15 Oct FAILURE TO SHOW A LEGAL AND SUFFICIENT REASON FOR RESISTING THE REASON FOR THE VIOLATION OF THE DECISION TO BE OVERTURNED FOR FAILURE TO COMPLY
T.C. GENERAL ASSEMBLY OF THE SUPREME COURT OF CRIMINAL
2018/3-473 E.
2020/225 K.
DATE OF 21/05/2020
(5237 Pp. K. m. 21, 22, 86, 87, 89)
As a result of the trial held in the public case opened against the accused … for causing injury to a person by conscious consideration, it was accepted that the defendant’s act constituted a possible crime of wounding by caste, and the TCC’s 86/1, 87/1-d, 21/2 and 31/3. bakırköy regarding the punishment of 2 years and 8 months in prison in accordance with articles 3. The Supreme Court, which examined the file on the appeal of the judgment dated 12.11.2014 and numbered 520-1039 issued by the Juvenile Court by the defendant’s defense and his/her deputy, 3. By the Criminal Department dated 26.12.2016 and numbered 2211-21257;
“…1) the child who has committed a crime and shipped on the date of the event in the administration tool and stop at a red light while cruising into a light vehicular traffic, but pedestrian trying to cross the road and continue until you hit that caused the injury as minor victims in the event that you predict the outcome of the child who has committed a crime, although a concrete case, in the belief that the outcome will not occur as a result of continuing our journey with the understanding that the victim was injured in the face of the child who has committed a crime even though it didn’t result in the outcome predicted as a result, and due to the occurrence of Article 89 of the Penal Code No. 5237 22/3. according to the articles, he should be held responsible for the crime of wounding with conscious negligence, while the provision should be made in writing with the admission that the act was committed with a possible caste by making a mistake in the nature of the crime,
2) The age of the minor victim is regulated by the Forensic Medical Institution 2. 02.05.2014 numbered, dated 1951 report of the board of specialization ‘of the event in the case connected to one of the organs in the nature of continuing weakening or loss of the function of anatomical deficiency, functional impairment has not been detected where’ opinions are required, although the victim in the same report in the examination in history 01.02.2013 ‘difficulty walking, loss of balance, psychological problems, loss of vision,’ and in a report dated 31.01.2014 of Radiology, Istanbul training and Research Hospital ‘aperture in the lumbar region on the right, facing the aperture in the dorsal region to the left of minimally scoliosis, leg length in the receive radiogram: Right-2 cm long from the femur of the left femur where it is located, the difference in height between both lower extremities has been detected, a total of 2 inches from the left right lower extremity longer’ resides issues noted, and Istanbul University, Istanbul Medical Faculty, Forensic Medicine, organized by Department of scientific opinions, dated 19.08.2014 permanent incapacity (disability) of the status of the reported seen; after deciphering the contradiction between the reports and asking for opinions from the General Assembly of the Forensic Medical Institution by sending all the treatment documents and radiographs about the victim, the legal status of the child dragged into the crime should be determined and appreciated, while establishing a provision in writing with incomplete examination,
According to the acceptance and application;
3) According to the evidence in the file, it is understood that the child who was dragged into the crime committed his act with a motor vehicle considered to be a gun, it was decided that the incomplete determination of punishment would be impaired by their ”failure” by not applying Article 86/3-e of the TCK No. 5237 in the provision established about the child who was dragged into the crime.
Bakırköy 3, which complies with the reason for the violation (3) made by the Private Office according to the acceptance and application. The Children’s Court is dated 18.04.2017 and numbered 21-142;
“…Since it is believed that the crime committed on the child who was dragged into the crime constitutes the crime of intentional wounding in accordance with all the reasons stated in the file of our court dated 12.11.2014 and numbered 520-1039 and briefly summarized above, the Supreme Court 3. The Court of Cassation decided to resist the resistance of the Criminal Department in terms of the issues specified in paragraphs (1) and (2) of the decree on the violation of 2211-21257 of 26.12.2016 dated 26.12.21257, because our court considers the act of the child who was dragged into the crime to be a deliberate injury 3. In accordance with paragraph (3) of the Criminal Authority’s decree on october and intentional wounding of a child who was dragged into a crime, an additional right of defense was granted due to the fact that he committed the crime with a motor vehicle considered a weapon, and in accordance with Article 86/3-e of the TCC, the path of increasing his sentence by 1/2 was taken. 86/1, 86/3-e, 87/1-d, 21/2 and 31/3 of the TCC for the crime of wounding the accused by possible caste by resisting the reasons of corruption numbered (1) and (2) on the grounds that “. in accordance with the articles, it was decided to punish him with a 4-year prison sentence.
Upon appeal of this provision, which is the subject of the decision to resist, by the defendant’s defense, the Prosecutor General’s Office of the Supreme Court filed a notice of willingness to “disrupt” dated 14.11.2017 and numbered 56281, No. 36 of Law No. 6763. article 307 of the CMK No. 5271 as amended. it was sent to the Department whose decision was resisted in accordance with Article 3 of the Supreme Court, which conducted an examination in accordance with the same article. After the decision of the Criminal Department to resist dated 26.09.2018 and numbered 19898-13752 was not considered in place, the file returned to the First President of the Supreme Court was evaluated by the General Assembly of the Punishment and decided on the grounds described.
