Crime of intentional killing

The crime of intentional killing is a type of crime that has been subject to heavy sanctions in all periods because it has existed since the beginning of human history and targets people's most fundamental right, the right to life. It is aimed to protect the right to life by subjecting the crime to the most severe sanctions.

Article 81 of the Turkish Penal Code regulates that a person who deliberately kills a person will be sentenced to life imprisonment. Article 82 of the Law includes qualified forms of the crime. In addition, the commission of the crime through negligence was included in the law during the Turkish Penal Code numbered 5237.

As we stated above, it is aimed to protect the right to life of people with the crime of intentional murder. İnsan hayatının korunması diğer tüm değerlerden daha üstün tutulmak zorundadır. The first condition for the use of all rights except the right to life is to be alive.

HOW IS THE CRIME OF INTENSIVE MURDER COMMITTED?

Verb

It is possible to commit the crime of intentional murder through executive or negligent behavior. The crime of intentional homicide through negligent behavior is also regulated by law. It constitutes an actual executive action in terms of the crime of deliberate murder, which is the subject of our article.

The crime of intentional killing is committed with a gun, knife, chemical substance, etc. It is a free-moving crime due to its ability to be committed in different ways. Actions that lead to a crime are not limited by law.

The perpetrator's action must be suitable for causing death. Suçta kullanılan araçların ölüm neticesini gerçekleştirmeye elverişli olması gerekir. However, some tools used in the commission of the crime may be considered as a qualified situation requiring a more severe penalty. In addition, actions such as cursing or casting a spell do not constitute a crime.

Consequence Element in the Crime of Deliberate Murder

In criminal law, a result is required to punish certain types of crimes. In order for the crime of intentional homicide to occur, death must occur. In this form, the crime of intentional murder is a type of crime with consequences. In cases where death does not occur, the perpetrator is punished for intentional attempted murder or intentional injury, depending on his intent.

The concept of death must also be explained in terms of the occurrence of the crime. By death is meant irreversible loss of the central nervous system. In this sense, a person who is brain dead is considered dead.

Causal Link

In order for the perpetrator to be held responsible for the crime, the existence of a causal link between the action he performed and the result is required. The result of death must be caused by the action of the perpetrator.

But establishing a causal link alone is not sufficient for the perpetrator to be held responsible for this result. In addition, for liability to occur, the result of the perpetrator's behavior must be objectively attributable to the perpetrator. If the person injured by the perpetrator dies as a result of an accident on the way to the hospital, the result of death cannot be objectively attributed to the perpetrator.

WHO CAN COMMIT THE CRIME OF INTENSIVE MURDER?

The crime of intentional murder can be committed by anyone. No specific characteristics were sought regarding the perpetrator. However, if the conditions of Article 82/1d of the Turkish Penal Code are met, the penalty to be given to the perpetrator is increased. In terms of this crime, the perpetrator and the victim cannot be the same person. Killing oneself is considered a crime of suicide.

SUBJECT AND VICTIM OF INTENSIVE MURDER

Anyone can be the victim of the crime of deliberate murder. No specific characteristics were sought regarding the victim. However, in some cases (TCK 82/1 d, e, f, g) the penalty to be given to the perpetrator may be increased due to the nature of the victim.

The subject of the crime of deliberate murder is human beings. The crime of intentional murder cannot be committed against a child in the womb. Since being human begins with full and healthy birth, the fetus is not considered human.

The fetus that has emerged from the mother's womb, even partially, may be the subject and victim of the crime. In order for a newborn baby to be subject to a crime, it must be alive.

POSSIBLE INTENSIVE MURDER

Deliberate murder is a crime that can be committed intentionally. The existence of general intent is sufficient for a crime to occur. However, it is also possible that the simplest form of the crime can be committed with possible intent.

Possible intent is regulated in Article 21 of the Turkish Penal Code. According to the article, "There is probable intent if the person commits the act even though he foresees that the elements in the legal definition of the crime may occur. In this case, he is sentenced to life imprisonment for crimes requiring aggravated life imprisonment, and to twenty to twenty-five years' imprisonment for crimes requiring life imprisonment; in other crimes, the basic penalty is reduced from one third to one half."

