Crime and punishment of intentional injury

What is the Crime of Intentional Injury?

The crime and punishment of intentional injury are regulated in Article 86 of the Turkish Penal Code under the title "Crimes Against Bodily Inviolability". The legal value protected by crime is the right of individuals to bodily immunity, which is also constitutionally guaranteed.

The crime of intentional injury is a free action crime type. The crime can be committed by deliberately inflicting pain on someone else's body or damaging their health or perception ability. The crime of intentional injury occurs when any of these actions occur. These verbs will be examined separately below.

Causing Pain to the Body

Inflicting pain on the body means violating a person's bodily health and immunity. Causing pain to the body represents material pain. Situations such as slapping a person or pulling his/her hair are considered as causing pain. The crime of intentional injury cannot be committed through verbal statements. In case the conditions are met, verbal statements are evaluated within the scope of threat crime. The degree of pain does not matter. There is no difference between slapping the victim and causing another pain.

Poor Health

Health refers to a state of complete physical and spiritual well-being. Therefore, if the psychological integrity of the victim is attacked, the crime of intentional injury will come to the fore. By ill health, actions that impair physical and mental health and situations that cause illness and disability are meant. Transmission of a disease is considered within the scope of harming health.

Disrupting Perception Ability

This action is intended to disrupt the victim's thinking, perception or voluntary movements. If the person is given drugs, it will be assumed that the person's perception ability is impaired. This statement aims to punish the psychological damage suffered by the person. The crime of intentional injury can be committed by executive action or by negligence. Article 86 of the Law regulates the basic state of the crime of intentional injury and the reasons that increase the penalty, and Article 87 regulates the crime of aggravated intentional injury due to its consequences. These distinctions will be examined in detail below.

QUALIFIED CONDITIONS OF THE CRIME OF INTENTIONAL WOUNDING

The basic form of the crime of intentional injury is regulated in Article 86 of the Turkish Penal Code. In the 2nd paragraph of the article, the qualified forms of this crime are included. Below, the behaviors that constitute a qualified state will be examined separately.

A- Committing the Crime of Intentional Injury Against an Ancestor, Descendant, Spouse or Sibling

For this qualified situation to occur, the perpetrator must injure one of his relatives listed in the law. Consanguinity relationship is determined according to the provisions of the Turkish Civil Code. The concepts of lineage and lineage here refer to birth parents and children. Therefore, there will be no qualified situation in an act of injury against a step-parent or adopted child. Likewise, crimes committed against half-siblings cannot be considered as qualified. However, if the siblings share one of their parents, a qualified situation occurs. Acts of injury committed by the spouse until the divorce decision is finalized are considered qualified.

B- Committing the crime of intentional wounding against a person who is physically or mentally unable to defend himself

This situation is included as a qualified situation in many crimes regulated in the Turkish Penal Code. The legislator decided to increase the punishment, considering that it would be easier to commit crimes against people who cannot defend themselves. Being underage, old age, physical disability, mental illness or mental weakness, advanced pregnancy, deafness and muteness can be given as examples of being unable to defend oneself physically or mentally. However, there are opinions that crimes committed against children will not be considered as a qualified case, since there is no term "child" in the article of the law.

C- Committing the Crime of Intentional Injury Due to the Public Duty Performed by the Person

This qualified situation comes to the fore when the victim is a public official. As stated in the justification of the article; It is not enough to commit the crime solely 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.

D- Committing the Crime by Abuse of the Influence Possessed by a Public Official

In this case, the perpetrator must be a public official. Abuse of influence means the abuse of the prestige or authority that the official position provides to the person. Injury crimes committed by the perpetrator for personal reasons cannot be considered within the scope of qualified circumstances.

E- Intentional Injury with Weapon

According to Article 6 of the Turkish Penal Code, the term weapon means;

1. Firearms,

2. Explosive substances,

3. All kinds of cutting, piercing or bruising tools made for use in attack and defense,

4. Other things that can actually be used in attack and defense, even if they are not made for attack or defense purposes,

5. Nuclear, radioactive, chemical and biological substances that are caustic, corrosive, injurious, suffocating, poisonous and cause permanent disease. It will be understood.

But the meaning of the term weapon has been greatly expanded. In addition, the Supreme Court of Appeals has accepted that intentional wounding committed with any tool that can actually be used for this purpose, even if it is not produced for attack or defense, is a qualified situation that requires an increase in the penalty. According to the Supreme Court, even spilling coffee on the victim is considered intentional injury with a weapon. For this reason, the concept of weapon is evaluated separately according to each incident.

F- Committing the Crime of Intentional Injury with Monstrous Feelings

This qualified situation was added to the Turkish Penal Code by law no. 7242 on 14/04/2020. Such a qualification was not included in the previous versions of the law. While an increase of half the penalty is foreseen in the other qualified cases listed above, if the crime is committed with a monstrous feeling, the penalty will be increased by one fold. The monstrous feeling is related to the spiritual world of the perpetrator. The perpetrator must take pleasure in the act of injuring or perform the action without feeling any pity. However, this situation is very difficult to detect. For this reason, the provision has been subjected to various criticisms.

