….PRESIDENCY OF THE HEAVY CRIMINAL COURT
FILE BASE NO :
CLAIMANT :
CLIENT :
SUSPECT :
CRIME : Complete Attempt to Kill His Spouse
OUR DEFENCES
A-) Presentation of Pre-event and Event Moment
My client, the arrested suspect, has been married to the complainant for 30 years and has children named M.A. and Ş.A. from this union.
Throughout the marriage, the complainant has continuously inflicted violence on our client, threatened her, oppressed her, crushed her personality, expelled her from home from time to time, gradually turned these practices into a way of life, and applied the same attitudes and actions even to her children.
My client has shown extraordinary efforts against these pressures and persecutions for the sake of the future of her children and to prevent the breakup of her home, and she has taken her children under her wing, self-sacrificing on behalf of her children in order not to be labelled as a “Divorced, Widow Woman” within the traditional value judgements of living in a closed and small region, not being able to be an individual and having no economic independence, lack of support for herself, and living in a closed and small region, My client, who is unfortunately one of the victims of the “dominant male understanding” in our country as in many countries of the world, has continued her marriage until today by sacrificing her personality, honour, “Marriage and Children” in the unbearable life conditions imposed on her.
As a result of the behaviour of the complainant, which made the marriage unbearable and unbearable, my client made the complainant give up her divorce attempt by continuing her threats in the same way.
Violence has become an indispensable habit of the complainant and an inseparable part of his personality structure. Seeing that his father had “Schizoid Type Personality Disorder”, “Antisocial Type Personality Disorder”, “Opsessive Compulsive Type Personality Disorder”, his son .M.A. rejected all attempts to have his father, the complainant, treated and refused to be treated.
However; according to the Forensic Medicine science, those with this personality structure are people who may pose a potential danger at any moment. Unfortunately, it is a medical fact that those in this state of mind refuse to be treated. However, if they are involved in forensic cases, they can be examined by state force or judicial power. We believe that the way to control this personality disorder and prevent it from harming his/her family and environment should be considered to be provided by “Guardianship” of the person. Moreover, the necessary application has been made to the Civil Court of Peace …. in this regard.
Our client is a victim of violence who has been despised, oppressed and persecuted on all occasions during her married life of nearly 30 years.
As it is known; domestic violence continues to be a very important social problem for our country as it is all over the world. Another aspect of this type of violence, which emerges due to many factors and has very severe consequences for individuals, is the criminal procedure and execution law dimension of the issue. It is a fact that the types of offences that are least reflected in the criminal procedure bodies are the offences committed within the family. This is because when an act of violence is perpetrated by a member of the family, the rate at which it is seen as tolerable increases.
Turkish society is a traditional and patriarchal society. There are economic, social and cultural reasons for this. In a family structure dominated by men, women generally remain in the second or even third place (after children). Domestic violence, especially against women, is frequently observed. There are various reasons for this. In addition to reasons such as fear of family members and the environment, lack of economic independence, there are also reasons such as taking such acts for granted, accepting violence and even seeing it as a right.
The problems of victims of domestic violence are both numerous and continuous. The judges of our courts are well aware of the unimaginable methods of violence, especially against women, which are reflected in the judicial authorities, due to the cases brought before them. In addition, as is well known, the possibility of such offences remaining hidden is very high. For example, many women who are attacked by their husbands consider the violence they face as a personal problem, do not want anyone to know about it and do not even go to the police.
The general tendency is that such applications to police stations are approached with traditional discourses such as “You cannot intervene between husband and wife”, “You will not spare the woman’s stomach and the stick on her back”, “He is the husband, he loves and beats her!” and women victims of violence are condemned to helplessness. In conclusion; Marriage is not only a private life sphere, but also has a social life aspect since it is a part of the society. Violence cannot constitute a natural part of marriage and the victim of violence can never be left alone by neglecting the social aspect. (Source: Domestic Violence in Turkey, Istanbul University Faculty of Law, Criminal Law and Criminology Research and Application Centre, Beta Publications, Istanbul – 2003)
The violence and oppression perpetrated by the complainant against his wife and children throughout his married life continued until the day of the incident. Unfortunately, the complainant did not pay any price. As it is known by your Court today, if the new Turkish Penal Code no. 5237 could have been applied, the complainant would have been tried in accordance with the relevant subparagraph of the article of the new code, which sanctions “cruelty” perpetrated by individuals against other individuals.
