EN SUPREME COURT
Punishment
The apartment is based on: 2016/3945
The Verdict: 2016/5659
Decision Date: 29.06.2016
IMPROPER JURISDICTION OF LOADING – LOADING CRIMES AND MEMBERSHIP IN CRIMINAL ORGANIZATIONS FOR INSUFFICIENT AND INSUFFICIENT REASONS
SUMMARY: The conviction of the accused for looting and membership in a criminal organization, on the contrary, without proper and sufficient justification, without discussion and demonstration on the spot to allow supervision, the use of evidence that the accused participated in looting directly or indirectly against the participant required the decision to be overturned.
(5237 SK Md. 39, 168)
INCIDENT AND DECISION:
The verdict given by the Local Court was appealed by the defendant … and his defense, and by holding a hearing; since it became clear that the defendant and his defense did not participate in the trial, despite the fact that the trial date was duly notified to them and they did not declare an excuse, at the end of the examination conducted without a hearing on behalf of the said defendants, the file was discussed according to the nature of the application, type of punishment, duration and date of the crime.
Member …’s application to the Constitutional Court for the annulment of the last sentence of Article 14/4 added to the Anti-Terrorism Law by Law No. 6526 is contrary to the Constitution of the Republic of Turkey and international treaties and therefore Member …’s views are rejected in the review, the provision given due to the contradiction of the international treaties adopted by our country in terms of the principle of equality and the right to a fair trial is completely violated in terms of the principle of equality and the right to a fair trial;
I- The defendant … forming an organization for the purpose of committing a crime against him, being a member of an organization about the defendant …, …, … and … crimes, … the conviction of crimes of aiding a criminal organization about him and … the conviction of the public prosecutor for crimes of aiding a criminal organization about the defendant … in violation of article 1 of article 12/1 of Law 6136, article 1; the accused … in violation of Article 12/1 of Law No. 6136 on abuse of office, attempting to influence a person performing judicial duty, failure to report a crime by a public official, concealing and destroying criminal evidence, profiting from an unauthorized business and mediating prostitution, in violation of the acquittal provisions established. in the appeal review;
…, …, …, …, …, … and … about the defendants sentenced to their sentences; 08.10.2015 days, 2014/140- 08.10.2015 days, 2014/140- 2015/85 Principles and Decisions It has been evaluated that it is possible to follow the decision at the execution stage.
According to the content of the file and the minutes of the hearing, the available evidence collected and discussed at the place of decision, the justification and discretion of the Board of Judges, the objections of the defendants …, …, …, … and …, the defendant … and the Public Prosecutor were rejected because their objections were not appropriate. To APPROVE the provisions that are found to be in accordance with the procedure and the law, except for criticism,
II- … to commit looting separately and … to complain about the defendant, … to attempt looting about the defendant who complained about the defendant, …, …, … As for the verdict of conviction for looting about the defendant and the appeal requests of the Public Prosecutor … for the acquittal of the defendant for looting and membership of an organization:
Other objections were not considered on the spot.
But,
1- In the action mentioned as an incident in the indictment (2.);
Before the date of the incident, the complainant …’s father …’s, …’s …’s 7,000.-That he vouched for the loan of TL, at the same time that the defendant was …’s uncle, 3,150.-It was stated that the defendant, who gave a TL promissory note and was angry that this promissory note was not paid on time, threatened the client by threatening, and then went to the client’s workplace together with the defendants …, …, … and … on 05.05.2008 to resolve the dispute.
A public trial was opened at the Tuzla Criminal Court of First Instance on 27.05.2008 for the crimes of “depriving a person of his liberty” and “threatening” the defendants who were arrested by the security forces while they were making a speech. and as a result of the trial, it was decided to acquit the defendants with the decision dated 26/05/2009 and numbered 2008/1176-2009/564 and the decision regarding these crimes was not appealed. Upon understanding that it has been finalized,
As stated in the decision of the Criminal General Assembly of the Court of Cassation dated 09.07.2013 and numbered 2012/2-1518, numbered esas-2013/154,
Certain “sine qua non” conditions are sought in order for criminal proceedings to be conducted. One of these conditions that prevents the judgment is that there is no judgment or case expressed as “Non bis in idem”.
Although it is not clearly written in the laws, it is applied as a living legal norm
The principle of “Non bis in idem”, which is also accepted in the doctrine and is one of the basic principles of procedural law, is 253 of the CMK No. 1412. in the third paragraph of the article; “If there is a previous judgment or a lawsuit filed against the same defendant on the same subject, the case is dismissed.” while it is said, 223 of the CMK No. 5271, which entered into force on 01.06.2016. in the seventh paragraph of the article, “If there is a judgment or a lawsuit filed against the same defendant for the same act, the case is dismissed.” is arranged in the form of. As it can be understood from these regulations, if there is a judgment or a lawsuit filed against the same defendant for the same act, the case will be dismissed.
