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Legitimate Defense

Self-defense is one of the reasons that eliminates illegality. Article 25/1 of the TCK- The perpetrator is not punished for acts committed with the obligation to repel an unjust attack, which has occurred, which is certain to occur or is certain to happen again, against a right that belongs to him or to someone else, in proportion to the attack, according to the situation and conditions at that moment. The legal basis of legal defense is the instinct of self-preservation. It is not possible to forbid one’s self-defense with legal rules.

Conditions of Legal Defense

  • There must be an unjust attack,

For there to be a legal defense, there must be an attack. If there is no action considered as an attack, there is no obligation to defend against it, and therefore no legal defense. An attack is an act that harms a person’s legally protected rights. The attack must be of a material nature. Intangible attacks such as insults and insults cannot be grounds for legal defense. However, the attack does not necessarily involve force and violence. Making a person unable to know or defend himself by any means counts as coercion and violence (TCK m148/3).

The attack must be human-induced. There can be no talk of legal defense against the attack of animals. The attack must exist during self-defense. A future attack does not fall under this concept. If the attack has ended, the moves are no longer covered by the defense. The imminent danger of attack justifies the defence.

As a matter of fact, in parallel with the case law of the Court of Cassation, the Turkish Penal Code No. 5237 clearly shows three cases of unjust attack that can constitute a basis for legal defense (Article 25/1 of the TCK):

1-The actual attack,

2-The attack that is certain to occur,

3-Attack that is certain to be repeated.

  • The attack must be directed towards the right,

Rights that may be the subject of legal defense, as well as the right to life, bodily integrity; rights to personal freedom, sexual freedom, or the right to inviolability of the home.

  • Defense must be mandatory

The Law mentions the “obligation to repel… at that moment” the attack. If it is possible for the perpetrator to get rid of the attack without taking defensive actions that constitute a crime, there cannot be an obligation in defense and this defense cannot be considered lawful.

  • Defense should be proportional to attack.

There must be a proportionality between attack and defense according to the situation and conditions. The legality of the defense depends on the fulfillment of this condition.

There must be a proportion between the tool used in defense and the tool used in attack.

Even if the legal defense is exceeded, the perpetrator cannot be punished if it is due to excusable excitement, fear or panic. However, in this case, it will be decided not to be acquitted, but to not be punished due to the absence of fault.

Stj. Av. DİLAN ECEM CEYLAN

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