Date of Decision: 22.01.2018
THE CRIME OF WOUNDING – THE NEED TO MOVE AWAY FROM THE LOWER LIMIT WHEN THE PARTICIPANT IS INJURED IN SUCH A WAY AS TO CAUSE BOTH A LIFE–THREATENING SITUATION AND A BONE FRACTURE
ABSTRACT: In the face of the fact that the defendant was found injured as a result of the act of wounding in a way that endangers both his life and causes a bone fracture, it should be taken into account that this situation can only be the reason for moving away from the lower limit in determining the basic punishment, the defendant will only be responsible for the act of wounding in a way that causes a situation that endangers his life, which is the most severe consequence.
(5237 Pp. K. m. 53, 86, 87) (ANY. MAH. 08.10.2015 T. E. 2014/140 2015/85 K.)
The decision given by the local court is appealed and the documents are read;
It was discussed and considered as necessary;
Refusal of other appeals not considered on the spot, but;
Since the defendant was found injured as a result of the act of wounding in a way that endangers both the life of the participant and causes a bone fracture, this may only be the reason for moving away from the lower limit in determining the basic punishment, the defendant will only be responsible for the act of wounding in a way that endangers his life, which is the most severe consequence, without taking into account that the defendant will be responsible for the act of wounding, according to Articles 86/1, 87/1-d-87/3 of the TCK after the application was made in accordance with the latest articles of the TCK. determination of extra punishment for the accused by increasing the punishment in accordance with the article,
Determination of incomplete punishment by not applying the last articles 86/3-e and 87/1-e of the Turkish Commercial Code on the accused, even though it is fixed by the doctor’s report and the defendant’s confession in accordance with the statement of the participant that the defendant performed his act with a stool that is considered to be from a gun,
The decision of the Constitutional Court dated 24.11.2015 and entered into force by publication in the Official Gazette No. 29542 dated 08.10.2015 and No. 2014/1401-2015/85 and No. 53 of the TCC No. 5237. due to the cancellation of some provisions of the article, there is an obligation to re-evaluate the defendant’s legal status in terms of deprivation of rights,
Since the appeals of the accused are considered to be in place as of this moment, the provision is based on Article 33 of Law No. 6723 for these reasons. article 8/1 of the Law No. 5320 as amended. article 321 of CMUK No. 1412, which is in force with Article. it was decided unanimously on 22.01.2018 that the defendant’s right to be acquitted as requested in accordance with article 326 / last article of the CMUK should be reserved.