ON BEHALF OF THE TURKISH NATION
THE DECISION OF THE CRIMINAL GENERAL ASSEMBLY
Disputes arising between the Special Department and the Local Court, which must be resolved by the Decency General Assembly;
1- Does the defendant’s action constitute a crime of possible intentional injury or a crime of causing injury to a person by conscious negligence,
2- Whether the decision of the Local Court to resist the reason for the violation of the Special Chamber (2) contains legal and sufficient grounds,
3- If the Local Court accepts that the decision to resist contains a legal and sufficient justification for the reason for the violation of the Special Department (2), the Forensic Medical Institution 2. Whether the report of the Specialized Council dated 02.05.2014 and numbered 1951 contains contradictions, whether a provision has been established with incomplete research in this context,
It is related to the determination of
From the scope of the reviewed file;
05.06.2012-dated report of the accident, traffic accident, Istanbul, Başakşehir district, in the crosswalk on Atatürk Boulevard, dry in the open air, no slope, straight on the asphalt road in daytime occurred regarding the accident CCTV footage from plate Volkswagen brand, model Airport vehicle driver while cruising towards the red light is lit himself the defendant’s accident, even though the Left front corner of the vehicle without any measure of exclusion through a red light and side light passing portions to be victimized by Yesil using the crosswalk in the place where the hit detection is given,
In the expert report dated 12.10.2012 organized by the Traffic Expert; the defendant was driving without a license driving, does not conform to the traffic lights and signage, not stopping at a red light, the speed limit is 50 km/hour in a residential neighborhood that is 110 km/hour at a speed of driving, Nizami, who hit pedestrians on the crosswalk to cross an extremely fast, collision and preventive measures are applied where any accident, crashing into pedestrians with the same speed as the path continues unabated despite the accident that left the scene without reporting it to the police, traffic with this defective behavior endanger the safety of persons in and dropped indicating that gave rise to the accident, the defendant No. 2918 Highway Traffic Act 36, 47/b-c-d, 51, 52/b, 81/84 and d/A violations of article, in fact that is defective in the occurrence of accidents, the victim …’s obeying traffic light rules in an accident with pedestrian pass across using as Nizami and markups in an accident and since it has been determined that it is stated that flawless,
In the report dated 08.06.2012, organized by the Küçükçekmece Forensic Medicine Branch Directorate; right shoulder, right wrist, and left femoral region in tenderness and limitation of motion, right tibia and widespread tenderness in the abdomen, right where space is available ekimotik lomber slight right periorbital edema, which resides on the lower inner fracture of the left tibia, a large skin incision in the posterior of the left knee, right femoral shaft fracture, fracture of upper end of left humerus is located where the existing injury is a condition which endangers the life of the person, the life functions of bone fractures in the body effects are mild (1), medium (2-3) and heavy (4-5-6) when are categorized as; it is noted that the fracture detected in a person is of a nature that affects the life functions to a severe (6) degree,
The court considers whether the injury to the victim is of the nature of a constant weakening or loss of the function of one of the organs of the Presidium of the Forensic Medical Institution 2. Upon asking the Specialized Board, in the report dated 02.05.2014, which was prepared by examining all the reports and medical documents issued about the victim; alt-right 2 and 3 during his examination. minimal rupture at the tip of the tooth, subjective pain in old fracture wounds, dizziness and nystagmus are not described, neurological examination performed; no neurological deficits were found; radiographs of the victim were examined; right humeral neck fracture, right radius at the distal end, ulnada broken, frosted glass in the upper lobe of the right lung-contusion looking in the foreground opacity compatible with the increase in the lower diafiz fracture of the left femur, the right fibula at the distal end were found to be broken after determining which one of the organs connected to the victims of the event in the case of the loss or weakening of the function of the continuous nature of anatomical deficiency identified functional impairment that is not a unanimous opinion that there had been reported,
67/6 of the Law No. 5271 on whether the participating victim’s daughter has lost her job and strength as a result of the injury, whether there is a temporary and permanent incapacity status depending on the incident, by applying to the Department of Forensic Medicine of the Faculty of Medicine of Istanbul University. according to the scientific opinion dated 19.08.2014, prepared by three forensic experts working in the Department of Forensic Medicine of the Faculty of Medicine of Istanbul University, upon request for scientific opinion in accordance with the article; it is noted that the injury that led to a shortening of 2 cm in the lower left limb and minimal scoliosis due to the incident led to a permanent incapacity for work (disability) of 20.7% as of the age at the time of the incident and at the time of the report,
In the report dated 05.06.2012 on the accused; According to the measurement made with the alcohol meter at 15.19 o’clock, it was determined that the accused was not alcoholic,
It is understood.
The victims were attended by law enforcement officers Bakırköy Dr. In his statement dated 06.06.2012, which was found in Sadi Konuk Training and Research Hospital; on the day of the event, at noon, go to the store along with his uncle, and his uncle left the store after shopping for their return to the workplace across the road, and the traffic light at the crosswalk waiting for the light, press the button Yeşilova, Yeşilova them until the middle brakes with light, crossing their brakes when they come in the middle of a burning red light, waiting at the directions a few tools, however, are coming too fast if the defendant’s use of the black vehicle, stop the vehicle and the vehicle itself one step on the path of thinking that would hit you don’t remember it from,
The witness … is in law enforcement and in Court similarly; that is the uncle of the victim, on the day of the event went to the supermarket to do shopping at 12.00 with the victims of his nephew, crossing the road and out of the store and press the button for the traffic light waiting for the light Yeşilova, Yeşilova light comes on when the vehicle Başakşehir to the direction of the standing of the middle brakes travelling all the way to the airport, towards the direction of the two cars that had stopped, but the defendant is rapidly coming from the empty lane to slow down with his hand pointing, however, didn’t slow down the defendant, whether the brake is being pressed, to the left, and in front of him, a few steps from the nephew to the victim threw away an extreme speed and hit the road to the left of 2-3 meters, the defendant never again without slowing down quickly fled from the scene, his feet and smashed his nephew’s shoulder, and slept on the floor in blood, casually through the victim taken to hospital from the scene last a lifeguard,
Who participated … in law enforcement and in court in a similar way; that the victim was his mother, did not see the incident, complained to the accused, did not want to compromise,
The witness … is in law enforcement; Yesildiz was working as a valet at the scene of the incident, at the green light, the victim, who tried to cross the road using a pedestrian crossing, was hit by a car with a speed of about 100-120 km per hour and fled,
Stated.
The defendant … is in the Prosecutor General’s Office and in the Magistrate’s Court where he was referred for arrest similarly; he is 16 years old, has no driver’s license, is in Başakşehir 5, where he resides with the license plate number of the dispatch and administration vehicle belonging to his brother on the day of the incident. Istoc the place went from the house to be with his father in the business, the speed 50-60 miles per hour probably, Yesil himself arrived on the scene when the light is illuminated, the victim threw himself suddenly on the road, with a horn warning when the withdrawal of the victim’s next of contacts, however, the victim is freed from the hands of this person, and get back out on the road, stepping on the brakes, the wheel broke, but unable to stop the tool with the side of the victim, hitting the victim on the side of the person fled the scene by yelling in fear,
In court; on the day of the incident, Yesilmaz got into the car belonging to his brother, who found the key at home to get to his father, the crime scene was a wooded area, the victim jumped onto the road, could not stop but broke the steering wheel, hit the victim with the left side of his vehicle, when he came to the lights, he was given a green light, he did not have a license, he was driving for the first time on the day of the incident, he fled the scene because he was afraid,
He has defended it.
