EN SUPREME COURT
Criminal Department
Originally: 2016/10041
The Verdict: 2016/9083
Decision Date: 30.06.2016
THE CRIME OF USING TRUST DUE TO SERVICE – NO POSITIVE OR NEGATIVE DECISION HAS BEEN MADE ON THE SUBJECT – THE SENTENCE SHOULD BE EXCESSIVE
SUMMARY: TCK’s . according to the article, . deprivation of the rights written in paragraph (c) of paragraph (c), regardless of whether deprivation of these rights and powers is mandatory until the execution of the sentence is completed, the establishment of a contrary provision required to be overturned due to the absence of a positive or negative decision on the issue.
(5237 SK Md. 53) (5271 SK Md. 231)
Trial:
By applying for an appeal against the decision of the local court; After the file was read taking into account the nature of the application, the type of punishment, the duration and the date of the crime, the necessity was discussed and decided on behalf of the Turkish Nation;
In the examination conducted on the appeal of the defendant’s attorney;
Since the additional decision of the Court dated October 18, 2016 and numbered 2014/238, the main Decision of 2016/31 on the rejection of the request for appeal is in accordance with the procedure and the law, the rejection of the objections of the defendant’s defense and the APPROVAL of the judgment as an appeal,
In the examination conducted taking into account that the objection of the participating administrative deputy is against the decision made within the scope of Law No. 5607;
1-
Petrolculuk A. On 16/10/2014 in a sealed and marked transport vehicle under the management of the defendant .19.824 Liters of fuel oil were delivered from Ş to Muş province of Mersin province after a fire broke out at 02:00 on 17/10/2014, 3 of the hatches on the upper lid of the tanker were opened, 2 of them were sealed, 2060 liters of fuel were seized in the tanker without markers and in violation of technical regulations, according to the PAL report, the defendant could not explain the 86-minute delay on his route and the situation related to the fuel after a fire broke out at 02:00 on 17/10/2014, since it is understood that fuel was smuggled into the country, in the 3/11-last article of the Law No. 5607, amended by Article 89;
According to the Law No. 6545 in force on the date of the crime, “… However, if it is understood that fuel oil that does not contain a marker substance or whose level is invalid was smuggled into the country, judgment is given in accordance with the provision of the tenth paragraph.” Taking into account the decision of the superior judge, a written judgment is established against the accused, without taking into account that it is not necessary to apply according to articles 3/5 and 3/10 of Law No. 5607, 3/11-with reference to the last sentence,
2-
CMK’s 231. the defendant, who has no obstacle in terms of objective conditions to delay the announcement of the provision regulated in article 231/9 of the Code of Criminal Procedure, who requests the delay of the announcement of the provision in the defense given by the court, requests the decision to delay the announcement of the provision and does not know that public harm occurs due to the absence of a KEMT document in the instruction Oct, declares that the amount, which is the sum of customs duties and other taxes and financial burdens with equal effect, is a public harm, according to the result. although it is necessary to make a decision taking into account the paragraph, it is decided that there is no room to delay the announcement of the provision on the grounds that the public harm has not been remedied,
With the Constitutional Court’s annulment decision dated 08.10.2015 and numbered 2014/140 and numbered 2015/85 published in the Official Gazette dated 3-24.11.2015 and numbered 29542, the 53rd amendment of the Turkish Penal Code numbered 5237. due to the cancellation of some parts of the article, there was an obligation to re-evaluate the said article,
TCK’s 53. according to the third paragraph of the article, (c) deprivation of the rights written in subparagraph. Establishment of a written judgment without considering that it is mandatory for persons to be deprived of these rights and powers until the execution of the sentence is completed,
4-No positive or negative decision is made about the subject of the case,
Since the unlawful appeals of the representative of the participating administration are considered in place in this regard, the provision is 8/1 of Law No. 5320. it is located in the article. it was unanimously decided to cancel the CMUK No. 5320 on 30.06.2016.