TO THE PRESIDENT OF THE CRIMINAL COURT
BASE NO :
SUSPECTED VICTIM :
Offence: attempted manslaughter – threatening – breaching residential Immunity at night.
CRIMINAL HISTORY :
ARREST DATE :
Brief presentation of the incident: E.S.as a result of the deterioration of the relationship with the client’s daughter and the lack of livelihood experienced, my client left his daughter’s House and began to stay in the client’s House, essentially; and before that, E.S.’in the context of these relationships, where the marital union causes consequences that at times lead to severe subsistence,’ he said.K.’s and his wife are always and on all occasions mediating, reconciling, constructive for the marriage in question to work, but because of the uncompromising and unchanging personality structure of the suspicious victim E.S.result of events caused by;
At the time my client was staying at his daughter’s house, he was suspicious.S.at 02: 00 at night and on the day of the incident, he came to the front of my client’s house in an alcoholic manner, damaged the car belonging to my client by hitting different parts of it with a hard object, and in the continuation of this, he headed to my client’s House and headed to his stairs, meanwhile, my client himself and his wife Dec.K.”I will F.. your mother, I will kill you, I will not live”, insults and threats in the form of my client and his family, acting with the thought and November intent to enter the House, by the way, my client’s wife Dec.K.’s suspected defendant E.S.as he tried to prevent her from entering, he pushed her with an iron bar in his hand and threw her towards the stairs, resulting in a crash.K.a number of abrasions occurred on his body due to him falling to the ground, followed by the suspected defendant E.S.because of the actions created by my client, his grandchildren, who were sheltering in his house, went into a great panic when they saw the events, saying, “Grandpa will kill us,” with the idea that my client will fight off a possible attack and protect family members, the suspected defendant, who was found mobile with a licensed weapon in possession, E.S.it is understood that he fired at very close range without regard for the target in order to deter and intimidate him from his action, after which the suspected defendant fled.
Karsiyaka C.As a result of a preparatory investigation by the Attorney General’s office, my client’s new TCK 81, 35/2, 29, 53, 54, 63 a public lawsuit has been filed to punish him in accordance with his articles.
OUR DEFENSES IN RELATION TO THE INCIDENT AND THE REASONS FOR THE EVACUATION REQUEST:
A-evaluation of my client’s action in terms of Legal Defense conditions:
As we have summarized above, if we evaluate my client’s action, the minutes contained in the file, within the framework of the determinations made, the suspect is the defendant E.S.as can be seen from the alcohol report, he came to my client’s house drunk and damaged his vehicle, not content with this, he entered my client’s house in a concentrated caste, started climbing the stairs, after my client wanted to be blocked by his wife, he was neutralized by pushing him with a hard object, but; it is clear and clear that my client fired a weapon licensed to possess in order to eliminate an unfair and existing attack without regard for the target in order to disrupt and intimidate his action without harming the other defendant.
Considering the statements of the defendants in the file and the witness statements heard, it is clear that my client’s action was taken within the framework of the legal defense.
As is known by your court, the defense obligation must be determined according to the characteristics of each event. What matters is the presence of an attack that has begun and has not yet ended.
In this respect, the defendant is E.S.it is a case of continuing the attack in an unfinished and decisive action, and in terms of legal defense, the defendant is the one who is the one who is the one who is the one who is the one who is the defendant.S. there is a concrete attack made by and whose existence has not yet ended.
In this case, we believe that the punishment should not be assigned because my client’s action is mandatory. My client has taken action to protect himself and his family members from possible danger due to an unfair attack.
As stated In Case Law No. 1/120-210 of the criminal General Assembly of the Supreme Court of Cassation dated 09.06.1998, “TCK 49. the item held in the legal defense (self-defence) for the adoption of; there must be a financial and an unfair attack, attack or rape should be yummy for defence and attack to be done while continuing to attack both the time and the defense, the defense should be mandatory, and the tool that is used with the subject of the right who was attacked, according to the ratio between attack and defence, there must be an appropriate. It is imperative to consider that an attack that is now certain to begin to understand the existence of an attack in a broad sense has begun and ended, but an attack that is feared to be repeated has not yet ended.
