Complete Attempt To Kill His Wife – Unjust Provocation – Objection To Detention – Judicial Control
TO THE PRESIDENCY OF THE HEAVY CRIMINAL COURT
FILE BASE NO:
CLAIMANT :
CLIENT :
SUSPECT :
CRIME : Complete Attempt to Kill His Wife
OUR DEFENSE
A-) Presentation of the Pre-event and the Moment of the Event
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, threats, oppressed, oppressed her, crushed her personality, expelled her from home from time to time, gradually turned these practices into a way of life, and has 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, she has taken her children under her wing, sacrificing on behalf of her children in order not to be labeled as a “Divorced, Widow Woman” in the traditional value judgments of living in a closed and small region, in the absence of being an individual and economic independence, lack of support for herself, and the traditional value judgments of living in a closed and small region, My client, who is unfortunately one of the victims of the ‘dominant male mentality’ in our country as in many countries of the world, has maintained her marriage until today by sacrificing her personality, honor, “Marriage and Children” in the unbearable life conditions imposed on her.
As a result of the behaviors 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 integral 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 Forensic Medicine science, those with this personality structure are people who can 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 through “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 tormented on all occasions during her 30 years of marriage.
As it is known, domestic violence continues to constitute a very important social problem for our country as well as the whole world. Another aspect of this type of violence, which emerges due to many factors and has severe consequences for individuals, is the criminal procedure and execution law dimension of the issue. It is a fact that crimes committed within the family are the types of crimes that are least reflected in criminal procedure bodies. 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 usually remain in the second or even third place (after children). Incidents of domestic violence, especially against women, are common. 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 persistent. The judges of our courts are well aware of the unimaginable forms of violence that women, in particular, face as a result of the cases brought before them. In addition, as is well known, the likelihood of such crimes 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 who are victims of violence are condemned to helplessness. In conclusion; Marriage is not only a private life sphere, but also has a social life aspect as it is a part of 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 Center, 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 is known to your Court today, if the new Turkish Penal Code no. 5237 had been applicable, the complainant would have been tried under the relevant article of the new code, which sanctions “cruelty” committed by individuals against other individuals.
Within this chain of facts that we have listed under the main headings, the complainant 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 them all, I will shoot them with a shotgun, I will clean them up, 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 behavior towards those who came home, 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 the İş Bank …. branch, he said “I will kill them all with a shotgun, I will shoot the last bullet myself”. What kind of hatred! What kind of hatred! What kind of human values does this fit into? Only medical science can explain this sick state of mind.
Despite all these behaviors 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 protected herself 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 after he learned 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 incoming witnesses to the guest room of the house, closed the door with the thought that his wife might behave in an unkind manner towards the guests, completed the preparations in the kitchen and took the ingredients to the table, while in the meantime, he told his wife, who was watching TV 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 her husband kicking her and the teapot with hot water that she was holding in her hand falling on her and her husband, her husband jumped out of the bed and tried to attack our client with a knife, and while trying to make a move, our client made a sudden decision at that moment to protect herself in order to prevent a possible attack with a sudden decision to prevent a possible attack with a heavy shock and ready to fry potatoes in the kitchen, He threw a pot with oil in it at his wife, but when he saw that she was on fire, he asked for help from the guests who came, he made his wife take a cold shower, and immediately after this incident, the complainant and our client … . They were taken under treatment at the health institution in the province of .
