………… TO THE JUDGE OF THE COURT OF FIRST INSTANCE
CASE NO:
DECISION NO :
ACCUSED :
VEKİLİ :
JUDGMENT : ……..Decision of the Military Court of ……..Mechanised Infantry Brigade Command dated ………… and numbered ……./….. main ……./…… decision.
SUBJECT : This is our petition of appeal including the reasons for the reversal of the said judgement.
DATE OF NOTIFICATION :
DATE OF APPEAL :
EXPLANATIONS
1- For the offence of assault on a superior officer, the accused Ter. Tnk. Private………….. about …….. …….. dated …./… …./… main ……/….. decision numbered conviction given by the Military Court of the Mechanised Infantry Brigade Command for the offence of assaulting a superior officer is not in accordance with the real nature of the incident.
2- Article 17 of the Turkish Armed Forces Internal Service Law No. 211 stipulates that “The chief must always keep the moral, spiritual and physical conditions of his subordinates under supervision and protection”, and Article 57 of the same law states that “In the health affairs of the Armed Forces, it is essential to follow the physical and moral conditions of the soldiers and to practice preventive medicine. The 40th article of the Turkish Armed Forces Internal Service Law No. 211 and the 89th article of the Turkish Armed Forces Internal Service Regulation stipulate that it is the duty of the head of the institution to closely monitor the issue and take the necessary measures in this regard in order to ensure that the health of the soldiers is protected and that they serve under healthy conditions. As evidenced by the defences and my client’s military service file, my client …………. Military Hospital and Gata…………… Training Hospital and continued to take medication on the date of the incident. In addition, as it is fixed with the statements, the victim ……………. made suggestions and statements to the company sergeant candidate …………. to crush my client. My client is in a state of mind far from evaluating the events in a rational way due to both the psychiatric disorder he suffers from and the insulting words of the victim. In fact, due to the provisions of the military legislation mentioned above, there is no doubt that the victim, who was my client’s superior, should have been more careful and understanding. However, the victim did not fulfil his responsibility. However, despite all these negative conditions, my client did not commit the offence of assault on a superior officer. He did not hit the victim. There was only a scuffle between them. It is also fixed with the victim’s own statements that my client did not hit the victim. Although ……….. and ………. have stated that they saw my client hit the victim, these statements cannot be relied upon. Because both witnesses clearly stated that the crowd was too crowded and that they did not see how the victim was hit. When the defences of my client, the clear statements of the victim that he was not hit, and the statements of the witnesses that they did not fully see the incident are evaluated together, the statements of the witnesses regarding the action cannot be taken as a basis for the verdict. In this case, the fact that the client defendant hit the victim remains at least doubtful, and in accordance with the principle of “the accused benefits from the doubt”, it should be concluded that the act of “actually assaulting the superior” attributed to the defendant has not been established, and the defendant should be acquitted of the imputed crime, which has not occurred in terms of its elements.
3- Again, the rule of deferment of the announcement of the judgement could not be applied in accordance with the rule of law in force at the date of the judgement regarding the 1 month and 7 days of conviction given by the local court against the client defendant. With Article 562 of the Law No. 5728 “Law on Amendments to Various Laws and Some Other Laws for the Purpose of Compliance with Basic Criminal Laws”, which entered into force after being published in the Official Gazette dated 08.02.2008 and numbered 26781, the phrase “one” in Article 231, paragraph 5 of the Criminal Procedure Law No. 5271 was changed to “two” and with this change, the sentence sentenced against the client defendant was included in the scope of “cases where the announcement of the verdict can be deferred”. Pursuant to Article 7 of the Turkish Penal Code No. 5237 and Article 9 of the Law No. 5252 on the Enforcement and Implementation of the Turkish Penal Code, the provisions of the law favourable to the defendant must be applied. The judgment of the local court subject to appeal should be reversed due to the aforementioned legal regulation, and the file should be returned to the Court to establish a new judgment in the face of the legal situation in favour of the defendant.
CONCLUSION AND REQUEST:
For the reasons we have explained above, I request that the decision of the Honourable Court, which is contrary to the law and the law, regarding the conviction dated …../……/…… and numbered …../……, …./….., be reversed and that my client be acquitted of the imputed offence.
Defence Counsel
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