The most severe punishment for a crime is caste. After the caste, according to the defect rate of the perpetrator and the emotion and thought he committed while committing the crime, probable caste followed by conscious negligence and simple negligen
"Justice without power is powerless, power without justice is cruel.”ZÜLFÜ LİVANELİ
DETAILED INFORMATION NOTE ON LIABILITY AND LEGAL PROCESS TO BE FOLLOWED
Article 85 of the Turkish Penal Code No. 5237:
(1) Any person who negligently causes death of a person is punished with imprisonment from two years to six years.
(2) Verb is the death of more than one person or the death of one or more people; If it causes injury to one or more people, the person is punished with imprisonment from two years to fifteen years.
The most severe punishment for a crime is caste. After the caste, the perpetrator's rate of fault and possible caste, depending on what emotion and thought he committed while committing the crime, followed by conscious negligence and simple negligence. The most important point to be considered in case of conscious negligence and simple negligence; under the influence of which emotions and thoughts the perpetrator commits the crime.
In addition to these, there is also the issue that crime can be committed with negligent behavior, where it is investigated whether the crime was committed with gross negligence or slight negligence, taking into account the fault rate of the perpetrator.
Crime of negligence means that an individual causes the death of another person or persons with a behavior that will not be intentional. The purpose of attaching the crime of negligence to a penalty; Although he did not do it knowingly and willingly, it is a crime for the other members of the society to punish the perpetrator in proportion to his fault, to re-establish the disturbed social order with the punishment given and to relieve the conscience of the society. To ensure that a certain amount of deterrence is created in order not to commit the crime, and ultimately, to ensure that the offender is reintegrated into the society by learning from his mistakes after he has been punished.
The way the crime of negligence is committed is not clearly specified in the law. In legal practice, negligence is mostly encountered in traffic accidents. Complaints are not sought for the crime of negligence, it is subject to the ex officio investigation principle. Water the right violated and sought to be secured by punishment; It is the right of all members of society to live. The right to life is the most valued equal in our contemporary legal system, which is guaranteed in our Constitution, which is at the top of the hierarchy of norms. Even if it is negligent, the person who causes the death of a person is punished without seeking the complaint of the victim.
If we consider the degree of fault and the explanation of the perpetrator's feelings and thoughts in the context of the legal profession; perpetrator's crime The statements given at all stages of the investigation and prosecution, from the statement he gave at the time of his arrest, and all other evidence should be evaluated accurately and the defense should be made accordingly. Because, in terms of the judge's discretion regarding detention in the investigation phase and the punishment to be given during the prosecution phase, it is of great importance that the lawyer chooses every word carefully and takes every step correctly while defending. A simple mistake to be made may lead to the arrest of the client or to a negative result in the discretion of the penalty to be imposed.
Drivers' responsibility in traffic accidents; under this heading. These are criminal liability, civil liability and administrative liability of the perpetrator. In the context of our work, we will focus on the criminal responsibility of the perpetrator in particular.
Car in trafficç The main reason underlying the legal responsibility of the users for all the behaviors they do is the vehicle. It appears before us in the context of the responsibility of the operator. According to this; vehicle Taking into account the liability of the operator in accordance with the TCO, considering the appropriate causal link and the theory of danger it's sad. Liability for danger is the most severe type of liability when evaluated in the context of being liable for legal damages and being able to bring proof of salvation.
In criminal law, on the other hand, traffic accidents are approached by emphasizing the characteristics of the concrete incident and the subject of the perpetrator's action under the influence of which emotions and thoughts. According to this; excluding negligent acts; When a ranking is made from the heaviest to the lightest in terms of punishability, it is investigated whether the perpetrator's behavior was committed with intent, probable intent, conscious negligence or simple negligence. When we look at the legal practice, it is generally thought that the perpetrator committed the illegal act by conscious negligence or simple negligence in traffic accidents, depending on the degree of fault.
The driver's exceeding the maximum speed limit has been driving the vehicle for hours without sleep. driving, going in the wrong direction, passing the red light, not slowing down at intersections and on the pedestrian path, drinking alcohol; and other issues can be evaluated as conscious negligence when evaluated according to the characteristics of the concrete event. If it is believed that the crime was committed with conscious negligence, the penalty to be imposed is determined from the upper limit. In addition, if it is understood during the investigation phase that the perpetrator exhibited the behaviors we have listed, or if it was concluded in the expert report that the perpetrator was fundamentally flawed and the public prosecutor demanded the perpetrator's arrest; judge will be convinced that the crime was committed with conscious negligence. In legal practice, although it is seen that an arrest warrant is frequently issued against the suspect in such cases, it is unusual for the suspect to be released in cases where there is conscious negligence.
In the event of a traffic accident, those around are obliged to notify the law enforcement officers (police or gendarmerie). The law enforcement officers and the ambulance, which received the notice, rushed to the scene. Upon arrival at the scene, the medical teams immediately intervene to those injured in the accident. In an accident where the perpetrator was not injured, his statement is taken by law enforcement teams and the perpetrator is taken to the police station. If the victim is able to make a statement, his statement is taken and he is asked if he has any complaints. The statements of witnesses, if any, are taken and all evidence that will help to shed light on the event is collected. Dead at the crime scene If there is, the Public Prosecutor comes and personally examines the incident.
