What is unfair problem?

Modern criminal law requires that in order to punish the perpetrator, besides the illegality of the action, the fault must also be investigated and the punishment must be carried out by evaluating objective and subjective conditions together. Based on this approach, unfair provocation provisions are included among the reasons that reduce culpability in the Turkish Penal Code. According to the Criminal Code, unjust provocation can be defined as committing a crime under the influence of anger or severe pain caused by an unjust act. According to the established jurisprudence of the Supreme Court; unjust provocation held as a reason for reducing criminal liability; It refers to the decrease in a person's ability to commit a crime if he commits a crime under the influence of anger or severe pain caused by an unfair act. In this case, the perpetrator tends to commit a crime as a result of the confusion created in his psychological structure by external influence, without making a prior decision to commit a crime. In this respect, unjust provocation is a reason that affects the will element of the fault. In other words, in case of unjust provocation, a weakening of the will of the perpetrator occurs, thus the ability of the person under the influence of anger or severe pain caused by an unjust act to prevent himself from committing a crime is significantly reduced.

Since crimes committed under unfair provocation do not completely eliminate culpability, the sentence of the perpetrator is reduced. As a matter of fact, in the justification of Article 29, it is clearly stated that unjust provocation is regulated as a reason that reduces criminal liability. Since unjust provocation is a general provision, it can be applied to all types of crimes. However, it is necessary to make a distinction here in terms of whether the crime can be committed intentionally or recklessly. Namely; While it is possible to apply unfair provocation penalty reduction in all intentional crimes, according to the Supreme Court, unfair provocation discount cannot be applied in negligent crimes.

The Turkish Penal Code No. 5237 has been amended in accordance with the Penal Code No. 765, and it has been regulated that in order for a reduction in the sentence of the perpetrator due to unfair provocation, the crime must be committed under the influence of anger or severe pain caused by an unjust act. In the justification of the article, "anger or severe pain must arise as a result of an unjust act." It has been said. The purpose of this change is explained as preventing the wrongful application of the unfair provocation discount in crimes of killing within relatives, called "custom or honor killing". In addition, the expression "unfair provocation" in the old law has been changed to tort. Another difference between the two laws stems from the distinction between serious and mild unjust provocation. There is no distinction made between serious and minor unjust provocation in the Turkish Penal Code No. 5237.

UNFAIR PROVISION CONDITIONS

Unfair provocation discount can only be applied if certain conditions are met. Although some of these conditions are clearly written in the text of the law, some of them can be reached by inference. For this reason, our explanations here will be made based on the conditions adopted by the Supreme Court. In many recent decisions, the Supreme Court has listed the conditions of unfair provocation as follows:

1- ) There must be an act that creates the provocation,

2- ) This act must be unfair,

3- ) The perpetrator must be under the influence of anger or severe pain,

4- ) The crime committed by the perpetrator must be the reaction to this mental state,

5- ) The action that constitutes unfair provocation must originate from the victim.

Separate headings will be used below to evaluate these conditions. Explanations regarding Conditions 1 and 2 are located under the same heading.

1- FINDING OF A TORT THAT CONSTITUTES INCURMENT

In order to talk about the existence of unfair provocation, first of all, the existence of an act to be reacted to is required. Both the text of the article and the decisions of the Supreme Court of Appeals state that the first element of unjust provocation is that there must be an act that constitutes provocation. While regulating unfair provocation, the Turkish Penal Code only mentioned the anger or anger caused by an unfair act and did not specify which acts constituted injustice. For this reason, acts that constitute injustice are not subject to any restrictions.

The fact that an act is unfair is considered sufficient for provocation. In other words, it does not matter whether this act is also a crime or not. However, for unfair provocation, the act does not necessarily have to be against the law. Unfair provocation may also arise in case of violation of any legal norms. For example, immoral behavior may constitute unfair provocation. As such, these acts cannot be categorized. Moreover, the purpose of the institution of unfair provocation is based on taking into account the psychological state of the perpetrator in punishment. Therefore, when evaluating which acts constitute unfair provocation, it should also be investigated how that unfair act affects the mental state of the perpetrator. However, these explanations should not be understood as meaning that the evaluation should be made only subjectively. After a primary objective acceptance that the act is unfair, subjective evaluation should be made. The injustice of the act is determined by the judge by taking into account the value judgments in social life.

