Criminal LawWhat are intentional homicide and its qualifications?

The offence of intentional homicide is one of the offences regulated under the “Crimes Against Life” section of the Turkish Penal Code (TCK) and is one of the most severe sanctions. Since a person’s right to life is one of the most fundamental and inviolable rights, attacks against this right are punished in the most severe way by our legal system. The offence of intentional killing includes not only its basic form, but also situations that require more severe penalties under the name of “qualified cases” according to factors such as the way it was committed, the motive or the nature of the victim. In this article, we will comprehensively discuss the basic definition of the offence of intentional killing, its punishment, its qualified cases and the legal details related to this offence.

Definition of the offence of intentional killing (Article 81 of the TPC): The offence of intentional killing is defined in Article 81 of the TPC as follows:

According to this definition, the basic elements of the offence are as follows:

1. Act: The act of killing a human being. This act may be committed by an active act (stabbing, shooting, strangulation, etc.) or by a negligent act (e.g. starving a dependent infant to death).
2. Victim: Must be a living human being. While the killing of an unborn foetus constitutes the offences of “abortion” or “infanticide”, actions against a dead corpse may constitute different offences such as “damage to property” or “insulting the memory of the dead”.
3. Intent: The perpetrator must intend the death of the victim or accept this result knowing and willingly that death will occur (probable intent). Intent is the moral element of the offence. If the perpetrator acts only with the intent to injure but death occurs, “aggravated form of intentional injury due to its consequences” may be in question.

Punishment for the offence of intentional killing: According to Article 81 of the Turkish Penal Code, a person who intentionally kills a person is sentenced to life imprisonment. Life imprisonment is one of the most severe penalties that requires the convict to remain in a penal institution for the rest of his/her life.

Qualified Forms of the Offence of Intentional Killing (Article 82 of the TPC): Committing the offence of intentional killing in certain ways has been accepted by the legislator as a “qualified case” that requires a heavier penalty. In these qualified cases listed in Article 82 of the TPC, the perpetrator is sentenced to aggravated life imprisonment. Aggravated life imprisonment has more severe conditions of execution than life imprisonment.

Qualified cases are as follows:

1. Premeditated Killing (TPC art. 82/1-a): It means that the perpetrator takes the decision to kill in cold blood, spends a certain period of time to implement this decision and plans his/her action within this period. Premeditation is a process that occurs in the perpetrator’s inner world and must be proved with concrete evidence. The Court of Cassation emphasises the difference between “sudden decision” and “cold-blooded decision-making and planning” for the existence of premeditation.

2. Killing with Monstrous Sense or Suffering (TPC Art. 82/1-b):

   • Monstrous Sense: The perpetrator commits the act of killing by acting with inhuman, cruel and savage feelings.
   • By Tormenting: The perpetrator inflicts excessive physical or mental pain and suffering on the victim before or at the time of death. This situation requires the existence of the intention to torment as well as the intention to kill.

3. Murder against a member of the paternal or maternal lineage or against a spouse (TPC Art. 82/1-c): The offence is committed against the perpetrator’s lineal descendants such as mother, father, grandfather, grandmother, or his/her spouse or children or grandchildren. This is considered an aggravating circumstance due to the sanctity of family ties and the deep impact of offences committed against these ties on the social conscience.

4. Murder against a child or a person who is physically or mentally incapable of defending himself/herself (TPC Art. 82/1-d): This is the crime of murder committed when the victim is unable to defend himself/herself due to reasons such as underage, illness, disability or old age. This is considered as an aggravating circumstance because the perpetrator takes advantage of the victim’s weakness.

5. Killing a Public Official due to his/her Duty (TPC Art. 82/1-e): The offence is the killing of a public official on duty or due to his/her duty. This is considered as an attack on the state authority and the execution of public service.

6. Killing for Blood Motive (TPC Art. 82/1-f): The perpetrator commits the act of killing in order to avenge a previously committed crime or to continue the enmity between families. This is considered an aggravating circumstance since it is a motive that disrupts social peace and perpetuates the spiral of violence.

7. Killing in order to conceal a crime, to remove evidence of it or to facilitate its commission or to avoid being caught (TPC Art. 82/1-g): The perpetrator commits the act of killing in order to conceal another crime (e.g. theft, sexual assault), to destroy the evidence of this crime or to facilitate the commission of this crime or to prevent himself from being caught.

8. Killing for the purpose of obtaining the value of assets derived from an offence (Article 82/1-h of the TPC): The perpetrator commits the act of killing in order to secure the asset value that he/she has obtained or will obtain from a crime he/she has committed (e.g. drug trafficking, fraud).

Other Situations Affecting the Penalty in the Offence of Intentional Killing:

• Unjust Provocation (TPC Art. 29): If the offence is committed under the influence of anger or severe anguish caused by an unjust act arising from the victim, the penalty is reduced. Instead of life imprisonment, imprisonment from eighteen years to twenty-four years, and instead of aggravated life imprisonment, imprisonment from twenty-four years to thirty years.
• Minority (Art. 31 TPC): In case the perpetrator is a minor, as explained in detail above in the article “Criminal Capacity”, legal reductions in the penalty are applied.
• Mental Illness (Art. 32 TPC): If the perpetrator’s ability to perceive the legal meaning and consequences of the act committed or to direct his/her behaviour is significantly reduced due to mental illness, the penalty is reduced or no penalty is imposed.
• Attempt (Art. 35 TPC): If the offence of intentional homicide is attempted, a lesser penalty is imposed compared to the completed offence.
• Participation (Article 37 et seq. of the TPC): If the offence is committed by more than one person together, each perpetrator is punished in proportion to his/her fault.

Jurisprudence of the Court of Cassation and Intentional Killing: The Court of Cassation has developed important jurisprudence in the interpretation and application of the qualified forms of the offence of intentional killing. In particular, how concepts such as “premeditation” and “monstrous feeling” should be evaluated according to concrete events is shaped by the decisions of the Court of Cassation. For example, for the existence of premeditation, the perpetrator must think, plan and act in cold blood for a certain period of time, while premeditation cannot be mentioned in sudden events.

The offence of intentional homicide is a fundamental offence under the Turkish Penal Code, which prescribes the most severe sanctions and protects the right to life. While the basic form of the offence is punishable by life imprisonment, qualified cases such as premeditation, monstrous feeling, committing against a close relative or against a person who cannot defend himself/herself require aggravated life imprisonment. As the legal consequences of this offence are extremely serious, it is vital that those accused of or victims of such an offence seek legal advice from a specialist criminal lawyer at every stage of the process. Legal advice is indispensable for the proper collection of evidence, effective defence and a fair trial.