What is legitimate defense?

Human beings, like all living things, show a defense reflex against attacks made against them. For this reason, the right to defense has been valued in every period of history, and people have been prevented from being punished for the damage they inflict on attackers in order to defend themselves or others. Self-defense means justified defense and has an important place in the fight against crimes. As a matter of fact, the deterrent effect of self-defense is mentioned in the justification of Article 25 of the Turkish Penal Code.

The right to self-defense is stipulated in the Turkish Penal Code in terms of its importance and function and is considered a reason for compliance with the law. Article 25 of the Turkish Penal Code states: "The perpetrator shall not be punished for the acts committed with the obligation to repel an unjust attack, whether directed against his own right or the right of another person, which has occurred, is certain to occur or be repeated, in proportion to the attack, according to the circumstances and conditions at the time." By bringing the provision, it determined the consequences and conditions of self-defense.

CONDITIONS OF LEGITIMATE DEFENSE

A- CONDITIONS REGARDING THE ATTACK

1- An Attack Must Be Found.

The concept of attack refers to actions that will cause damage or danger to a legally protected right. The first condition for the existence of self-defense is the existence of an attack. If there is no offensive movement or action, self-defense cannot be considered. Because defense can only be done against attack. The attack being defended must still exist. Actions taken against finished attacks cannot be considered defense. In addition, if the attack is likely to be repeated, the existence of self-defense comes to the fore. The Turkish Penal Code regards defense against an unjust attack that has occurred, is certain to occur or reoccur, as self-defense. In this context, legitimate defense can be made against an attack with a high probability of occurring.

The attack must be carried out physically. Self-defense cannot be made in terms of verbal attacks. Verbal attacks unfair provocation. However, physical defense against a verbal attack is not considered within the scope of legitimate defense. Insultsand verbal taunts cannot be defended legitimately.

The characteristics of the attacker are not important in terms of self-defense. Self-defense can be made no matter who the attack comes from. The fact that the attacker is mentally ill or underage does not prevent self-defense.

In cases where the act of attack is mutual, such as a mutual fight or conflict, it is taken into consideration who made the first unjust act. If the party that initiated the attack can be identified, it can be said that there is self-defense on the part of the other party. The 3rd Criminal Chamber of the Supreme Court of Appeals said about an exemplary case: "It is erroneous to establish written judgments with incomplete examination and research, without taking into account that the incident arising from the parking issue was mutual between the parties, the fight incident was mutual, and the reason for the fight that occurred and whether it could be determined who caused the first unfair act or not, and that it should be openly discussed at the decision place whether Article 25 and Articles 29 and 129 of the Turkish Penal Code can be applied to the defendants based on the result." He decided as follows.

Apart from all these, no distinction has been made in terms of the person who is attacked in order to defend himself. In other words, legitimate defense can be made in favor of someone else. In a decision of the Supreme Court of Appeals, "The action of the defendant, which consisted of firing a shot into the air with a gun in order to scare them and make them stop their criminal actions against the victim, when the other defendants, whom he intervened to prevent the forcible abduction of the victim, turned towards him, constituted the crime of threatening with a weapon regulated in Article 106/2-a of the Turkish Penal Code No. 5237, in addition to the crime of deliberately endangering general security, and since more than one crime was committed with a single action, the same Law applies to the defendant. "Although Article 106/2-a of the TCK, which stipulates the heaviest punishment for these crimes according to the rule of intellectual gathering in Article 44, must be implemented, considering the content of the entire file, it is inappropriate to decide on a written conviction instead of acquittal, considering that the defendant's action in the said incident falls within the limits of self-defense regulated in Article 25/1 of the TCK No. 5237." He ruled as follows.

The consent of the attacked third party to the attack is also evaluated in terms of self-defense. The fact that a person consents to rights that he cannot exercise does not prevent the application of self-defense provisions. For example, a person cannot consent to being killed.

2- The Attack Must Be Unfair.

TCK mentions the existence of an unjust attack in order to apply self-defense. Unfair attack means the combination of injustice and unlawfulness in the attack. If the attack has a legal justification, self-defense cannot be considered. The action of the police who caught the criminal is in accordance with the law. However, if a police officer exceeds his authority or abuses his rights, legitimate defense can be made. When making a distinction, the justification and legality of the offensive action is taken into consideration.

The defense made by people who cause an attack with deliberate actions cannot be accepted as self-defense. For example, if a person who intends to injure his opponent causes an attack by provoking his opponent against him within a certain plan, the attacked person cannot benefit from self-defense.

3- The attack must be against a right.