The necessity in defense should be evaluated by taking into account the concrete characteristics of each event. The perpetrator who is attacked cannot be obliged to escape and cannot be asked to escape by fleeing. It cannot be taken into account whether the perpetrator has the opportunity to escape. However, in order for the legal defense provision to be applied, it is not necessary for the assailant to be the perpetrator in person, and it is possible for the legal defense conditions to be realized if a third party is attacked. “his view clearly and clearly supports that my client gives legitimacy to his verb and performs his action within this framework.
No doubt, given the specifics of the incident, Your Court will appreciate whether legal defense conditions were formed in my client’s action.
B – evaluation of my client’s action in terms of incitement:
In the event discussed the presence in the event of unjust provocation occurs before the time when the defendant’s vehicle after dealing some damage to the other suspect iron bars, climb the stairs, the event is an obstacle to the client’s wife who wants to be attacked, and the pushing and dropped to the ground, in the same way tevali movements that sustain in the face of the fact that, under this impression that was created for my client, my client’s household and in order to prevent a more severe action against him in order to protect himself and his family, the other suspect, the defendant should be fired without a target, but, due to the fact that this action came from the victim of unfair and unlawful actions made by the other suspected defendant against him and his family, while the basic punishment to be given to my client was applied, TC 5237 No. 29. we think it would be fair to apply the most discount rate given the weight of the ncu clause. We believe that your court will evaluate my client’s mood and his action in that mood in a way that best suits Justice. As stated in case law 21.04.1998 and 1/3-139 of the criminal Board of the Supreme Court,”…. The defendant’s mental structure must be taken into consideration. 51 of the Penal Code. Article 1. in the paragraph, the crime is committed under the influence of anger and severe elimination caused by unfair incitement, and in the second paragraph, cases where unfair incitement is severe and severe are regulated. It has been accepted that the propulsion may be light or heavy, but the measure and assumptions that will allow it to be distinguished from each other have been left to practice without being shown…. event that causes crime; “since the appearance also coincides with the action of our client, we hope that the court will consider this.
When all the evidence found in the file is evaluated together, the other defendant is E.S.’he came to my client’s house at night drunk and damaged it by hitting various parts of my client’s vehicle, and he showed his actions, increasingly hurting my client’s wife,’ said the defendant, who was not content with this.29 of the New TCK in case of future sentencing against the client, in which he continued his actions by continuing his severe swearing and threats. it is clear that the propulsion provisions in the article will apply.
Mr. prosecution has also requested that this article be applied from the point of view of my client.
As is known, the Supreme Court 1. According to the ingrained case law of the criminal Department and the criminal General Assembly of the Supreme Court, in order to apply unfair incitement provisions,
formation of a verb that forms a-propulsion,
b – finding this verb unfair,
C – the perpetrator is under the influence of anger or severe elimination,
d – the crime committed by the perpetrator is the reaction to this spiritual situation,
e – the Act that creates unfair incitement is true of the victim or the victim has responsibility for this actual prevention,
f-the crime must be directed at the person who performs the actual act that creates the drive.
All these circumstances, with all their elements, we believe that happened in our event.
29 of the new TCK about the client, in the belief that it will undoubtedly be evaluated in the best way by your court, as explained. we believe that the article will be applied with respect to the margin and ratio of appreciation.
C – evaluation of my client’s action in terms of intent:
All the evidence contained in the file obtained during a preliminary investigation reports, witness statements are evaluated when the defendant’s narration and the other complainants with my client, my client’s legal defense and conditions under the influence of heavy provocation, the defendant’s actions in order to eliminate the other complainants and desist from an assault, fired with the intent to scare, we believe.
However, your court’s admission is that if my client does not consider the intention of committing a crime in this way, it is clear that my client’s Act is aimed at injury.
As described in doctrine and ingrained Supreme Court case law;
“Caste is mainly related to the inner world of man, but it is tried to determine caste according to objective events and phenomena that appear in the outer world November. Caste is put forward by similar criteria in the legal systems of foreign countries”. (Ayhan Onder, audacity against individuals and property, Istanbul 1994,)
“In human behavior, especially in crimes against the person element in the diagnosis of the spiritual nature of the intent of the perpetrator of the detection objective, which is suitable for best data disclosing caste tests can be directed to the defendant as different and original handle and cover up speculation that the reputation of the goal, regardless of its content movement, procedure, method, and you need to look at the consequences caused by” (Italian Supreme Court 22.02.1989, E/O Erman, 24, dn. From 43)
At the point of determining caste, we consider it useful to make a statement based on judicial decisions to shed light on November.
