UNJUST PROVOCATION ACCORDING TO THE JUDGEMENT OF THE COURT
‘Unjust provocation’, which we use as a defence argument in many criminal cases, is regulated in Article 29 of the Turkish Penal Code No. 5237. The regulation is as follows: ‘A person who commits an offence under the influence of rage or severe pain caused by an unjust act shall be sentenced to imprisonment from eighteen to twenty-four years instead of aggravated life imprisonment and from twelve to eighteen years instead of life imprisonment. In other cases, one-fourth to three-fourths of the sentence shall be reduced’.
Examples of Cases Considered by the Court of Cassation as a Wrongful Act:
1) Injury to Family Members:
‘’…they agreed with İdris Duyar, the father of the defendant, in accordance with the decision of the board of directors of the apartment building in which the participant was the manager of the apartment building for the construction of the exterior insulation work, and then, after Idris finished the work, on the day of the incident, the defendant, together with the defendant residing in the same apartment building … They went to Idris’s workplace to make payment together with the defendant … and his friend …, after a disagreement between them about the work to be done and the money to be paid, the parties got into a fight, after the parties beat each other during the fight, after the participant … and his friend … left the scene, the defendant, who is the children of Idris . … and …., who are the children of Idris, and reported that he was beaten, the defendant was travelling on the road to go to his father’s workplace with his brother … with the defendant, and they came across the vehicle in which the participant … was travelling on the road to go to his father’s workplace with the vehicle, the parties got out of the vehicle and the defendant had a knife in his hand and said to the participant ‘I will sink the mother of the man who will hit my father, I will not let . …‘a I will not let him live’ in the face of the understanding that he committed the imputed offence under the influence of the rage caused by the injury of his father…‘’ (Court of Cassation 4th Criminal Chamber 2016/4686 E. 2016/7284 K.)
2) Cheating on the Spouse or Breach of the Duty of Fidelity:
‘…According to the occurrence and the entire file scope; when the defendant … returned home from fishing at around 05.00 on the date of the offence, he saw his common-law wife … and the deceased in sexual intercourse. and the deceased in a state of sexual intercourse, then found the deceased in his hiding place, beat him with the brush handle he seized, disarmed him, tied his hands and feet with duct tape, covered his mouth with duct tape and wrapped it in a carpet, then reported the situation to his father-in-law … and brother-in-law … These defendants also came to the house and saw the deceased in this way, the deceased was left at home in this way until the evening hours and his freedom was restricted, all three defendants put the deceased, who was still alive, into the vehicle and took him to the pond in Kemerburgaz, where . … tied stones to the hands of the deceased and left him in the pond so that he would die by drowning and the evidence would be destroyed and they returned, later in the night … and … went to the pond again to check whether the deceased was dead or not, … … seeing the deceased on the surface of the water . …, who saw the deceased on the surface of the water, once again tied a stone and took him to a deeper place, after making sure that the deceased was submerged in the water, they returned home together, and the body of the deceased was not found due to the long period of time and the lake conditions…In the case where it is understood that the deceased … had sexual intercourse with …, whom he knew to be legally married to someone else, even if it was consensual, causing …, who had an obligation of fidelity towards his wife within the marriage union, to act against this obligation, the deceased entered the house with the consent of …. … entered the house with the consent of … although … did not consent to this situation, the deceased committed the offence of violation of the inviolability of the dwelling against … and … who returned home in the morning saw the deceased and … while they were having sexual intercourse, there is no doubt that the wrongful act and criminal acts of the deceased are the cause of unjust provocation for …‘s wife …’’ (Criminal General Assembly of the Court of Cassation 2017/906 E. 2020/64 K.)
3) Sharing by opening an imitation social media account:
‘’…The defendants … and the victim, who were friends for a while before the date of the offence, opened an account on Facebook in the name of the defendant … by using the photos taken during their relationship and wrote some words such as ‘I am married but I am still in love with her’. … opened an account on Facebook in the name of the defendant … and wrote some words such as ‘I am married, but I am still in love with her’, the defendants committed the offence under the influence of the fury or severe pain caused by the said wrongful act and the conviction sentence given for the offence of qualified plunder against the defendants should be reduced in accordance with Article 29/1 of the TPC…‘’’ (6th Criminal Chamber 2021/8385 E. 2022/2237 K.)
