door. I told him where it was. He took the shotgun and took two cartridges from the bag next to him. I don’t remember exactly what he said at the time (the prosecutor stated in his statement that two cartridges would be enough). He quickly and agitatedly took it and left. The car was waiting at the door. I didn’t look at who was with him. He told me he was going to go boar hunting. After the incident, I was worried because he didn’t have a license for the rifle, so I hid the cartridges.
Witness N.B. briefly stated: “On the day of the incident, he went to M.B. Y.D. and asked for the shotgun and cartridges. He took two cartridges. When Yeter asked him, ‘Two are enough, should I give him more?’ Mehmet said, ‘Two cartridges are enough for the pig we’re going to kill, or even just one.’ Yeter even asked, ‘Will I get in trouble for giving cartridges to M.B.?’ I said, ‘Nothing will happen if I don’t have my fingerprints.'”
Witness L.Ş. briefly stated: “Before the incident, E. and I had beaten H.B., with whom we had a feud. H., E.D., M.B., and B.B. caught me and beat me. They told me not to go out with E., that if I did, they would beat me worse and do worse to E. They later made up and started seeing each other, and they didn’t bother me after that. One day, after our fight, I heard E.D. and H.B. threatening and swearing at E. in the car on the beach. I heard that they made up after a while.”
Defendant M. summarized: “After leaving work at 2:30 PM on the day of the incident, I went to the coffeehouse in Kumluca Village. Around 4:00 PM, H.B. came, called me, and said, ‘Let’s take a walk.’ We got in H.B.’s car and had some beer there. Then we went to Gideros and had some more beer. Then, in the same car, we went to the beach to buy beer. We bought more beer. We drank beer on the way to Memiş Village. Then we went to Ovaaltı. It was evening and dark. I wanted to go home, but H. said, ‘You have a hunting rifle, bring it to me, pigs are coming to my house.’ He dropped me off in front of my house. This rifle was at my brother C.’s house, and I took it from his wife, Y., and I also took the cartridge bag. This rifle fired cartridges containing nine large pellets. Meanwhile, Y. told me that my brother and uncle were cooking fish on the beach. I decided to go to them.” I took the shotgun and two cartridges and went downstairs. I gave them to H., and H. put them in the trunk. I said, “I’m going to my uncle’s on the beach.” He said, “I’m coming too.” We went to Irmak Village together. My uncle’s house was there. My brother C. and my uncle H.B. had lit a barbecue. Since the barbecue wasn’t lit yet, we gave up on eating fish. H. and I decided to take a walk on the beach. E. saw E. near the hotel and stopped. He told E.H., “You were supposed to come yesterday, you were going to drop your complaint.” H. said, “I was busy, I couldn’t come.” Then, despite our objections, he got into our car. I didn’t want H. to get in the car because I knew E. had a grudge. Later, we drank beer together and drove to Kapusuyu Village. We looked for restaurants that served alcohol. When we saw none, we decided to return to Cide. When we arrived in Kalafat Village in the Cide district, E. told me I was drunk and that I should wash my hands and face. I washed my hands and face. Later, E. and H. argued a bit. They were arguing about dropping the complaint. I told them not to do that, that if they did, I would leave. I was extremely drunk at the time, so I passed out, and they put me in the car. In the car, E. woke me up with a slap. He told me, “You’re very drunk, go to bed if you want.” H. was leaning on the trunk of the car, looking at us. He walked towards E.H. at that moment and backed away. Because it was dark, I don’t know if H. had a gun in his hand, and the gun fired twice in rapid succession, and E. collapsed to the ground. There was a cliff where he collapsed, and he rolled down from there. I said, “H., what did you do?” He said, “Come on, let’s go, quick.” I didn’t notice H.’s gun in his hand because it was dark and I was drunk, but I know he put it in the trunk. H. told me, “Don’t tell anyone about the incident, don’t let anyone know.”