With this thought;
“The behavior of the perpetrator before, during and after the incident should be taken as a measure in determining the November. According to the decision of the Supreme Court settled the crimes of attempted murder and mutilation man that separates from each other the main cause of the animosity between the victim and the perpetrator measures and the nature of the perpetrator, the weapon used in the crime, the nature of the attack, shot or the pulse number from the body of the victim with the location of the wound formed in quality and quantity, the possibility to choose the destination, whether it is meant the occurrence of the event flow and the handling of the offender against the will of the reason curmu whether it is an obstacle” (BUF 14.12.1999, 1-278/308; and this in regard to other decisions for your business. Meran, 363 et al.)
“If the cause of an action is that the defendant came to the scene in preparation, the willfulness, quality and severity of the act, the type of vehicle used in the crime, the place where the wound occurred, the organs subjected to the action are of vital importance, and the course of the event has made the death “expected result”, it is necessary to accept that the perpetrator acted with intent to kill. “ (CGK, 06.02.1996, 1-380 / 4; CGK, 09.06.1998, 1-126/218 .) (Source: Crimes of premeditated murder, TCK 81-82-83, Assoc. Hakan Hakeri, Sh, 31, Seckin Yayinevi, Ankara, 2006)
In the same way, in accordance with the case law of the Supreme Court, which we will list below, it is indisputably clear that my client’s action is aimed at wounding.
“Despite numerous coups, if they are less effective, it can be denied that there is a killing caste. In an incident in which the perpetrator stabbed the victim seventeen times, the Supreme Court ruled that there was no intent to kill, because the perpetrator did not continue his act, despite the lack of a compelling reason, and the blows were very superficial.” (CGK, 16.11.1987 ‘ ‘ 344/542)
“ Both armed and decapitated shots (stones, etc.) play an important role in the distance between the perpetrator and the victim and the characteristics of the crime scene. The fact that the perpetrator did not shoot at vital areas, despite being near the victim, may indicate that he did not mean to kill. “ (1. CD. 25.03.1970, 2445/1308.)
“ How the event develops and ends is also important in determining November.” (CGK 19.1.1970,, 596/19)
“The failure of the perpetrator to continue firing, despite the possibility, can be considered an November injury.” (CGK 03.04.1990, 418-872)
As part of all these explanations, the suspect who is the victim of the incident is the defendant E.S.’s Karsiyaka 1. Magistrates ‘ Court dated 15.01.2006 given before in defense of, “ … there was about 2 feet, pistol in hand into the air, fired 6 times, one of the bullets grazed me I stripped my left arm under my left breast and then the same bullet to kill me is not fired. If he wanted to kill, he could have killed because he was very close in distance between us, I think the plaintiff’s goal is to scare me,” he explains in his decidedly heated narrative of the incident that my client’s action manifests in this way, without any doubt.
D-our assessment of the existence of doubt in the evaluation of my client’s action within the framework of the material evidence in the file.
As is well known by your court, based on material evidence, when the perpetrator is reached, all the evidence must be conclusive and convincing, forming a conscience opinion. In addition, if the caste of the perpetrator cannot be determined to the extent that there is no doubt, it is necessary to apply the universal rule of ‘the defendant benefits from suspicion’.
“According to the principle that the defendant takes advantage of the suspicion accepted in each state of law and has a strict relation to the presumption of innocence, at the end of the Criminal Procedure, an acquittal decision will be made if the Act does not reach 100% clarity that it was committed by the defendant (Constitution M. 38/4., Universal Declaration Of Human Rights M. 11, European Convention On Human Rights M. 6/2, Convention on Civil and Political Rights l. 14/2). The reason such a principle is accepted is that the impunity of a criminal is preferable to the conviction of an innocent; in other words, it is the presumption of innocence” (CMK Justice Commission report).