4) Sibling’s Residence in the House with Inheritance Share:
‘’… In the incident where the defendant said ‘If you don’t evacuate this house within 5 days, I will cut all of you’ by showing the axe in his hand towards his brother’s daughter-in-law whom he saw in front of the house at that time due to the fact that there was no sharing in the house with a joint share inherited from his father, the provision of unjust provocation should be applied to the defendant who is understood to have committed a crime under the influence of the rage and severe pain caused by an unjust act…‘’ (Court of Cassation 4th Criminal Chamber 2013/15842 E. 2015/2909090 K.)
5) Being Beaten by a Crowded Group:
‘’…in the face of the understanding that the defendant committed the imputed crime against the victim due to the anger and anguish caused by being beaten by a crowded group including the victim as a result of a dispute over the issue of paying the bill in the club where he watched a match some time before the incident, the gravity of the unjust provocation in the form of being committed by a crowded group…‘’ (Court of Cassation 14th Criminal Chamber 2012/3804 E. 2014/7321 K.)
6) Ongoing enmity between families:
‘’…There was enmity between the … family to which the defendants belonged and the … family to which the deceased belonged, the deceased’s brother … injured the deceased’s brother, the deceased and his relatives injured the defendants’ father, their brother … and the defendant …, the enmity between the parties continued to increase until the date of the incident, on the date of the incident, the defendant … killed the deceased with the help of the defendants … and …, the deceased … … injured the father and brother of the defendants, they took mutual actions due to the enmity between the families, the defendants‘ defence that the first unjust act was caused by the deceased could not be proved otherwise, it should be accepted that the provisions of unjust provocation should be applied by making a minimum reduction in favour of the defendants in accordance with the principle of “the accused benefits from the doubt”…’’ (Criminal General Assembly 2015/848 E. 2016/105 K.)
7) Being Accused of Theft:
‘’…in the defence of the accused in his consistent and unchanged defence towards the conviction of the imputed offence, he stated that he injured the participant … with the knife he seized due to the anger he felt upon being accused of stealing a bird by the participant with his statements as follows: ‘’… after I went to my house, … called me on the phone and said, ‘My brother, what did you do, you stole the bird in our house and left’. … injured the appellant … with a knife he had seized, as a matter of fact, in the statement of the non-appellant … to the police on 31.10.2015, ‘… I asked my father where Uğur was, my father told me “Uğur was poking around, I saw him putting one of the pigeons in his bosom, when I said what are you doing, he immediately threw the bird out and left”. At that time, the entrance door rang again, I opened the door, Uğur came in, … I heard him addressing my father as ‘Are you keeping me a thief? As a result of the trial of the public case filed against the defendant with the indictment of the Chief Public Prosecutor’s Office dated 05.11.2015 and numbered 2015/28507 Investigation, 2015/9241 Main and 2015/7809 Indictment, in accordance with subparagraph (h) of the second paragraph of Article 142 of the Law No. 5237 for the offence of theft, it was understood that the Court issued a decision of acquittal on the case file subject to review on 15.02. 2016 dated 15.02. 2016 and numbered 2015/1234 Main, 2016/131 Decision, it is understood that the defendant was acquitted in accordance with subparagraph (e) of the second paragraph of Article 223 of the Law No. 5271, and it was found unlawful not to take into account that a reasonable reduction of unjust provocation should be applied in accordance with the first paragraph of Article 29 of the Law No. 5237, taking into account the unjust content of the action directed to the defendant by the participant and constituting unjust provocation…‘’ (1st Criminal Chamber of the Court of Cassation 2022/2090 E. 2022/3397 K.)
