EN SUPREME COURT
Criminal Department
Originally: 2014/28897
The Verdict: 2016/8781
Decision Date: 23.06.2016
THE CRIME OF OBJECTION TO LAW NO. 4733 – INDIRECT INSTANT INSTANT INSTANT THE CONFIDENTIALITY OF THE CRIME MUST BE KEPT HIDDEN AND IT IS NOT RULED TO LIQUIDATE IT BY DESTRUCTION – WAS APPROVED BY CORRECTION
SUMMARY: In the judgment established against the defendant who is being tried for the crime of opposition to law No. 4733, it was decided to confiscate illegal and unbandrolled cigarettes that are subject to crime, to liquidate them by destruction, and although it requires violation, the judgment was corrected and approved.
(5237 SK md. 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 objection of the representative of the relevant Customs Administration;
The objection examination request of the representative of the participating Customs Administration who does not object to the decision within the legal period is subject to the provision of Article 8/1 of Law No. 5320. Rejection in accordance with Article 317 of the CMUK No. 1412, which is in force according to the article,
II- In the examination conducted on the defendant’s appeal;
1- With the Constitutional Court’s cancellation decision dated 08/10/2015 dated 24/11/2015 and published in the Official Gazette numbered 29542, dated 2014/140 and numbered 2015/85, due to the cancellation of some parts of Article 53 of the Turkish Penal Code numbered 5237, there was an obligation to re-evaluate the said article,
in accordance with paragraph 3 of Article 53 of the Turkish Penal Code No. 5237, the deprivation of rights provision written in paragraph 1 (c) of the same article about an accused whose execution of a non-short-term prison sentence has been postponed should be applied only in terms of custody, guardianship or trusteeship powers over the defendant’s child. The deprivation of these rights and powers must be decided by a written decision, regardless of whether it is mandatory to make a decision until the execution of the sentence is completed.
2- In the confiscation of illegal and unbandrolled cigarettes, which are the subject of the crime, it should be satisfied with the confiscation decision according to Article 54 of the Turkish Penal Code No. 5237, but it should also be decided to dispose of them by destruction,
Conclusion:
CMUK 322 due to the fact that the defendants’ objections are unlawful and these objections are considered on the spot for these reasons and these issues do not require a retrial. according to the article;
1- the section on the application of Article 53 of the Turkish Penal Code numbered 5237 was published in the Official Gazette dated 24/11/2015 and numbered 29542 of the Constitutional Court dated 08/10/2015 and numbered 2014/140 E., 2015/85 K . taking into account the issues repealed in the numbered decision,,
2- Related to the destruction and disposal of the cigarettes subject to the lawsuit 2. paragraph, “2- 5237 of the Turkish Criminal Code 54/1. in accordance with the article, it was decided unanimously on 23.06.2016 that the subparagraph ”Confiscation of illegal and unbranded cigarettes” was amended in the form of, and the other parts were left the same, and the provision was reorganized and approved.