SELF-DEFENSE IN CRIMINAL LAW - CASE STUDY

Self-defense is defined in the Turkish Penal Code (TCK) as a definitive state of lawfulness , and a person acting in self-defense is not punished for their actions. Although it is regulated in a single article and paragraph (TCK Article 25/1), it is important to examine this situation under six subheadings for understanding. If we group these six subheadings into two main headings, self-defense first manifests itself as conditions relating to the attack and conditions relating to the defense

It's worth noting for those wondering about their rights in self-defense that, throughout millions of years of evolution, from hunter-gatherer to agricultural societies, the primary thought has always been self-preservation . Just as a farmer, after a bountiful harvest, protects himself during the winter and ensures his survival, he will similarly protect himself from an attack, just as he protects himself from starvation. Therefore, the point I want to make is that a person whose existence is inevitably threatened should not be held responsible for the damages caused, but rather, if they do not protect themselves at that moment, what happens afterward will be meaningless. German legal experts, who witnessed firsthand what one human being could do to another during the Nazi era in World War II, adopted a stance that protected human life and dignity to the fullest extent. When defending one's existence, the question that should come to mind is not , "Will I have to pay compensation?" but, " How can I escape this attack?"

CIRCUMSTANCES RELATING TO THE ATTACK

It Must Be an Unjustified Attack

The attack must be a voluntary human action. Self-defense, for example, cannot be applied against an aggressive animal. This is explained by the state of necessity regulated in Article 25/2 of the Turkish Penal Code . What we need to note here is that self-defense depends on human behavior, and there are other ways to defend against other attacks.

Attacks don't always occur through active action; negligence . A typical example is a caregiver failing to administer vital medication to a patient, leading to their death—this constitutes an attack through negligence.

In the event of a reciprocal attack, the party initiating it cannot invoke the justification of lawfulness. If a state authority is used unlawfully, legitimate self-defense is possible even if the person using the authority believed it to be lawful.

The attack must be directed against justice

For a situation to constitute self-defense, the attack against a person must be directed at a right that the person might potentially suffer harm from . Rights such as bodily integrity, honor, freedom, privacy, and property rights are among the rights that can be protected under the scope of self-defense.

An unlawful attack does not necessarily have to be directed at the person being attacked. also be exercised to protect the rights of a third party. For example, if a creditor corners your father on the street and is highly likely to harm him physically, in this case, if you, as his child, launch a counter-attack to defend your father's rights, this act would also be considered self-defense.

The attack must still exist

A crucial point to determine and define in self-defense is whether the attack is ongoing or has already ended. Self-defense does not apply to an attack that has already concluded. In this case, at most, you may receive a reduction in your sentence based on the provisions of provocation for an attack that has already ended.

For example, in cases of recurring harassment and rape, the individual is subjected to harassment at regular intervals. The question to be discussed regarding a person who is harassed at their home or in any neighborhood at certain intervals over a specific period of time is this: If, between the second and third periods of harassment, the individual attacks the aggressor, even killing or injuring them, and escapes, will they be able to benefit from self-defense? In this case, the answer would be yes. In cases of harassment and rape, the fact that the individual is subjected to recurring harassment leads us to the conclusion that the attack is certain to occur again. Therefore, whether the individual benefits from self-defense at the moment of the rape or between periods of recurrence will not pose a problem for the exercise of this right.

 

DEFENSE RELATED CONDITIONS

There must be a necessity for defense

First, it should be stated that no law grants anyone a life of dishonor and indignity, nor does it give anyone excessive rights. In this context, a counter-attack to occur in self-defense. It is also worth repeating that an attack launched after an attack has already taken place will not constitute legitimate self-defense.

For example, if your creditor attacks you with the intention of injuring you to scare you, you run away, a chase ensues, but your creditor cannot catch you, and in this situation, if you become angry because your creditor scared you and return and attack them, this action will not be considered self-defense. At most, you can benefit from the provisions of provocation.

Self-defense must absolutely be directed at the person who committed the attack. For example, if A gets punched by B and then goes on to punch B's son O, that would certainly not constitute legitimate self-defense.

There must be a balance between defense and offense

Undoubtedly, one of the most important aspects of self-defense is proportionality. Whether a defense is proportionate to a particular attack becomes clear within the context of the situation. In this case, the assessment the means .

For example, in the case of responding to an armed attack with a firearm, there is a proportionality in terms of the means used. Similarly, that there is .

The key to understanding the proportionality of a response is that the aim is not to deprive the attacker of their rights, but to protect the rights of the victim. Therefore, the mildest but most effective method should be chosen to counter the attack. A person is not endowed with the right to an ineffective counter-attack within the scope of legitimate self-defense, nor with the right to an attack that causes more harm than the intensity of the initial attack. For example, resorting to a firearm in response to an attack that could be prevented with fists by nearby individuals would constitute exceeding the limits of legitimate self-defense.

Will to Defend

Accordingly, the person making the defense must be aware of the behavior forming the basis of the defense and must also act with the will to defend themselves.

 

COMPENSATION

As mentioned in the introduction, it is also worth addressing the issue of compensation. In cases of self-defense, compensation is not required (Turkish Code of Obligations, Article 64/1). A person is not held liable for damages caused if access to law enforcement is difficult or delayed, and the exercise of their rights is significantly hampered (Turkish Code of Obligations, Article 64/3).

A RECENT CASE STUDY

I would also like to add an analysis of an incident that has been trending on social media. The case of Kadir Şekerci, who intervened to save a man fighting with his wife in a park, has sparked much debate about the existence of self-defense. As mentioned earlier, a person can invoke self-defense not only for their own physical integrity but also for the physical integrity of a third party. Furthermore, in cases of self-defense, there is no need for any family relationship or other connection between the attacker and the third party.

Legal realists generally agree on this point: while we may have introduced many abstract concepts like rights, law, and justice, the real truth lies in the courts. That is, the court will decide based on how events unfold, considering how those events are presented to it. Therefore, our investigation will be limited to the information we obtain from the press. If the court has other critical information at its disposal, it will reach a different conclusion than what we are presenting here. This is why self-defense is such an important and fundamental concept.

According to information we obtained from the press, Kadir stated in his testimony that the park was secluded and that he carried a knife as a precaution against any potential danger.

He intervened when he saw the victim and his wife arguing, intending to prevent an attack on the woman's physical integrity. Up to this point, there is no doubt that the circumstances constitute self-defense. However, the incident involves an attack with a knife. In this case, the crucial factor is the ratio between the attack and the defense. What happens next is at the discretion of the court, but let's consider and explain various possibilities. If the court determines that Kadir was physically weaker than the victim, that there was a ratio , and that the victim would not have refrained from the attack otherwise, then Kadir's action would constitute self-defense. However, the court may also decide otherwise. While the view we expressed in the previous sentence is a possibility, the fact that a knife entered the altercation during a two-person struggle and was plunged into the victim's heart , both in terms of the proportion of the weapons used and the fact that the victim's vital organ was struck, suggests the judgment in this case will be based on exceeding the limits of self-defense, resulting in death. The final sentence is at the discretion of the court, but based on the information we have regarding self-defense in this case, this is all we can say. This has been a very relevant and illustrative current example within this context.

For more information on this matter, you can consult with our firm's experienced criminal defense lawyers.

 

Trainee Lawyer Hamdi Berk Can