8) Talking sarcastically and insulting:
‘’…From the victim’s and witnesses’ statements and the defendant’s consistent defences that cannot be proved otherwise, it is clear that before the incident, the defendant lived with a woman named Özlem D. unofficially for about 2 years, that they separated shortly before the incident, that the woman named Özlem D. After the defendant left the defendant, the defendant and the victim started to be friends with the victim, on the date of the incident, the defendant, who learned about this situation, called the victim and said that he wanted to talk about this issue, the victim called the victim to the coffeehouse where he was by swearing profanely, after the defendant came to the coffeehouse, the defendant and the victim entered the alley opposite the coffeehouse to talk together, where the victim said to the defendant; ‘I’m with Özlem, don’t call her anymore, don’t ask her, delete her number from your phone, who are you to be with Özlem, take care of yourself, not Özlem, if you don’t delete it, I’ll curse your mother’, whereupon the defendant took out the knife on his person and swung it towards the victim several times.
On the day of the incident, the victim responded to the defendant, who asked him a question on the phone, by swearing in a sweary manner and responded in the wrong way, and then spoke sarcastically to the defendant who came to him and continued to swear in a sarcastic manner, which is an unfair behaviour that requires the application of the provisions of unjust provocation in favour of the defendant…‘’ (Criminal General Assembly 2013/1-527 E. 2013/393 K.)
9) Harassment of Relatives:
‘’… The wife of Mehmet, one of the accused, In the incident, which was established that Fatma Yıldırmer, who is Şevket’s brother and Murat’s sister-in-law, told them that she was constantly called and harassed by the victim, all three defendants made a plan and made the victim meet with Fatma, grabbed the victim, forced her into a vehicle and took her 6 km out of the city and left the victim, whom they beat for a while, and left the victim and left the place, it was understood that the defendants committed the acts attributed to them under the influence of the rage and severe pain caused by the harassment of Fatma, and that the unjust provocation provisions in Article 29 of the Turkish Penal Code should be applied against the defendants. ‘’ (Court of Cassation 14th Criminal Chamber 2011/14760 E. 2013/656 K.)
10) ‘I’ll Take Your Wife So:
‘’…The deceased started to have an affair with the defendant’s ex-wife, the participant … during the continuation of the marriage union with the defendant, upon the discovery of this situation, the defendant and the participant … divorced, the participant … … married the deceased, with whom he continued his relationship for two years following their divorce, on the day of the incident, in the coffee house in the district centre, the deceased said to the defendant ‘I took your wife, I will take your other wife too’, and the defendant killed the deceased by firing 54 shots from close range; it is a correct practice to make an unjust provocation discount by moving away from the minimum rate in accordance with Article 29 of the TPC…‘’ (Criminal General Assembly of the Court of Cassation 2015/682 E. 2016/408 K.)
Examples of Cases that the Court of Cassation does not recognise as a Wrongful Act:
1) Non-payment of debt:
‘’…it is fixed that the defendant had previously lent money to the complainant, on the day of the incident, he met the complainant in a supermarket, when he grabbed the complainant’s collar and asked him to pay his debt, the complainant said ‘I will pay my debt’, the complainant said that the money was at home and that he would get it later and bring it back, and the defendant said ‘motherfucker, of course you will pay’. Although it can be said that the complainant’s failure to pay the debt may constitute an unjust provocation, it is possible to accept behaviours such as arbitrary non-payment of the debt for his own benefit or to put the creditor in a difficult situation, evasion of property from the creditor, making false statements or promises, mocking during the demand of the debt, etc. as an act constituting an unjust provocation. Failure to pay the debt is a dispute arising from private law alone and is not a wrongful act that will constitute unjust provocation in the sense of criminal law. It is not possible to accept the mere inability to pay the debt as an unjust act constituting unjust provocation. Since it is understood that the complainant, who did not deny the debt but said that he wanted to pay it, did not have a behaviour that could cause provocation towards the defendant, the conditions for the application of the provisions of unjust provocation did not occur for the defendant…‘’ (Court of Cassation 18th Criminal Chamber 2016/6000 E. 2018/3079 K.)
