Should Unfair Incitement Discount Be Applied If The Victim Is Insulted And There Is Mutual Blasphemy In the Crime of Intentional Homicide

T.C. SUPREME

1.Criminal Department
Based on: 2016/424
Decision: 2017/684
Date of Decision: 7.03.2017

ABSTRACT: It is against the law for the accused to be convicted of intentionally killing the victim by insulting the victim and accepting that he committed the crime under the influence of unfair incitement caused by mutual blasphemy, and instead of making a minimum reduction from his sentence in accordance with the provisions of unfair incitement, there is no place for the application of unfair incitement provisions as a result of a false assessment, and the provision must be overturned.

(5237 Pp. K. m. 29, 53, 62, 81) (ANY. MAH. 08.10.2015 T. E. 2014/140 2015/85 K.)

The collected evidence was examined at the place of the verdict, the defendant …’s guilt of intentionally killing the victim … was accepted as a crime in accordance with the results of the investigation, it was determined that there was no reason to reduce the sentence, the defense was rejected on convincing grounds, the defendant’s defense was subjected to incomplete examination, according to the file under review, since there was no evidence other than the reasons for overturning the verdict, according to the TCK 62. rejection of other appeals that are directed to the fact that the article should be applied and are not considered appropriate,

But,

According to the formation and acceptance; it is understood that the victim invited the defendant to his Dec to buy alcohol, sent the defendant to the grocery store to buy potato onions, there was an argument between them because the defendant took it as a file, and they swore at each other in the resulting argument, and this was confirmed by the witness …,

The defendant … is guilty of intentionally killing the victim … by admitting that he committed the crime under the influence of unfair incitement caused by the insult of the victim and mutual blasphemy 29 of the TCK. instead of making a minimum discount in accordance with the article, as a result of an erroneous assessment, it is decided that there is no place for the application of this article,

the decision of the Constitutional Court dated 08.10.2015, based on 2014/140 and numbered 2015/85, published in the Official Gazette dated 24.11.2015, and Article 53 of the TCC No. 5237. in accordance with the abrogated sections of the article, there is an obligation to re-evaluate the defendant’s legal status,

Contrary to the law, since the appeals of the defendant’s defense are considered in place as of this moment, it was decided unanimously on 07.03.2017 to OVERTURN the decision in accordance with the opinion in the communique, to REJECT the defendant’s request for release taking into account the amount of penalties imposed and the time spent in detention other than the appeal review, considering the defendant’s request for release.

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