EN SUPREME COURT
Criminal Department
Based on: 2014/3174
The Verdict: 2016/9031
Decision Date: 30.06.2016
CRIME OF OBJECTION TO LAW NO. 4733 – THE REGISTRATION OF THE VEHICLE USED IN THE CRIME IS NOTIFIED AND THE SUBJECT OF THE JUDGMENT IS CREATED BY INCOMPLETE EXAMINATION WITHOUT MAKING A MUTUAL DECLARATION.
SUMMARY:
The determination of the verdict as a result of incomplete examination required the cancellation of the vehicle used in the crime without informing the license holder about the incident, without receiving a declaration about the confiscation, and without discussing whether the vehicle belongs to a bona fide third party. It has been decided to overturn the judgment.
(K No. 5607. Md. 3) (K No. 5237. Md. 53) (K No. 5271. Md. 226, 257) (4733 PK Md. 8) (ANY. MAH. 08.10.2015 T 2014/140 E. 2015/85 K.)
Trial and Decision:
The verdict given by the local court is appealed; after the file is read taking into account the nature of the application, the type of punishment, the duration and the date of the crime, the necessity is discussed and decided on behalf of the Turkish Nation;
1- Except for the defendant’s claim that 5200 cartons of smuggled cigarettes belonging to the subject of the crime belonged to him and offered to be transferred to him, the defendant’s … defense of the verdict,
2- 3/5 of the Law No. 5607. according to the article about the accused … …. 8/4 of the Law No. 4733. although a public lawsuit has been filed with the request for punishment in accordance with Article 226/1 of the CMK, without being granted the right of additional defense. Oct. by establishing a judgment due to opposition to the article, violation of the article,
3- The license holder of the vehicle used in the crime, CMK 257/2. According to the article, as a result of incomplete inspection, without providing information about the incident, without receiving a declaration about the confiscation and without discussing whether the vehicle belongs to a bona fide third party, a written judgment should be established,
4- With the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 and numbered 2015/85 annulled published in the Official Gazette dated 24.11.2015 and numbered 29542, the obligation to re-evaluate the said article arose due to the annulment of some parts of Article 53 of the Turkish Penal Code numbered 5237,
pursuant to paragraph 3 of Article 53 of the Turkish Penal Code No. 5237, the accused … Shall be conditionally released from custody or trustee duty, the defendant shall have custody rights and the execution shall be carried out in writing without taking into account the necessity of deprivation of authority until the execution of the sentence is completed,
5- 8/4 of the Law No. 4733 on the confiscation of the subject. while it should be satisfied with its substance, it has been decided to liquidate it by destruction as required by the substance.
6- It was decided that the customs authority, which does not have the right to participate in the case, should be considered a participant in the case, and it was decided to pay the “attorney’s fee in favor of the participating institution” in such a way that it cannot be understood which institution is in favor of it, despite having the title of participant in the case.
Conclusion:
Since the objections of the defendants are considered on the spot in this direction, the provision is 8/1 of Law No. 5320. it is against the law because it is included in the article. 321. it was decided unanimously on 30.06.2016 to annul the CMUK No. 1412, which is in force according to the article.