Within this chain of facts that we have listed under the main headings, the complainant has continued to intimidate and oppress his wife and children by expressing his aggression, hatred and hatred towards his family and children by saying “I will kill all of them, I will shoot them with a shotgun, I will clean them, I will kill my son to make my wife suffer” in recent days.
Gradually, about a year before the incident, the complainant did not talk to his wife, became restless, had a careless behaviour towards those who came to the house, and started to keep a knife in his car under the pillow. And 2 days before the incident, when he met with his relative named witness D. in front of İş Bank …. branch, he said “I will kill them all with a shotgun, I will shoot the last bullet myself”. What kind of hatred is this! What kind of hatred, what kind of human values. Only medical science can explain this sick state of mind.
Despite all these behaviours exhibited by the complainant, her son M.A. had to rent a separate house, her daughter continued her working life in fear and panic, and my client took herself under protection by locking the living room door with the fear that the complainant might attack her at any moment when her children were not at home.
Despite everything, our client, who thought that the complainant could recover again, invited the witnesses, who were family friends, to his house to reconcile them, upon learning from the phone call received by his wife that his wife would not go to work on the day of the incident, invited the witnesses to his house to reconcile them, took the witnesses to the guest room of the house, closed the door with the thought that his wife might show an unkind behaviour towards the guests, completed the preparations in the kitchen and took the ingredients to the table, in the meantime, he told his wife, who was watching television in bed with her usual careless attitude with a hot teapot in her hand, to get dressed and come, that the guests had arrived, As a result of his wife kicking him and the teapot with hot water that he was holding in his hand falling on him and his wife, his wife jumped out of bed and tried to attack our client with a knife and wanted to make a move, while our client was ready to fry potatoes in the kitchen with the heavy shock that our client entered into in order to prevent a possible attack in order to protect himself with a sudden decision at that moment, He threw the pot with oil in it to his wife, but upon seeing that his wife was on fire, he asked for help from the guests who came, he ensured that his wife took a cold shower, and immediately after this incident, the complainant and our client … . They were taken under treatment at a health institution in the province of .
B- Characterisation of our client’s action in terms of intent
As it is known, in doctrine and practice, some criteria have been determined in the definition of intention. These are
1- The cause of the incident, 2- The means used in the offence, (important) 3- The place of the wound (provided that it is voluntarily inflicted), 4- The nature of the wound, 5- The number of blows, 6- The distance and number of shots in offences committed with firearms, 7- The cause.
Generally, if the act is committed due to a deep-rooted enmity, if the wound is in the vital area and is of a nature to cause life-threatening danger, if the blows are multiple and the act is not completed due to obstacles, it is accepted that the defendant acted with the intent to kill and the act is described as an attempt to kill. Otherwise, the act is accepted as injury. (Court of Cassation Criminal General Assembly, E.1984/-249, K.1985/112, T.4.3.1985, Journal of Court of Cassation Decisions, C.12, S.2, February 1986, p.275)
On the other hand; “Intent, which concerns the inner world of the perpetrator, is the will to commit the act knowing and willingly the consequences. In the doctrine and practice, many criteria such as the cause of the crime, the type of vehicle used, the way it was used, the area hit, the number and severity of the blows, the behaviour of the perpetrator before and after the crime, and the hostility between them are used to determine the intent to kill. In this respect, in order to determine the intention of the defendant, all the specific features of the incident must be taken into consideration and evaluated.” (Source: Kast ve Taksir, Ali Parlar / Muzaffer Hatipoğlu, with reference to the case-law of the Criminal General Assembly of the Court of Cassation numbered 10.10.2001,1-215/220, page 382, Kazancı Publications, Istanbul 2001)
In the light of these explanations, if we evaluate the action of our client, as a result of panic and fear, our client tried to protect himself by taking the pot containing hot oil. If our client had intended to kill, he could have taken a knife or a similar tool from the kitchen, which would have a lethal effect. In this respect, we think that our client’s action was an action that resulted in the intent to injure. Moreover, the hot olive oil that our client used during his action and poured on the complainant does not have a lethal effect by itself. In this sense, the element of convenience among the criteria (the means used in the offence) that we have stated in the intent to kill is not present in the incident. In order for the lethal effect of hot olive oil to be in question, it can be mentioned that the hot liquid may have a lethal effect if the person acts with the intent to kill, disarms the victim, pours the oil on the victim’s body in such a way that it covers his whole body, or if it is poured into the victim’s body in such a way as to cause respiratory failure with internal organ destruction as a result of oral discharge. However, our client, upon being attacked by the complainant, sprinkled the olive oil in the pot on the complainant randomly, randomly, with the instinct of self-protection, without taking a knife or similar tool with a lethal effect, while both sides were mobile.