Defendant H., who denied the accusation during his defense during the investigation, briefly stated in court: “On the day of the incident, I went for a walk. I came to the coffeehouse called “Mektunu Yeri” (Letter Place). I saw M. in front of the coffeehouse. I stopped and said, “Let’s walk together.” I picked him up. We went for a beer together. We had a beer in the Ovaaltı area, then ran out of beer. Later, we went back to Cide to get some beer. We came back to Ovaaltı. We had some beer there too. It was evening, it was getting dark, and my friend M. wanted to go home. I dropped him off and asked him for a hunting rifle. I was going to go hunting. He gave me the shotgun, whether he got it from his brother’s house or his own. I don’t know, but he gave it to me. He gave me the shotgun and two rounds of ammunition. Later, M. told me his uncle had a barbecue and wanted to go there. We went there together. The barbecue wasn’t ready yet, so I picked up Mehmet again and we went back to Ovaaltı.” We drove towards Cide to get more beer. When we arrived in Cide, we saw E. at the E. Hotel. He said, “I have something to talk to you about.” I didn’t want him to get in the car because he was drunk. He was losing his cool when he drank. He insisted he got in the car too. We went to the Kapusuyu area and looked for restaurants that served alcohol there. When we couldn’t find any, we went back to Gideros Hill. We drank beer there too, argued, and he insulted me. The reason for our argument was about withdrawing my complaint. He was telling me to withdraw my complaint, but he was insulting me, using words like “faggot” and “asshole.” We went down to the fountain. There, he swore at me, and we got into an argument, and M. was trying to break us up. M. was very drunk, and when E. pushed him, he fell to the ground under the influence of his intoxication and passed out. We carried him to the car, and then E. and I continued arguing. He was saying he’d cut me if I didn’t withdraw my complaint, and he was also using insulting words like “son of a….” In my anger, I grabbed the gun from the car and fired. I fired twice. At this point, E.’s face was turned toward me; I don’t know how far away we were. There was about 5-10 meters between us. E. rolled over.
We were at the fountain at the time. This fountain is in the Gideros area. E. tumbled down a hillside, which was where we were. I didn’t check to see if he was dead and told Mehmet, “Let’s go.” We got in the car and drove home. I didn’t tell M. not to tell anyone. E. didn’t call me before I saw him on the beach, and I didn’t call him either.
It is understood that the defendants premeditated the crime of premeditated murder;
The Turkish Penal Code does not define “premeditation” as an aggravating factor in some crimes, leaving this matter to doctrine and practice.
As accepted in the decisions of the General Assembly of Criminal Courts dated 28.04.1998 and numbered 117-155, 13.11.2001 and numbered 239-247, 03.10.2006 and numbered 30-210, 15.12.2009 and numbered 200-290, 02.02.2010 and numbered 239-14 and 16.02.2010 and numbered 251-25, and in the settled decisions of the Special Chambers, premeditation is outside the type of immediate intent and falls within the type of thought intent. Although its legal nature is controversial in the doctrine, according to the unwavering practice of the Supreme Court of Appeals, for premeditation to be considered, the following must be true:
1- The perpetrator must firmly and unconditionally decide to act against a person’s right to life or physical integrity.
2- Despite a reasonable period of time elapsed before committing the crime they contemplated and planned, and despite achieving a state of mental calm, the perpetrator must persist in their decision and begin to perpetrate the act with steadfastness and persistence.
3- The perpetrator must carry out the act they planned to commit within a predetermined framework.
In premeditation, the perpetrator does not make an immediate decision and commit the act. A sufficient period of time elapses between the decision to commit the crime and the execution of the act to allow for calm reflection. During this time, the perpetrator considers whether to commit the crime and does not abandon the act. Premeditation cannot be considered if the perpetrator decides not to commit the crime but instead commits the act for another reason and for another sudden decision. The level of action for which the decision to commit a crime was made, and when, and the time elapsed after this unconditional decision to commit the crime, should be determined using available evidence. An assessment should be made regarding whether mental tranquility could have been achieved during the period between the decision to commit the crime and the act itself.
In light of these explanations, when the dispute is considered:
It is clear beyond any doubt that the defendants acted together and deliberately killed E.S. In the absence of any eyewitnesses, the question of whether the defendants premeditated the crime of murder must be determined by evaluating the information and documents available in the case file, the defendants’ defense statements, and witness testimonies.
One of the most important principles of criminal proceedings, whose purpose is to establish material truth, is the principle of “the defendant enjoys the benefit of the doubt” (in dubio pro reo). The essence of this principle is that any doubt regarding a matter that should be considered in a criminal case for the purpose of sentencing the defendant should be considered in the defendant’s favor. This rule, which has a very broad scope of application, applies when there is doubt about whether a crime was actually committed or, if so, how it was committed, and also applies to the circumstances of the case.