21. It would be useful to share an example regarding possible intent in the justification of the article in order to understand the issue. The example in the justification is "A bus driver driving on the road wants to cross the intersection without stopping, even though the traffic light is red for him; however, he hits the pedestrians who are passing through the intersection where the green light is on, causing the death or injury of one or more of them. The driver, whose traffic light is red, saw someone passing through the pedestrian crossing at any moment; however, he did not stop at the intersection and continued on his way. In this case, the bus driver, foreseeing that the consequences of death or injury might occur, did so. accepted." It is shaped like.

It is also possible to commit the crime of attempted murder with possible intent.

MURDER BY DESIGN

Qualified cases of the crime of intentional killing are listed in Article 82 of the Turkish Penal Code. In paragraph a of the article, the situation of committing the crime with premeditation is included. According to the article, the person who commits the crime of premeditated murder is sentenced to aggravated life imprisonment.

Premeditation refers to the intentional commission of a crime by thinking about it in advance. Premeditation is regulated as a qualified condition for the crime of intentional murder, but it is not defined in the law. There are two theories in the teaching about design. These theories are called coolness theory and planning theory. According to the cold-bloodedness theory, a cold-bloodedness is observed in the person who kills with premeditation. The fact that this person did not feel any excitement while killing someone else shows his spiritual evil. In addition, although the perpetrator had made the decision to kill in advance and time had passed, he maintained his composure and did not give up on this decision. According to the planning theory, in murder crimes committed with premeditation, the crime was decided, prepared and planned in advance. This preparation may take the form of setting an ambush, finding the victim or victim, and bringing him to the place where he will kill him by deception. Here, the perpetrator selects and procures the tools he will use in the crime to realize his decision to commit a crime and makes a plan on how to commit this crime.

The Supreme Court has adopted both theories and has developed some criteria for the acceptance of design. It is possible to list these criteria as follows.

1- The perpetrator must have taken the decision to kill someone in a cold-blooded and unconditional manner,

2- Despite the passage of a reasonable period of time and the spiritual tranquility that the perpetrator has achieved before committing the crime that he thought and planned, he does not give up this decision and begins to carry out his act with determination and insistence,

3- The perpetrator carries out the act he plans to perform within the determined fiction.

As a matter of fact, in a decision of the General Criminal Assembly of the Supreme Court of Appeals dated 2014, it was stated that "The perpetrator must have persistently and unconditionally decided to act against a person's physical integrity or right to life, and despite the passage of a reasonable period of time before committing the crime he has thought and planned, and despite the spiritual tranquility he has achieved, he must not give up on this decision and start to perform his act persistently and persistently, and he must execute the act he plans to carry out within the determined framework."

In the case of planning, the perpetrator makes an instant decision and does not commit the act, and there is enough time to think calmly between the decision to commit the crime and the execution of the act. During this period, the perpetrator thinks about whether to commit the crime or not and does not give up committing the crime. There can be no question of premeditation when the perpetrator gives up committing the crime but commits the act for another reason and with another sudden decision. It is expressed as follows: "For what level of action and when the decision to commit a crime was taken and how much time passed after this unconditional determination that the action was committed should be determined with the available evidence, and it should be evaluated whether spiritual tranquility can be achieved within the time period between the crime decision and the action."

The Supreme Court is of the opinion that the provisions of design and unfair provocation can be applied together. It is possible to apply the provisions of unjust provocation in the crime of premeditated murder.

In case of error, there can be no design. The perpetrator who kills someone other than the person he intended to kill by mistake will be punished for the simple form of the crime, not for premeditated murder. As a matter of fact, in a decision dated 2013 by the 1st Criminal Chamber of the Supreme Court of Appeals, "It should be taken into consideration that if the defendant kills another person, thinking that he is the person he planned to kill, he will benefit from his mistake in accordance with Article 30 of the Turkish Penal Code No. 5237 and cannot be held responsible for the aggravating reason." He ruled as follows.

THE CRIME OF MURDER BY MONSTERIOUS FEELING OR TORTURE

TCK 82/1 b. According to the clause, two different qualified elements are counted together.