We believe that these views and opinions of ours will be evaluated by your court in the light of the case law listed below.
“Attempt to kill – distinction between the offence of injury”;(…failure to observe the necessity of determining the nature of the offence after asking and determining the life-threatening situation and the duration of the work and the degree of penetration of the knife blow to the thorax, whether it has damaged the internal organ, and if so, its nature…)
(1ST CD., 12.12.2002. 3012-465)
“Interpreting the suspicion of intent in favour”;(…the fact that there is only one knife blow that penetrated the abdomen but prevented work and strength for 25 days at the level of life-threatening without causing a significant internal organ damage, and that there is no evidence to assume that the defendant will continue the blows with the same or increasing intensity, the defendant was sentenced for attempted murder instead of being sentenced for attempted murder in accordance with Articles 456/2 and 457/1 of the Turkish Penal Code No. 765 by interpreting the suspicion of intent in favour by relying on the case law that has gained continuity in this direction. Instead of sentencing the defendant under Articles 456/2, 457/1 of the Turkish Penal Code No. 765, the defendant was sentenced for attempted murder…)
(1ST CD., 30.05.2001 1204-2446)
“Acceptance of the action in the nature of injury”;(…the acceptance of the action of the defendant, who injured the victim in the chest area in a way that does not cause damage to the arm and internal organs by randomly waving the knife during the mutual fight that started with fisticuffs, as injury under these conditions…)
(1ST CD., 14.02.2001, 3103-533)
“Distinction between attempted murder and intent to injure”;(…considering that the wounds inflicted were superficial and did not penetrate the internal organs, did not constitute a life-threatening situation and the scope of the report, it was understood that the defendants avoided the result of death by not inflicting their blows with a severity that would penetrate the internal organs…)
(1ST CD., 25.05.2001, 2372-2341)
“Failure to determine the intent to kill with certainty”;(…it is accepted that the defendant, who had the opportunity to injure the victim in 35 places and did not prefer to hit him violently in 34 knife strokes, could not be determined with certainty that he acted with the intent to kill, and there was no inconsistency in the qualification that his action constituted the crime of injury…)
(1ST CD., 22.05.2001, 1158-2243)
C -) Evaluation of my client’s action in terms of legal defence conditions
As it is known by your court; for the acceptance of the legal defence regulated in Article 49 of the Turkish Penal Code, there must be an unjustified attack of material nature, the defence and the attack must be simultaneous, the defence must be made while the attack is in progress, and there must be an appropriate ratio between the defence and the attack (necessity condition in defence).
Again, the necessity of defence must be determined according to the characteristics of each case. What is important is the existence of an attack that has begun and has not yet ended.
“Attack and defence must be at the same time. Danger or encroachment must be present. If the danger or encroachment has ceased, defence is out of the question; acts committed in the course of defence shall be an offence. The situation is the same in cases where the offender has been rendered harmless or has fled. The fact that the offence and defence are at the same time means that the offence is certain or has just begun.” (A.P Gözübüyük, Turkish Criminal Code Explanation, Volume One, P.52, Kazancı Publications-Ankara)
In this respect, the legal defence must be directed against the person who commits the unjust attack and there must be a balance between the right defended and the means used. Each tool used must be evaluated according to the characteristics of the concrete case. It is natural for people to be in different moods in each case. Therefore, the state of mind of the person is important.
