intentional homicide, attempted intentional homicide appeal petition

APPLICATION NO: 2025/118

To be submitted to the relevant Criminal Division of the Istanbul Regional Court of Justice, via the Istanbul 12th High Criminal Court.

CASE NO: 2024/... Main CASE NO: 2025/... Decision

DEFENDANT APPEALING TO THE APPELLATE : MK (Turkish Republic Identity Number: ………………….) (Detained) – Maltepe Closed Penitentiary

DEFENSE ATTORNEY: Attorney Aydanur NAS (Address: Istanbul Bar Association – Levent Mah. Hukukçular Plaza, No: 4 Beşiktaş/ISTANBUL)

PLAINTIFF: KH (Public Law)

PARTICIPANTS: 1. MONTH 2. BY

CRIME: Intentional Homicide, Attempted Intentional Homicide

SUBJECT: The request is for the annulment of the conviction judgment issued by the Istanbul 12th Heavy Penal Court on …/…/2025, which sentenced the defendant client to life imprisonment (18 years with reduction for unjust provocation) for the crime of "Intentional Homicide" and 10 years imprisonment for the crime of "Attempted Homicide," due to its being contrary to procedure and law; for the case to be reconsidered by your Chamber and, consequently, for the client to be ACQUITTED or for favorable provisions to be applied.

DATE OF NOTIFICATION: …/…/2025

EXPLANATIONS AND GROUNDS FOR APPEAL

The decision rendered by the Local Court does not correspond to the factual circumstances of the case, and was based on a ruling that disregarded the manner in which the incident occurred, the defendant's psychological state, and the fundamental principles of criminal law (the principle that the defendant benefits from doubt, the principle of culpability). As stated in the source file, it is a general rule of criminal law that the perpetrator should not be held responsible for an unintended outcome. However, the Local Court evaluated the client's action, which was carried out in a desperate act of self-defense, entirely within the limits of legitimate self-defense, and under severe provocation, as if it were a cold-blooded act of "premeditated murder," thus rendering an unlawful judgment.

For the reasons listed below, the Local Court's decision must be overturned and the case retried:

I. MATERIAL FACTS AND THE ACTUAL NATURE OF THE EVENT

On the day of the incident, my client MK was walking home after closing his workplace when he encountered the complainant AY, with whom he had a previous business dispute and animosity, and the deceased's brother CY, who was with him at the time of the incident.

The complainant, AY, blocked the client's path, severely insulted him, and threatened him, saying, "I will finish you here and ruin your family." The client tried to de-escalate the situation and move on, but the complainant, AY, reached for his waist as if drawing a weapon, and at that moment, the victim, CY, surrounded the client. Fearing for his life due to the previous threats and the apparent attack, the client drew his licensed firearm and fired shots into the air and at ground level without aiming, intending to scare and ward off the attack

Unfortunately, a bullet fired by the client in an attempt to fend off the attack ricocheted or went off target and struck the victim's brother, CY, who was standing next to the complainant, causing his death. The main attacker, AY, was unharmed.

II. DISREGARD FOR THE PROVISIONS OF SELF-DEFENSE (Turkish Penal Code Article 25)

The local court, in evaluating the incident, did not discuss the provisions of Article 25 of the Turkish Penal Code No. 5237 concerning "self-defense," nor did it take into account the "state of necessity" in which the defendant found himself.

1. Existence and Proximity of the Attack: At the time of the incident, the complainant, AY, verbally attacked the client, threatening him by saying, "I will kill you," and reached for his waist, indicating that he was about to initiate a physical attack. Considering past animosities and the complainant's criminal record, the client believed this action was not a bluff and that his life was being threatened. According to Supreme Court precedents, it is not necessary for the attack to have already begun; the certainty of its beginning (imminent attack) is sufficient for self-defense.

2. Proportionality of Self-Defense: The client was cornered by two people, had no escape route, and believed the other person was armed. Under these circumstances, drawing and firing a weapon from one's waistband is a self-defense reflex consistent with the normal course of events. The client did not aim at vital areas with the intention of killing; he pulled the trigger in a state of panic.