Monstrous feeling is defined as killing another person without any feeling of pity. Again, according to the justification, "The characteristic of killing with monstrous feeling is that the killing is carried out with a brutal method. Killing a person by burning him, pouring hot oil into his ear while he is sleeping, or dismembering his body can be given as examples of this." The Supreme Court, on the other hand, is of the opinion that the existence of the monstrous feeling should be accepted in dangerous and wild situations that the collective consciousness, emotion and conscience of the society will never approve of. Nitekim bir Yargıtay kararında bu husus "Evli olan sanığın, duygusal ilişki içerisinde olduğu maktulün Facebook hesabına girerek eski bir erkek arkadaşıyla yaptığı yazışmaları görmesi üzerine gerçekleştirdiği eyleminin ağırlığıyla onu bu eyleme iten neden arasında aşırı derecede ölçüsüzlük-oransızlık bulunması, sanığın eyleminin toplumun ortak bilinci, duygusu ve vicdanınca hiçbir zaman onaylamayacak oluşu bir bütün olarak değerlendirildiğinde; maktulün üzerine benzin döküp tutuşturmak suretiyle vahşi bir yöntem kullanan sanığın, öldürme suçunu canavarca hisle işlediğinin kabul edilmesi It is stated as "because it is necessary.."

Killing a person by inflicting pain over time is considered torture. In the justification of Article 82, it is stated that the crime of murder by inflicting pain will occur in cases such as removing a person's eyes, cutting off his ear and other organs. The torture must be felt by the victim. The penalty for murder with monstrous feelings or by inflicting torture is aggravated life imprisonment.

CRIME OF INTENTIONAL MURDER BY FIRE, FLOOD, DEMOLITION, SINKING OR BOMBING OR USE OF NUCLEAR, BIOLOGICAL OR CHEMICAL WEAPON

According to the provision, the situations that can be considered a qualified situation are limited. Extraordinary situations such as killing a person by starting a fire instead of burning them are listed here. Again, if the crime is committed in this way, the perpetrator is sentenced to aggravated life imprisonment.

82. The justification of the article is that "In paragraph (c), committing murder by creating a general danger or by using dangerous tools is defined as the qualified form of this crime. Creating a general danger constitutes a crime in itself. In order for the crime of causing a general danger to occur, it is not necessary for a result such as death or injury or damage to property to occur. Therefore, if the crime of intentional murder is committed by creating a general danger, both the crime of creating a general danger and the crime of intentional killing are committed together. By applying the provisions of intellectual consensus, this crime is committed." In this case, it will be necessary to impose a penalty on the person for the crime of intentional murder, which requires a more severe penalty. However, with the provision of this paragraph, the situation in question is accepted as a qualified form of the crime of intentional murder. It is in the form.

MURDER WITH BLOODSTINK

TCK 82/1 j. The crime of murder with the motive of bloodshed is regulated in the article and aggravated life imprisonment is foreseen as a sanction. In order to implement this qualified state, the perpetrator was required to act with a sense of duty. In addition, some criteria have been adopted to determine whether a murder was committed with bloodshed. These adopted Supreme Court criteria are as follows.

a- The previous event that caused the incident must have resulted in death.

b- The perpetrator must kill the perpetrator of the previous crime or someone from the group or family to which he is a member, with a sense of revenge and a sense of duty.

c- There is no blood relationship requirement between the first murdered person and the perpetrator of the second crime, and it is sufficient that the crime is committed exclusively with the motive of bloodshed.

d- A not too short period of time should pass between the first killing and the second, and during this period, the perpetrator should be purified from all pain, resentment and rage he felt from the first killing and act with the desire and consciousness to fulfill a duty under the influence of traditions.

The provisions of unjust provocation and murder with the motive of bloodshed cannot be applied together.

MURDER WITH THOUSAND MOTIVE

Custom is defined by the Turkish Language Association as the whole of the established behavior and lifestyles, rules, customs and traditions, common habits and ways adopted in a community.

In some regions of Türkiye, it is still possible to encounter murders that are called honor killings and are tried to be legitimized in this way. This form of the crime indicates that the perpetrators are committed under the influence of customary awareness. In such cases, the decision to kill is not a decision taken by the perpetrator on his own, but is taken together by many communities or individuals such as family, tribe, village people.

