Criminal General Assembly 2016/1412 E. , 2020/8 K.
“Text Of Jurisprudence”
Who Made The Decision
Office of the Supreme Court : 18. Criminal Department
Court : Magistrate
Number : 25-670
As a result of the trial in the public case filed for intentional wounding, the defendant is accused of maltreatment according to the nature of the crime that varies … according to the 232/1, 62, 50/1-a and 52/2-4 of the TCK. alanya (Closed) regarding the punishment and installment of a judicial fine of 1000 TL in accordance with the articles 3. The Supreme 18th High Court, which examined the file on the appeal of the judgment dated 11.10.2013 and numbered 25-670 issued by the Magistrate’s Court by the defendant. By the Criminal Department dated 04.05.2016 and numbered 24354-9583;
“TCK’s 232nd. to occur to the victim for the crime of abuse of the item held in the continuation of the verb and the actual differentiation regulated in the law is necessary, in a concrete case that the defendant, previously escaped from the house with her sister and running away magdure frighten your hair cut and shaped to prevent you from 86/3 of the Penal Code Act-the crime of intentional injury that creates in a matter in written form without any provision for the establishment of” misses decided to corruption,
The Prosecutor General’s Office of the Supreme Court of Cassation dated 23.06.2016 and numbered 511;
“…In the concrete case, the defendant’s action in the form of cutting his hair in order to scare the victim, who had previously fled the house and was his sister, and prevent him from fleeing the house is fixed. The dispute between the Supreme Court and our Prosecutor General’s Office is related to the decriminalization of this act.
232 of the Criminal Code of ill-treatment. in Article ‘(1) Anyone who commits ill-treatment against one of the persons with whom he lives in the same dwelling shall be punished with imprisonment from two months to one year
(2) A person who abuses the disciplinary authority arising from the right to education that he has, over a person who is under his administration or is obliged to raise, teach, care for, maintain or teach a profession or art, shall be sentenced to up to one year in prison’in the form of,
The crime of intentional wounding is the 86th Criminal Code of the Republic of Turkey. in article ‘(1) A person who intentionally causes pain to someone else’s body or causes deterioration of his health or ability to perceive shall be punished with imprisonment from one year to three years.
(2) (Additional paragraph: 31/03/2005 – 5328 p.K./4.art) If the effect of the act of intentional wounding on a person is so mild that it can be eliminated with a simple medical intervention, a prison sentence or a judicial fine of four months to a year is imposed upon the complaint of the victim’.
232/1 of the TCC applied in the concrete case. according to the justification of its article, any kind of ill-treatment does not make it possible for a crime to occur. It is necessary that ill-treatment be of a nature incompatible with compassion, pity and compassion. However, if this form of treatment has had an effect on a person that is beyond the measure that can be eliminated with a simple medical intervention, the punishment should now be imposed for the crime of intentional wounding. It is possible to give as an example of ill-treatment such actions as half-starving or dehydrating, not sleeping, forcing to work in difficult conditions.
As it can be seen, even if it is accepted that the acts against the victim should differ from the acts regulated by the law, there is no regulation that these acts should be continuous, as well as there is no point pointing to this on the grounds of the article.
On the other hand … in Article 86/1, the crime of intentional wounding is described as ‘intentionally causing pain to someone else’s body or causing deterioration of their health or ability to perceive’.
It is fixed by the general experience that the defendant’s action, consisting in cutting hair, which is considered fixed, does not have the property of causing pain to the victim’s body. The victim physical or mental health or distort your perception of this action is that the absence of a forensic report of the Penal Code when the defendant is also protected in article to find the meaning of the act of intentional injury 86/1 is not suitable for the type of crime, where the continuation of the acts that constitute the crime of abuse that must be the absence of a regulation in the face of the mercy of the defendant’s actions and behavior that cannot be associated with feelings of compassion 232/1 s written in the article includes the type of crime that fits mistreatment because …” with a view to appeal to the path applied.
CMK’s 308. the Supreme Court, which conducts an examination in accordance with Article 18. The file sent to the First President of the Supreme Court with a bet by the Criminal Court dated 12.10.2016 and numbered 14985-15838, as the reasons for the appeal are not considered to be in place, was evaluated by the General Assembly of the Criminal Court and decided on the grounds described.
ON BEHALF OF THE TURKISH NATION
THE DECISION OF THE CRIMINAL GENERAL ASSEMBLY
The dispute between the Special Department and the Prosecutor General’s Office of the Supreme Court, which must be resolved by the Criminal General Assembly; whether the defendant’s act is a crime of intentional injury under Article 86/2-3-a of the DEC Code or 232/1 of the same Code. it is related to determining whether it constitutes a crime of ill-treatment in accordance with the article.