It is useful to consider the issues of disputes sequentially.
1- Does the defendant’s act constitute a crime of possible intentional wounding or a crime of causing injury to a person by conscious negligence;
In order to reach an accurate legal solution to the dispute, “direct caste”, “probable caste”, “installment” and “conscious installment” should be mentioned and distinctive criteria should be set out.
article 21 of the TCC No. 5237 entitled “Caste”. the substance;
“(1) The occurrence of crime depends on the november of the caste. Caste is the deliberate and willful realization of the elements in the legal definition of the crime.
(2) Although the person foresees that the elements in the legal definition of the crime may take place, there are possible castes if he commits the act. In this case, life imprisonment is imposed for crimes requiring aggravated life imprisonment, imprisonment from twenty to twenty-five years for crimes requiring life imprisonment; in other crimes, the basic punishment is reduced from one-third to half,”the second sentence of the first paragraph of the article defines direct caste, and the first sentence of the second paragraph defines possible caste.
November 21 of the TCK, where the possible caste is defined. article 2. in the justification of the paragraph; “…Although it is envisaged that one of the elements included in the legal definition of the crime in the case of possible caste may take place in a concrete event, the person is committing the act. In other words, the perpetrator accepts the occurrence of the elements. It will be useful to give some examples of possible caste-related practice, which is a new concept that has entered our legislation.
Lone on the road a bus driver, despite the burning red of a traffic light, at the intersection you want to go without stopping; but hit a pedestrian crossing at the intersection with themselves Yesil light and causes the death or injury of one or more of them. The driver, whose traffic light was burning red for him, saw that someone was passing through the crosswalk at any moment; but, despite this, he did not stop at the intersection and continued on his way. In this case, the bus driver has accepted them, anticipating that the consequences of death or injury that have occurred may occur.
As a result of the fact that a person’s hand loses its course under the influence of alcohol he receives, a bullet from one of his shots fired parallel to the floor hits the forehead of one of the participants in the ceremony dec causing his death. In this case study, a person predicted that the bullets from his shots could hit anyone who was there; but, despite this, he continued to shoot with his gun. Here, too, the perpetrator has accepted the consequences of injury or death that will occur when shooting with his weapon.
In these examples given, it is necessary to accept that the person is acting with a possible caste.”explanations are given in the form of “” and case studies related to possible november are shown.
Accordingly, direct caste is the will to perform the prescribed and criminal act and is formed by the deliberate and willful performance of the act defined as a crime in the law. If the perpetrator knows and wishes that he will perform the legal type of act, he will act directly by caste, while the possible caste will be in question if he accepts the possible outcome and commits the actual, although he predicts that the act he has committed may produce some possible consequences and conceives that these consequences are possible and likely to occur.
The most obvious element that reveals the difference between the possible caste and the direct caste is the element of decency in the direct caste. If the perpetrator knows that his act will be carried out by the legal type, it is necessary to admit that he acted directly on purpose. Again, along with the direct consequences that the perpetrator aims for with his movement, the consequences that arise as a november or inevitable consequence of the movement should also be evaluated directly within the scope of caste, even if it is not clearly desired. If it is certain that the movement towards the realization of a certain result also leads to other consequences according to daily life experiences, it should be accepted that the perpetrator also acts directly by caste in terms of these consequences.
Another criterion that distinguishes a possible november from a direct caste is that it is certainly not possible for the elements in the legal definition of a crime to occur. The perpetrator certainly does not in such a situation, but he accepts the occurrence of the result that is most likely to happen and takes it with the thought of “no matter what”; he does not make any effort to prevent the result from happening. Although it is considered probable that a possible caste act will cause a result defined in the law to occur, it is accepted by the perpetrator that this result will occur.
in the criminal theory based on the preparation of TCC No. 5237, the crime expressed as “injustice defined in the law” can be committed, as a rule, only by caste, and in cases clearly shown in the law, it can also be committed by installment. In order for the perpetrator to be punished for an exceptional form of negligence, there must necessarily be a clear regulation in the law. 22/2 of the Turkish Commercial Code No. 5237. in its article, taksir is defined as “due to a violation of the obligation of attention and care, a behavior is carried out without providing for the result specified in the legal definition of a crime”.
In the case of parsimonious crimes, both executive and negligent actions must be voluntary and the outcome must be predictable. If there is no willful behavior, there can be no mention of an installment, as well as if an unforeseen result occurs, the perpetrator will not be held responsible for an installment crime.
If the victim’s obsessive behavior also has an effect on the realization of the result, this will not eliminate the perpetrator’s responsibility, nor will it change the nature of the installment, unless the other obsessive behavior breaks the causality link. Since there is no penalty reduction in the Turkish Criminal Code by rating the defect, this condition can only be taken into account when determining the basic penalty.
In the Turkish Criminal Code, taksir has been subjected to a dual distinction between ”simple“ and ”conscious” taksir, 22. in the third paragraph of the article, conscious taksir is defined as “the person does not want the result he foresees, but the result occurs”, in which case it is stipulated that the punishment for the taxable crime will be increased from one third to half.
The distinguishing criterion between simple installment and conscious installment is that the perpetrator did not foresee the predictable outcome in the installment, and in the case of conscious installment, he fores dec this outcome.
The result, which took place in conscious follow-up, was not desired, although it was foreseen by the perpetrator. The state of danger of a person who acts solely on his luck or other factors, even relying on his own skills or knowledge, while he really foresees the outcome, will not be kept in line with the state of danger of a person who has not foreseen it. Whoever foresees the outcome is obliged not to take actions that will lead to this result no matter what.
21 of the Turkish Criminal Code. in the second paragraph of the article; “Although the person foresees that the elements in the legal definition of the crime may take place, the actual commission of the crime” is defined as the possible caste that is not included in the other distinguishing element of the 22 of the same Law. in the third paragraph of the article; the fact that the conscious installment defined in the form of “a person does not want the result he foresees, but there is a conscious installment if the result occurs” will be confused has been stated in the teaching, and the legislator has not included the measure of “acceptance” in the text of the article in the justification of the same article; ”although it is foreseen that one of the elements included in the legal definition of a crime in the case of a possible caste will occur in a concrete event, a person commits an act, in other words, the perpetrator accepts the occurrence of the elements,” he explained, setting out a criterion that will separate the possible caste from november conscious installment.
