28 Aug It Is The Duty Of The First Instance Criminal Court To Look At The Case File Against The Defendant Who Is Alleged To Have Caused a Bone Fracture By The Injury
T.C. Supreme Court 3.CRIMINAL DEPARTMENT BASIC NO: 2010/1412 DECISION NO: 2010/2472 DECISION DATE: 17.02.2010
Summary: it is a legal obligation to investigate the consequences of the crimes of wounding by the investigative and judicial authorities in a concrete incident. But these results must comply with the principles established by the Forensic Medical Institution. According to forensic criteria, it has been determined which injury is mild to the extent that it can be removed by simple medical intervention, and it seems that a fracture in the nose is not counted among the injuries that can be removed by simple medical intervention. Since there is a possibility that articles 86/1, 87/3 of the TCK may be applied against the defendant, who is alleged to have caused a bone fracture and dislocation of the injury, the task of looking at the case file to be examined ….. Mahkemesin Is Criminal.
(5237 P. K. m. 61, 86, 87) (5235 P. K. m. 11) (5271 P. K. m. 309)
Case: defendants for wounding and insulting crimes ….. as a result of the trial against them, the defendant … since the act of wounding of 5237 falls within the scope of articles 86/1, 87/3 of the Turkish Criminal Code, the assessment of this must be made by the Criminal Court of First Instance, the court’s duty with betting, the file…. About being sent to the Criminal Court of First Instance,….. On the acceptance of the appeal made to the decision of the magistrate’s Criminal Court dated 27/05/2009 and numbered 2009/516-595, on the abolition of the magistrate’s non-duty decision…. General Directorate of Criminal Affairs of the Ministry of Justice against the decision of the Criminal Court of First Instance of 14/07/2009 and 2009/211 different business 21/12/2009 days and B.03.0.CTG.0.00.00.04-105-74-7245-2009/14760/72505 since the request to violate the law was made with the letter No., the case file for this work was sent to our office with the communiqué no. 2009/296850 dated 11.01.2010 of the Prosecutor General’s Office of the Supreme Court of Appeals;
DECISION: in the aforementioned notice;
….. Due to the fact that the decision of the Criminal Court of First Instance dated 14/07/2009 and 2009/211 different business numbered is final,….. 29/07/2009 of the High Criminal Court and 2009/737 decision of different business no.,
According to the entire file scope;
Defendant …..in the history of the crime, another defendant …… Bartin State Hospital Chief of 21/01/2009 and BIO4ISM4740013/154-02/1182 according to the report No.of the nasal bone fracture in such a way as to be removed by simple medical intervention on the grounds that he was injured 86/2-3, e, 87/3 of the Turkish Criminal Code no. 5237. in accordance with the articles that a public case has been filed, but in the case of a violation of the crime attributed to the defendant …… E, his action will remain within the scope of articles 86/1 and 87/3 of law 5237, and the duty to try this action will also be 11 of law 5235. according to the article, the Criminal Court of First Instance will belong to the cihetle, while it is necessary to decide on the rejection of the appeal, since there is no hit in the decision to accept the bet 5271 CMK 309. in accordance with the article, it became clear that the need to remove the aforementioned decision was reported.
The requirement was discussed and considered;
…… Due to the fact that the decision of the Criminal Court of First Instance dated 14/07/2009 and 2009/211 different business numbered is final, the decision of the Heavy Criminal Court of Bartın dated 29/07/2009 and 2009/737 different business numbered is considered to be absent in the review,
TCK.’s article 86/1 <Deliberately in someone else’s body or health or the degradation of detection capability that causes painful person, shall be punished with imprisonment from one to three years> called by the legal definition of the crime of intentional injury, while the lower and upper limits of the penalties for the crime were determined. Another statement is that Article 86/1 of the TCK is the main punishment for the crime of intentional wounding.
13.2.2007 date of the General Assembly of punishment and 2006/5-350 E. 2007/30 K. in its decision No. 61/1 of Law No. 5237. in accordance with the article, in accordance with the principles and principles set out in the paragraph, first the basic penalty should be determined, and in the case of reasons for increase and discount, the resulting penalty should be determined by applying first the reasons for increase and then the reasons for discount.> by saying that my criminal judge is shown how to determine the punishment when making a sentence. Accordingly, in the event of a violation of the crime, the judge will first determine the basic punishment between the lower and upper limits of the punishment provided for in the legal definition of the crime in accordance with Article 61/1 of the TCK.
As a result, the crimes of aggravated wounding were 87 of the TCK. in the article, are arranged. Articles 1 and 2. its clauses predict increases at different rates. There is no doubt that these increases will be made on the basic penalty set within the lower and upper limits provided for in Article 86/1 of the same law in accordance with Article 61/1 of the TCK. In fact, the admission of an injury that causes severe consequences as a light injury that can be removed by simple medical intervention is contrary to the way the crime of intentional injury is regulated in law and the purpose of the legislator.
Injuries that cause bone fracture or dislocation in the body were seen as aggravated injuries due to the result and were regulated in Article 87/3 of the TCK. Article 87/3 of TCK No. 5237, which came into force on 1.6.2005, was a separate penal clause containing a criminal provision specified in the lower and upper limits (from 1 year to 6 years). But Article 87/3 of the TCK was amended by law No. 5560 on 19.12.2006 to increase the penalty determined in accordance with the above article, according to the effect of the fracture or dislocation on life functions, up to half, and was removed from being a separate penalty article and turned into an increase article. If an injury after a change causes a bone fracture and dislocation, the basic penalty is determined in accordance with Article 86/1 of the TCK, and if there is an opportunity to apply it, the same article 3. after the increase in the paragraph, according to Article 87/3, an increase of up to half of the penalty can be made according to the effect of a bone fracture or dislocation on life functions.
It is a legal obligation by the investigative and judicial authorities to investigate the consequences of the crimes of wounding. But these results must comply with the principles established by the Forensic Medical Institution. According to forensic criteria, it has been determined which injury is mild to the extent that it can be removed by simple medical intervention, and it seems that a fracture in the nose is not counted among the injuries that can be removed by simple medical intervention.
Since there is a possibility that articles 86/1, 87/3 of the TCK may be applied against the defendant, who is alleged to have caused a bone fracture and dislocation of the injury, the task of looking at the case file to be examined ….. Mahkemesin Is Criminal.
Conclusion: accordingly, since the thought put forward in the communique, based on the article of the Ministry of Justice that seeks to violate the law, is seen at the site ….. Date of the Criminal Court of First Instance and Decision No. 2009/211 CMK 309. in accordance with the article, it was decided by unanimous decision on 17.02.2010 to violate the law in the interests of the law, to perform subsequent transactions by the court, to transfer the file to the place of the Attorney General of the Supreme Court.
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