‘’…although the defendant … defended that he had a receivable from the victim, who was his brother, and that this receivable was not paid by the victim, the victim did not confirm this situation, no document or information regarding the source of the receivable was submitted to the file by the defence, no information was found that the receivable in question had not been paid for a long time despite all kinds of legal efforts by making promises with the intention of distracting the defendant, and the defence that this action was carried out by the defendants based solely on the debt relationship alone would not allow the application of unjust provocation. …‘’ (Court of Cassation 14th Criminal Chamber 2018/6721 E. 2018/6399 K.)
2) You’re swimming doggy style:
‘’… The participant is the son of the defendant’s sister-in-law, they went to the sea as a family about a week ago, the participant said to the defendant, whose swimming style he liked, without any insulting intent; ‘The defendant, who misunderstood these words and thought that he was called a dog, despite the statements of the participant’s family that he was not insulted, argued with his wife a week later due to the same incident and then got angry and left his house with a bread knife he took with him, went to the place where the participant was located, In the event that the participant, who was sitting in front of the coffee shop with his brother and father, called the participant to him and injured him with a knife in a way that would not be life-threatening but could not be eliminated by a simple medical intervention, then fled the scene, and did not make any defence that he committed the imputed crime under provocation at the stages, the participant’s expression of appreciation, which he said without any criminal intent, The words ‘you are swimming in dog style’, which is also known as ‘dog swimming style’ in the literature, which is a swimming style that resembles running in the water with the head held out and is difficult to learn, do not contain the quality of insult, nor are they offensive to the honour, honour and dignity of persons, and in the face of this situation, the defendant, who is the nephew of his wife, and between whom there is no other problem or animosity based on the previous relationship, It is not possible to accept that he committed the act of intentionally injuring the participant, who was about thirty-four years younger than him and eighteen years old as of the date of the incident, with a knife in a way that would not be life-threatening but could not be eliminated by a simple medical intervention, under the influence of the words spoken by the participant, thus under the influence of the rage or severe pain caused by the wrongful act caused by the participant. …‘’ (Court of Cassation Criminal General Assembly 2014/436 E. 2016/134 K.)
3) Sexual intercourse outside marriage from a moral or traditional point of view:
‘’…whether the same actions will constitute a cause of unjust provocation for the defendants … and … who are his father-in-law and brother-in-law and who participated in the acts of murder and deprivation of liberty of the deceased. In order to apply the provision of unjust provocation, which is regulated as a reason reducing criminal responsibility in Article 29 of the TCC, there must be an unjust act or word originating from the victim and the defendant must commit a crime under the influence of the rage or severe pain caused by this unjust act. In order for the unjust provocation to be applied to each of the participants in the offence, the conditions regarding the provocation must be valid for all the participants. In the concrete case, since the relationship of …, the daughter of the defendant … and the sister of the defendant …, with the deceased was consensual, the obligation of fidelity belongs only to spouses, and the crime of violation of the inviolability of the dwelling was committed against …, the behaviours arising from the deceased and constituting unjust provocation must be applied to the defendants … and …. … and …, in other words, it is understood that the behaviours that constitute an unjust provocation for … due to his position within the marriage union do not constitute an unjust provocation for the defendants … and … who are not in the same position as ….. Although it is fixed that extramarital sexual intercourse, which is considered a reason for divorce between spouses in Article 161/1 of the Civil Code, will constitute a violation of the obligation of loyalty regulated in Article 185/3 of the same Code, it is not possible to accept that this situation, which cannot be accepted morally or traditionally, constitutes an injustice for other family members other than the spouses. If the contrary is accepted, it may be possible to apply the provision of unjust provocation in every crime committed by any of the family members who think that their honour has been dishonoured, and its scope will be unpredictably expanded due to the fact that it is not certain up to which degree of relatives the unjust provocation will be applied. In addition, in the concrete case, considering that the deceased, who was detained in …’s house with her hands and arms tied and in an unconscious state throughout the day, did not have any other words and behaviour towards the defendants … and …, there is no inconsistency in not applying the provision of unjust provocation against the defendants … and … (Criminal General Assembly of the Court of Cassation 2017/906 E. 2020/64 K.)