B- Characterization 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 intent. These are
1- The cause of the incident, 2- The means used in the crime, (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 crimes 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 considered as wounding. (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 behavior 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 intent 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 my client’s action, as a result of the panic and fear that my client felt, he 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 had a lethal effect. In this respect, we think that my client’s action was an action that resulted in an 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 on its own. In this sense, the element of convenience among the criteria (the means used in the crime) 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 as a result of being discharged through the mouth, resulting in respiratory failure with internal organ destruction. However, our client, upon being attacked by the complainant, sprinkled the olive oil in the pot on the complainant randomly, with the instinct of self-protection, without taking a knife or similar tool with a lethal effect, while both parties 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 crime of injury”;(…failure to consider the need to determine the nature of the crime after asking and determining the life-threatening situation and the duration of the work and the degree of penetration of the knife blow, which is explained to be vulnerable to the thorax, whether it has damaged the internal organ, and if so, its nature…)
(1ST CD., 12.12.2002. 3012-465)
“Favorable interpretation of the suspicion of intent”;(…the fact that there was only one knife blow that penetrated the abdomen but prevented work and strength for 25 days at the level of life-threatening without causing 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 convicted of 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 favor by relying on the case law that has gained continuity in this direction. Instead of punishing the defendant according to Articles 456/2, 457/1 of the Turkish Penal Code No. 765, the defendant was convicted of 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, who was in the position of a mobile target in the defense reflex by waving the knife randomly during the mutual fight that started with fisticuffs, in the chest area in a way that did not cause damage to the arm and internal organs, as injury…)
(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 pose a life-threatening danger 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 was 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 characterization that his action constituted the crime of wounding…)
(1ST CD., 22.05.2001, 1158-2243)
C -) Evaluation of My Client’s Action in terms of Legal Defense Conditions
As it is known by your court; for the acceptance of the legal defense regulated in Article 49 of the Turkish Penal Code, there must be an unjustified attack of material nature, the defense and the attack must be simultaneous, the defense must be made while the attack continues, and there must be an appropriate ratio between the defense and the attack (the condition of necessity in defense).
Again, the necessity of defense 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 defense must be at the same time. Danger or encroachment must be present. If the danger or encroachment has ceased, defense is out of the question; acts committed in the course of defense become crimes. The same is the case if the offender has been rendered harmless or has fled. The fact that the offense and defense are at the same time means that the offense 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 defense must be directed towards 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 tangible act that is visible to the concrete eye. Defense against a possible attack is not legal. The attack and the defense must be at the same time. The fact that the attack is against the legal order justifies legal defense. However, the unjustified attack must not be caused by the person himself/herself.
“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 self-defense. In fact, since there is no crime in self-defense, there is no need to look for a fault.” (A.P Gözübüyük, Same work, Volume One, 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 our client was in, his simultaneous action was 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 defense. Article 49 of the Turkish Penal Code, which regulates legal defense, and we think that Article 49 of the Turkish Penal Code should be applied to his action that complies with the elements of this crime.
We also present to your court’s appreciation the jurisprudence that supports this opinion and that overlaps 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 neutralize the knife attack and wounding actions, it is not known when it will stop, it is not possible to know when it will stop, it is of a nature that aims at life and is aimed at the soul, it has put the defendant in a position of legal defense and it is understood from the evidence in the file that 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 burned. There is a fear of repetition of the attack. The rape has not yet been prevented as there is a danger that the assault against the victim will be repeated. 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 defense were not exceeded in the incident and the act was committed within the conditions of legal defense.” (Since there is an attack that is feared to be repeated, it should be accepted that the attack continues)
(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; Deciding to punish the defendant by applying Article 50 instead of Article 49 of the Turkish Penal Code, although it is imperative to accept that the defendant acted completely within the conditions of legal defense and did not go to extremes in defense…”
(.CD. 17.6.1996, E.1996/851, K.1996/2290)
Evaluation of My Client’s Action in terms of Unjust Provocation
In its decision dated 19.11.1990 and numbered E.1-254, K.277, the Criminal General Assembly of the Court of Cassation defined the concept of unjust provocation in terms of criminal law as follows
“Incitement, in terms of Criminal Law, is ‘directing and encouraging a person to commit a crime and mobilizing this person to commit a crime as a result of the effect on the will of this person. The perpetrator commits a crime by acting under the influence of anger or anger caused by an unjust act. In this case, the perpetrator tends to commit the crime as a result of the confusion created by the external influence on his psychological state, without making a prior decision to commit a crime.”
Based on this definition, as it is 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 unjust,
The perpetrator must be under the influence of anger or severe grief,
The offense 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 a crime 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 behavior of 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 applied 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 Honorable Court Judges, as we consider it obligatory in the context of evaluating the act and forming a conscientious opinion.
In this sentence, we believe that the behavior of the complainant’s personality will serve as a litmus test in evaluating our client’s action.
In this respect, we present some of the examples of the participant’s behaviors that exhibit his antisocial identity due to the violence and pressure he exerted against our client.