In the dissenting opinion of the Supreme Court Criminal General Assembly's decision numbered 2016/164 K., various explanations and examples were made regarding unfair acts, with which we also agree. Accordingly:

"This tort, which comes from the victim and causes anger and severe pain in the defendant, can, in essence, be a crime committed intentionally or negligently, or it can be a tort that does not constitute a crime at all. The important thing is that this tort, which comes from the victim, creates anger in the defendant.

If an immoral behavior does not cause sadness or anger in anyone in society, this behavior is not an unfair act in terms of law. If that immoral behavior causes pain and distress to another person, this behavior is an unfair act in terms of law.

For example, lying is an immoral act in our society. If this act does not cause injustice to another person, it is not an unfair act in terms of criminal law. If this lie creates anger and pain in another person, then it is an unjust act.

Some torts, such as injuring or insulting a person, are the subject of crimes that are committed intentionally or negligently and require punishment, and sometimes they turn into crimes because they make noise and disturb the peace of others. In some cases, although there is a tort in terms of law, there is no criminal sanction.

For example, behavior such as parking the vehicle in an inappropriate place and preventing the third person in front of it from driving the vehicle, and not paying the debt are unfair acts. However, there is no criminal sanction in terms of criminal law.

The torts specified in Article 29 of the Turkish Penal Code include all torts that cause distress to the defendant. In terms of criminal law, torts that have criminal sanctions and are the subject of a crime, as well as all behaviors that do not have criminal sanctions and do not constitute a crime but cause pain and distress to the defendant, are torts in terms of criminal law.

In order to be able to talk about a tort in terms of criminal law, there must be a causal link between the tort committed by the victim and causing pain and distress to the defendant, and the crime committed by the defendant."

The action that constitutes provocation may be executive (doing) or omission (not doing), positive or negative, or it may be a single action or a series of actions that continue one after the other.

It should be noted that the act that constitutes unjust provocation does not necessarily have to concern the perpetrator himself. Unjust actions directed at the perpetrator's relatives, people he respects and loves, his beloved belongings, his adopted animals or third parties may also constitute unfair provocation. For example, throwing a stone at the perpetrator's dog is considered an act that may cause provocation.

On the other hand, behavior that would constitute unfair provocation must be of human origin. As an exception, it should be noted that; The actions of owned animals under the control of their owners or due to the owner's faulty behavior can be considered as unfair provocation.

Unfair provocation cannot be considered in cases where the victim uses his legal rights against the perpetrator. Initiating enforcement proceedings in order to recover his receivables or reporting the perpetrator for the crime he committed cannot be interpreted as unfair provocation on the part of the perpetrator. However, while the victim has the opportunity to take legal action to obtain his receivables, taking action on his own instead constitutes an unfair provocation for the perpetrator. There are various decisions of the Supreme Court on this subject. In one decision, this action of a person who did not pay his debt was not considered as an unjust provocation for the perpetrator, but in another decision, the behavior of a person who deliberately postponed paying his debt when he had the opportunity to pay it was considered as unjust provocation.

Finally, it should be noted that situations where the perpetrator knowingly consents do not require the provisions of unfair provocation to be applied in his favor later. This issue will be better understood with the following decision of the Supreme Court:

"The defendant, who is married and has two children, lived for a while with the victim, who worked in the pub and had sex with men for money, but later did not consent to her working in the pub and having sex with others. He went to the victim's house at around 02:00 on the day of the incident, when she did not open the door, he went downstairs, waited for a while, and then, after an argument broke out after the victim let him in, he killed her with a beastly feeling. "Although it was understood that the first unjust act was caused by the defendant cursing at the suspect before the incident, and that the first unfair act was caused by the defendant before or during the incident, and based on the defendant's abstract defense of receiving a lesser sentence, the provision of provocation was applied and the determination of an incomplete sentence required reversal." Y1CD 2010/3023 K.

