TC
Supreme
6.Criminal Department
Mainly No:2017/3754
Decision No:2018/1312
20.Date: 20.2.2018
COURT : Criminal Division
CRIMES : Looting, depriving a person of his freedom
PROVISION : Refusal of the application for appeal on the basis of
The decision made by the Gaziantep District Court of Justice was also reviewed through appeal; an evaluation was made in the file taking into account the nature of the application, the type of punishment and the date of the crime;
The defendants …, …, … and … according to the duration of the sentences imposed for qualified looting, the defendant’s defenses are 298 and 299 of Law No. 5271. they request an appeal examination as required by their articles.
About the defendants …, …, …, … and …, your name is 1. By the decision of the High Criminal Court dated 27/12/2016 ref 2016/420 2016/313, the victims … and …” due to more than one person, due to the fact that the crime of armed assault and looting by one person became unrecognizable by committing together, the CMK imposed a freedom-binding penalty in accordance with the provisions of law No. 272 and the subsequent application for appeal; 7. With the decision of Gaziantep Regional Court of Justice numbered 2017/3018 and 2017/318 dated 27/12/2016 and the decision made as a result of the examination conducted by the Criminal Department on the file, it was decided to reject the application for appeal and;
The decision was appealed by the defendants …, defendant … attorneys on 03.03.2017, by the defendants … and … attorneys on 09.03.2017;
In their petition, the defendant’s lawyers requested that the provisions of the conviction be overturned, stating that “… there is no sufficient, concrete and beyond any doubt evidence regarding the conviction, and that the defendants should be acquitted based on the principle that the defendant will benefit from the doubt.
The defendants duly defended and filed their case No. 2017/22367 on the day and 29.11.2017 of the Chief Public Prosecutor of the Supreme Court of Appeals, [“the content of the file and trial minutes, evidence, reason and positive issues discussed in the decision at the discretion of the judge’s board, together with the defendants … , …, … and … and the procedures determined outside the law, on the grounds that there is no illegality in the decision to reject the defendants’ appeal request, except for the provision on the examination of the appeal request on the basis that there is no illegality in the decision to reject the defendants’ appeal request, the Court of Appeal defense is outside the provision on the basis that there is no illegality in the decision to reject the defendants’ appeal request.
“[“The content of the file and the hearing minutes, the evidence, the reason and the positive aspects discussed in the decision at the discretion of the judge’s board, 2017/22367, 29.11.2017, 2017, 2017, 2017/22367 ] 302/1. October October articles 288-289 of the CMK, in accordance with the decision on the rejection of the application for appeal sent in the annex to the communique containing an opinion on the merits [in the form of APPROVAL of the rejection decision of the court of appeal on the merits] and the appeal case filed against this decision were examined ex officio within the scope of articles 288-289 of the CMK;
1-In the review of the appeal against the decision made about the defendant …;
43 Of the Turkish Commercial Code, without taking into account that the crime of depriving a person of his liberty is caused by the large number of victims. a lawsuit has been filed in accordance with the article, and the justification for the violation has not been shown, since there is no counter-appeal.
The minutes of the hearing and the evidence related to the contents of the file, the reason and the decision to be made positively by discussing with the discretion of the Board of Judges; the regulations and principles related to the determination of the procedures and principles related to the rejection of the request for appeal on the grounds that the defendant’s decision to criticize has no justification other than the violation of the law have been issued. Upon the rejection of the defendant’s appeal request, the CCP defense 302/1. article 7. Gaziantep Regional Court of Justice upon rejection in accordance with the article. on 15.02.2017, the Decision of the Directorate of Criminal Administration numbered 2017/3018 and the Decision numbered 2017/318 to APPROVE the rejection of the contradiction provision,
2-As for the examination of the appeal against the judgment given against the defendants …, … and …;
Other objections were not evaluated on the spot.
But;
The main purpose of criminal procedure is to reach the material truth. This will be in accordance with the principles stipulated by the procedural rules. Therefore, the examination until the decision is finalized
in order for the evaluation of evidence to be possible, that is, for justice to be fully realized, the examination of legal documents that may illuminate the incident and all the evidence and evidence obtained, reason, logic, scientific data, physical rules, well-known facts in a concrete situation, daily life presumption in determining whether the quality of the information obtained is appropriate in this regard, and statements that make one superior to the other, if it is necessary to put an end to misunderstandings and/ or explain the evidence, the result of the appeal and subsequent legal grounds should be written with controllable compassion.