4) Hanging up on him:
‘’…the defendant worked at the complainant’s workplace for a period of time, then he was dismissed, his severance and notice indemnities were not paid when he was dismissed, the defendant called the complainant to ask for these indemnities and his personal belongings left at the workplace, the parties argued on the phone, after the argument, the complainant hung up the phone, whereupon the defendant called the complainant to continue the conversation, but the complainant did not answer the phones, it was understood that the defendant, who was angry with this situation, sent the messages whose content is stated in the indictment. Although it was claimed that the defendant uttered words containing death threats during the telephone conversation between the defendant and the complainant, it was understood that there was no conclusive and convincing evidence confirming this claim of the complainant. It is understood that the defendant called the complainant one after the other in order to continue the unfinished conversation with the complainant who hung up the phone, that there were 27 missed calls due to the complainant’s non-answer, and that he sent insulting messages upon not receiving an answer to his calls…it is understood that the allegations of unjustified non-payment of compensation by the participant or non-return of the blank deed received by the participant require a trial and that the participant, who was also called by the defendant for these reasons, closing the phone to the defendant’s face will not constitute a wrongful act…‘’ (18th Criminal Chamber of the Court of Cassation 2017/442 E. 2017/6554 K.)
5) Mutual Insult:
‘’…it is seen that the defendant, who was convicted of the offence of insult by the court, with the acceptance that he committed his act under unjust provocation, his sentence was reduced by 1/4 in accordance with Article 29/1 of the Turkish Penal Code and as a result, he was sentenced to a judicial fine of 1.100 TL. However, in the application of unjust provocation, the application of Article 29 of the same Law on general provocation, instead of Article 129 of the TPC, which is a special provision regarding the offence of insult and contains more favourable regulations, was not deemed in accordance with the law…‘’ (18th Criminal Chamber of the Court of Cassation 2020/416 E. 2020/7393 K.)
6) ‘Coward So:
‘’…Although the defendant, at the investigation phase, said to the victim ‘I have a car in Mersin. I work here. You look after me, protect me, take care of me!’; at the trial stage, he said “Will you be friends with me?” and basically asked whether he would be a bastard or not, and when he could not swallow his pride and wanted to go out, the victim called him ’Coward! ‘ and therefore got angry and grabbed the deceased by the throat and pushed him; however, in line with the principle of ‘the accused benefits from the doubt’, it is undoubted that the application of the provocation provisions has become a settled practice if the conditions have occurred by relying on the defence of the defendant, which has not been proven otherwise. However, as explained in the medical report, the act of killing the deceased was not caused by falling to the ground as a result of pushing with sudden anger as the defendant defended, but as a result of strangulation by hand in a way and force that would cause hyoid bone and thyroid cartilage fractures, and that the semen taken from the bed and the swab samples taken from the fingernails of the deceased belonged to the defendant in accordance with the expert report prepared by the Ankara Criminal Police Laboratory Directorate. …’ and wanted to leave the house without having sexual intercourse, on the other hand, the fact that the deceased insistently asked the defendant, whom she met for the first time, to protect her is contrary to the general experiences of life, as well as the fact that ’p.. …‘, the words and behaviours of the deceased in the form of asking the defendant to take care of him or to be his friend and then calling the defendant “Coward!” do not constitute a wrongful act, when the place and time of the incident and the situation in which the defendant and the deceased were in are evaluated together; the actions of the deceased did not reach the extent that would cause rage and severe pain in the defendant and require the application of the provision of unjust provocation…’’ (Criminal General Assembly 2022/449 E. 2022/765 K.)
After all; Since acts that can be described as unfair provocation are not listed in the law, it is possible to multiply the examples given above. Additionally, an unfair provocation assessment is made according to the characteristics of each person or event.
We recommend that you get legal support from a criminal lawyer for your legal situation, which will cause the penalties to change significantly when unfair provocation is applied.
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