As emphasized in the source petition, it is unlawful to impose such a severe sentence on the defendant, who, in response to an attack against himself, fired his weapon in a fit of rage/panic, hitting someone other than his intended target. The court did not analyze the grounds for self-defense at all.

3. Exceeding the Limits of Legitimate Self-Defense (Turkish Penal Code Article 27/2): Even if the court concluded that the act did not constitute legitimate self-defense, it should have applied Article 27/2 of the Turkish Penal Code. The text of the article states: "If the limits of legitimate self-defense are exceeded due to justifiable excitement, fear, or panic, the perpetrator shall not be punished." My client acted out of terror and fear (justifiable excitement) caused by being cornered by two adversaries at night.

III. INCOMPLETE APPLICATION OF PROVISIONS ON UNJUST PROVOCATION (Turkish Penal Code Article 29)

The local court committed a grave error by applying the reduction for unjust provocation at the lower limit (minimum level). However, the provisions of Article 29 of the Turkish Penal Code, concerning "severe unjust provocation," should have been applied in this case.

1. The Extent and Continuity of Provocation: The complainant had repeatedly threatened my client, raided his workplace, and made defamatory accusations against his family prior to the incident. The words spoken on the day of the incident were the final straw. As stated in a source file dealing with a similar legal situation, when applying the principle of unjust provocation, not only the words spoken at the time of the incident but also the chain of accumulated and continuous wrongful acts (sequential actions) from the past should be considered.

2. There Was "Severe" Provocation, Not "Mild" Provocation: In its reasoned decision, the court characterized the complainant's insults as "simple/mild provocation." However, according to the decisions of the Supreme Court Criminal General Assembly, attacks on a person's honor, right to life, and family integrity that are of a continuous nature fall under the scope of "severe provocation." Thecomplainant's severe threats against the client's family and person, such as "I will destroy you, I will leave your wife a widow," and his reaching for his waist, did not constitute a simple outburst of anger, but created severe trauma and fear. According to Supreme Court precedents, considering the circumstances of the provocateur and the provoked party, as well as the place and time of the incident, the provocation should be considered severe and intense.

IV. DEVIATION FROM THE TARGET (ABERRATIO ICTUS) AND ABSENCE OF INTENT

The biggest legal error in the case lies in the "determination of the nature of the crime." The court sentenced the client separately for both the murder of the victim CY and the attempted murder of the complainant AY. However, there is only one act and one intent to defend oneself.

1. Debate on Possible Intent or Negligence: The client had no animosity towards the victim, CY. There was no reason for the client to kill the victim. While the client was trying to stop the attacker, AY, the bullet ricocheted or, due to an error in aiming, hit CY. This situation is referred to as "Deviation in Aim" in legal doctrine and Supreme Court practice. In the case of deviation in aim, even if the perpetrator's intent was "to kill," this intent was directed towards the person they targeted (AY). The death of a third person (CY) should be evaluated not as intentional killing, but as "Homicide with Possible Intent" or "Homicide by Negligence," depending on the circumstances. The client did not want, or even foresee, CY's death.

2. Prohibition of Double Punishment: The client acted with the intention of using a single weapon in a single incident. However, the Court erred by choosing to impose penalties for two separate crimes for a single act of the defendant. As correctly stated in the source file, if the death of the victim is caused by an error or deviation from the target without intent, imposing a separate penalty for attempted murder (especially within the limits of self-defense) is inappropriate. A single bullet or burst of shots hit the victim as a result of a random shot. According to the established jurisprudence of the 1st Criminal Chamber of the Court of Cassation, in cases of deviation from the target, the perpetrator's action should be considered as a single crime, or the provisions of concurrent offenses (Turkish Penal Code Article 44) should be discussed, and a verdict should be given for the crime requiring the heaviest penalty. Imposing separate penalties for both attempted murder and completed murder constitutes a violation of the principle of "Ne bis in idem" (No double jeopardy).