THE FIRST UNFAIR ACTION IN UNFAIR PROVISION

In case of mutual unfair provocation, it is necessary to determine who made the first unfair action. As a rule, if the perpetrator personally caused the incident as a result of his unjust act, that is, if the first tort was caused by him, he will not be able to benefit from the unfair provocation regulation. Therefore, the one who makes the first move will be deemed to have provoked the other party. In cases where it cannot be determined who made the first move, unfair provocation discount should be applied to both perpetrators. Again, in cases where it cannot be determined, unfair provocation reduction should be applied in favor of the perpetrator. As a matter of fact, this practice stems from the principle that the defendant gets the benefit of the doubt.

According to YCGK's decision No. 2016/105 K.; "The dispute is about determining whether the defendants committed the crime of deliberate murder under unjust provocation. There was hostility between the family to which the defendants belonged and the family to which the victim belonged. After the defendant's brother injured the victim's brother, the victim and his relatives injured the defendant's father, brothers and the defendant. The hostility between the parties continued to increase until the date of the incident, and on the date of the incident, the other defendant killed the victim with the help of the defendants." In the incident, in the event that the victim injured the defendants' father and brother, that they took mutual actions due to the hostility between families, and that the defendants' defense that the first unjust act was caused by the victim could not be proven otherwise, it should be accepted that the provisions of unjust provocation should be applied with a minimum reduction for the benefit of the defendants in accordance with the principle of "the defendant gets the benefit of the doubt".

Impulsive words spoken during mutual fights do not constitute unjust provocation.

BALANCE DISAPPEARANCE IN UNFAIR PROBLEM

The exception to the general rule mentioned above is the disruption of balance in case of unfair provocation. If there is an extreme disproportion between the two reactions, this disproportionate reaction is considered an unjust provocation in itself. Necessary explanations are also included in the Supreme Court decisions shared below.

"As accepted in established judicial decisions, if both the perpetrator and the victim engage in mutually unfair behavior, in the practice of provocation, as a rule, the perpetrator who provoked the victim with an unfair action cannot claim that he was provoked due to the reaction he encountered. However, if the reaction he was exposed to has become excessive compared to the action he himself committed, in other words, if there is a clear disproportion in the reaction, it should be accepted that this reaction constitutes unjust provocation for the perpetrator because it has become unfair in itself.

In case of mutually provocative actions, the provocative unfair behaviors of the perpetrator and the victim should be evaluated relative to each other, their priority and secondness status and whether they develop in the form of action-reaction to each other should be taken into consideration, and issues such as the dimensions they have reached, their level of seriousness, their effects and degrees should be taken into consideration, accordingly; "Considering whether there is a balance between action and reaction, if an excess and a clear disproportion is detected in the reaction to the initial unfair behavior of the perpetrator, the perpetrator should benefit from the provisions of unfair provocation." YCGK 2011/42 K.

"It is understood that the defendant committed the first unfair actions when he started an argument with his friend, wanted to harm another person during this argument, and turned towards the victim who was trying to calm the incident and took actions against him. In the next stage, the victim's unfair behavior such as 'I will turn you into a bullet maniac' cannot be described as excessive and clearly disproportionate in the reaction, both in terms of the extent and gravity it has reached and the result, so it is not possible for the defendant to benefit from the provisions of unfair provocation. The Local Court's decision to resist, stating that the defendant cannot benefit from the provisions of unfair provocation, is accurate and lawful." YCGK 2008/21 K.

"In the concrete incident, after the defendant cursed at the victim, it was understood that the victim pulled a knife and the defendant threatened the victim with a gun; It is against the law to decide that there is no need to apply the said provisions on the grounds that the victim's drawing of a knife is a disproportionate (excessive) reaction compared to his swearing at the defendant, and therefore, the defendant is the one who caused the incident in the first place, without considering that the unfair provocation provisions should be applied to the defendant." Y4CD. 2009/16173 K.

2- WHETHER THE TORT ACT CAUSES AN EFFECT OF ANGER OR SEVERE PAIN ON THE PERSON

According to TDK, it means rage, rage, anger. Elem means pain, sadness, trouble and grief.

As clearly stated in Article 29 of the Turkish Penal Code, in order for the provisions of unjust provocation to be applied, the crime must be committed under the influence of anger or severe pain caused by an unjust act. In the justification of the article; "The main condition for unjust provocation is that the unjust act causes anger or severe pain on the perpetrator..." This situation also constitutes the subjective element of unfair provocation.

