In practice, the types of crime regulated in the second part of Law No 5237 entitled ‘Offences Against Persons’, specifically intentional homicide and intentional injury, are practically intertwined with one another. Because, provided that the act does not result in the victim's death, Turkish Penal CodeIn practice, if the offence remains at the ’attempt‘ stage regulated under Article 35 of the Turkish Criminal Code (TCK), whether it constitutes attempted intentional homicide or intentional injury gives rise to various problems.
Indeed, in cases where the consequence occurring to the victim does not result in death, the intent with which the perpetrator acted becomes important. Although it is obvious that this will vary in each specific case, the type of offence and the penalty will be different when the perpetrator acts with the intent to kill, and different when they act with the intent to cause injury.
The purpose of this article is to clarify the offences of attempted intentional homicide and intentional injury in the light of the Turkish Penal Code and Court of Cassation decisions.
What is Attempted Intentional Homicide?
Attempted intentional homicide is the situation where, although the perpetrator acts with the intent to kill the victim, the act does not result in death. That is, the perpetrator acts with the aim of ending the victim's life, but this aim is not realised. This situation, Under Article 35 of the TCK It is connected to the concept of “attempt”, which will be examined in more detail shortly.
For example, shooting a person in a vital organ but without death occurring is considered within the scope of attempted intentional homicide. The important point here is the perpetrator's intent. If the perpetrator's purpose is to kill and death does not occur, the crime is accepted as attempted murder rather than wounding.
Intentional wounding
Intentional wounding is when the perpetrator causes physical harm to the victim but does not intend to take the victim’s life. Article 86 of the Turkish Penal Code defines intentional wounding as follows:
“A person who intentionally inflicts pain on another person's body or causes impairment to their health or perception shall be punished.”
Therefore, even if the victim’s life was endangered or they sustained a serious injury, if the perpetrator's intent was not to kill, it is classified as intentional wounding.
At this point, the following question may arise in the reader's mind: “So, how is it decided whether an act that remains at the attempted stage constitutes intentional injury or attempted murder?” This is precisely where the concept of attempt comes into play.
What is an Attempt?
the concept of ‘attempt’, which is the act where the crime of intentional killing approaches the crime of intentional injury is considered to be the reason why the act in question did not result in a fatality. If the perpetrator had been able to complete their act and kill the victim, there would naturally have been no question of wounding whatsoever.
The concept of ‘attempt’ is regulated in Article 35 of Law No. 5237 as follows: ’If a person directly commences to execute an offence they intend to commit through suitable acts, but cannot complete it due to reasons beyond their control, they shall be held liable for an attempt.’ With the second paragraph of the relevant provision of the Law, it is stipulated that a reduction shall be applied in respect of an offender who fails to complete their executing act.
The Role of Intent in Attempt
Starting from the literal text, the provision firstly requires that the offence be committed intentionally. The concept of intention, regulated under Article 21 of the TCK (Turkish Penal Code), is the knowing and willing realisation of the elements in the legal definition of the offence.
Under these circumstances, the intent of the perpetrator must be directed towards the goal of completing the crime they intended to commit. For example, if the perpetrator directs knife blows at the victim's vital organs, this is considered intent to kill.
Acts Conducive to Crime
Continuing our examinations from the literal wording of the text once again, the perpetrator commencing the execution directly with acts suitable for committing the crime has been another element required for the existence of an attempt. As a rule, [not] being concerned with preparatory acts Criminal Law at this point, it has been requested that the perpetrator directly commence the execution of the act.
Thus, preparatory acts are not punished as a rule. However, the perpetrator commencing the direct execution acts indicates that the attempt stage has now been reached. For example; while sharpening a knife is a preparatory act, attacking the victim with a knife is an execution act.
Attempt prevented by circumstances beyond one's control
The final condition required for an act to be deemed an attempt is that the offence could not be completed for reasons beyond the perpetrator’s control. Thus, if the perpetrator were to desist from the act for reasons within their control, it would not be possible to characterise the act as an attempt.
As this is the case, the points to be considered in the drafting of the text emerge as the perpetrator starting their action with suitable acts, yet failing to complete the execution act due to reasons beyond their control.
That is to say, if the perpetrator begins the act with the intent to kill, but the crime is not completed due to external obstacles (for example, police intervention, the victim being saved in hospital), it is considered an attempted offence.
