The Crime of Intentional Murder - Av. Gökhan Akgül

Definition

The crime of intentional murder is regulated under Articles 81 and following of the Turkish Penal Code in the section titled “Crimes Against Persons” and in the first chapter titled “Crimes Against Life.”

Article 81 – A person who intentionally kills another person is punished with life imprisonment.

The crime of intentional murder can be committed by anyone. However, the same person cannot be both the perpetrator and the victim. That is, suicide is not included in this crime. Additionally, suicide itself is not a crime, but inciting someone to commit suicide is a criminal offense. This offense is covered under Article 84 of the Turkish Penal Code:

Article 84 – A person who incites or encourages someone to commit suicide, strengthens another person’s decision to commit suicide, or assists another person in any way to commit suicide, is punished with imprisonment for two to five years.

If suicide occurs, the person is punished with imprisonment for four to ten years.

A person who publicly encourages others to commit suicide is punished with imprisonment for three to eight years. (The second sentence has been repealed: 29/6/2005 – 5377/10th article.)

Individuals who do not have the capacity to understand the meaning and consequences of their actions or those who are influenced by such individuals to commit suicide, as well as those who use force or threats to compel others to commit suicide, are held responsible for the crime of intentional murder.

In order for the act of killing to be carried out, the victim must possess certain characteristics:

The condition of being human
The condition of being alive

Is the Crime of Intentional Killing Subject to Complaint and Mediation?

The crime of intentional killing is not subject to complaint. It can be investigated and prosecuted ex officio. Even if the complaint is withdrawn, the public case continues. Additionally, the crime of intentional killing is NOT among the crimes subject to mediation.

Can the Crime of Intentional Killing Be Committed by Negligence?

If the crime of intentional killing is committed by negligence, the crime of “Killing by Negligence” will occur. This crime is specified in Article 85 of the Turkish Penal Code (TCK).

Article 85 – A person who causes the death of another person by negligence shall be punished with imprisonment from two to six years.

If the act results in the death of multiple people or the death of one or more persons along with the injury of one or more persons, the person shall be punished with imprisonment from two to fifteen years.

The Simple Form of the Crime

According to Article 81 of the Turkish Penal Code (TCK),

“A person who intentionally kills another person shall be punished with life imprisonment.”

Circumstances Requiring a Heavier Punishment

Article 82 of the Turkish Penal Code (TCK) regulates the aggravated form of the crime of intentional murder. If the crime of intentional murder is committed in the following ways, the person shall be punished with aggravated life imprisonment:

By premeditation,
With sadistic feelings or by inflicting torture,
By using fire, flooding, destruction, sinking, bombing, or nuclear, biological, or chemical weapons,
Against an ascendant or descendant, or a spouse, former spouse, or sibling,
Against a child or a person who is unable to defend themselves physically or mentally,
Against a woman,
Due to the public duty performed by the person,
To conceal a crime, eliminate evidence, facilitate its commission, or avoid capture,
Due to the rage caused by the inability to commit a crime,
For the purpose of vendetta,
For the sake of tradition or honor.

Less Severe Cases

If the crime of intentional killing is committed through negligent behavior, the punishment may range from twenty to twenty-five years in prison instead of aggravated life imprisonment, from fifteen to twenty years in prison instead of life imprisonment, or in other cases, a sentence of ten to fifteen years in prison may be imposed. Additionally, no reduction in the sentence may be applied. The crime of intentional killing committed through negligent behavior is addressed in Article 83 of the Turkish Penal Code:

Article 83 – In order for a person to be held responsible for a death resulting from their failure to perform a specific required act, the failure to fulfill the obligation that caused the death must be equivalent to an act of commission.

In order for negligent and deliberate behavior to be considered equivalent, the person must:

a) Have a legal obligation arising from statutory regulations or a contract to perform a specific act,

b) Have previously engaged in conduct that creates a dangerous situation concerning the lives of others.

For a person who causes death due to the neglect of a specific obligation, the basic punishment may range from twenty to twenty-five years in prison instead of aggravated life imprisonment, from fifteen to twenty years in prison instead of life imprisonment, or in other cases, from ten to fifteen years in prison. Additionally, no reduction in the sentence may be applied.

Effective Remorse

According to the principle of legality, effective remorse can only be applied to the types of crimes that are specifically regulated. There are no provisions for effective remorse in the Turkish Penal Code concerning the crime of intentional murder. Therefore, the provisions for effective remorse will not apply to this crime.