INJURY THAT CAN BE REMOVED WITH SIMPLE MEDICAL INTERVENTION

We have listed the circumstances that aggravate the punishment above. Injury that can be remedied with simple medical intervention is regulated as a crime that requires less punishment. In this case of the crime, all the elements of the crime of intentional injury are present. In other words, the victim's body was inflicted with pain and his health or perception ability was impaired. But the effect of injury is mild. Whether the injury is minor or not is determined according to the reports of the Forensic Medicine Branch Directorates.

According to a decision of the 3rd Criminal Chamber of the Supreme Court of Appeals dated 2020;

"In the forensic report prepared by the State Hospital about the victim and on which the decision was based, it was stated that the injury of the victim did not harm the intra-abdominal organs, the surgery was terminated by repairing the fascia with a penetrating tool injury, and the injury could be resolved with simple medical intervention; however, in the guide on the forensic medical evaluation of wounding crimes defined in the Turkish Penal Code, it was accepted that all penetrating injuries that go through the skin - subcutaneous tissue and concern the fascia and muscle tissue cannot be resolved with simple medical intervention, which is the basis for the decision. Since there is doubt about the compliance of the said report with the forensic medicine criteria, the provisional and final reports of the victim and all medical documents related to his injury are obtained and sent to the nearest Forensic Medicine Branch Directorate, a report is obtained according to the criteria determined in Articles 86 and 87 of the Turkish Penal Code, and the legal status of the child dragged into crime should be evaluated and determined according to the results...”

The legislator has made a special change in terms of increasing the lower limit for injuries caused by BTM. Accordingly, if the crime is committed against a woman, the penalty cannot be less than 9 months.

PUNISHMENT FOR THE CRIME OF INTENTIONAL INJURY

• Any person who deliberately inflicts pain on another person's body or causes deterioration of their health or perception ability is punished with imprisonment from one year, six months to three years.

• Injuries that can be resolved with simple medical interventions are sentenced to imprisonment from six months to one year and six months or a judicial fine. If the crime is committed against a woman, the lower limit of the sentence cannot be less than nine months.

• The crime of intentional injury;

a) Against ancestor, descendant, spouse or sibling,

b) Against a person who is unable to defend himself physically or mentally,

c) Due to the public duty performed by the person,

d) By abusing the influence of a public official,

e) If committed with a weapon, the penalty to be imposed is increased by half.

• If the crime of intentional wounding is committed with a monstrous feeling, the penalty to be imposed is increased by one fold.

AGGREASED CONDITIONS DUE TO THE RESULT OF THE CRIME OF INTENTIONAL WOUNDING

According to Article 23 of the Turkish Penal Code, an aggravated crime due to its consequence means that an act causes a more severe or other consequence than what was intended. In aggravated injury due to its consequence, the act causes a result other than the intent of the perpetrator. Due to the severity of the consequences, the option of increasing the penalty was preferred.

In order for the perpetrator to be held responsible for the aggravated consequence, he must have acted with at least negligence in this consequence. It is mandatory to obtain an expert report to determine the aggravated injury due to its consequences.

TCK 87/1

The act of intentional injury is the victim's;

a) Continuous weakening of the function of one of the senses or organs,

b) Constant difficulty in speaking,

c) Fixed scar on the face,

d) A situation that endangers one's life,

e) If the crime is committed against a pregnant woman and causes her child to be born prematurely, the penalty determined in accordance with Article 86 is increased by one. However, the penalty to be imposed cannot be less than four years in cases falling under the first paragraph, and six years in cases falling under the "third" paragraph.

TCK 87/2

The act of intentional injury is the victim's;

a) He has an incurable disease or is in a vegetative state,

b) Loss of function of one of the senses or organs,

c) Loss of ability to speak or have children,

d) The constant change of his face,

e) If committed against a pregnant woman and her child miscarries,

If it is caused, the penalty determined according to the above article is increased twofold. However, the penalty to be imposed cannot be less than six years in cases falling under the first paragraph, and nine years in cases falling under the "third" paragraph.

INTENSIVE WOUNDING BONE BREAK

If intentional injury causes a bone fracture or dislocation in the body, the penalty determined according to Article 86 is increased by up to half, depending on the effect of the fracture or dislocation on life functions.

In the Forensic Medicine Guide, a rating from one to six is ​​made according to the body part where the fracture or dislocation occurs and their nature, and it is accepted that the effect of the fracture or dislocation on life functions is determined according to this rating. As a matter of fact, in a decision of the 3rd Criminal Chamber of the Supreme Court of Appeals dated 2015, "In terms of forensic medicine criteria, the effect of bone fractures on life functions is classified as mild (1) and severe (6) degrees, and in the article 87/3 of the Turkish Penal Code No. 5237, the penalty is foreseen to be increased by up to 1/2 depending on the effect of bone fracture on life functions. In the forensic report of the participant, the effect of the bone fracture in his body on his life functions is stated as mild (1)." "Although it is stated that this is a high degree, the defendant's sentence is increased by a large amount, contrary to the principle of proportionality, without showing the reasons...".