From the scope of the examined file;
The investigation started on the complaint of the victim’s mother … due to the fact that the victim ran away with a friend at her home, the victim was found by the defendant, who was her older brother, on 01.01.2009,
The victim received in connection with the incident;
According to the report of the Alanya State Hospital dated 02.01.2009 and numbered 48; there are no traces of minting algebra except for a large number of superficial skin cuts on the left wrist,
Alanya State Hospital Obstetrics and Gynecology Specialist Dr. … according to the report dated 02.01.2009 and numbered 2, edited by; hymen (hymen) is intact and not actual livata during its examination,
Alanya State Hospital Psychiatry Specialist Dr. … according to the report dated 02.01.2009 and numbered 85, organized by … the victim, who declared that no incident occurred against his will, did nothing, no psychopathology was detected,
According to the population registration sample taken from the UYAP system; the victim passed away on 04.03.2010 during the prosecution phase,
In the statements of the witness … taken at the investigation stage; the victim, who has a daughter, does not have a description of the incident of cutting his hair, and since he cannot be reached at the prosecution stage, his statement cannot be applied,
It is understood.
The victim was … at the investigation stage on 02.01.2009 and at 17.45; friday Sunday afternoon on 01.01.2009, when he was walking around the Friday Market location, he was seen and brought to their home by his mother and older brother, when he was at home, at 23.00, the defendant took a pair of scissors in his hand and cut his hair randomly, “It’s forbidden to leave the house again, this is punishment for you, I’ll tie you home with a chain.” he said that he was afraid and could not call the police because he had no way, that he did not want to return home because he was being pressured and violent, that she wanted to stay in a girls’ orphanage under state protection,
02.01.2009 23.55 date and time during the investigation phase, how much 17.30 hours on the same day received during one statement, see oppression and violence at home and the girl didn’t want to go home because she said she wanted to stay in foster care under state protection, if any, against him in the House of ill-treatment or violence, whether your hair while bathing to cut himself off, his brother, the defendant wasn’t complaining,
22.05.2009 during the investigation phase; on the day he ran away with his brother brought it home and found himself the defendant, the defendant on the day of the event that attempts to run away from home already angry with himself forced to cut his hair at random, in the order of declaration dated 02.01.2009 gave 23.55 hours due to the fear of,
He has declared.
The accused is under investigation on 02.01.2009; the victim was her sister’s psychological issues from time to time she ran away from home, finally home on Friday at 18.00 on 29.12.2008 the victims who escaped from 01.01.2009 found in the market area and brought it home to himself, that what he did was wrong and they said that it could cause trouble, to be in bad condition because of the smell from your clothes dirty and his brother wanted to take a bath, about ten minutes later, emerging from the bathroom, you saw the victim’s hair cut, when I asked him why she did that, “you don’t want me anyway, i cut my hair because I’m dirty or I have lice.” that he said, that he did not cut the victim’s hair and that he would chain himself,
At the investigation stage, on 22.05.2009; the victim fled the house before the date of the incident, there were previous attempts to flee the house, he cut his hair with scissors to scare the victim and prevent him from escaping the house again, but he did not have any difficulty cutting his hair, he cut it with the consent of the victim, he did not make a statement that he would chain the victim,
At the stage of prosecution; the victim died about a year ago, previously he constantly ran away from home because of his psychological problems, and at the time of the incident he cut his hair at the request of the victim because he did not want him to run away from home,
He has defended himself.
In order for the dispute to be resolved in a healthy way, it is necessary to focus on the crimes of “Intentional wounding” and “Ill-treatment”.
86 of the Criminal Code for intentional wounding. in the article;
“(1) A person who intentionally causes pain to someone else’s body or causes deterioration of his health or ability to perceive it is punished with imprisonment from one to three years.
(2) If the effect of the act of intentional wounding on a person is mild enough to be eliminated by simple medical intervention, a prison sentence or a judicial fine of four months to one year shall be imposed upon the complaint of the victim.
(3) The offence of wounding with intent;
a) Against the parent, child, spouse or brother,
b) Against a person who is unable to defend himself in terms of body or soul,
c) Due to the public duty performed by the person,
d) The influence possessed by a public official is abused by,
e) With a gun,
If it is processed, without seeking a complaint, the penalty to be given is increased by half. it is arranged as ”.
By defining the crime of intentional wounding in the first paragraph of the article, the basic form of intentional wounding was regulated, any behavior that causes pain to a person’s body or causes deterioration of his health or ability to perceive was considered wounding, and this aspect was clearly emphasized on the grounds of the article. If the effect of the act of intentional wounding on a person is to the extent that it can be eliminated by simple medical intervention, it is regulated in the second paragraph, and in this case, a prison sentence of less than the prison sentence in the first paragraph or a judicial fine is provided for as a sanction of the crime.
The legal benefit protected in the crime of intentional wounding is the person’s body immunity and body integrity. The subject of the crime is the victim’s body or spiritual being, which is given pain or deteriorates. As a result of the act committed by the perpetrator, if one of the consequences specified in the article occurs, there is no hesitation that a crime of intentional wounding will occur, and it is possible to commit a crime of intentional wounding with all actions that are conducive to this result.