In the doctrine of decoupling the conscious division by possible caste, the Frank formula should be applied “In terms of determining the distinction between both. Accordingly if you fail one way or another in any case the movement, too, if we can say that it is made possible caste; ‘if he had known that would happen as a result of we can say that we would have to move if it is conscious of the crime…before each event in terms of a distinction between the two can be made of concrete, the perpetrator also as a result of risk considered to be accepted can be regarded as an assessment of the direction seems to be mandatory” in the form of arguments. (Bahri Öztürk-Mustafa Ruhan Erdem, Applied Criminal Law and Security Measures Law, Distinguished Academic and Professional Publications, 17. Edition, Ankara 2017, p. 303-304.)
In case of indifference to the occurrence of the predicted possible outcome, there will be a conscious consideration in ahval, where the occurrence of the predicted possible outcome cannot be prevented, even if the possible caste does not want the predicted possible outcome to occur. In other words, although the perpetrator knows that, even though it declined as a result is likely to occur as a result of movement while remaining indifferent to the situation by maintaining the caste of the offender accepting the possible consequences in case of possible predict outcome, although the ability, the opportunity, experience or other factors into believing that the trust will not occur as a result of when you need to prevent the possible consequences of failure to continue the movement by taking the necessary measures in the event taksir conscious I would be concerned.
At this stage, it is worthwhile to address the relevant traffic legislation.
as of the date of the incident of the Road Traffic Code No. 2918 in force as follows;
36, entitled ”The obligation to obtain a driver’s license”. the first paragraph of the article;
“It is forbidden to drive and allow motor vehicles to be driven on highways by persons who do not have a driver’s license.”,
47, entitled ”The obligation to comply with traffic signs and rules”. the first paragraph of the article;
“The beneficiaries of the highways are as follows;
a) Warnings and signs of traffic police officers or other authorized persons in special clothing or carrying signs charged with regulating and controlling traffic,
b) Traffic lights,
c) To the matters specified or indicated by traffic signs, devices and landmarks,
d) Other rules, prohibitions, obligations or obligations related to traffic safety and order and shown in the regulation,
They must comply.”,
51, entitled ”The obligation to comply with speed limits.” the first paragraph of the article;
“Drivers must not exceed the speed limits specified in the regulation if a decision has been made to the contrary and they are not marked.”,
52, entitled ”Ensuring compliance of the speed with the necessary conditions”. the substance;
“a) Reducing their speed when approaching intersections, entering turns, approaching hill tops, moving along turnpike roads, approaching pedestrian crossings, level crossings, tunnels, narrow bridges and culverts, entering construction and repair areas,
b) To adapt their speed to the load and technical characteristics of the vehicle they are using, to the conditions required by the visibility, road, air and traffic conditions,
…
They have to.”,
81, entitled ”Rules on persons involved in traffic accidents”. in the article;
“Those involved in traffic accidents:
a) To stop immediately so as not to create an october danger to traffic if they are on the move, to take the necessary measures for traffic safety at the scene of the accident,
b) If there is a death, injury or property damage in an accident, if this accident does not affect traffic, life and property safety, do not change the situation at the scene of the accident, including evidence and traces that will be useful in determining liability,
c) To inform and show the identity card, address, driver’s license and registration certificate, as well as the date and number of the insurance policy, if requested by the persons involved in the accident,
d) To report the accident to the authorized and duty officers, not to leave the accident site until they arrive or without their permission,
…
They have to.”,
84, entitled ”Detection of driver defects in traffic accidents and cases that are considered a major defect”. subparagraph (a) of article;
“Vehicle drivers in traffic accidents; a) Passing at a red light traffic sign or at a stop sign of an authorized officer,
…
In their case, they are considered to be fundamentally flawed.” contains its provisions.
On the other hand, in criminal law, when determining the legal status of the accused, it is also necessary to consider the facts as incidental. Topics, events, the number of defendants, the defendant’s pre-event, event and during the event, the behavior of the execution of the crime in terms of the format of the evaluation should be done according to the characteristics of each concrete event; the subject of the event and the performance is different, is similar to an event where the event is located partially with the defendants and the defendant’s criminal responsibility, even if you compare another about healthy, non-inference on the basis of this comparison it must be noted that an effort can lead to incorrect results.
In the light of these explanations, when the issue of the first dispute is considered;
The defendant, who was 16 years old at the time of the incident, was registered to traffic on behalf of his older brother … Volkswagen trademark number plate, model of the district of Başakşehir, where he resided by getting into the car, 5. From the place where it is located toward the place of his father’s business started to watch the traffic wholesalers market in Istanbul Ataturk Avenue is located at mobile electronic system integration (MOBESE) and the calculated speed is 110 km per hour kameralarinc detected, the defendant’s conduct with the tool on Ataturk street while watching his uncle to a child victim, which is passing through, along with the crosswalk, despite the red light vehicles in their direction, accident, according to the report at 12.30 at noon the weather was clear and the view is not to prevent a situation in a way that, without reducing speed, and brake light without resorting to measures by making it a violation of fast strikes, the victim’s left tibia fracture of the lower inner left knee, lifts a large skin incision in the posterior of right femoral shaft fracture, fracture of upper end of left humerus as a result of his life is in danger, the life functions of fractures in the victim identified Heavy (6) stated that the degree affect Traffic expert witness report dated 12.10.2012 held Bilirkisisince; driving and driving without a license, does not conform to the traffic lights and signage, not stopping at a red light, the speed limit is 50 km/hour in a residential neighborhood that is 110 km/h fast using the tool, Nizami, who hit pedestrians on the crosswalk to cross an extremely fast, collision and preventive measures are applied where any accident, the victim continues unabated despite crashing into a pedestrian path with the same speed as it left the scene without reporting the accident to the police, this defective behavior endanger the safety of persons in the accident giving rise to specified traffic dropped and Defendant No. 2918 Highway Traffic Act 36, 47/b-c-d, 51, 52/b, 81/84 and d/A violations of article, the occurrence of accidents is flawed, in fact, the victim …’s obeying traffic light rules in an accident with pedestrian pass across using as Nizami and markups in an accident and since it has been determined that looks like it has been stated that in the event is flawless;
The defendant, the settlement in areas where the maximum speed limit is 50 km per hour in miles per hour over the maximum speed of about 110 stipulated by law to be present when it is moving rapidly, that might appear in front of pedestrians who cross the street in the crosswalk had predicted, although at that time, crossing the road at the crosswalk light Yesil victimized the child itself by using the red light in the direction of the vehicles, but conscious of being hit with a great speed by running a red light, constitutes the essence of the crime, and the potential for crime, the most important principle that separates the conscious caste, should not projected and actual result, and the result to prevent brake, throttle, direction no effort in does not show in this way or face the consequences predicted the likely outcome of efforts to prevent a behavior that doesn’t get to the absence of staying indifferent to accept the possible consequences that occur in other words, it is also possible to concrete cases specified by law enforcement in the article you edited, such as occur in the case that the defendant’s actions in the face of an understanding of where the offence of wounding with intent, it must be admitted that creates possible.
