EN SUPREME COURT
Criminal Department
Based on: 2014/24599
Verdict: 2016/8643
Decision Date: 22.06.2016
CRIME NUMBER 4733 – OBJECTION REVIEW SUBJECT TO INVESTIGATION IF THERE IS A CONNECTION BETWEEN THIS FILE AND ANOTHER FILE IN TERMS OF Decriminalization OF THE CHAIN, IT SHOULD BE INVESTIGATED
SUMMARY: In the Criminal Court of First Instance …. K. his file was brought in and examined, and it was discussed whether there was a connection between this file, which is the subject of the appeal examination, and the other file in terms of the application of the … clause. Dec. Failure to consider that the defendant’s legal situation does not need to be determined and evaluated by combining the files or taking into account other files is the reason for the deterioration of the judgment.
(5237 SK md. 43, 53, 54) (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;
I- In the examination of the defendant’s appeals;
Although other objection objections are not valid,
1- TCK’s 53. in terms of the application of this article, the Constitutional Court’s decision dated 08.10.2015 and dated 2014/140 E. – 2015/85 K. it is necessary to decide that the decision numbered, published in the Official Gazette dated 24.11.2015 and entered into force on the same date, is not in place,
2-According to the nature of the crime committed, the surrogacy fee is ruled in favor of the customs administration, which decided to participate in the case despite the fact that it was not harmed by the crime,
322 Of the CMUK No. 1412, which is in force in accordance with Article 8/1 of Law No. 5320, due to the fact that the defendant’s appeal objections are unlawful and therefore must be considered on the spot and this issue does not require a retrial. in accordance with the article;
1-The paragraph on the application of Article 53 of the Turkish Penal Code is dated 08.10.2015 and dated 2014/140 E of the Constitutional Court. – 2015/85 K. the abolition of the numbered decision instead of the numbered decision, taking into account the numbered decision and in accordance with the conditions in paragraphs 2 and 3 of Article 53 of the Turkish Penal Code, the application of subparagraphs (a), (b), (c), (d) and (e) of the first paragraph of the said article of the law, by writing the phrase “,
2- Cancellation of the provision on attorney’s fees in favor of the Customs Administration, leaving the other parts in the same and APPROVING the provision,
II- In the examination of the defendant’s appeals;
Although other objection objections are not valid,
1- As a result of the examination conducted by taking into account the UYAP records, the accused is of the same nature as the crime subject to the appeal investigation, Erzurum 1. 2015/27972 E of the Criminal Court of First Instance. 2012/426 E. – 2014/2015 K. it is understood that the decision registered in our numbered office is the same, the crime dated 15.01.2012, which is the subject of the other file and is alleged to have been committed by the defendants on 6 separate dates, is the same as the crime subject to this case, which is the subject of the appeal investigation;
As detailed in the decision of the General Criminal Assembly of the Supreme Court of Appeals dated 08.04.2014 and numbered 2013/7-591 Esas, Decision 2014/171; the manner of committing the crime, the characteristics of the crime, the place and time of the crimes, the time elapsed between the actions, the protected value and interest, the nature of the material object to which the action was directed, the occurrence and development of events and all other characteristics reflected to the outside world were evaluated together and the actions of the accused were evaluated as a result of the Decriminalization decision.
In terms of determining whether it was carried out within the scope of the execution, it is about 43 of the TCK. whether the article will be applied and whether the crimes dated 15.01.2012, which are the subject of both cases, are the subject of the case again;
Our apartment is located in 2015/27972 E. Erzurum 1, which has been registered on its history and is of a similar nature. 2012/426 E of the Criminal Court of First Instance. – 2014/629 K. the numbered file was opened and examined between this file, which is the subject of the appeal examination, and the other file mentioned in the TCK. Dec. 43 Of the Turkish Penal Code.
when it is discussed whether there is a connection in terms of the application of the article and whether the crime subject to the appeal investigation is a recurring subject of the case, if it is found that there is a connection in the above-mentioned aspects, it is considered that the legal status of the defendants does not need to be determined and evaluated by combining the files or taking into account the other file.
According to the acceptance and application;
2-According to the nature of the crime committed, the power of attorney fee was ruled in favor of the customs administration, which decided to participate in the case even though it was not harmed by the crime. According to Article 54/1 of the Turkish Penal Code, confiscation of illegal and unbandrolled cigarettes that are the subject of the lawsuit is only possible if the liquidation process has been carried out. according to the article, unbandrolled and illegal n
It is illegal to confiscate sample cigarettes and not take into account the fact that the liquidation price is recorded as income to the treasury;
3- TCK’s 53. in terms of the application of the article of the Constitutional Court dated 08.10.2015 and 2014/140 E. – 2015/85 K. it should be taken into account that the decision numbered was published in the Official Gazette dated 24.11.2015 and entered into force on the same date.
Conclusion: Since the defendant’s appeals are considered on the spot, it is 8/1 of Law No. 5320. the article had to be ruled. 321 Of the CMUK No. 1412, which is in force according to the Article. in accordance with the article, its termination was decided unanimously on 22.06.2016.