Premeditation as an Aggravated Form of Intentional Homicide, Carrying a More Severe Penalty

The right to life is the most fundamental and inalienable human right, guaranteed in the Constitution of the Republic of Turkey, the European Convention on Human Rights (ECHR), and numerous national and international texts. The Turkish Penal Code (TCK) also concretizes this protection by imposing severe penalties for violations of the right to life. In this context, the crime of "Intentional Homicide," regulated in Article 81 of the TCK, directly serves the purpose of protecting the right to life. Article 82 of the Code lists the aggravated circumstances of this crime, the foremost of which is committing the crime with premeditation .

Design in Light of Supreme Court Jurisprudence

The Supreme Court, when determining the existence of premeditation in an incident, seeks the cumulative (simultaneous) presence of certain criteria. These criteria are: the perpetrator's unconditional decision to commit the act, the passage of a reasonable period between the decision and the execution , the perpetrator's persistence in their decision during this period , and the act being carried out according to a specific plan . In its assessments regarding the nature of premeditation, the Supreme Court sometimes utilizes the "cold-bloodedness" theory and sometimes the "planning" theory, depending on the specific characteristics of the case.

Theories in Design Doctrine

There are two main views that stand out in doctrine regarding the content of design:

• Planning Theory: According to this theory, premeditation exists if the perpetrator, in the time between deciding to commit the crime and actually carrying it out, has determined the location, time, method of commission, and means to be used. The focus here is on the systematic planning involved in preparing the crime.

• Cold-Blood Theory: According to this view, premeditation exists if the perpetrator has achieved a state of mental calmness during the time it takes to commit the crime and carries out the act with cold-bloodedness. The insensitivity and determination the perpetrator feels while performing the act symbolizes their "subjective dangerousness" and mental wickedness.

The Legal Significance of the Theoretical Distinction in Practice

The choice between the theories is of critical importance, especially regarding the applicability of the provisions on Unjust Provocation (Turkish Penal Code Article 29) :

1. the Planning Theory , the fact that the perpetrator made a plan does not prevent the continuation of the anger or distress caused by the wrongful act before the incident. Therefore, the provisions regarding premeditation and unjust provocation can be applied together.

2. the Cold Blood Theory , the state of calm achieved by the perpetrator contradicts the "anger and intense distress" required by unjust provocation. Since these two states of mind cannot exist simultaneously, applying a reduction in sentence due to unjust provocation would not be legally possible if the Cold Blood Theory were accepted.

Sanction: Aggravated life imprisonment

In the basic form of the crime of intentional homicide (Article 81), the perpetrator is punished with life imprisonment. However, if the crime is committed under aggravating circumstances such as premeditation as defined in Article 82, the sentence aggravated life imprisonment . There are significant differences between these two types of punishment, to the detriment of the convict, in terms of the execution regime, the duration of solitary confinement, social rights, and conditional release periods.