In this respect, it should be accepted that the Local Court’s justification for resisting that the defendant’s action constitutes a possible crime of wounding by caste is correct.
A member of the General Board of punishment disagree with the majority opinion; “a child who has committed a crime …’s conduct and failed to stop at a red light while cruising with the car in a pedestrian was trying to cross the street as possible with the intent of wounding, injuring the victim is giving little slammed sebiyet action that qualifies as high, with the majority of the court of Criminal Appeals of the General Board of mismatch between the number was born.
In order to resolve the dispute in a healthy way, first of all, the provisions of ‘taksir-conscious taksir and possible caste’ are examined, and 21/2 of the Turkish Commercial Code for the act that is subject to trial in a concrete case. it is necessary to determine in the light of the case law of the Supreme Criminal Court General Assembly and various departments in similar cases by taking advantage of the opinions adopted in the doctrine whether the conditions defined in the article have been realized or not.
In criminal law, understanding the stages that the defendant goes through in his mind while committing the crime and determining what he actually intends from the defendant’s actions is a problem related to the law of proof. Since it is not possible to know the mental state of the perpetrators directly, it is necessary to rely on tangible data to recognize them and determine their purpose. The crime of deliberate action performed or a concrete case, the external evidence in the crime scene sketches, study reports the statements of the complainant or victim, video surveillance, can be detected with scientific and technical findings as evidence that are completely independent of the external evidence, for example, can be found through confession. On the other hand, although both forms of responsibility are different from each other, there can be no space between these concepts in terms of deciphering the legal meaning of caste and installment. In november respect, the definition of the taxonomy must necessarily have a common boundary with the definition of caste and be dependent on the definition of caste. november 19, 2011. As mentioned earlier, taksir is distinguished from caste by the fact that the will of the perpetrator does not cover the result that will arise from the behavior, in other words, the result is undesirable.
If there are two terms that are very often confused by citizens in practice, the distinction of which cannot be made, these are the possible concepts of caste and conscious installment.
Conscious installment and possible caste are two concepts that follow the same path to a certain place and diverge from each other after a certain point. Although it seems that both concepts are actually the same, they have completely different meanings from each other. For the acceptance of caste november the result must be known and desired. In conscious follow-up, the perpetrator foresees that his act may lead to an unlawful outcome. So far, the two concepts are similar to each other, and the separation begins from this point on.
Although the perpetrator consciously believes that the result will not occur, he does not want the result to occur and also does his best to prevent it from happening. If he accepts the existence of the possibility and possibility of realization, he spontaneously stops making the move. In other words, we need to explain in other words, the perpetrator gives importance to the fact that the result will not be realized in a conscious follow-up and takes this issue seriously. He is in the desire, thought and expectation that the result will not be realized.
However, it is possible that the perpetrator’s act may result in illegal consequences, and the likely outcome does not prevent him from making the movement. In other words, if the imagined result occurs, the perpetrator has already accepted this result.
As a result, it should be accepted that the perpetrator thinks and predicts that the outcome may occur, and if he does not give up his act in the face of the possibility and possibility of this outcome occurring, his possible caste exists. In contrast, in cases where we can say that the perpetrator would not have acted in case the outcome occurred, we can say that the perpetrator acted consciously, not intentionally.
It is possible to summarize the opinions adopted in the doctrine about the possible concepts of caste and conscious division, which constitute the subject of the dispute, as follows.
Prof. Dr. Ayhan ONDER;
Even if the outcome is not desired, the perpetrator who risks its realization is considered to have acted with a possible intention, the perpetrator who acted with the hope that the outcome will not occur is considered to have acted with conscious consideration.
Prof. Dr. Ersan Sen;
‘TCK m.on November 21, we see that the probable, that is, the probable caste, is regulated. In the legal definition, a possible caste is a person’s actual deed, even if he foresees that the elements of the crime contained in the legal definition may take place.
TCK m.22/2 he defined conscious installment as the occurrence of a result when a person does not want the result he has predicted, even if he does not want it.
According to these definitions, probable caste can be explained as predicting the result that may arise from a person’s deliberate and willful act, saying ‘no matter’ for this result, and not caring if the result occurs.
A conscious taksir is that a person anticipates the result that may arise from a deliberate and willful act, but thinks that the result will not be realized, strives to prevent the result from happening, or trusts himself, in a sense, he takes the result with the belief that the result will not happen.
When does the probable caste happen and when is the action considered a conscious installment? It is not easy to make the criterion of this according to the ‘wanting’ sub-element of the spiritual element. In fact, it cannot be said that a desire has been identified in the perpetrator for a result that has been clarified in the probable caste, that is, made clear. If a will to ask has been determined in the perpetrator, this is already considered a subjective responsibility arising from caste. In the legal definition, the perpetrator foresees that the elements contained in the legal definition of the crime may take place in the probable caste, but does not want to, and still continues to commit the act, that is, in a sense, he says ‘no matter’ for the final part of the crime. If it is in conscious follow-up; the perpetrator does not say this, but he cannot prevent the realization of the result that he foresees through the imperfect executive action or actions that cannot be accepted. In a sense, the perpetrator takes the risk of the outcome or thinks that the outcome will not happen. Indeed, it is very, very difficult to realize or find this theoretical difference in practice”.
After defining direct caste, possible caste and conscious installment in the case law No. 19/04/2011, 2011/1-840/2012/214 K of the Supreme Court of Cassation Supreme Criminal Court; criteria are specified to separate concepts that are very close to each other.
