4th Criminal Chamber, Case No. 2020/1991, Decision No. 2020/10523
“Judgment”
Pursuant to Articles 106(1), 43(2), and 62(1) of the Turkish Penal Code No. 5237, it is observed that in the decisions of the Ordu 2nd Criminal Court of First Instance dated December 12, 2019, and numbered 2018/909 and 2019/804, a prison sentence of 6 months and 7 days was imposed in accordance with the relevant provisions. As can be seen, the requests bearing the reference number 94660652-105-52-3394-2020-Kyb were forwarded to the relevant unit along with the notice dated May 6, 2020, and numbered 2020/41982 from the Prosecutor’s Office of the Court of Appeals, and the file has been reviewed:
In the request letter, it is stated: “Based on the scope of the file;
As explained in the Criminal General Assembly decision No. 2009/9-259 dated 02/03/2010 and Decision No. 2010/47, the crime of resistance with the intent to prevent the performance of duty, as stipulated in Article 265 of the Turkish Penal Code No. 5237, is a discretionary traffic offense. Since it is understood that the offense was committed by using force and/or threats to prevent a public official from performing his or her duties, that the defendant was intoxicated and disturbing those around him, and that the security officers who approached him during the identity check insulted and threatened him, the defendant’s entire action was carried out through threats. Article 42 of Law No. 5237 states that failure to perform one’s duty constitutes the offenses of resistance and insult.
“This provision also covers offenses that are considered a single act because one of the offenses constitutes an aggravating factor or cause.” The other is referred to as a compound offense. In such offenses, the provisions regarding assemblies do not apply.” According to the written regulation, this is incorrect, as it fails to take into account that the defendant cannot be punished separately for the threat, which is an element of the offense of active resistance.
Legal Assessment:
Article 265/1 of the Turkish Penal Code, titled “Resistance to the Performance of Official Duties,” provides that “A person who uses force or threats to prevent a public official from performing his or her duties shall be sentenced to imprisonment for a term of not less than six months and not more than three years.” Article 42 of the
Turkish Penal Code No. 5237 states: “A compound offense is defined as an offense in which one act is considered a single offense because it constitutes an element or an aggravating circumstance of another offense. In such cases, the provisions on consolidation do not apply.” When the
scope of the case, the appeal request based on the rule of law, and all these explanations are evaluated together;
Article 265/1 of the Turkish Penal Code No. 5237 states: “A person who uses force or threats to prevent a public official from performing their duties shall be sentenced to imprisonment for a term of six months to three years.” Taking into account the provision regarding threats,
it is clear that, pursuant to Articles 106/1, 43/2, and 62/1 of the Turkish Penal Code No. 5237, a separate sentence cannot be imposed for the crime of threat. In the decisions dated December 12, 2019, numbered 2018/909 and 2019/804, of the Ordu 2nd Criminal Court of First Instance, the imposition of a prison sentence of 6 months and 7 days in accordance with the statute is incorrect.
Conclusion and Decision:
For the reasons explained above;
1- Since the grounds for annulment of the summons issued by the Prosecutor’s Office of the Court of Appeals are deemed valid, the final judgment No. 5271 of the Ordu 2nd Criminal Court of First Instance, dated December 12, 2019, and bearing case numbers 2018/909 and 2019/804, regarding the crime of threats, pursuant to Article 309 of the Code of Criminal Procedure;
2- The provision in paragraph 4 of the same Code prohibiting retrial, and
Pursuant to Article 4 of the Turkish Penal Code No. 5237/265: “Any person who uses force or threats against a public official to prevent the official from performing his or her duties shall be sentenced to imprisonment for a term of not less than six months and not more than three years.” Taking into account the threatening nature of this provision, it was unanimously decided on October 5, 2020, to sentence the defendant to 6 months and 7 days in prison…