Attempt

The crime of intentional murder is a crime that is suitable for attempt. Although controversial, it can be argued that, as a general rule, attempt is not possible for negligent crimes. This is because negligent crimes are usually result-based offenses that are closely related to the act. However, in cases where the act and result can be separated in the commission of intentional murder through negligent behavior, an attempt may be considered.

Execution Regime for the Crime of Intentional Murder

As stated in Article 81 of the Turkish Penal Code, the penalty for committing the crime of intentional murder is life imprisonment. In intentional crimes, for offenses with a penalty of less than one year, it is possible for the sentence to be converted into a judicial fine. Therefore, the penalty for the crime of intentional murder cannot be converted into a judicial fine.

In order to decide on the deferral of the pronouncement of the judgment (HAGB), the following conditions must be met:

a) The defendant must not have been previously convicted of an intentional crime,

b) The court must be convinced that the defendant will not commit another crime, considering the defendant’s personal characteristics and behavior during the trial,

c) The harm caused to the victim or the public by the commission of the crime must be completely remedied by restitution, restoration to the previous state, or compensation,

d) The defendant must accept the deferral of the pronouncement of the judgment.

For the decision of deferral of the pronouncement of the judgment to be made, the imposed prison sentence must be 2 years or less. Therefore, a decision for the deferral of the pronouncement of the judgment cannot be made for the crime of intentional murder.

If a person is sentenced to a prison term of two years or less for a crime committed during the trial, the sentence may be postponed (Article 51 of the Turkish Penal Code). The maximum limit for this period is three years for individuals who were under 18 or over 65 years old at the time of committing the offense.

In order for a deferral decision to be made, the person must:

The person must not have been sentenced to more than three months of imprisonment for a deliberate crime in the past.
The court must form an opinion that the person will not commit another crime due to the remorse shown during the trial process after committing the crime.

The institution of postponing the sentence cannot be applied in cases of intentional killing.

Relevant Court of Cassation Decisions

“In the case against the defendant for the crimes of damaging property and attempting to intentionally murder the victim …, it was understood that the acquittal decisions made prior to the appeal had become final. Therefore, the newly established acquittal decisions related to the same crimes were deemed legally void, and it was decided to exclude them from the appeal examination.

Regarding the defendant …, the court, after considering the arguments that there was insufficient evidence to convict him for intentionally killing the victim … and attempting to intentionally murder the victims … (1944), … (2004), Keziban, and Hüseyin, found that the evidence was not of sufficient quality or degree to support a conviction. As a result, the defendant was acquitted under Article 223/2-e of the Turkish Criminal Procedure Code (CMK No. 5271). No error was found in the court’s decision, and the objections of the Aile ve Sosyal Politikalar Bakanlığı (Ministry of Family and Social Policies) representative, which focused on incomplete examination and the need for a conviction, were rejected. The acquittal decision was upheld as stated in the opinion of the notification, with unanimous decision on 14.05.2019.” (Court of Cassation, 1st Criminal Chamber, 2019/1485 E., 2019/2715 K.)

“In the case against defendants Mehmet and İlker for aiding in the attempted intentional murder of the victim …, and defendant … for aiding in the attempted intentional murder of the victim …, and defendants …, …, and … for aiding in the attempted intentional murder of victims …, the acquittal decisions made were not subject to appeal. Therefore, no decision was made on the matters mentioned in the opinion of the notification regarding these points.

According to the court’s findings and application, it was concluded that the crime of aiding in the intentional murder of the victim … by defendants …, …, …, …, …, …, and … could not be established. There was no error in the conviction of defendant … for the violation of Law No. 6136, or in the classification of the crime committed against the victim …. Furthermore, the opinion in the notification regarding the application of the unjust provocation defense to defendant …’s actions towards victim … and defendant …’s actions towards the deceased … and victim … was not accepted.”

“The victim’s defense counsel’s request for the appeal of the acquittal judgments regarding defendants …, …, and … for the attempted intentional murder of the victim … was rejected, as the defense counsel did not have the right to appeal due to not being authorized as the victim in relation to the mentioned defendants. Therefore, the appeal request was rejected in accordance with Article 317 of the Code of Criminal Procedure (CMUK).

The victim’s legal representative’s request for the appeal of the acquittal judgments regarding defendants … and … for violating Law No. 6136 was also rejected, as they did not have the right or authority to appeal in accordance with Article 317 of CMUK.

