Criminal LawMurder Offences Intentional Killing and its Qualified Cases in the Turkish Penal Code

The Gravest Attack on the Right to Life

The most fundamental and superior value protected by the legal system is undoubtedly the right to life. Murder, which is a deliberate attack on this right, is subject to the most severe sanctions in our laws. While the news of murder in the media causes outrage in the society, it is important to understand the legal background of this offence, how the law qualifies which act and in which cases the most severe punishment is given, in order to grasp the functioning of justice. In this article, we will examine the basic and qualified forms of the offence of intentional killing in the light of the case law of the Court of Cassation.

Basic Form of the Offence of Intentional Killing (TCK 81)

Article 81 of the Turkish Penal Code stipulates that “A person who intentionally kills a human being shall be sentenced to life imprisonment”. Two basic elements are required for the offence to occur:

1. Material Element: The perpetrator performs an act (shooting, stabbing, poisoning, etc.) that is capable of ending the life of a person and there is a causal link between this act and the result of death.
2. Moral Element (intent): The perpetrator knows and intends to kill a person. Intent can be in the form of “direct intent” or “probable intent”.
   • Direct intent: The primary aim and intention of the perpetrator is to kill the victim.
   • Probable Intent (TPC 21/2): Although the perpetrator foresees that his/her action may lead to death, he/she carries out the action by accepting the result, saying “no matter what happens”. For example, a person who fires randomly into a crowd. In the case of intentional homicide, the penalty is twenty to twenty-five years’ imprisonment instead of life imprisonment.

Qualified Intentional Killing (TCK 82)

Article 82 of the TPC lists the cases where the penalty is increased to aggravated life imprisonment due to the gravity of the offence. This is the most severe type of punishment, lasting for the life of the convicted person, subject to a strict security regime and with a much longer period of conditional release. Most of the brutal murders reported in the media are prosecuted under this article.

• Premeditated Murder (subparagraph a): This is the most recognised qualification. According to the Court of Cassation, for the existence of design, the perpetrator must;
  1. “Deciding” to kill a human being,
  2. A reasonable “lapse of time” between the decision and the action, during which he or she can think calmly,
  3. In the meantime, he/she must “make a plan” and stick to this plan and commit the murder. Murders committed as a result of a momentary anger or argument do not fall within the scope of premeditation.
• Murder by Monster Sense or Suffering (subparagraph (b)):
  • Monstrous Motive: It is when the perpetrator acts with a savage motive that is incompatible with humanity, such as taking pleasure in killing, taking pleasure in inflicting pain. Acts such as dismembering and burning the body of the deceased can be considered within this scope.
  • By inflicting pain and suffering: The death is not sudden, but is caused by prolonged and intense physical or mental suffering of the deceased.
• Killing by dangerous methods such as fire, flooding, bombing (subparagraph c): If the murder is committed by means of methods that create a general danger for the society.
• Murder against a member of the patrilineal or descendent family or against a spouse or sibling (subparagraph d): These murders, which are the most severe consequence of domestic violence, are considered a qualified case because they violate the sanctity of family ties.
• Murder against a Child or a Person who is Physically or Mentally Incapable of Defending Him/herself (subparagraph e): Committed by taking advantage of the victim’s defencelessness.
• Killing a Public Official for the Reason of His/her Duty (subparagraph g): Targeted killing of a police officer, judge, prosecutor or other public official because of their duty.
• Killing in order to conceal an offence, to remove evidence or to facilitate the commission of an offence or to avoid being caught (subparagraph h): For example, the case of a person who kills the landlord who saw him while he was burgling.
• Killing motivated by blood (subparagraph i): Killing in retaliation for a previous murder between two families, with the aim of taking revenge.
• Honour Motivated Killing (subparagraph j): The killing of a person (usually women) by the decision of the family council due to the understanding of “custom” or “honour” which is valid in a part of the society but incompatible with the legal order.

Unjust Provocation and Legitimate Defence

• Unjust Provocation (TPC 29): The penalty is reduced if the perpetrator commits the offence under the influence of an unjust act caused by the deceased. However, not all unjust acts are required, but an act of such intensity as to push the perpetrator to commit such a serious offence.
• Self-defence (TPC 25): It is when the perpetrator acts with the obligation to defend against an unjustified attack against himself or someone else in a manner proportionate to the attack according to the current situation and conditions. If the conditions of self-defence are present, the perpetrator shall not be punished.

The offence of intentional killing carries with it the most serious sanctions as it is the most serious attack on the right to life, which is the most fundamental value of the legal system. Articles 81 and 82 of the TPC clearly distinguish between the basic and qualified forms of this offence, aiming to ensure that justice is served in a manner commensurate with the gravity of the offence. Qualified cases such as premeditation, monstrous feeling and honour motive are the legal assurance that acts that deeply wound the conscience of society will not go unpunished and will be punished in the most severe way.