Although it is not defined in TCY No. 765, it is not defined in TCY No. 21 of 5237. article 1. in the second sentence of the paragraph, caste is defined as ‘the deliberate and willful realization of the elements in the legal definition of the crime’, article 2 of the same Law. in the paragraph; ’Although the person foresees that the elements in the legal definition of the crime may take place, there is a possible caste if he commits the actual‘ definition of ’possible caste’ is given by saying.
Direct caste requires the perpetrator to know and want that his act will be carried out legally. However, in addition to the direct consequences that the perpetrator aims for with his/her movement, the mandatory consequences or inevitable side consequences of his/her movement should also be evaluated directly within the scope of caste, even if it is not an explicit request.
In teaching and practice, the possible caste, also called the ‘indirect caste,’the ‘non-specific caste, the ’non-Chinese caste,‘ the ’regardless caste,‘ is the 21st November of TCY 5237. article 2. in its paragraph; It is defined as ‘although it foresees, it actually works’.
The most obvious elements in the decoupling criterion between the possible caste and the direct caste are the elements of knowing and wanting in the direct caste. If the perpetrator knows that he is going to carry out the legal type of his act, and he also wants to do so, he must admit that he acted directly on purpose. Again, along with the direct consequences that the perpetrator aims for with his movement, the consequences that arise as a november or inevitable consequence of the movement should also be evaluated directly within the scope of caste, even if it is not clearly desired. If it is certain that the movement towards the realization of a certain result also has some other consequences according to daily life experiences, it should be accepted that the perpetrator also acts directly by caste in terms of these consequences. Another criterion that distinguishes possible caste from direct caste is november the elements in the legal definition of a crime are not necessarily possible, but likely to occur. In such a situation, the perpetrator acts by accepting the realization of this possibility, with the thought of whatever happens, and taking the risk of putting up with it, and does not take measures to prevent the possible outcome from occurring.
As a rule, a crime can only be committed by caste, but crimes can also be committed by installment if they are clearly shown in the law. Taksir, 22/2 of TCY No. 5237. in its article; It is defined as ‘the realization of a behavior without providing for the result specified in the legal definition of the crime due to the violation of the obligation of attention and care’.
On the other hand, it is possible that the caste is not included in any other distinctive element, since the mentioned Law is november 22. article 3. although it is stated in the teaching that it can be confused with conscious installment, which is defined as ‘there is a conscious installment if a person does not want the outcome that he foresees, but the outcome occurs’ in the paragraph, the legislator has the criterion of ’acceptance’ that he does not include in the article text, on the basis of the article; although it is foreseen that one of the elements included in the legal definition of the crime in the case of possible caste will occur in a concrete event, the person commits the act, in other words, the perpetrator accepts the occurrence of the elements,’by making a statement, he has set out a criterion that will separate the possible caste from november conscious installment.
It is possible to determine the distinctive criteria between possible caste and conscious decency in the following way by also taking advantage of judicial decisions and scientific opinions.
Both the possible caste and the result in conscious follow-up are foreseen by the perpetrator.
In conscious follow-up, it is hoped that the predicted outcome will not occur, and in the possible caste, this outcome is taken into account and accepted by the perpetrator. Possible perpetrator predicted the outcome to occur caste bite the bullet and take any precaution to avoid the result, while the offender in the crime despite foreseeing the result of conscious, luck or other factors, or even own the predicted outcome will not occur in the belief that the knowledge or skill relying on acts.
After the opinions summarized in the theory, the Supreme Court met with the Criminal General Assembly of the 12th Supreme Court. The case law of the Criminal Department in similar cases needs to be examined.
The Supreme Court of Cassation issued the Supreme Criminal Court’s Decision No. 10/05/2016 on the day, 2016/250 K;
I was cruising on the Trabzon-Giresun highway on the night of the incident in Beşikdüzü district …. in the incident where the defendant, who was driving in the opposite direction on a divided road in his neighborhood with his headlights on in the safety lane and had 2.70 promil alcohol, crashed into the vehicle of participant Hasan, who was driving in the section reserved for them on the same road, causing injury to the participants in the vehicle, and Serpil’s death; the defendant’s stimulus direction signs and lines in accordance with the procedure uses the path where is located the opposite direction of traffic from knowing the Tools section enters, as he continues to drive in spite of knowing that the tool is in the opposite direction from the opposite direction predicted that a vehicle could cause injury or death, even though slams driving experience, abilities, because it is night would be less traffic, especially from the opposite direction in the direction of the arrivals and protect themselves lucky that they would be more careful he trusted, with the obligations stipulated by act contrary to such a notion of objective attention and doesn’t want to care, but the result caused by the result of the acceptance of occurring, it is understood and desire; that didn’t happen, however, the predicted result of the lens, take care to prevent the occurrence of the obligation to uphold the death of an accused person who is not resulting in injury to more than one person in the act of consciously acted has reached the conclusion that for the crime.
Supreme Court of Cassation 12. In the case law of the Criminal Department No. 05/04/2012 day, 2011/18371 E-2012/5120 K;
22/3 of TCK No. 5237, in which the defendant committed the act of shooting into the air with an unlicensed pistol in a crowded area where the wedding ceremony was held, even though he foresaw that the bullet coming out of the gun could hit one of the people present at the wedding site. although it is understood that there is a conscious state of installment that is expressed in the article, and therefore an increase should be made in the basic punishment assigned to the defendant, according to this admission, the court applying for this decision decided to OVERTURN the decision issued by the local court with a bet, as there was no contradiction in the verdict, stating that there was no information and documents in the file on the grounds of the defendant’s action with conscious installment in the part of the judgment.
As it is clear from the case law of the Supreme Court; in the possible caste-conscious division of division; for any event, there is no way to determine a template state of imperfection. For example, if it is a fatal or injurious traffic accident, if statements containing precise judgments such as conscious installment or possible castration are included; it means that certain limits are drawn by case law to perhaps the most controversial, most ambiguous area of criminal law; 2 of the Turkish Criminal Code of such an outcome. it is clear that not only will it be contrary to the principle of legality enshrined in its article, but also that it will lead to consequences that are contrary to the principle of equity, which is an essential part of criminal law from time to time.