Regarding the scope of the appeal, the court reviewed the acquittal judgments for the following charges: intentional murder against the deceased … by defendant …; aiding in the intentional murder of the deceased … by defendants …, …, …, …, …, …, and …; aiding in the attempted intentional murder of victim … by defendants …, …, …; and attempted intentional murder of victim … by defendant …. The court also examined the convictions for violations of Law No. 6136 and other charges, based on the gathered evidence.

The court found that the evidence presented was sufficient to prove the guilt of the defendants in the charges against them. The evidence was analyzed in accordance with the case facts and investigation results. In conclusion, the court affirmed the acquittal decisions for some charges, while also rejecting the objections raised in the appeal. The court ruled in favor of the decision as it was, dismissing the appeal requests of the defense counsel and victim’s legal representatives.

The appeal request for the acquittals of defendants … and … for violating Law No. 6136, defendant … for the qualified threat against victim …, defendant … for the intentional murder of the deceased …, and others was partially affirmed as stated in the notification.”

B- “Regarding the conviction judgments established for attempted intentional injury against victim … by defendant …, and attempted intentional murder against victim … by defendant …, as well as the acquittal judgments for aiding in the intentional murder of the deceased … by defendant …, and attempted intentional murder against victim … by defendant …:

In the case of defendant … firing multiple shots at victim … without hitting the target, it was understood that the action constituted an attempted intentional murder. However, instead of being sentenced under Articles 81 and 35 of the Turkish Penal Code (TCK), the defendant was erroneously sentenced for attempted intentional injury as specified in the written judgment.
Regarding defendant … fighting with the deceased … and hitting their head with a stick, as evidenced by the CD footage, it was understood that the defendant participated in aiding the intentional murder of the deceased …, under the provisions of Articles 81 and 39 of the TCK. However, the defendant was wrongly acquitted instead of being sentenced for aiding in the intentional murder of the deceased …
Regarding defendant … causing a third-degree ulna fracture in the right forearm of victim …, leading to permanent dysfunction of one of their organs and severe injuries to the left forearm and left leg, the judgment applied Articles 35 of TCK, which prescribes a prison sentence of 9 to 15 years. Given the severity of the harm and danger, a reasonable sentence should have been determined, but the court imposed a sentence near the upper limit.
Regarding defendant …’s statements during the trial that they fired at victim … but missed, it was concluded that defendant … should have been sentenced under Articles 81 and 35 of the TCK for attempted intentional murder of victim …, but was erroneously acquitted instead.

These issues required a reversal, and the appeal requests of the victim’s legal representative, the defendant’s defense counsel, and the victim’s legal representative were deemed justified. Therefore, the judgment was partially reversed as per the opinion in the notification, and a unanimous decision was made on 06/10/2020.” (Court of Cassation 1st Criminal Chamber, 2020/1046 E., 2020/2202 K.)

“Regarding the appeal requests, it is understood that the defense counsel of the defendant is appealing only the conviction regarding the intentional murder of the deceased …; the legal representative of the Family, Labor, and Social Services Ministry is appealing only the conviction regarding the intentional murder of the deceased …; and the legal representatives of … and Hasan Hüseyin are appealing only the convictions regarding the intentional murder of the deceased …, the intentional murder of the deceased …, and the attempted intentional murder of victim … by the defendant. Therefore, in the examination of these judgments:

The gathered evidence was reviewed, and it was accepted that the defendant intentionally murdered the deceased …, the deceased …, and the deceased … and attempted to intentionally murder the victim …, in accordance with the case facts and investigation results. The nature of the crimes was determined, and since there was no mitigating factor, the defendant’s defenses were rejected for lack of credible justification. After reviewing the case file, no errors were found in the judgments rendered after the reversal.

The defense counsel’s request for a reduction based on unfair provocation in the conviction for the intentional murder of the deceased … was rejected, as were the claims of the legal representative of the Ministry and the representatives of … and Hasan Hüseyin, who argued that the defendant premeditated the murders of the deceased …, …, and attempted to intentionally murder victim … . Therefore, the appeal objections were dismissed, and the judgments were upheld in accordance with the opinion in the notification. A unanimous decision was made on 16/06/2020.” (Court of Cassation 1st Criminal Chamber, 2020/542 E., 2020/1323 K.)