V. THE DEFENDANT'S MENTAL STATE AND "INSANITY"

At the time of the incident, the client's will was under the influence of fear, panic, and a fit of rage (insanity). The client lost control in the face of threats directed at himself and his family. As emphasized in the source file, the defendant's mental state in the face of the tragic events and society's perception of these events is commendable. It is erroneous to render a judgment without sufficiently investigating, through the Forensic Medicine Institute, whether the defendant suffered an insanity or a loss of consciousness that would affect his criminal responsibility (Turkish Penal Code Article 32 or Article 34) in response to the events at the scene.

VI. EVALUATION IN LIGHT OF SUPREME COURT DECISIONS

Below are examples of established Supreme Court rulings that support our arguments:

• Turkish Supreme Court, 1st Criminal Chamber, Case No. 2003/3928, Decision No. 2004/2409, Date: June 18, 2004. In this decision, the Supreme Court, while evaluating the extent of unjust provocation, considered the existence of events that damaged the defendant's honor and diminished his reputation in society as a reason for "severe provocation." The threats to which the client was subjected, such as "I will destroy you, I will take your wife," meet the criteria for severe provocation sought by the Supreme Court.

• The Supreme Court of Turkey, Criminal General Assembly, Case No. 2004/1-117, Decision No. 2004/148, Date: June 22, 2004, stated that when determining the degree of provocation, the manner, place, nature, and time of the wrongful act, as well as the circumstances of the parties, must be taken into consideration. Furthermore, it must be accepted that the provocation reaches a severe level if the wrongful acts, each constituting simple provocation, are "repeated" (occur consecutively). The actions against our client were not a one-off occurrence; they were the result of a systematic chain of pressure and threats.

• CASE LAW REGARDING DEVIATION FROM TARGET In Supreme Court decisions, there are rulings stating that if the defendant, acting in self-defense, accidentally shoots a third person due to deviation from the target as a result of excitement and fear, Article 27/2 of the Turkish Penal Code (exceeding the limits) should be applied and no punishment should be imposed.

VII. REQUEST AND CONCLUSION

 

My client, MK, was completely passive on the day of the incident when he was ambushed by the complainant and the victim, subjected to severe insults, and his life was threatened. The evidence in the case file shows that my client acted "out of self-defense," not "with the intent to kill." However, the Local Court;

1. By not applying the provisions of self-defense and exceeding the limits,

2. By applying the principle of "mild" provocation instead of "severe" provocation,

3. By treating a death resulting from a deviation (mistake) from the target as if it were intentional harm and imposing a double penalty, the court acted contrary to procedure and law.

CONCLUSION AND REQUEST:

For the reasons stated and explained above, and for the reasons to be considered ex officio;

1. The decision of the Istanbul 12th High Criminal Court dated …/…/2025 and numbered 2024/… is hereby OVERTURNED on APPEAL.

2. The case is hereby referred to your Chamber for reconsideration and judgment, in a hearing

3. the defendant's actions SELF-DEFENSE (Turkish Penal Code Article 25), and therefore, the defendant was ACQUITTED or there was NO GROUNDS FOR IMPOSING A PENALTY.

4. If the court is of the opposite opinion, the act should be evaluated within the scope of exceeding the limits of legitimate self-defense due to excitement and fear (Turkish Penal Code Article 27/2)

5. If this is also not accepted, then the provisions of the Turkish Penal Code Article 29 regarding SEVERE UNJUST PROVOCATION shall be applied to the client at the highest level.

6. The classification of the crime should be changed to "Homicide by Probability" or "Homicide by Negligence" to prevent double punishment

7. Considering the time my client has spent in custody and the potential sentence he may receive (after reductions), I request for his RELEASE .

I respectfully submit this request on behalf of my client. 27.11.2025

Defendant's Counsel Attorney Aydanur NAS