Although the outcome is predicted both in the possible caste and in the conscious installment, there is no pause in practice and teaching about the fact that the outcome is never desired in the conscious installment, and the outcome is accepted in other words that the outcome is not cared for in the possible caste. But since the caste is related to the inner world of the person, inferences should be drawn from the rules of experience to the spiritual element of the action. As described in detail above; in the light of the opinions adopted in theory, the legal regulations and the criteria determined by the Supreme Criminal General Assembly of the Supreme Court of Cassation and the case law on similar events; it is possible to summarize the criteria that will distinguish between possible caste and conscious installment as follows.
1-)Although there is no concrete data that the perpetrator’s action will end well and despite its dangerousness, there is acceptance if he performs the action or if he leaves it by chance that the danger he foresees will occur or not occur.
2-) A state of confidence that a fatal outcome will not occur if the death result is plausible in the process envisaged as a result of the act, if it remains for miracles not to happen; in other words, as the degree of probability of death increases, the criminal perpetrator’s claim that he does not accept the resulting death will weaken.
3-)If the perpetrator thinks and foresees that the outcome may occur and does not give up his/her movement in the face of the possibility and possibility of this outcome occurring, it should be accepted that his/her possible caste exists. In contrast, in cases where we can say that the perpetrator would not have acted in case the outcome occurred, we can say that the perpetrator acted consciously, not intentionally.
Which is the subject of the proceedings in the action, while the red light is illuminated for vehicles; and administration tool with referral within the city at a speed above the speed limit of watching a child who has committed the crime to himself for the moment when I wanted time to pass quickly from the right side of the empty road, Middle refuge with his uncle while trying to cross the street after running with a sudden movement of young victims who wanted to cross to the other side for a moment before the crash that resulted in a severe injury as a result of the victim’s camera at the scene it is understood from the records.
In the light of the views adopted in the teaching and case law; when we look at our concrete case; according to the available data and especially camera recordings, it cannot be said that the child dragged into the crime does not care about the occurrence of the result for sure. However, it may not always be possible to decipher concrete events by deducing the difference between the phrase “do not care or take care” in the possible caste and the phrase “do not want the outcome” in the conscious installment. For example, a person who places a bomb on a plane to kill his opponent may not want people who are on the same plane with his opponent to die or be injured. There may even be people who will be very upset among those who will dec hurt on the plane. However, even in that case, if the result is not linked to the miracles of the defendant deliberately kill the man, if possible, is likely to occur as a result of the caste, as a result of chance is less than less likely to occur, in other words, with the possibility for prevention objectively as a result of the confidence that can be prevented when necessary in accordance with the assessment criteria that will be held in conjunction with any other conscious may need to be talking about the crime.
The concepts of possible caste and conscious decency are the most controversial concepts of the criminal code, and it is extremely difficult to determine the boundary between them. Possible into the muscle, not caring or the eye are getting conscious with the crime that led to the ‘want’ although there is a very thin boundary between the concepts of the presence of differences that already exorbitant penalties can be called in a very difficult position leaves practitioners the job quite difficult. In our concrete case, although there is a possibility that only a judicial fine will be imposed if the provisions of conscious installment are applied in our concrete case, the minimum penalty that can be given if the possible caste provisions are applied is 2 years 2 months 20 days in prison if Article 62 of the TCC is not applied. In the event that results in the death of five people, the total penalties that may be imposed in the event that possible caste provisions are applied may be 5 separate life sentences or 100 years in prison, while in the case of the application of conscious installment provisions; a maximum sentence of 22 years and 6 months may be imposed. Another aspect that offends the sense of justice is that taxi crimes can have consequences that are perhaps much more serious than them, often as intentional crimes. For example, it is known that accidents that will lead to the loss of hundreds of lives by building buildings that violate the earthquake regulations, or by not taking adequate safety measures for underground mine workers are common in our country. The person or persons who caused these extremely sad events may be extremely well-intentioned, as well as feel lifelong remorse for the result of their mistake. But the regrets experienced after the sad consequences may not ease the suffering of the relatives of the deceased and the injured, and even the sentences given at the highest level as a result of the trial may be insufficient in the face of the grievances experienced. The work of the legislator is also not very easy. Because although committing an intentional crime is entirely a product of human will, committing an installment crime may not often be a product of human will. Of course, defective behavior is needed to punish the installment. But despite the fact that it is acted in the utmost good faith, the slightest negligence or momentary wrong choice can lead to very serious consequences. For example, a person who is on the road in the cold or takes a person who is sick due to a sudden illness into his vehicle to get to the hospital acts with extremely human thoughts, but as a result of his defective behavior, the people he takes into his vehicle to help may lose their lives or be seriously injured. Of course, the legislator must objectively consider all these possibilities and determine the appropriate punishment for the action. But finding a middle ground will also not be very easy. In fact, what needs to be done is to narrow the time gap between conscious decency and the penalties that can be imposed in terms of possible caste provisions, as well as the effective use of the art of dominance in a concrete event, or to add such december violations to the law as a possible caste by the prohibitionist himself. In order to achieve the ultimate goal of Justice, Criminal Procedure Law in motion, even though the practitioners of criminal law and separated from the principle of legality, which is the sine qua non to act according to their own judgment, cannot be allowed to compromise the rule of law and our legal system. Because in such a situation, since everyone’s understanding of justice will naturally be different, it will not be possible to ensure the principle of legal security. In order to prevent such inconveniences, it is necessary to comply with the principles of interpretation, which do not have a positive basis during the interpretation of legal norms, but are caused by the nature of the goods. Prof. Dr. According to Kemal Gözler, law will deserve the title of ‘science’ only on the day when principles that are obvious in their correctness, such as Euclid’s theorems, are developed and these principles are adopted and applied as a standard by all jurists. It is only on that day that legal problems will be solved by all lawyers in the same way. In such a system, court decisions will also be able to be predicted accurately in advance. It is only in such a system that the principle of legal security, and therefore the rule of law, will be realized.