In addition, the type of murder known as honor killing is not specifically regulated in the law. Honor killings are evaluated as having a moral motive depending on the nature of the incident. Not every honor killing is considered an honor killing. If the crime is committed under the influence of spouses' infidelity, the conclusion is drawn according to the characteristics of the incident. If the decision to kill the victim was taken by the perpetrator under unjust provocation, the perpetrator will be punished with the penalty of the basic state of the crime. However, murders committed under the influence of a common decision taken with the awareness of morality are considered honor killings.

In murders committed with honorary motives, the perpetrator cannot benefit from the provisions of unfair provocation. The penalty for the crime of honor-motivated murder is aggravated life imprisonment.

COMMISSION OF THE CRIME OF INTENSIVE MURDER AGAINST A PERSON KNOWN TO BE PREGNANT

According to the justification of Article 82, the legislator; If the crime is committed against a pregnant woman, two lives are ended. For this reason, it is envisaged that the perpetrator be given a more severe punishment in the specified case. In order for the perpetrator to be held responsible due to the qualified element in question, he must know that the victim is pregnant; In other words, in terms of this qualified element of the crime, the perpetrator must act with direct intent.

COMMITMENT OF THE CRIME OF INTENSIVE MURDER AGAINST A CHILD OR A PERSON WHO CANNOT DEFEND THEMSELVES BODY OR SPIRITUALLY

The fact that the victim is a child or his advanced age, illness, disability, or mental or physical weakness makes him incapable of protecting himself. Additionally, depending on the characteristics of the incident, crimes committed against injured people are also evaluated within this scope. In addition, the killing of people in this situation reveals how high the moral evil of the perpetrator is, as stated in the justification of the article. For the reasons we have mentioned, this way of committing the crime necessitated being punished with aggravated life imprisonment, which is the heaviest sanction in our legislation.

COMMITMENT OF THE CRIME OF INTENSIVE MURDER AGAINST A DESCENDANT OR SUSCENDENT, OR A SPOUSE OR A SIBLING

In Article 182/1 d of the Turkish Penal Code, committing the crime of intentional murder against certain relatives, that is, a descendant or a spouse or a sibling, is included within the scope of a qualified case. The persons who will be the subject of qualified cases are listed as a limitation. Intentional murder crimes committed against people other than these people are not considered qualified.

There are two types of kinship in our legislation: blood kinship and in-law kinship. People who are considered relatives of the person due to their spouse are considered relatives in law. The persons listed in the meaning of TCK 182/1 d are only blood relatives. If the person commits the crime against his father-in-law or his wife's sibling, a qualified situation will not occur.

Again, the Turkish Penal Code does not count stepchildren, adopted children or stepparents as qualified persons. However, in terms of siblings, it is sufficient for one of the parents to be partners. Therefore, crimes committed against half-siblings are also considered within the scope of qualified circumstances.

INTENSIVE KILLING TO HIDE A CRIME, TO ELIMINATE EVIDENCE OR TO FACILITATE COMMITMENT OR TO PREVENT CAUGHT

This qualified situation includes two different types of crime: means crime and purpose crime. The perpetrator's purpose crime is another crime, but he commits the crime of intentional murder as a means. The formation of a qualified situation depends on the existence of a connection between two crimes. Since misdemeanors are not included in the Turkish Penal Code, the qualified case is not applied to crimes committed with the aim of hiding the misdemeanor.

The purpose of the crime is that it does not matter how it is committed. It is necessary and sufficient for the act to be regulated as a crime in the Turkish Penal Code. As a matter of fact, in the justification of the article, it is stated that "In order for this qualified form of the crime to occur, it is sufficient to kill a person for the specified purposes; what is intended by the crime of murder does not have to happen. Therefore, for example, if the crime of murder is committed in order to carry out a bank robbery, the perpetrator will be punished due to this qualified element. In case of bank robbery, the perpetrator must also be punished for this crime. In other words, in such cases, the rules of real assembly must be applied." It is stated as follows.

INTELLIGENT MURDER DUE TO INJECTION FOR BEING UNABLE TO COMMIT A CRIME

The realization of the qualified situation depends on the fact that the outrage results from the failure to commit a crime. The action that creates outrage must be considered a crime within the scope of the Turkish Penal Code. Killing someone who rejects any of his offers is not considered outrage and is not considered a qualified situation.