The actions taken must affect the perpetrator psychologically and activate the feelings of severe pain or anger mentioned above. Violence was sought in terms of pain, but no measure was set for anger.

Objective conditions are taken into account when determining whether the action arouses severe pain or anger. This evaluation is based on the average person. The fact that a long time has passed since the unfair act or that the victim has been punished does not prevent the application of unfair provocation provisions. As a matter of fact, YCGK stated this situation in its decision No. 2016/105 K. "For this reason, even if the perpetrator of the act that constitutes provocation is tried and convicted for this act and his sentence is executed, the provisions of unjust provocation should be applied to the person who is under the influence of the anger and severe pain caused by the unjust act and commits a crime with the reaction of this mental state."

As a matter of fact, in the decisions of the General Assembly dated 11.5.2004 and numbered 74-118 and dated 10.6.2003 and numbered 143-183, it was stated that situations such as the passage of a long time, the event that had already occurred between the parties being subject to trial and even resulting in conviction and the sentence being executed, or the person being acquitted due to the fact that the act does not constitute a crime, and the case or penalty being eliminated by amnesty, will not prevent the application of the provisions of unjust provocation. emphasized." He expressed it as follows.

3- THE PERPETRATOR COMMITS THE CRIME UNDER THE INFLUENCE OF ANGER AND VIOLENT PAIN

What is intended to be explained in this title is the causal link between the unfair act and the crime. If the reason that pushes the perpetrator to commit a crime is not due to the unfair action of the victim, unfair provocation cannot be mentioned here. For example, the act of injury committed after A insulted A during the encounter between B and A, who took action to injure A, cannot be deemed to have been committed due to unfair provocation. Because here, the reason that pushes B to commit a crime is not A's behavior.

As we mentioned above, the commission of the crime may occur after the act of provocation. This period may even be a long time. The important thing is that the effect of anger and severe pain on the perpetrator has not passed.

There is no legal regulation regarding whether there is a ratio between effect and reaction. However, as we stated above, the Supreme Court of Appeals is of the opinion that the unfair provocation provisions will not be applied in cases where the reaction is more than the effect.

4- COMMISSION OF THE CRIME AGAINST THE PERSON WHO PROVIDED THE INCIDENCE

The person who creates the unfair provocation must be the victim of the crime committed. In other words, if the crime of reaction is committed against someone other than the person who caused the provocation, the provisions of unfair provocation cannot be applied. As we mentioned above, it is not required that the act of provocation be directed towards the perpetrator. However, the crime must be committed against the person who provoked it.

"The case is about the crime of depriving a person of his freedom. It should be accepted that the defendant committed the crime of depriving the person of his freedom under unjust provocation, since the defendant's opinion that the complainant participated in the act of withdrawing money from his account is based on reasonable and material facts, rather than an assumption. On the other hand, since the action of the complainant withdrawing money from the defendant's account with a false identity is not an act subject to provocation against the other defendants, the application conditions of the provision of unjust provocation set out in Article 29 of the Turkish Penal Code are met for the defendants. It must be accepted that there is no." YCGK 2020/250 K.

However, as we will explain below, in some cases, a mistake may require the application of unfair provocation provisions in favor of the perpetrator.

PENALTY REDUCTION DUE TO UNFAIR PROVISION - DISCOUNT RATE

According to Article 29 of the Turkish Penal Code; A person who commits a crime under the influence of anger or severe pain caused by an unjust act,

1- From eighteen to twenty-four years instead of aggravated life imprisonment,

2- Instead of life imprisonment, a prison sentence of twelve to eighteen years is given.

3- In other cases, one quarter to three quarters of the penalty will be reduced.

As we mentioned above, the distinction between heavy and light provocation was abolished during the Turkish Penal Code numbered 5237. Therefore, the judge is granted discretion regarding the rate of reduction to be made due to provocation. However, the judge is not completely free to use his discretion. As a matter of fact, this situation is expressed as follows in the decision numbered 2016/43 K. of the General Criminal Assembly of the Supreme Court of Appeals.