The principle of” the accused benefits from suspicion ” is a rule of proof that applies in criminal trial law and is not bound by a written provision in our legislation. Accordingly, in order for a conviction decision to be made against a person who has been tried for the alleged commission of a crime, it must be 100% certain that he has committed that crime, it must be proven. Even 1% doubt at this point leads to the acquittal of the accused. In this way, the release of a guilty person is superior to the punishment of an innocent person. As a matter of fact, in the United States, where the jury system is located, the only duty of the jury is to decide whether the defendant committed the crime, that is, the proof. The jury consists of 11 members, and in order for it to be decided that a person has committed the crime, 11 of the 11 members must also agree that the defendant has committed the crime. If 10 members vote that the defendant committed the crime, but one member did not commit it, the defendant’s acquittal is decided. This example shows that the defendant should be acquitted so that the suspicion is not defeated by 100%.”(Source, Crimes Of Intentional Killing Assoc. Dr. Hakan Hakeri, Seckin Yayinlari, Ankara, 2006)
The defendant benefits from suspicion rule is not limited to cases where an acquittal decision must be made. November November decertifies the use of this rule to prevent the death of a child. (Mustafa Avcı, measures to distinguish the spiritual elements of crimes of intentional killing and intentional wounding, Khuka 1, Sh. 86-98, 2005) as a matter of fact, there are also decisions of our Supreme Court of Cassation that shed light on this idea.
“It is exceptional practice to interpret doubt about November in favor of the accused” (1. CD, 02.10.2001, 2064/3474).
“The defendant is the victim of shooting with intent to kill Teddy to be clear, the contradiction in the narrative to observe the stages of trial in this direction, personally received presuecution office his statement as “he could have killed me if he’d shoot to the top of the wall with the words” to show that the defendant did not choose to launch the need to kill a convenient, investigation and prosecution at the scene of the discovery of whose name is on the wall behind a bullet hit is made to make clear that in the face of doubt in favor of considering a basic policy to interpret, instead of being punished with the admission that defendant Z’s action against victim M was a complete attempt to injure a weapon, the provision of manslaughter by evaluating the unresolved suspicion was made” the reason for the violation (1 CD. 22.10.2003, 380/2465).
Likewise Supreme Court 1. He repeated the same views in case law No. 05.03.2003 and 4223/168 of the criminal Department.
“According to the initial assessment does not exceed a few meters and five meters, which is defined as a close-range, broad daylight, in a crowded environment defendant who chooses one target with each shot so the mutual made of, his rival in the face of failure to register a hit, the bullet was stuck to the rear floor in place of the occurrence of any ambiguity in motion, plaintiff were carried out by directing part of the body of kazanmayis also clarified that, based on doubts in favor with the obligation to interpret charge, accepting the action of each defendant as wounding, and a.he said it was” necessary to acknowledge that he acted in accordance with the law in self-defence.” (1. CD, 5.3.2003, 4223/168).
In light of our statements, we believe that my client’s action should be considered an attempt to injure within the framework of the reasons we are trying to explain, given the absence of animosity between my client and the other suspected defendant that requires prior decapitation, the number of blows to the defendant, his presence in a mobile State, the moment the client was involved in the incident, the attack he was subjected to.
Reasons For E-Eviction Request:
1 -) in the context of the evidence obtained, our client’s defense, which has not been proven otherwise, and other lunatics who support it, we believe that the nature and nature of the crime may most likely change.
In this respect, the new CMK 100. in the article, taking into account the regulatory provisions on the limitation of arrest, the trial without arrest becomes a rule,
2 -) as of the stage at which the trial has come, all the evidence has been collected, in this respect, my client’s ability to influence the evidence, black out the evidence, direct the trial in another direction has disappeared,
3 -) considering the fact that detention is a measure and has disappeared under these conditions;
After all, with the existing legal regulations and the regulatory provisions of the new Turkish Criminal Code and the new Criminal Procedure Code, you, Mr. Court, are 100% of the Criminal Procedure Code. considering the discretion brought by the article, My client is a suspect defendant F.K.I wish that he be released on bail or unconditionally, which will be deemed appropriate by your court.
Kindest regards … SUSPECT