INTENSIVE KILLING OF A PUBLIC OFFICIAL

Article 6 of the Turkish Penal Code states that public officials; It is defined as a person who participates in the execution of public activities on a permanent, temporary or temporary basis, by appointment or election or in any other way.

According to the justification of the article, it is not enough to commit the crime only against a public official; The victim must be killed to comply with the requirements of his duty. In fact, even if the title of public servant has ended, this qualified element will also occur if the person is killed for acting in accordance with the requirements of public duty.

For a qualified situation to occur, the person does not have to be killed while on public duty. It is enough to be killed for the sake of duty. Even if the victim is retired, if the crime is committed due to his/her duty, qualified status is applied.

Attempted intentional murder

According to Article 35 of the Turkish Penal Code; If a person directly initiates the execution of a crime that he intends to commit with appropriate actions, but cannot complete it due to reasons beyond his control, he is held responsible for the attempt.

Completion of the crime of intentional murder depends on the realization of the death outcome, as we stated above. If death does not occur even though the perpetrator starts enforcement actions, the crime will be deemed to have remained at the attempted stage.

It is possible that the act of murder with possible intent remains at the attempt stage.

PENALTY FOR ATTEMPTED MURDER

TCK 35/2. According to the article, "In case of attempted crime, the perpetrator is punished with a prison sentence of thirteen to twenty years instead of aggravated life imprisonment, or with a prison sentence of nine to fifteen years instead of life imprisonment, depending on the severity of the damage or danger caused. In other cases, the penalty to be imposed is reduced from one quarter to three quarters."

As can be understood from the article, the judge is given discretion in terms of the discount rate. While exercising his discretion, the judge takes into consideration the severity of the damage and danger occurring. In addition, when determining the punishment for the crime of attempted intentional murder, criteria such as the number of wounds, the damage to the body, the body part hit, the existence of a life-threatening situation, and the shooting distance are used.

CRITERIA FOR ATTEMPTED MURDER

In order to be punished for intentional attempted murder, the perpetrator must have the intent to kill. In some cases, there are hesitations about whether the perpetrator will be punished for intentional wounding or attempted intentional murder. The Supreme Court has developed some criteria to determine the intent of the perpetrator. These criteria;

1- Whether there is an animosity between the perpetrator and the victim that requires killing, based on the incident before the incident,

2- Whether the vehicle used in the incident was suitable for killing,

3- Number and severity of blows to the victim,

4- Whether the area where the blows were struck is of vital importance,

5- Whether the perpetrator stopped his action spontaneously or due to an obstacle,

6- Their behavior towards the victim after the incident.

It can be considered as

As a matter of fact, the General Criminal Assembly of the Supreme Court of Appeals, in a decision made in 2019, said: "Since the distinguishing criterion between the crime of intentional wounding and the attempted crime of intentional murder is based on the difference in the moral element, it must be resolved whether the defendant's intention is to kill or to injure."

21/1 of the Turkish Penal Code No. 5237. According to the article, intent, which is the knowing and willful execution of the elements of the legal definition of the crime and concerns the inner world of the perpetrator, should be determined by looking at the behaviors reflected in the outside world, or more clearly, by taking into account the perpetrator's behavior before, during and after the incident.

Principles, as explained in the stable and ongoing decisions of the Supreme Court of Appeals Criminal General Assembly, in determining whether an action is considered intentional attempted murder or intentional injury; Criteria such as whether there is hostility between the perpetrator and the victim, the reason and degree of hostility, if any, the nature of the attack tool used by the perpetrator in the crime, the number and severity of blows, the location, quality and quantity of wounds inflicted on the victim's body, whether there is an opportunity to choose a target, whether the perpetrator stopped his act spontaneously or due to an obstacle should be taken as basis.

Since the criteria to be used in each case may differ in terms of determining intent, all these cases must be handled as factual."