The statement of the perpetrator who was seen at the police station is taken again. In this case, he is asked whether he requested a lawyer. If the perpetrator has a private lawyer, he is invited. In cases where a lawyer is expected, the perpetrator's statement cannot be taken before the lawyer arrives. The lawyer may want to meet with his client privately. Before giving a statement, explanations are given to the perpetrator in the interview rooms allocated for lawyers and where no one listens or watches. Subsequently, the statement of the perpetrator is taken.
After the statement, according to the characteristics of the incident, if the victim is dead or his life is in danger, the suspect is taken into custody. In accidents that result in death, the public prosecutor sends the perpetrator to the court with a request for arrest within the detention period. The detainee is taken before the judge together with his lawyer, if any. Judging by the behavior and actions of the perpetrator, and especially the evidence at hand, at the judge's hearing, the perpetrator is really guilty; tries to reach a conclusion about whether it works or not. In practice, the public prosecutor requested arrest and as we mentioned in detail above, the perpetrator exceeded the speed limit, did not slow down at intersections and pedestrian crossings, passed a red light, and was drunk; vehicle In cases where there are defective behaviors such as using the It is possible to appeal this decision.
On the other hand, ömeasurable&; Autopsy examination is performed in cases. In addition, after the event has taken place, the file is handed over to the expert. The duty of the expert is to examine the case in detail and in a technical way and, based on his knowledge and experience, to conclude which party is at fault and at what level. The fact that the expert is convinced that the perpetrator is at fault is always against the perpetrator. Within the time allowed to the expert himself must also prepare a report and submit it to the file. Although this period varies according to the nature of the event, it is 3 months on average.
The process following the event's occurrence; that's all. The investigation continues about the suspect who is arrested or released with a judicial control decision. During the investigation phase, the public prosecutor clarifies the incident, collects all the evidence and carries out other procedures.
At the end of the investigation phase, the public prosecutor prepares an indictment and files a lawsuit on behalf of the public, demanding that the suspect be punished. If the court finds that there is no procedural defect in the indictment, the indictment is accepted and proceeds to the prosecution phase.
In the prosecution phase, the perpetrator takes the title of the accused. The court evaluates the evidence according to the nature of the concrete event, listens to the witnesses, the complainant, the defense of the attorney, if any, and the defense of the accused and the defense counsel.
During this period, the defendant, who fell on his defense, responded to the indictment and spoke at the hearings. as a defense. Objections or statements against expert reports and witness statements must be submitted. If necessary, a request should be made to obtain an expert report again, and the evidence in favor of the accused should be developed and presented to the court. If there is a state of detention, the detention should be appealed.
At each hearing during the prosecution phase, the state of detention is re-evaluated and decided. As the accused can be tried pending trial, as a rule, there is also the possibility of being detained throughout the trial. A person's death The average detention period in a traffic accident is 6 months. In addition, the periods of detention and detention are deducted from the sentence imposed.
All concrete evidence (witness statements, audio and video recordings, written documents, etc.) that will illuminate the material case is obtained and discussed one by one. After making sure that all the evidence has been revealed and discussed one by one, the opinions of the parties on the merits of the criminal case are taken.
First, the final words of the individual prosecution, that is, the complainant and his attorney, on the merits are heard. Subsequently, the public prosecutor, who is the public prosecution authority, is asked for his opinion on the merits. After the opinion of the public prosecutor is taken, the accused and his defense counsel are heard last. At this stage, the defendant's final words are asked and then the defendant's defense counsel makes his defense on the merits. At this point, the court concludes the hearing and announces its final decision.
With this decision, which we call a short decision in practice, the penalty given is explained. If the defendant's counsel is given the verdict against him, if he thinks that the trial or the verdict is unlawful, and if the decision is subject to appeal, he can appeal within 7 days from the judgment or notification of the decision. must go his way. The point to be considered while applying for this legal remedy is that since a justified decision has not been issued yet, a petition for an attitude should be submitted in order to avoid loss of rights.
After the notification of the required decision, the petition of appeal is drawn up by the defense counsel. A petition is submitted to the court of first instance, which makes the decision to be sent to the court authorized and responsible for the examination of the appeal.
The appellate authority is in charge of both re-evaluating the material case and evaluating whether the trial was conducted correctly and a lawful decision was made. First of all, the application is examined procedurally. If an appeal has been duly applied to the legal remedy, finally, the appeal examination is made and the decision stage is passed. Court of Appeal; Regarding the application of appeal, it may re-decide on the merits by revoking the decision of the court of first instance, or may reject it on the merits by correcting it.
If the decision of the court of appeal is an appealable decision, an appeal can be made. In this case, an appeal must be filed within 15 days from the interpretation or notification of the decision of the court of appeal.
The Office of the Chief Public Prosecutor of the Supreme Court, its opinion on the appealed decision; clarifies in written form with the notification. The notification is prepared by the prosecutor's office and sent to the Criminal Chamber of the Court of Cassation, which will examine the appeal.
At this point, the defense counsel should issue an objection petition against the notification if the notification is issued against it.
In the appeal examination, the legality of the judicial activity and the decisions rendered is audited without entering into a material case study. As a result of this inspection, the Supreme Court of Appeals, regarding the decision of the court of appeal; may decide to reject on the merits, reject on the merits by correcting and annul it.
The Supreme Court's appeal review is the last judicial remedy that can be resorted to in the context of ordinary legal remedies in the Turkish legal system. After this stage, it is now passed to the execution of the punishment.