Just a few days after our client married the complainant in 1975, she started the first beatings by saying “Are you the son of the sultan?”.
The complainant, who had a lifelong alcohol habit, rejected all attempts by their joint child M.A. to dissuade his father from this habit. He even severely insulted and scolded his son in this regard.
The complainant kept a bread knife in the car and a knife under the pillow on a regular basis, especially in the months leading up to the incident, and both of his children witnessed his behavior.
One of the examples of the violence exhibited by the complainant within the family is that she injured her son Mustafa in the arm with a razor blade.
Our client was beaten at least 1 to 2 times a week throughout her married life. Her children are close witnesses of these incidents.
Likewise, he injured his daughter H.A. in the 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 beating 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 make this witness listen to this witness at the discretion of the court)
Our client was threatened and tried to be thrown off the balcony of her house in the complex many times by her husband, and due to these actions, she could not even go out on 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 acts 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 dialog in any way.
The complainant has always pursued an aggressive attitude in neighborly relations in the environment where he lived, 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 belittled his daughter, who was in her twenties, 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 abused him in the same way, snored at him, and even consumed the amount of compensation he received for this incident in alcohol.
In early 2001, our client fled to Antalya due to the fear she felt after being severely beaten by the complainant, and in the meantime, upon the divorce case filed by our client, he threatened her by saying “I will make you worse, I will kill you”, and as a result of the intervention of others, my client gave up her divorce request.
During his son’s move to an independent house in the face of his father’s incorrigible attitudes, on the Feast of Sacrifice in 2004, when his daughter suggested to her father, “Let me take a piece of meat to my brother”, the complainant walked on my client and his daughter H.A. with a knife, whereupon my client and his daughter had to leave the house due to the threat of the complainant with a knife. (We think that these behaviors of the complainant are an indication of his tendency to constantly carry a knife or attack with a knife.)
The complainant has exhibited similar behaviors and actions towards the family, which he inflicted on the complainant and his children. 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 implicitly threatened 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 behaviors 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 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 burned due to the overturning of the teapot on him a short moment before the action. This is evidenced by the photographs of my client in the file and after the incident, he, as well as the complainant, was immediately sent to the 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 transferred to the hospital immediately after the incident, we think that it is rational 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 issued 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 resting from work and strength, far from medical data, and arranged randomly. Since the report on the complainant was related to 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 includes a plastic surgery specialist. Although there is a plastic surgery specialist in …., it is against the forensic medicine legislation to issue a report 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 stating that “It is against the law to establish a verdict based on the report that the expert of the subject does not agree with.” 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, the complainant was not even treated in the intensive care unit, even though it was mentioned that she was in life-threatening condition.
When the total burns are summed over the maximum 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 the person is in life-threatening danger if the 2nd degree burn is over 25% in order to talk about life-threatening.
In this respect; since the total number of burns in the complainant is below these determinations, it is not possible to talk about life-threatening danger, and the period of loss of work and strength is 7 days. The external medicine specialist, who was not authorized to prepare the report, did not state this in the final report, and stated that the patient would be out of work for 45 days in a suspicious manner. However, the 45-day period is not a habitual occupation. It is a medical recovery period. As it is known, what is important in criminal cases is habitual occupation and loss of earning capacity. In our case, when the sum of all burns is calculated from the highest point, it is 14%. This is far below the life-threatening limit.
In the light of these explanations, it is necessary to say that the arrest of our client was caused by the gendarmerie report, which lacked clarity, and the unscientific and incorrect report given by a doctor who was not an expert in the subject, which led to the arrest of our client.
In fact, it can be said that justice was misdirected and an indictment was issued based on this mistake.
CONCLUSION AND REQUEST:
In the light of the material facts we have tried to explain above, the available evidence supporting the defense, 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 crime 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 of our client to 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 June 1, in the context of the duration of detention and the individualization of the penalties to be imposed, as well as the provisions of the relevant provisions of the new Turkish Penal Code 5237, which grant wide discretionary rights to your Honorable Court Judges, I would like to request the release of my client on bail or unconditionally, with the belief that our defenses will be evaluated by your Court and the fairest decision will be made.
Sincerely yours.
Suspect arrested defendant
Deputy
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