In our case, the child who is dragged into a crime is extremely severely defective. In the case of the application of the provisions of conscious consideration, the sentence may not have satisfied the sense of criminal justice that may be imposed. But this is the legislator’s choice. In order to achieve justice in a case that the law is viewed as a whole, and interpreted to the disadvantage of the action by changing the nature of penal code in case of disruptions in the law because of systematic, or severe violations for similar violations at this time, naturally, different courts have different penalties that can be dominated by a sense of justice in terms of proportionality and the principle of equality may raise the issue of corruption. For example, if a child who was dragged into a crime in our concrete incident had intentionally injured anyone with a fist in the same way, he would have been sentenced to at least 2 years in prison by Articles 86/1, 87/1, 31/3 of the TCK, and as a result, he would have damaged his sense of justice by staying below the minimum sentence of 2 years 2 months 20 days in prison, which could be given for causing a possible intentional injury in our concrete incident. Because according to the Turkish Penal Code No. 5237, which adopts the principle of defect, it has been very clearly regulated by the legislator personally that the defect situation in crimes committed intentionally will be much more severe than the defect situation in possible caste-related crimes. ( Article 21/2 of the TCC). When interpreting the legal norms established by the prohibitionist who has the authority and duty to determine the criminal policy, a conclusion should be reached in such a way that each practitioner reaches the same interpretation in the face of the same incident, aiming at justice and fairness as much as possible. The child who was dragged into the crime, as can be seen from the camera footage, may not have reduced his speed despite the red light, thinking that he could pass through the empty part of the road because he did not see the victim, who suddenly started running from the middle of the road. If it brakes at the current speed, it is also possible that much more sad consequences will occur. In this case, the fact that the child who was dragged into the crime did not hit the brakes cannot be an indication that he did not resort to any measures and, accordingly, risked the outcome. Because if he brakes or slows down at a distance where he cannot stop, there is a possibility that much more sad consequences will occur. The thought of crossing the road quickly from the empty right side of the road thinking that the child who was dragged into the crime cannot stop at a time when he suddenly sees the victim, who is under the age of his age, running, can be interpreted as a measure taken according to his life experience. But until this happens, the lack of a driver’s license, the fact that he is underage, the red light turns on when entering the intersection, but he does not stop, and he drives well above the speed limit in the city are very serious flaws. Despite this severe flaws taksir conscious of the punishment that will emerge as a result of the implementation of the provisions do not satisfy the public opinion, even though similar events to conflict with the law in jurisprudence Justice facility such as the systematic and extremely lofty without a thought just letting it even possible implementation of the provisions in the opinion of caste, would be contrary to the principles of legality and equality. For example, in our concrete case, the action of a child who has been dragged into a crime is the subject of Decision 2016/250 K of the Supreme Criminal General Assembly of the Supreme Court of Cassation on the incident; it will also come across as a well-known fact that the defendant who entered the divided road from the opposite direction, was extremely drunk, extinguished even the headlights of the car and hit the vehicle coming from the opposite direction in the middle section of the road was not more severely defective than his action. Because it is too obvious that the defendant, who entered the divided road from the opposite direction and was extremely drunk, also turned off the headlights of the vehicle and was driving near the middle section of the road, may have caused the accident much more likely than the accident in our concrete incident may have occurred, which does not require discussion. As of 2016/250 K; while the action of the accused who committed three serious violations is considered to be a conscious pursuit, in our concrete case, the assessment of the child’s action as a possible caste will lead to a violation of the principle of legal security in our opinion.
As a result; in our concrete case, the child who was dragged into a crime should be questioned in accordance with Articles 89/1, 22/3, 31/3 of the TCC, while the decision to resist issued by the local court with a bet should be overturned because the action was committed with a possible caste, while the decision to resist is in place to check the application with a bet, the file should be sent to the Supreme Court 3. The opinion of the majority of the members of the Supreme Criminal Court of the General Assembly of the Supreme Criminal Court on sending him to the Criminal Chamber was not attended for the reasons presented and explained above.” he voted against it in his opinion.
2- Whether the decision of the Local Court to resist the reason for the violation of the Special Chamber (2) contains legal and sufficient grounds,
As a result of the trial held after the overturning by the Local Court, the “Forensic Medical Institution 2 of the Special Department. With the report of the board of specialization, Istanbul University, Istanbul Medical Faculty, Forensic Medicine, organized by Department of scientific opinions between the review dated 19.08.2014 missing before the conflict is resolved with the establishment of the provision,” relating to (2) Resistance cause destruction of any cause is shown and disclosed to resist infringements on the cause of this reversal is why it is understood that the decision has been made from.
Article 34 of the CMK No. 141 and 5271 of our Constitution. in accordance with the articles, court decisions must be reasoned. There is no doubt that making a decision without relying on a legal, sufficient and valid reason will not be appropriate for the purpose of the legislator, as well as lead to arbitrariness in practice. As a matter of fact, according to the established practice of the Criminal General Assembly, CMK 34, 230 and 232 by the local court, since a decision will be completely eliminated by overturning it, as well. in accordance with the articles, it is necessary to re-establish the provision in accordance with the procedure, as well as to show the justification for resistance.
In the light of these explanations, in the evaluation made regarding the second dispute;
As a result of the trial held by the Local Court after the overturning, the Special Department was declared to be the “Forensic Medical Institution 2. With the report of the board of specialization, Istanbul University, Istanbul Medical Faculty, Forensic Medicine, organized by Department of scientific opinions between the review dated 19.08.2014 missing before the conflict is resolved with the establishment of the provision,” relating to (2) Resistance cause destruction of any cause is shown and disclosed to resist infringements on the cause of this reversal is why it is understood that the decision has been made from.
In this regard, it should be decided that the provision subject to the decision to resist will be overturned due to the inability of the Special Department to provide a legal and sufficient reason for resisting the reason for the violation of (2) regarding the establishment of a provision with incomplete research.
In the face of this result, Forensic Medicine Institution 2. The issue of the third dispute regarding whether the report of the Specialized Council dated 02.05.2014 and numbered 1951 contains contradictions and whether provision has been made by incomplete research in this context has not been evaluated.
Conclusion: For the reasons described;
1- Bakirkoy 3. The grounds for resistance shown in the conviction of the Juvenile Court dated 18.04.2017 and numbered 21-142; that the defendant’s action constitutes a possible crime of wounding by caste are CORRECT,
2- Bakirkoy 3. The conviction decision of the Juvenile Court dated 18.04.2017 and numbered 21-142 on the establishment of a verdict by incomplete investigation of the Special Department (2) on the reason for the violation of the legal and sufficient grounds for resisting failure to be VIOLATED,
3- It was decided to transfer the file to the Prosecutor General’s Office of the Supreme Court of Cassation for sending it to the scene, with a majority of votes in terms of the first dispute issue and unanimously in terms of the second dispute issue at the negotiation held on 21.05.2020.
No Comments