On the other hand, there are usually no witnesses in looting incidents, so the victim’s statement and diagnosis are important. If the statement of the victim, who is the addressee of a one-on-one incident, is consistent and stable, it is of a leading and superior quality. If there is a pause on this issue, it should be considered that doubt should be eliminated. All kinds of attributions are evidence. Abstractly, proofs are equivalent.
Therefore, if the evidence has not been sufficiently investigated or the investigation is incomplete, these issues should be resolved. The court must collect evidence that was not collected during the investigation phase. The judge must reach a conclusion that is beyond doubt by investigating the evidence in favor of and against the accused and evaluating them freely with full conviction. Doubts should be eliminated. In other words, there should be no suspicious considerations based on assumption in the provision. A material fact must be revealed from the evidence representing all or part of the event. It is absolutely contrary to the purpose of criminal procedure to make a decision based on a set of assumptions.
Doubt and contradiction cannot be decided without defeat. If there is a crime, the detection of the perpetrator is possible only by interpreting the evidence. The criminal verdict should not be based on a possibility, but on definite and clear evidence, and this evidence should not lead to any doubts and any other possibility of realization. With a high probability, a penalty cannot be imposed without collecting sufficient evidence. In order to determine whether the verb or actions are a crime, it is first necessary to determine whether the verb in question has been committed. This will be answered by the interpretation of the evidence. The judge must show how he interpreted the evidence in the justification of his decision, how he reached a conclusion through interpretation.
The means by which the judge will reach the material truth is evidence.
Evidence: Personal statements, witness statements, statements of persons other than the accused and witnesses, special written statements, video and/or audio recorded statements and symptoms can be distinguished in the form of. All ways of attribution are evidence. Abstractly, the proofs are equivalent. In any case, lunatics have both pros and cons. Evidence is valuable when it is obtained in accordance with the law, is realistic, rational, reflects the event and is useful to prove it.
After the evidence of this nature is freely evaluated, it will constitute conscientious evidence. When forming a conscientious opinion, there is no obligation to give credence to any of the collected evidence.
The defendant’s confession is also evidence.
A confession is an admission by the defendant that he confirmed an event that had legal consequences against him.
The confession alone cannot be accepted as conclusive evidence. Because it is possible for someone to confess for various reasons. Even a confession made in front of a judge must be confirmed by other side evidence in order to be binding. A conviction decision can never be made based on the previous abstract confession of the accused, who has withdrawn his confession.
A confession is valuable when it is made in front of a judge and not retracted and supported by circumstantial evidence. In other words, a confession confirmed by evidence is valuable. Abstract confession alone cannot be sufficient.
No evidence, including a confession, alone binds the judge.
The only and main task of the court of first instance is to reveal the truth. For this purpose, and until the conclusion of the case, it collects all the evidence in favor of the accused individually and/or by following a logical path and considering the parts as a whole and evaluating the complementary conscience (subject to the provision).
No judgment can be made based on assumption and/or doubt. If there are statements whose validity is disputed and/or unproven, it can be said that there is a dark spot in the middle. The evidence must necessarily reach a point that conclusively proves that the accused has committed a crime. If it cannot be reached, this should not be interpreted against the accused. The evaluation will be carried out according to the ”in dubia pro reo” rule, which is the greatest principle of criminal proceedings, the defendant gets the benefit of the doubt.