As stated in the local court decision, a feud arose between the parties due to the victim and her friend, witness L., assaulting defendant H. a month and a half before the incident. However, according to the testimony of several witnesses, particularly the victim’s mother, F., it appears that the victim and defendant H. reconciled after the previous incident and even met and enjoyed a few social gatherings together. Although the local court alleged that defendant H. planned to take revenge on the victim and kill her, that he pretended to reconcile with her to gain her trust, and that he called her to come visit on the day of the incident, phone records in the case file indicate that defendant H. never called the victim on the day of the incident. On the contrary, the victim called defendant H. on the day of the incident and sent a text message the same day. Considering all these matters, it is understood that the defendants killed E.S. by shooting him with a rifle after an argument started between the defendants and the victim on the day of the incident about whether the defendant H. would withdraw his complaint in the lawsuit filed because the victim had beaten the defendant H. There is no evidence in the file that is beyond any doubt, definitive and sufficient for a conviction as to when the defendants decided to kill E.S. steadfastly and unconditionally, and that they did not give up their decision to kill him despite the spiritual peace they had achieved.
Therefore, considering that the conditions sought for the existence of premeditation were not met in the concrete case, the defendants should be convicted of intentional murder in line with the decision of reversal of the Special Chamber, but since the local court did not find it appropriate to resist the old provision, it should be decided to overturn the decision to resist for this reason.
As for the evaluation of the issue of dispute regarding whether the application conditions of the unfair provocation provisions have been met in terms of the defendant H.;
Unfair provocation is defined in Article 29 of Turkish Penal Code No. 5237; It is regulated as a reason that reduces criminal responsibility as follows: “Anyone who commits a crime under the influence of anger or severe pain caused by an unjust act is sentenced to imprisonment from eighteen to twenty-four years instead of aggravated life imprisonment, and from twelve to eighteen years instead of life imprisonment; in other cases, one-fourth to three-quarters of the penalty is reduced.”
Unfair provocation refers to the perpetrator committing a crime by acting under the influence of anger or severe pain caused by an unjust act; in this case, the perpetrator tends to commit a crime as a result of the confusion created in his psychological structure by external influence, without making a prior decision to commit a crime.
In order to apply the provisions of unfair provocation;
a) There must be an unfair act that constitutes the provocation,
b) The perpetrator must be under the influence of anger or severe pain,
c) The crime committed by the perpetrator must be a reaction to this mental state,
d) The action that constitutes unfair provocation must originate from the victim.
In Law No. 5237, the distinction between heavy provocation and mild provocation in the Turkish Penal Code No. 765 was abolished, and a regulation was included in which the act constituting the provocation is evaluated by the judge according to the characteristics of the concrete event, and a reduction is made at the rate determined between the two limits shown in the article, taking into account its effect on the will of the defendant.
As accepted in established judicial decisions, if both the perpetrator and the victim engage in mutually unfair behavior, as a rule in the practice of provocation, the perpetrator who provoked the victim with an unfair action cannot claim that he was provoked due to the reaction he encountered. However, if the reaction he is exposed to has become excessive compared to the action he has committed himself, in other words, if there is a clear disproportion in the reaction, it should be accepted that this reaction constitutes an unjust provocation for the perpetrator because it has become unfair in itself.
When the concrete incident is considered in the light of these explanations and the evaluation regarding the number one dispute issue; Although it was stated in the decision of reversal of the Special Chamber that the provisions of unjust provocation should be applied to the defendant H. due to the victim and his friend injuring the defendant H. with a beer bottle and a knife one and a half months before the murder, it is not possible to apply the provisions of unjust provocation to the defendant H. based on this incident, as it is understood that the defendant H. and the victim made peace after this incident, as accepted by the Special Chamber.
However, since the defense of the defendant H., that the victim said threatening and insulting words to him in the argument that appeared to have taken place between the defendant H. and the victim before the murder, and the statements of the defendant M. confirming this defense, cannot be proven otherwise, this issue, which remains suspicious, should be evaluated in favor of the defendant H., and therefore the defendant H. should benefit from the provisions of unjust provocation.
In this respect, it should be decided to overturn the local court’s resistance decision due to the inaccuracy of not observing that the provisions of unfair provocation should be applied to the defendant H.
The six General Assembly Members who did not agree with the majority opinion were; They voted against with the opinion that <the local court’s reasons for resisting were correct and the verdict should be approved>.
Conclusion: For the reasons explained;
1- REVERSED the resistance verdict of the İnebolu High Criminal Court, dated 28.04.2011 and numbered 10-26, due to the incorrect determination of the nature of the crime and the inaccuracy of not applying the unfair provocation provisions against the defendant H. even though the conditions were met,
2- It was decided by majority vote in the discussion held on 12.06.2012 that the file should be delivered to the Chief Public Prosecutor’s Office of the Supreme Court of Appeals to be sent to its location. (¤¤)