The attack must be a material act that is visible to the concrete eye. Defence against a possible attack is not legal. The attack and the defence must be at the same time. The fact that the attack is against the legal order justifies legal defence. However, the person himself must not cause the unjust attack.
“An attack is unjustified if it is against the law. Whether the attacker is at fault or not is not important in terms of the legitimacy of the defence. In fact, since there is no crime in the case of self-defence, there is no need to look for a fault.” (A.P Gözübüyük, Same work, First Volume, P.520)
Based on these explanations; as the attorney for the suspect defendant, we think that my client; in the occurrence of the incident, the attack was caused by the complainant, while our client was in fear and panic, with the thought that the complainant would repeat his action and due to the state of mind in which our client was in, he acted simultaneously in order to eliminate a possible attack, and this action complies with the type of crime in Article 49 of the Turkish Penal Code, which regulates legal defence. Article 49 of the Turkish Penal Code, which regulates legal defence, and we think that Article 49 of the Turkish Penal Code should be applied to the action that complies with the elements of this offence.
We also submit to your court’s appreciation the case law that supports this opinion and that coincides with the action of our client.
“…it is understood from the evidence in the file that it is not possible to get rid of the attack in any other way since it is not possible to know at what stage the ongoing attack can be prevented and at which stage it can be prevented, since it has become obligatory to prevent and neutralise the knife attack and wounding actions, it is not known when it will stop, it is not known when it will stop, it is intended for life and is aimed at the soul, it has put the defendant in the position of legal defence and it is not possible to get rid of the attack in any other way…”
(1ST CD. 24.12.1999, 3224-4448)
“…it is highly probable that the deceased, who attacked for no apparent reason, will attack again and more violently after being burnt. The attack is feared to be repeated. The rape has not yet been prevented as there is a danger of repetition of the attack on the victim. The defendant, fearing that the deceased, who went to another room saying “I’m burnt”, would come and kill him, immediately followed him to the room and killed him. Therefore, the limits of legal defence were not exceeded and the act was committed within the conditions of legal defence.” (Since there is a fear of repetition of the attack, the attack should be accepted as continuing)
(CGK. 18.2.1991, E.1/4-K.39)
“… when the state of mind of the defendant in the face of the attack made by the deceased with a knife is evaluated together; Although it is imperative to accept that the defendant acted completely within the conditions of legal defence in the incident and did not go to extremes in defence, to decide to punish him by applying Article 50 instead of Article 49 of the TPC…”
(.CD. 17.6.1996, E.1996/851, K.1996/2290)
Evaluation of My Client’s Action in terms of Unjust Provocation
In the decision of the Criminal General Assembly of the Court of Cassation dated 19.11.1990 and numbered E.1-254, K.277, in terms of criminal law, the concept of unjust provocation was defined as follows
“In terms of Criminal Law, provocation is defined as ‘directing and encouraging a person to commit an offence and mobilising this person to commit an offence as a result of the effect on the will of this person. The perpetrator commits an offence by acting under the influence of anger or anger caused by an unjust act. In this case, the perpetrator tends to commit the offence as a result of the confusion caused by the external influence on his psychological state, without making a prior decision to commit the offence.”
Based on this definition, as it is also known by your court;
Unjust provocation is when the perpetrator commits a crime by acting under the influence of anger and anger caused by an unjust act. In order for the provisions of unjust provocation to be applied;
There must be an act that constitutes provocation,
This act must be found unjustified,
The perpetrator must be under the influence of anger or bitterness,
The offence committed by the perpetrator must be a reaction to this mental state.
In this respect; provocation, which is a legal reason for reduction, in terms of Criminal Law, is when the perpetrator commits an offence by acting under the influence of anger or anger caused by an unjust act. In this case; the perpetrator, under the influence of anger or anger caused by an unjust act, without making a prior decision to commit a crime, tends to commit a crime as a result of the confusion created in his mental structure by an external influence.