"With regard to provocation in the TCK No. 5237, the distinction between severe provocation and mild provocation in the TCK No. 765 has been abolished and a regulation has been made such that the act constituting the provocation is evaluated by the judge according to the characteristics of the concrete event and a reduction is made between the two limits specified in the article, taking into account its effect on the will of the defendant.

As has been unquestionably adopted in various decisions of the General Criminal Assembly, when determining the rate of reduction due to provocation, the manner, place, nature, time, local conditions and the situations of the instigator and the person who constituted the unjust provocation should be taken into consideration and evaluated.

UNJUST PROPOSAL IN THE CRIME OF DEFINATION

We have stated that the provisions of unjust provocation are a general regulation and can be applied to all intentional crimes. But 125 of the TCK. Some special cases of unjust provocation are included in terms of the crime of insult regulated in the article. Therefore, TCK 29 will not be applicable in terms of this crime.

According to Article 129 of the Turkish Penal Code, the application of unfair provocation in the crime of insult is as follows:

1- If the crime of insult is committed as a reaction to an unfair act, the penalty may be reduced by up to one third or the penalty may be waived.

2- If this crime is committed as a reaction to the crime of intentional injury, the person will not be punished.

3- In case the crime of insult is committed mutually, depending on the nature of the incident, the penalty to be imposed on both or one of the parties may be reduced by up to one third, or the penalty may be waived.

"It is wrong to apply Article 29 of the Turkish Penal Code regarding general provocation, instead of Article 129 of the Turkish Penal Code No. 5237, which is a special provision regarding the crime of insult and contains more favorable regulations, while making a judgment against the defendant." Y3CD. 2020/8264 K.

UNFAIR PROMISE AND ERRORS

The question of whether mistake and unfair provocation can coexist is important in terms of the application of the provisions of unfair provocation. Error provisions are regulated in Article 30 of the Turkish Penal Code. According to paragraph 3 of the relevant article; A person who makes an inevitable mistake regarding the fulfillment of the conditions that eliminate or reduce criminal liability, benefits from this mistake.

As can be understood from the above regulation, it is possible for unfair provocation and mistake provisions to co-exist, which is a reason for reducing criminal liability. However, the legislator stated that the mistake must be an inevitable mistake.

The Supreme Court is of the opinion that in some cases, a reduction should be applied in favor of the perpetrator in accordance with the provisions of implied provocation. As a matter of fact, the decision of the 3rd Criminal Chamber of the Supreme Court of Appeals No. 2012/34575 is in this direction. According to the relevant decision; "When it was understood that the defendant, who immediately went to the scene after being told that his son had been beaten, started to fight with the complainant, whom he thought was one of the people who beat his son, and injured the other complainant who intervened in the fight between them, it should be taken into consideration that although the complainants did not have an unfair act that could constitute a provocation, the defendant made an inevitable mistake by making a mistake in this regard and that a discount should be made due to apparent provocation."

In another Supreme Court decision, it was ruled that the provisions of unfair provocation should be applied in case of a mistake, taking into account the psychological state of the perpetrator. "Considering that the defendant made an inevitable mistake about a burglar breaking into his house about 15 days ago after hearing the sound coming from the window at night, and considering that he fired 13 times with a gun, all in the same direction, he committed the crime of intentional murder by taking advantage of his qualified mistake in accordance with Article 30/2 of the Turkish Penal Code, and by applying the provisions of unjust provocation by taking advantage of his inevitable mistake in unjust provocation, which reduces the criminal liability specified in the 3rd paragraph of the same article. "It is wrong to make a mistake in the evaluation of the evidence and make a written judgment instead of punishing him in accordance with Articles 81, 29 and 62 of the TCK." Y1CD. 2016/1754 K.

The following point should not be forgotten here. If the error is caused by the perpetrator's carelessness and carelessness, then the provisions of unfair provocation will not be applied in his favor. The perpetrator who makes an inevitable mistake regarding the existence of unjust provocation will benefit from the provision of unjust provocation. But here error is inevitable. On the other hand, if the mistake is avoidable, that is, if the perpetrator's personal characteristics are taken into consideration, he can avoid his mistake if he acts more carefully and carefully, in other words, if the mistake will not occur, he will no longer be able to benefit from the provisions of unfair provocation.