DEATH OCCURS AS A RESULT OF INTENTIONAL WOUNDING

In this aggravating situation, the perpetrator's intention is to injure. However, a result different from the perpetrator's intention occurs and the action results in the death of the victim. In order for the perpetrator to be held responsible for the result of death, there must be a causal link between the act of injury and the result of death. In addition, the perpetrator must have at least negligence liability for the outcome of death. In other words, the perpetrator should at least be able to foresee the outcome.

In case of death as a result of intentional injury, in cases falling under the first paragraph of Article 86, a prison sentence of ten to fourteen years will be imposed, and in cases falling under the third paragraph, a prison sentence offourteen to eighteen years will be imposed. According to the Supreme Court, TCK 87/4 will not have any scope of application in cases of injury that can be resolved with simple medical intervention, even if death occurs. In these cases, the perpetrator is punished for reckless homicide or conscious negligence. This practice of the Supreme Court is criticized in the doctrine. The prevailing opinion is that the legal gap was filled incorrectly by the Supreme Court.

COMMITMENT OF THE CRIME OF INTENTIONAL INJURY WITH NEGLIGENT BEHAVIOR

According to Article 88 of the Turkish Penal Code, the crime of intentional injury can be committed through negligent behavior. Because the crime is committed in this situation, the penalty to be given to the perpetrator may be reduced by up to two thirds. In the implementation of this provision, the conditions regarding the commission of intentional homicide through negligent behavior are taken into consideration.

PRESENCE OF MORE THAN ONE QUALIFIED CONDITION IN THE SAME ACTION

More than one aggravating circumstance may coexist in the crime of intentional injury. In such cases, according to the Supreme Court, punishment should be carried out by moving away from the lower limit. As a matter of fact, the decision of the 3rd Criminal Chamber of the Supreme Court of Appeals No. 2020/6391 is as follows.

"In the case where the complainant was injured in a way that endangered his life and caused a bone fracture that would seriously affect his life functions to the 4th degree, basic penalties were imposed in accordance with Article 86/1 of the Turkish Penal Code No. 5237 for the defendants who caused more than one qualified violation of circumstances, taking into account the criteria in Article 61 of the Turkish Penal Code and the principle of proportionality in Article 3 of the Turkish Penal Code, so as to be effective in the resulting penalties. It is necessary to move away from the border. In the case where the complainant was injured in a way that endangered his life and caused a bone fracture as a result of a single action of the defendants, the defendants should be punished by applying Articles 86/1, 86/3-e, 87/1-d and 87/1-last of the TCK No. 5237 for the injury that would endanger his life, which is a more serious outcome, and also because a bone fracture occurred during the injury. It is not right to increase the penalties in accordance with Article 87/3 of the Turkish Penal Code."

UNJUST PROPOSAL FOR INTENTIONAL INJURY

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. In order for the unfair provocation provisions to apply, the following conditions must be met:

a- ) There must be an act 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 injury will be reduced by unfair provocation. As stated in Article 29 of the Turkish Penal Code, in the presence of unfair provocation conditions, the penalty to be given to the perpetrator is reduced from one-quarter to three-quarters.

"In the incident where mutual injury crimes were committed, it is understood that the parties explained the cause and development of the incident differently, and there was no independent eyewitness, and trying to determine who committed the first unfair act by focusing on the cause and development of the incident; if this is not possible, when it cannot be determined beyond doubt who caused the first unfair act, it is wrong to leave it undisputed whether the unfair provocation provisions should be applied to the minimum extent in favor of the defendant in this suspicious situation." Supreme Court 3rd CD. 2020/5596 K.

LEGISLATIVE DEFENSE IN THE CRIME OF INTENTIONAL INJURY

Self-defense It 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 a proportionate manner to the attack, according to the circumstances and conditions at that moment. 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 injury under self-defense conditions. In case of self-defense, the perpetrator will not be punished.

COMPLAINT AND RECONCILIATION IN THE CRIME OF INTENTIONAL INJURY

The crime of intentional injury is one of the crimes prosecuted ex officio. But TCK 86/2. Pursuant to the article, if the effect of intentional injury on the person is so slight that it can be eliminated with a simple medical intervention, investigation and prosecution are carried out upon complaint. In cases of intentional injury, if the complaint is withdrawn, the perpetrator will not be punished.

Qualified cases of the crime are not subject to complaint. Therefore, complaining or withdrawing from the complaint has no effect on punishment.

The cases where the crime of intentional injury is simple and light enough to be resolved by BTM are within the scope of mediation. Also, if the crime is committed negligently, the mediation procedure is applied.