What should be understood from the concept of rights are the fundamental rights and freedoms of individuals guaranteed by the constitution. In order for the defense to be considered legitimate, the right attacked must be a right protected by the legal order. Legitimate defense can be accepted in terms of attacks against life, physical integrity, sexual immunity, possession, property, honor and property rights. Legitimate defense cannot be made against attacks on rights other than such legally protected rights.

4- The Attack Must Still Exist.

Legitimate defense refers to the defense made at the same time as the attack. Defense made after the attack is over is not legitimate defense. After a certain period of time, the defense has a revenge motive, not a protection one, and if there are conditions, the application of the unfair provocation provisions comes to the fore.

There is no legitimate defense against an attack that ends for any reason after it started. For example, killing an attacker with a knife after the knife is taken away from him will not be legitimate defense. As a matter of fact, the Supreme Court of Appeals stated in one of its decisions that "considering the age of the victim and his superior physical structure determined in the autopsy report, there was no ongoing attack on the life and sexual integrity of the defendant as he claimed, and it was understood that a repetition of the attack that had occurred in the previous dates was not certain at that time, and therefore, the conditions of legitimate defense were not met for the defendant. Since it was understood that the defendant acted under the conditions of legitimate defense, which did not coincide with the minutes and scientific reports in the file, his abstract defenses aimed at avoiding punishment could not be relied upon, and the defendant's wife "It should be accepted that he deliberately killed the victim under intense provocation." He ruled as follows.

In addition, legitimate defense can be made against attacks that have not started but have a very high probability of starting. In this case, the attack that is certain to start must be strong enough to make defense impossible or very difficult. Legitimate defense cannot be made in terms of weak threats. Regarding the subject, the Supreme Court said: "Although the attacks of the participants have not yet reached the level of crime; when we consider together the issues that there is no hesitation in both doctrine and practice regarding the legitimacy of defense against a rape that has not started but is certain to start and will make defense impossible or very difficult when it starts, the defendant's action is in the nature of repelling an attack that is sure to be directed to the immunity of home, in accordance with the current situation and conditions, in a proportionate manner and aimed at the purpose of defense, and therefore the conditions of legitimate defense were met in the incident." must be accepted." There is a decision as follows.

B- CONDITIONS RELATED TO DEFENSE

1- There Must Be Necessity in Defense.

The person who is attacked should have no other choice to escape. In order to talk about compulsory defense, the existence of an attack that has started is necessary. The person who is attacked cannot be expected to escape by running away from the attack. In other words, the person who is attacked can defend himself by not running away, even if he has the opportunity to escape. Not running away does not mean that self-defense cannot be applied. Because the institution of self-defense also aims to protect the honor and dignity of individuals. In our opinion, the evaluation shared below by Claus Roxin, one of the important figures of German criminal law, best explains the importance of the institution of self-defense. Again, the issue of self-defense and escape should also be evaluated on this axis.

"Self-defense is the guarantee of a person's honorable life by trusting the legal order."

2- Defense Must Be Proportionate.

Defense should not go beyond neutralizing the attack. There must be a ratio between the tools used by the attacker in attack and the tools used by the defender in defense. Saldırı ve savunmada aynı araçların kullanılması zorunlu değildir. It is possible to defend with a gun against an attacker who has a knife in his hand. But the use of weapons should be measured. When determining the measure, each concrete event will be evaluated separately. While shooting into the air may be enough to stop an attacker with a knife in his hand, injuring him with a gun may also remain within the scope of legitimate defense if the attacker continues his attack. However, targeting the attacker's vital organs instead of shooting him in the leg is not considered legitimate defense. In some cases, the extent of defense can be determined according to the physical characteristics of people. For example, the harm a woman could inflict on a strong man without a weapon would not be very serious. However, if a woman is being attacked and the attacker is assumed to be a strong man, defending herself with a knife can be considered legitimate defense. Again, in such a case, the defense must not exceed the limit of repelling the attack. Yine olaya örnek oluşturcak bir yargıtay kararında "Dava; kasten öldürmeye teşebbüs suçuna ilişkindir. Olay günü çıkan tartışmada, akciğer ve diyafram yaralanmalarına, hemotoraksa, yaşamsal tehlike geçirmesine, ağır 6.In the incident where he was stabbed in a way that caused severe bone fractures and permanent scars on his face, he took out his knife to fight off this attack and inflicted a life-threatening injury; Considering that the defendant responded with a knife in a manner proportionate to the attack, in order to repel the knife attack directed at his bodily integrity, the defendant's action remained within the limits of legal defense and TCK No. 5237, Article 25/1. and 223/2-d of CMK No. 5271. "Acquittal must be decided in accordance with the article."