UNJUST PROPOSAL IN THE CRIME OF INTENSIVE MURDER

Unfair provocation in Article 29 of the Turkish Penal Code; It is defined as committing a crime under the influence of anger or severe pain caused by an unjust act. Unfair provocation In order for the provisions to apply, the following conditions must be met:

a- ) There must be a verb that creates the provocation,

b- ) This act must be unfair,

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

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

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

In case the above conditions are met, the penalty to be given to the perpetrator for the crime of intentional murder will be reduced by unfair provocation. Unfair provocation reduction rate As stated in Article 29 of the Turkish Penal Code, "Instead of aggravated life imprisonment, a prison sentence of eighteen to twenty-four years is given, and instead of life imprisonment, a prison sentence of twelve to eighteen years is given. In other cases, the sentence to be imposed is reduced by one quarter to three quarters." It is shaped like.

But, as we stated above, in terms of Articles 82/1 i and J of the Turkish Penal Code, unfair provocation discount is not applied.

Unfair provocation provisions may be applied in the crime of murder with possible intent. This situation was stated in a 2014 decision of the Supreme Court of Appeals, stating that "if the conditions are met, it is possible to apply the provisions of "unfair provocation" in crimes committed with possible intent, but for this to happen, the tort must originate from the victim of the crime committed with possible intent, as in crimes committed with direct intent." It is stated with expressions.

It is possible to apply the unfair provocation provisions in cases of error. If the perpetrator kills someone other than what he intended, unfair provocation penalty reduction is applicable in the presence of certain conditions. Due to the importance of the issue, help from a criminal lawyer must be sought when making a defense.

LEGISLATIVE DEFENSE IN THE CRIME OF INTENSIVE MURDER

Self-defense is defined in Article 25 of the Turkish Penal Code as the obligation to repel an unjust attack that is directed against a right belonging to oneself or another person, that has occurred, is certain to occur or be repeated, in proportion to the attack, according to the circumstances and conditions at the time. If a criminal act is committed under the conditions of self-defense, the perpetrator is not punished. It is also possible to commit the crime of intentional murder under self-defense conditions.

For detailed information on the conditions of self-defense, exceeding the limits in self-defense and many other subjects. What is Self-Defense? You can review our article titled.

PARTICIPATION IN INTENSIVE MURDER

All kinds of participation in the crime of deliberate murder are possible. If the perpetrators act together directly to kill the victim as a result of a common plan, each perpetrator is punished separately for the crime of intentional murder.

In addition, it is also possible to incite and assist in intentional killing. The person who incites intentional murder is punished directly as the perpetrator. In the act of helping, if the crime committed against those who helped requires aggravated life imprisonment, from 15 to 20 years; If it requires life imprisonment, a prison sentence of 10 to 15 years is given.

VOLUNTARY ABANDONMENT IN THE CRIME OF INTENSIVE MURDER

According to Article 36 of the Turkish Penal Code; If the perpetrator voluntarily gives up the execution actions of the crime or prevents the completion of the crime or the realization of the result with his own efforts, he will not be punished for the attempt; However, if the complete part essentially constitutes a crime, it is punished only with the penalty for that crime.

It is possible to apply voluntary renunciation provisions in the crime of intentional murder. If the conditions are met, the perpetrator may be punished for intentional injury. As a matter of fact, in a decision of the 1st Criminal Chamber of the Supreme Court of Appeals dated 2017;

"According to the occurrence and the scope of the file; There was a receivables issue between the defendant... and the victim..., on the day of the incident, the argument over the debt issue while the defendant and the victim were drinking alcohol turned into a fight, the defendant injured the victim with a knife after the victim hit the defendant with a plate during the fight, the defendant put the injured victim in the trunk of the vehicle and took him to the hospital, thinking that the victim might die in the trunk, they encountered the witness Mustafa while the defendant was driving, the witness In the incident where M. called the hospital, the ambulance came and took the victim to the hospital, and the defendant followed the ambulance to the hospital.

According to the established practices of our department, since the defendant completed the execution actions and prevented the result from occurring, his action should be described as attempted murder, taking into account the voluntary renunciation provision regulated in Article 36 of the Turkish Penal Code No. 5237 and in accordance with Article 61 of the same Law, taking into account the manner in which the crime was committed, the tool used in the commission of the crime, the importance and value of the subject of the crime, the severity of the fault based on intent. ", the basic penalty is determined at a reasonable rate, and instead of being sentenced for the crime of intentional wounding, it is decided in writing to punish him for the crime of attempted intentional murder."