It is really difficult to answer this question. In respect to arguments on a decision of the High Court of Appeals regarding the gun concept that led to discussions on the decisions of the High Court of Appeals, the definition of the concept gun was not given in the former Turkish Penal Code. In order for an object to be considered as a gun, it is not necessary to be specially produced for being used with the purpose of offense or protection. Only that it must be used in offense or protection, as well as should be able to cut, drill or wound. In the concrete example that was reviewed in the decision of the High Court of Appeals, the defendant had hit the victim with an iron bar whose end is curved which is used in changing and repair of the tires of vehicles and broke his arm, making him unable to work for 15 days. Therefore, it was decided that the iron bar used in the crime is deemed as a gun, when the fact that it is hard and firm, and sometimes used in raping because of its wounding feature, its ability to create a gun effect when hit by and the nature of the victims wounds are all taken into consideration. (Referring to the decision of General Assembly for Criminal Matters, High Court of Appeals, with no: E.199314-23, K. 1993144, dated: 1.3.1993, and similar decision made by General Assembly for Criminal Matters, High Court of Appeals, with no: 199314-87 K. 1993198, dated: 12.4.1993)
Adz is a Gun
In the review of the concrete example in another decision of the High Court of Appeals, the fact that the defendant, while cutting the branches of a tree belonging to an elementary school in a village at the event date, cursed at the headman of the village, who saw the event and tried to prevent it ex officio, was affirmed by the Court; argument started in between the defendant and the complainant, and they threatened each other in the event. According to the decision of the High Court of Appeals, in the argument in between the two people, the defendant acted with the purpose of threatening the headman of the village much further than the intention to curse at him, mentioning that he would harm the complaining headman heavily and unfairly with the adz that is deemed as a gun. Such action was taken with an intention that is much beyond aggravated assault, not to increase the effect of the action of cursing. High Court of Appeals, confirming that adz is deemed as a gun in this decision, decided to approve that in addition to cursing, the crime of threat was also committed in such actions of the defendant. (Referring to the decision of General Assembly for Criminal Matters, High Court of Appeals, with no: E. 2003110-29, K. 2003/77, dated: 1.4.2003)
Blank firing guns are not guns
Another issue that was mentioned in the media in recent days was blank firing guns. Criminal Division 8 of the High Court of Appeals made a decision that blank firing guns are not within the guns category, cancelling the 5-month imprisonment against the person who fired into the air with a blank firing gun in the residential area, thus stating that a firing that would lead to fear and panic did not develop. Devrek Penal Court of First Instance gave a 5-year imprisonment for intentionally endangering the public security by firing into the air with a blank firing gun in a way that would lead to fear, anxiety and panic in people in the residential area, but postponed this penalty. Chief Public Prosecutors Office of the High Court of Appeals applied with the demand of cancellation on behalf of the law. In its application, Public Prosecutors Office of the High Court of Appeals set forward that it is not right to make written decision without paying regard to the fact that the action of firing in a way that would lead to fear, anxiety or panic since it does not conform to the type of crime having a gun factor, as referred by Article 26417 of the former Turkish Penal Code and Article 17011-c of the present Turkish Penal Code. Evaluating this application, Criminal Division 8 of the High Court of Appeals decided on 22.02.2007 to cancel the decision of Devrek Penal Court of First Instance, with day no: 2910312006, docket no: 20051246 and decision no: 20061114, because the action to fire into the air with a blank firing gun that is not deemed as a gun does not conform with the type of crime having a gun factor, as described in Article 26417 of the Turkish Penal Code no:765 and Article 17011-c of the Turkish Penal Code no: 5237.
In another decision, it was decided to cancel the judicial sentence of imprisonment since the action to fire into the air with a blank firing gun that is not deemed as a gun is not found to be conforming with the type of crime having a gun factor as described in Article 17011-c of Turkish Penal Code no: 5237. (Decision of Criminal Division 8 of the High Court of Appeals, dated: 18.10.2006, docket no: 200612607 and decision no: 200617703) Subclause (c) of the first paragraph of Article 170 of the Turkish Penal Code no: 5237 that became subject to the decision of the High Court of Appeals sets forth the following: (1) In a way that will be dangerous in terms of lives, health or wealth of people or would lead to fear, anxiety or panic in people a) b) c) a person who fires with a gun or uses explosives is sentenced to prison from 6 months to 3 years.
According to Article 189 of the former Turkish Penal Code no: 765 which defines a gun as follows: What is meant by a gun that is deemed by the law as a reason of violence in determination of the penalty is 1-Firearms, 2- Explosives, 3- Any type of cutting, drilling or wounding devices, and 4- Burning, corrosive, or wounding punishments or any other types of poisonous substances or choking or blinding gases. Again, subclause (f) of the first paragraph of Article 6 of the present Turkish Penal Code no: 5237 defines a gun as follows: The expression gun refers to 1- Firearms, 2- Explosives, 3- Any type of cutting, drilling or wounding devices that are produced with the purpose of being used in offense or protection, 4- Other things that are appropriate for practically being used in offense or protection even though they are not produced for such purposes, 5- Burning, corrosive, wounding, choking, poisoning, nuclear, radioactive, chemical, and biological substance that would lead to permanent disorders, ( )
Should not one think again, looking at the data mentioned on Mr. Bariş Günaydins article (located in the Please read section on our website) when it is said that blank firing guns are not guns, while adz is being deemed as a gun?
Source: Güncel Hukuk Magazine, November 2007, p. 17