The Case Examined by the Court of Cassation
The decision of the General Assembly of Criminal Chambers of the Court of Cassation that we are examining will concern the judgement of the Izmir 3rd Heavy Penal Court dated 01.02.2006 and numbered 107-17. The incident heard in the Izmir 3rd Heavy Penal Court, which is the local court of the relevant judgement, unfolded as follows;
It is understood from the evidence in the case file that the victim K., who came to the pub named Ç. PUB in Şirinyer, İzmir, operated by the accused D. Ç., in an intoxicated state at around 24:00 on 27 July 2003, and after drinking with a friend for a while, started an argument following the warning that the pub was closing and wanted to leave without paying the bill; that a few minutes after being taken outside, the victim came to the front of the workplace with a knife and broke the windows of the pub; that although the accused D. Ç., who went outside along with his staff, told the victim to go away, the victim did not leave the front of the workplace; that the accused managed to seize the knife from the victim's hand by struggling when he found an opportunity; and that subsequently, during the fight that broke out in the darkness of the night while an attempt was being made to forcibly remove the victim from in front of the pub, a knife blow swung randomly by the accused hit the victim in the abdominal region, causing the victim to be injured in a life-threatening manner due to a stab wound that did not cause internal organ damage.
In summary; it has been established that during the fight between the defendant and the victim in the incident, the defendant stabbed the victim in a manner that endangered their life, but death did not occur.
Local Court and Court of Cassation Decisions
The defendant was sentenced to 1 year, 10 months and 15 days' imprisonment pursuant to Articles 81, 35/2, 29 and 62 of the Turkish Penal Code (TCK) within the scope of the existing evidence in the file and the ongoing trial. This decision was brought to the court of appeal upon the objections of the defendant's counsel, and the 1st Criminal Chamber of the Court of Cassation overturned the local court's decision with its ruling dated 03.07.2007 and numbered 7543-5426, on the grounds that the offence of attempted intentional murder attributed to the defendant was handed down despite the understanding that there was no evidence showing that vital areas were targeted and the action could not be continued due to an obstacle in the incident where the defendant injured the victim with a knife causing internal organ injury during a nighttime altercation in the file reviewed by the board in its capacity as a supreme court.
The local court insisted on its previous judgement against the reversal decision from the Court of Cassation, stating that, given the knife striking a vital area, it had become clear that the defendant's intent was to commit murder.
Upon this judgement also being appealed by the defence counsel and the Public Prosecutor, the case file was sent to the First Presidency of the Court of Cassation with the notification dated 26.03.2008 containing the opinion of the Office of the Chief Public Prosecutor at the Court of Cassation for the “quashing of the judgement”, and was evaluated by the Criminal General Board of the Court of Cassation and resolved with the following grounds.
Court of Cassation Decision: Distinction Between Intentional Injury and Attempted Intentional Homicide
Effective action Actual bodily harm The distinguishing criterion between the offence and the offence of attempted intentional homicide is based on the difference in the mental element. In the first case, only the lighter result (assault and battery) is intended, and the heavier result (death) is not intended. If the perpetrator intends for the heavier result to occur, it is accepted that the intent is directed towards homicide.
- If the perpetrator's intention is merely to injure, the crime is considered as intentional injury.
- If the perpetrator’s intention was to kill but the act was not carried out, the offence in this case is attempted murder.
Therefore, accurately determining the perpetrator's intent in every incident is of critical importance in terms of the sentence to be given.
How is intent to kill determined?
Intent, which is the will to commit the act knowingly and willingly and concerns the inner world of the perpetrator, must be determined by taking the perpetrator's behaviours before, during and after the incident as a baseline. The existence of the intent to kill, on the other hand,;
- whether there was any hostility between the perpetrator and the victim prior to the incident that would require killing,
- whether the vehicle used in the incident was capable of causing death,
- The number and severity of blows to the victim,
- Whether the area where the strikes were delivered is of vital importance or not,
- Whether the failure ceased by itself or due to a blocking reason,
- The conduct towards the victim following the incident, in other words, must be determined by taking into account all the specific characteristics of the incident.
In short; the perpetrator's intent is determined by evaluating elements such as the events leading up to, during, and after the incident, as well as the weapon used, and the number and severity of the blows as a whole.
Conclusion: Acceptance of Intent to Injure in the Incident
In summary, in the examined case, the defendant was initially sentenced to 1 year, 10 months and 15 days' imprisonment pursuant to Articles 81, 35/2, 29 and 62 of the Turkish Penal Code (TCK). However, upon the appeal of the defendant's counsel, the case file was appealed.
The 1st Criminal Chamber of the Court of Cassation reversed the local court's decision, stating that there was insufficient evidence to show that the perpetrator had the intent to kill the victim. The local court, insisting on its decision, argued that “given that the knife struck a vital region, it is clear that the defendant's intent was to kill.”.
In light of these explanations, when the specific incident is evaluated; given that there is no evidence showing that the defendant, who during the chaotic environment of a nighttime brawl injured the victim with a single randomly swung knife blow in a manner that would not cause internal organ injuries, specifically targeted vital areas or that there was any obstacle preventing him from continuing his action, it must be accepted that he acted with the intent to injure. In this regard, it has been ruled that the decision to resist by the Local Court must be quashed.