The crime of ill-treatment is the 232nd chapter of the eighth chapter of the TCK entitled “Crimes against family order”. in the article;
“(1) Anyone who commits ill-treatment against one of the persons with whom he lives in the same dwelling shall be punished with imprisonment from two months to one year.
(2) A person who abuses the disciplinary authority arising from the right to education that he has, over a person who is under his administration or is obliged to raise, teach, care for, maintain or teach a profession or art, shall be sentenced to up to one year in prison. It is arranged as ”.
The crime of ill-treatment is included in Articles 477 and 478 of the TCC No. 765 of the mülga. article “the discipline of the vehicles and police abuse, and ill-treatment of his family members against treating” are combined in a single provision of the crimes referred for each crime type, regulation of abuse against a person living in the same house together in the first paragraph of the second clause is also in the nature of the right to misuse by finishing the job of the Disciplinary Authority have been given.
232 of the TCK. the crime in the first paragraph of the article is not defined as a specific crime in the Law. Therefore, it is understood that with this regulation, which does not provide for a family relationship between the perpetrator and the victim, firstly, the body integrity, health, decency and freedoms of people living in the same dwelling are protected, and secondly, the family order is protected when acting from the systematics of the Law.
The perpetrator and the victim of the said crime are also persons living together in the same dwelling. Although there is no exact time criterion for accepting cohabitation, the existence of a will to live together is sufficient.
The actual element of the crime is to commit ill-treatment. Although the crime of ill-treatment is committed by acts that harm a person physically or spiritually, any kind of ill-treatment does not constitute this crime. “… Any kind of ill-treatment does not make it possible for a crime to occur. It is necessary that ill-treatment be of a nature incompatible with compassion, pity and compassion. However, if this form of treatment has had an effect on a person that is beyond the measure that can be eliminated with a simple medical intervention, the punishment should now be imposed for the crime of intentional wounding.
It is possible to give as an example of ill-treatment such actions as half-starving or dehydrating, not sleeping, forcing to work in difficult conditions. it is described in the format ” ” and the criteria for determining ill-treatment are set out. We can give examples of such actions as leaving the victim hungry or dehydrated, walking naked, forcing him to work in difficult conditions as an example of ill-treatment. Behaviors that constitute ill-treatment may be directed at physical and body integrity, as well as may consist of actions aimed at spiritual integrity, such as ridicule, intimidation.
This is a description of the material elements of the crime when resuming from between “continuity” is not considered, although “ill-treatment” in the expression “the treatment of the word “process, Act, behavior, means” including considering the ill-treatment of the concepts of action, as well as a process by the process and covered and it works here, and the process being constant in all circumstances, continuously syrup to go from the state, rather than the integrity of a movement within the current circumstances should be considered. Therefore, continuity is not necessary in the event that the intent of ill-treatment can be revealed in an action in a way that is beyond doubt. According to the nature of the concrete event, it is also possible to commit the crime in question with a sudden elephant that cannot be reconciled with compassion, pity and compassion.
In the light of these explanations, the subject of the dispute is evaluated;
29.12.2008 as of the date of the history in the age of sixteen with friends for a while and fled from his home in hotels and other homes in remaining in the victim of the crime by chance on a Sunday 01.01.2009 over the date of his brother, the defendant was observed by the house where he was taken by the victim, the defendant again to escape from the home of the victim’s hair using scissors you can do so enraged, random cut in the event;
Each crime is the subject of the action took place as the body of the victim and the victims of effective damage to the integrity of a body is present, also the body of the victim or of action and the ability to be in pain due to the inability of mental health is impaired when the aforementioned detection of intentional injury where the crime occurred, however, as directed by punishing the perpetrator and his sister mercy, pity and compassion that cannot be reconciled with the behavior of nature in terms of abuse for a long time because of the spread of the consequences of the offence, it must be accepted that it creates, and therefore, The Supreme Court should decide on the acceptance of the appeal of the Prosecutor General’s Office.
A Member of the Criminal General Assembly who did not agree with the majority opinion; An appeal should be accepted on different grounds, considering that “The defendant’s action does not constitute a crime”, while four Members of the Criminal General Assembly voted against it with the opinion that “The appeal should be decided to be rejected”.
result:
For the reasons described;
1- ACCEPTANCE of the appeal of the Prosecutor General’s Office of the Supreme Court,
2- Supreme Court 18. The decision of the Criminal Court dated 04.05.2016 and numbered 24354-9583 ON the ABOLITION of,
3- Supreme Court 18 for the inspection of the application of the file. At the meeting held on 16.01.2020, it was decided by a majority vote that he should be transferred to the Prosecutor General’s Office of the Supreme Court of Cassation to be sent to the Criminal Department.
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