When the action of our client is evaluated in the light of these explanations, we believe that the mental state created by the torment and violence inflicted on our client by the complainant, which lasted for many years and continued until before the incident, and the behaviour exhibited by the complainant at the time of the incident, when evaluated in its entirety, that our client acted under conditions of severe provocation is confirmed and supported by all sufficient convincing evidence, leaving no room for any doubt.
In particular, since we consider the examples of the pressure and violence exerted on our client extremely important in terms of forming a conscientious opinion in your court, we list these facts and present them to the appreciation of your Honourable Court Judges, as we consider it obligatory to present the facts experienced in the context of the evaluation of the act and the formation of a conscientious opinion.
In this sentence, we believe that the behaviour of the complainant, which exhibits his/her personality, will serve as a litmus test in the evaluation of our client’s action.
In this respect, we present some of the examples of the participant’s behaviour that demonstrates his antisocial identity due to the violence and pressure he exerted against our client.
Just a few days after our client’s marriage with the complainant in 1975, she started the first beatings by saying “Are you a sultan’s spawn?”.
The complainant, who had a habit of drinking alcohol throughout his life, rejected all the attempts made by their joint child M.A. to dissuade his father from this habit. He even severely insulted and scolded his son in this regard.
Especially in the months before the incident, the complainant constantly kept a bread knife in the car and a knife under the pillow and both of his children witnessed these behaviours of the complainant.
As an example of the violence exhibited by the complainant within the family, one of the examples of this attack is that she injured her son Mustafa on his arm with a razor blade.
Our client was beaten at least 1 or 2 times a week throughout her married life. Her children are close witnesses of these incidents.
He also injured his daughter H.A. on her foot by throwing scissors at her.
After returning from a wedding, the complainant took our client H.A. to Karaağaç Pond, which is outside the province, at night and beat him severely by hitting his head against the rocks, and when they came in front of the Keşan Site where they lived, he started to beat him again, but the guard at the entrance of the site intervened in the complainant’s actions and prevented him from committing more serious acts. (We can listen to this witness when the court appreciates)
Our client was threatened and tried to be thrown down from the balcony of her house in the housing complex many times by her husband, and due to these actions, our client could not even go out to the balcony of her house.
When our client was pregnant with her second child, she was despised and tormented by the complainant and for these reasons she had to give birth to her daughter H.A. in her mother’s house.
Apart from the pressure and violence and intimidation actions of the complainant towards the family, he behaved disrespectfully and carelessly to the guests of his wife and children who came to the house. He did not establish human dialogue in any way.
The complainant has always pursued an aggressive attitude in neighbourly relations, started fights with some people and got into court for this reason.
The complainant used his pensions for his personal consumption and did not make any sacrifice and expenditure for his family.
The complainant prevented his daughter H.A. from receiving higher education after her primary education and even forced her to get married at a very young age. From time to time, he constantly belittled his daughter, who was in her twenties, by saying “You are a spinster, you are nothing”.
Likewise, due to the shortness of his son’s foot caused by an accident he had had years ago, he also harassed him in the same way, snored him and even consumed the amount of compensation he received due to this incident in alcohol.
In early 2001, our client was severely beaten by the complainant and fled to Antalya due to the fear she felt. In the meantime, upon the divorce case filed by our client, the complainant threatened her by saying “I will make you worse, I will kill you”, and as a result of the intervention of others, our client gave up her divorce request.
When the son moved to an independent house in the face of his father’s incorrigible behaviour, on the Feast of Sacrifice in 2004, when the daughter suggested to her father, “Let me take a piece of meat to my brother”, the complainant walked on my client and her daughter H.A. with a knife, whereupon my client and her daughter had to leave the house due to the threat of the complainant with a knife. (We think that these behaviours of the complainant are an indication of his tendency to constantly carry a knife or attack with a knife).
The complainant has exhibited similar behaviours and actions towards the family, which have caused the complainant and her children to suffer. We believe that it is very important to give the following example as an example of the antisocial personality and depressive mood of the complainant in order to evaluate the mental structure of the complainant. In the aftermath of the incident, during the treatment of our client’s psychological disorder as a result of severe trauma, …. State Hospital psychiatry specialist Dr M.B. was threatened by the complainant’s brother in a veiled manner by the complainant’s brother, saying “Why are you treating H., heal him, heal him!”.