In the light of these explanations, when it comes to the concrete event;
The complainants said, “On the day of the incident at about 20:00, …. After parking his vehicle with license plates in Karagol, he went by the roadside, against a conversation that started about five minutes later, after sitting in the back seat of the vehicle, startled by the breaking of the rear window of the vehicle with a hard object, five men in hijabs, one person sitting in the front passenger seat of the driver’s seat, two people sitting next to them, one holding a shotgun, the other holding a knife, the person in the driver’s seat, the tool moving from the road, stayed in the field opposite a field about 200 meters for a long time, in the hand of a knife, by the person who opened the doors of the vehicle at that time., the other person is the victim …
The person who was trying to get rid of the victim by stabbing him in the stomach, cutting off his finger, opened part of the same person’s face in the struggle and both of them saw him, all the defendants shouting at you, don’t yell at you to run away on the water, we will kill you, just threatening to say that the victim’s asthma after a while … ‘S suspects, victims who had seizures and couldn’t breathe… ‘s wallet iPhone 6 brand cell phone with his own gun, forced him on them and got out of the car
they ran away, and the victim’s girlfriend … They went to the Park Hospital in Osman’s car, and when they looked after the tire failure sign on the vehicle indicator, they noticed that the right rear tire of the vehicle had been blown by the defendants… they filed a complaint by contacting the police officers on duty at the hospital,
The defendants, in their unchanged defense at the …, … and … stages, have declared that they do not accept the charge and do not know the clients;
The verdict of conviction established against him, Gaziantep Regional Court of Justice 7. Dated 15.02.2017, 2017/3018 and 2017/318 K of the Criminal Department. according to the numbered decision, the other defendant stated in his statement delivered to law enforcement agencies on 19.04.2016 that he had committed the criminal act together with the defendants …, …, … and … and made detailed statements in parallel with the victim statements;
In summary, during the interrogation of the said defendant dated 04/12/2016 at the Adıyaman Chief Public Prosecutor’s Office and the Criminal Court of Peace; “He had panic attacks and therefore lied, in his statement on the armband, he said that he heard from his surroundings and the press after the incident, he did not know the victims, therefore there was no animosity between them Dec; in his defense in court, he said that he had nothing to do with the incident, other villagers and friends of the defendants were under pressure, the gendarme station who testified was forced to accept his statement,
and everything was prepared and signed, not by the gendarme, the first one was not a lawyer, but then he came and had no meeting with a lawyer for a statement, the first two came from the commander, despite this, he did not accept the incident, then, four, five and other friends came, they told me to blame the commander., By declaring that he signed in the face of some unfounded records showing that he had committed a crime on Facebook, declaring that he had returned from his previous statement, even took him by the collar and admitted the charges by showing the location of the accused;
In the “open source research and detection report dated 18.02.2016 by the Adıyaman central gendarmerie police station command;“As a result of the research and intelligence work conducted on the incident, it was learned that one of the suspects concluded that ”other friends and other unidentified intelligence information he had previously obtained based on, participated in such crimes, looted and harassed, took photos by blackmail by force”. It has been determined that no complaints or applications have been made to our command regarding similar incidents in which the person has been involved before. After being explained, it was stated that the pictures shared by … from the public Facebook account page were detected and removed;
It was stated in the “Photographic Diagnostic Record” held on the same date that both victims, whose photos obtained from an open source were shown to them, declared that they were the person whose face was opened during the incident and identified the accused without hesitation.
Although the defendant…’s statement dated 19.04.2016, which reached law enforcement agencies as a suspect, stating that he signed under duress “during his interrogation before a judge”, can be evaluated against the defendants …, and … it will be legally binding against the defendants, but it will constitute a crime, and it cannot be binding on the named defendants.
Therefore, it is not possible to interpret the defendant’s … statement dated 19.04.2016 against the defendants mentioned with the admission that it is an abstract crime that is not confirmed by side evidence;
Given that the complainants declare that they have not seen the perpetrators other than the defendants and therefore do not have the opportunity to identify the defendants …, … and …;
The defendants …, … and …’s defenses that they did not commit a crime were loaded, and the convictions of … and …’s against the actual perpetrators, who, unlike the victims of the crime, were accused of the crime of looting, are final, beyond doubt, without considering that convincing evidence cannot be obtained, based on the assumption that it is far from forming a definitive opinion, with incomplete reasons as a result of written examination and by establishing an adequate conviction provision,
Since the appeal petitions and defenses of the defendants have been examined on the spot since this date, the 7th of the Gaziantep Regional Courthouse Court. 15.02.2017 day, 2017/3018 Decision Numbered 2017/318 Decision Numbered 2017/318 Decision Numbered 2017/318 Decision numbered 5271 Decision numbered 302/2 CMK against the decision made contrary to the procedure and law on the rejection of the application for appeal, 302 CMK numbered 122. in accordance with the article and paragraph, it was decided unanimously on 20/02/2018 to comply with the violation order contrary to the violation order.