The measure between defense and attack is evaluated separately in each concrete case. The legitimacy of defense is not limited. The legislator introduced the principle of proportionality, but did not specify in which cases the measure would be exceeded. For this reason, the legitimacy of the defense will be appreciated by the judge by evaluating each case according to its own dynamics.

3- Defense Must Be Made Against the Attacker.

Defense must be made against the attacker. If a defense is made against a person next to the attacker, this defense is not considered legitimate.

But it should be noted that if secondary damages occur due to self-defense (for example, if a person other than the attacker is injured), these will also remain within the scope of self-defense. An important Supreme Court decision on the subject is as follows:

"In the examination of the verdict established against the defendant ... for the crime of wounding the victim ... with possible intent, it was understood that while the defendant responded with a gun under the conditions of self-defense to ... and ... who shot at him with the intention to kill, one of the bullets coming out of his gun hit the helmet on the head of the victim who was passing the scene on a motorcycle and caused him simple injury. Instead of being accepted and acquitted, a written conviction was made as a result of erroneous evaluation, necessitating reversal. " Y1CD. 2015/4115 K.

In cases of error and deviation, the incident must be evaluated meticulously.

EXCEEDING THE LIMIT OF LEGITIMATE DEFENSE

The person who is attacked suffers moral damage as well as material. As a result of this damage, some people whose psychological state is affected become unable to control their emotions and thoughts. Naturally, uncontrollability is observed in their behavior. If this lack of control occurs during the defense to repel an attack, the limits of self-defense are exceeded.

TCK 27/1. Article "If exceeding the limit in legitimate defense is due to excusable excitement, fear or anxiety, the perpetrator will not be punished." It is shaped like. As can be understood from the article, if the limit of defense is due to fear, excitement or anxiety, the perpetrator will not be punished. The expression "may be exposed" used here does not require a separate investigation. In every case of attack, excitement, fear or alarm always occurs and is excused. As a matter of fact, in a decision of the Supreme Court, it was stated about the defendant, who was a police officer, that "The participant and his friend, who were understood to have committed theft and who were also tried for theft, escaped by not obeying the stop warning of the police officers on duty during the incident, and although the defendant, who was trained in using weapons, had the opportunity to shoot at the tires of the vehicle they were in in order to catch the escaping perpetrators, he got excited because he was injured and unintentionally exceeded the limit of self-defense, fired into the vehicle and injured the participant, as per Article 27/1 of the TCK." "It is erroneous to make a written judgment for the crime of possible intentional injury by making a mistake in the evaluation of the evidence, instead of punishing him in accordance with Article 62 of Article 89/1-3." He ruled as follows.

It is important that the limits of legitimate defense are not deliberately exceeded. As a matter of fact, if the defense is carried out out of spite rather than panic or fear, the perpetrator will not be able to avoid being punished. The Supreme Court has a decision on the subject as follows: "Since it is understood that the defendant did not act with the obligation to repel the attack in proportion to the attack according to the situation and conditions at the time, but reacted in a highly disproportionate way by getting angry at the injustice and stabbed the bayonet attached to the tip of his rifle into the victim's chest, causing the death of the victim under unjust provocation, it should be accepted that it is not possible to apply the provisions of self-defense or exceeding the limit in self-defense to the defendant."

CONDITIONS FOR EXCEEDING THE LIMIT OF LEGITIMATE DEFENSE

1- There must be a right that can be protected by legitimate defense.

2- All conditions regarding the attack must be present.

3- The condition of proportionality must be violated in favor of the defender.

4- Exceeding the limit must be caused by excusable excitement, fear or anxiety.

In case the above conditions are present, the perpetrator will be saved from punishment by bringing the institution of self-defense, which is a reason for compliance with the law, to the agenda.

The Supreme Court stated in its decision that "The defendant constantly threatened him about breaking up with the girl he was engaged to, who came to his house before and threatened him with a knife, who came to his house on the night of the incident with 0.35 promil alcohol, threatened him with a knife and did not allow him to leave the house, and strangled him to death under the influence of fear and anxiety. The defendant did not make any special preparations for the victim by waiting for him." Considering the absence of evidence that he acted with a feeling of hostility or revenge, the place and time of the incident, the vehicles used by the defendant and the victim, their ages and physical conditions, although it was understood that the defendant had the obligation to repel an unjust attack directed at him, which took place and which was certain to be repeated, in a manner proportional to the attack, according to the current state and conditions, he exceeded this limit with excusable excitement, fear and haste, TCK 27/2 and "It is wrong to make a mistake in the evaluation of the evidence and make a judgment based on Articles 81, 29, 62 of the Turkish Penal Code, instead of deciding that there is no need to impose a penalty in accordance with Article 223/3-c of the Criminal Code." He used the expressions.