In the light of these explanations;
In accordance with Article 223/7 of the CMK, while it should have been decided to reject the public lawsuit filed against the defendants mentioned in our concrete case due to the actions taken against the same complainant on the same date, it was decided to convict the defendant in writing by continuing the trial by showing a change in the nature of the crime.
2-As a result of the examination conducted on the fake ID and passport, in the expert report dated 29.06.2010, organized by the Istanbul Criminal Police Laboratory, the photos found on the passport and ID subject to the crime were pasted after the photos in the same places were removed;
As detailed in the decisions of the General Penal Council dated 14.10.2003 and numbered 232-250, 09.10.2012, 2011/8-335 and 2012/1804, the document should have the character of objective deception and deception should be understood objectively from the document. In order for the crime of forgery to occur in the document, the document that has been edited or modified or used must be of a nature that makes the person believe that it is real.
The feature of deception is the main element of this crime, and a document that cannot be understood to be real should be considered a fake document unless it is subjected to a special examination. Whether the forgery is conducive to deceiving people (objectively) and whether it is understood at first glance should be determined in such a way as to leave no room for doubt. The discretion and determination of whether there is a possibility of deception in the document for forgery crimes belongs to the judge. Making a written decision as a result of incomplete examination without keeping the original document in the file,
3- In the action mentioned as an incident in the indictment (1. article), the defendants received 24,000 from participants engaged in the white goods trade … and … before the date of the incident due to the need for cash.-40,000 in exchange for 2 checks of TL.-They took TL cash money. The interview recorded on audio recordings in which the defendant … and … asked for help in collecting these checks from the defendant …,
who is not a party to the debt-receivable relationship, fearing that the efforts of the participant who wants to collect the checks that he will receive when the due date are fruitless, the debt in question may be the subject of enforcement proceedings. In the minutes where these issues are clearly understood, it is understood that the accused … and the accused … went to the participant’s workplace and talked about the debt, the accused … tried to intimidate him by introducing himself as a government official, but insisted on receiving the checks in the ongoing process.
According to the telephone conversation records, the defendant tried to get the checks back by using the defendant’s name and power for the second time. In the concrete incident, the person who went to the workplace with two people whose identities could not be fully identified, the person who joined with a gun threat, 14-15,000.-TL forcibly took his cash and checks and left the scene.
a) The conviction of the accused for the crimes of looting and membership in a criminal organization, in writing without proper and sufficient justification, without evidence showing that the participant participated in looting directly or indirectly, without discussion and without being shown on the spot to allow for examination,
b) According to the content of the live diagnostic report dated 29.06.2010, which was issued after the procedure, the participant identified the person who came to the workplace with the defendant … on the date of the incident and waited at the door with a radio in his hand on the instruction dated 04.02.2011 as …, declared that he “looked like the person standing in front of the door” at the hearing, and at the hearing dated 24.11.2011, he did not remember exactly, but the workplace employee was able to identify him; to acquit the defendant in writing of the crimes of looting and membership of a criminal organization due to the action he committed against the participant, to continue the trial without determining the statements about the merits and by being satisfied with an incomplete investigation, since the said person is the only witness of the incident,
c) Looted from those who participate…
Regarding the alleged cash and checks, the defendant … said at the hearing dated 01.08.2012 and its continuation, “after the full determination of the damage caused, Article 168 of Law No. 6502. in accordance with the article, they should be given the opportunity to execute or to make a written decision, to be determined by the court ex officio and to continue the trial without having to be given a reasonable period of time for this in accordance with their requests”,
4- (3) according to the content of the annulment decision, the decision whether an application can be made against the accused in accordance with the provision of Article 39 of Law No. 5237 has been left unchallenged on the spot.
The Defendant …, …, …, …, …, …, … since the objections of the defendant … and the Public Prosecutor with their defense were considered on the spot in this regard, it was decided by a majority of votes against the objection of the day numbered 29.06.2016 (1), (3-c), (4) and Dear Member… to impose an EXCESSIVE FINE for the reasons explained.
NEGATIVE VOTE
Since I did not see any error in the decision made by the Court as a result of the hearing of the public case regarding the action taken by the defendants against the victim …
I disagree with the majority’s decisions (3-c) and (4) in the face of the events, the content of the file and the available evidence.