The relevant expert, psychiatrist and currently …. Dr. M.B., who is a psychiatrist and currently working at the State Hospital, has knowledge of the issues we have mentioned, as he has treated both the complainant and his relatives before, and if the court listens to him as an expert on whether the complainant’s behaviours are in “Schizoid Type Personality Disorder”, “Antisocial Type Personality Disorder”, “Opsessive Compulsive Type Personality Disorder”, the issues we have mentioned will be medically confirmed and supported.
E- Evaluation of the Incident Report and the Report Organised on the Victim in terms of Forensic Medicine
The incident report does not reflect the truth in terms of content. In addition to the burning of the complainant’s face due to the spillage of oil on his face, his hands were also burnt due to the overturning of the teapot on him a short moment before the action. This is proved by the photographs of my client in the file and after the incident, he, as well as the complainant, was immediately referred to hospital for treatment. In this respect, although the gendarmerie report states that the sheets and pots were washed, as if it was done by my client, it is contrary to the ordinary course of life for a person whose both hands are burnt and who is in mental tension as a result of a severe trauma to wash the sheets and pots at that moment. Moreover, after our client was referred to the hospital immediately after the incident, we think that it is reasonable and logical that other people also entered the house, therefore, in the sense of tidying up the house, these works were done by those who came to the house.
…. The final report organised by the State Hospital is a report that is far from reflecting the truth, contrary to the strictly determined criteria of forensic medicine regarding the periods of time of rest from work and strength, far from medical data, and randomly arranged. Since the report on the complainant was related to the skin tissue and was a burn case, the final report should have been issued not by an external medicine specialist, but by a medical board doctor who has a plastic surgery specialist. Although there is a plastic surgery specialist in …., it is contrary to the forensic medicine legislation to issue a report hastily by an external medicine specialist who is not a specialist
We see that the case law of the Criminal General Assembly of the Court of Cassation dated 12.11.1990 and numbered 1990/1-250 Esas, 1990/276 “It is contrary to the law to establish a judgement based on the report in which the expert of the subject does not participate.” fully and completely supports our opinion.
The fact that the external medicine specialist Op. M.K., who issued a final report although he was not an expert in the subject, made the comment that the complainant was in life-threatening danger based on the total burns on the complainant’s face in the content of his report is also extremely grave. Moreover, even though it was mentioned that the complainant was in life-threatening condition, she was not even treated in the intensive care unit.
When the total burns are totalled over the highest rate of burns, it is seen that this total is 21% of the percentage of burns.
As can be understood from the content of the scientific books and publications of Prof.Dr.Oğuz Polat, Prof.Dr.Şemsi Gök, Prof.Dr.Hamit Hancı, who are competent in forensic medicine, which we have submitted in the annex of our petition, they have demonstrated with scientific competence that in order to talk about life-threatening, if the 2nd degree burn is over 25%, the person is in life-threatening danger.
CONCLUSION AND REQUEST:
In the light of the material facts we have tried to explain above, the available evidence in support of the defence, and the documents we have attached, we are of the opinion that our client’s action complies with the type of crime specified in Article 49 of the Turkish Penal Code, and if not accepted by your court, his action constitutes the offence of injury.
Criminal Law has to investigate the material reality. Believing that all the evidence in the file will be evaluated in the best way by your court, the time our client has been in prison, the collection of evidence, the disappearance of the possibility of evidence, the fact that detention is a precautionary measure, the necessity that our client should receive treatment due to the severe trauma he has suffered, 61 and related provisions of the new Turkish Penal Code 5237, which will enter into force on 1 June, in the context of detention periods and the individualisation of the penalties to be imposed, as well as the provisions of the relevant provisions that grant wide discretionary rights to your Honourable Court Judges, I would like to request the release of my client on bail or unconditionally, with the belief that the most just decision will be made by your Court by evaluating our defences.
Sincerely yours.
Suspected arrested defendant
Deputy
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