UNJUST PROPOSAL AND LEGITIMATE DEFENSE

Self-defense It is regulated as a reason that eliminates criminal liability in Article 25 of the Turkish Penal Code. Therefore, there are many differences between unjust provocation and self-defense. While an attack is sought in self-defense, it is not necessary to include an attack in case of unjust provocation. While in legitimate defense there is an attack that must be restrained immediately, in unjust provocation there is a reaction following an attack that has ended. Again, if there is self-defense, the perpetrator will not be punished. In this state, it is impossible for unfair provocation and legitimate defense to co-exist. The defense made while the attack is ongoing should be considered self-defense, and the reaction given after the attack ends should be considered unjust provocation. In the decision numbered 2011/4504 K. of the 1st Criminal Chamber of the Supreme Court of Appeals, which we share below, the reaction shown after the end of the attack was considered unjust provocation.

"Although the defendant stated in his previous statements that the victim had inflicted the wounds on him, he later stated that the victim had raped him by force before the incident and that he did not tell anyone about this situation because he was afraid that his honor would be harmed; in the report of the General Board of Forensic Medicine, it was stated that it was not possible for the wounds of the stabbing wounds found on the body of the deceased and caused death to be done by the person himself; in the report of the First Specialization Board of Forensic Medicine, it was stated that the wounds on the deceased were inflicted by the defendant. "In the face of the fact that it cannot be rejected medically, it is understood that the defendant committed the act of murder under the influence of rape attacks and death threats from the victim, which constituted an unjust provocation, and he should be punished for the crime of intentional murder under unjust provocation."

UNJUST PROPOSAL FOR PREPOSITED KILLING

There are two types of theories in terms of design. The first of these is cold-bloodedness and the second is the theory of planning. When the theory of cold blood is accepted, it will be concluded that unjust provocation and premeditation cannot coexist. However, in terms of design, the Supreme Court of Appeals went back from its old jurisprudence and adopted the well-established theory of planning. In the decision of the Supreme Court of Appeals Criminal General Assembly No. 2020/386, this situation is stated as follows: "As accepted in established judicial decisions and applied without hesitation, in order to talk about premeditation; "The perpetrator must persistently and unconditionally decide to act against a person's physical integrity or right to life, a reasonable period of time has elapsed before committing the crime he has thought and planned, and despite the spiritual tranquility he has achieved, he does not give up this decision and persistently and insistently begins to carry out his act." "and he must carry out the action he plans to carry out within the determined framework." It is expressed as follows. Therefore, according to the Supreme Court, unjust provocation and design can coexist. As a matter of fact, this issue is stated in the following Supreme Court decision.

"The case is about the crime of premeditated murder. It is understood that the defendants made the decision to commit the crime in advance, a reasonable period of time passed between the decision and the execution of the act, and they persistently and persistently did not change their decision. Therefore, the defendant is convicted of the crime of "premeditated murder" in accordance with Article 38, 82/1-a of the Turkish Penal Code, and the other defendants are convicted of the crime of "premeditated murder" in accordance with the articles 37, 82/1-a of the same Law, regardless of the existence of the conditions for the crime of premeditated murder. instead of making a criminal mistake and making provisions in written form,

There is an obligation to re-evaluate the legal situation of the defendants in line with the annulled sections of Article 53 of the Turkish Penal Code No. 5237 by the decision of the Constitutional Court,

According to defenses that cannot be proven otherwise; "Although it was understood that the victim threatened the defendant at different time intervals, the fact that it was not considered that the minimum amount of unjust provocation provisions should be applied to the defendants separately required reversal." Y1CD. 2019/4881 K.

Under this heading, two more qualified forms of the crime of intentional murder will be evaluated. Accordingly; If there is a moral motive, an unfair provocation discount cannot be made. It is not possible for bloodshed motive and unfair provocation to co-exist.

AFFAIR AND UNFAIR PROMISE

The ability of all participating perpetrators to benefit from the unfair provocation discount depends on the provocation being directed at all of the perpetrators. Therefore, it is not possible for accomplices other than the provoked perpetrator to benefit from the unfair provocation regulation.