EN SUPREME COURT
Criminal Department
Based on: 2013/32150
The Verdict: 2016/5596
Decision Date: 29.06.2016
CRIME OF LOADING – BY THE DECISION OF THE CONSTITUTIONAL COURT, THE PRESENTATION OF ELECTORAL AND OTHER POLITICAL RIGHTS WRITTEN IN THE ARTICLE OF THE TURKISH PENAL CODE HAS BEEN CANCELED AND THE SENTENCE HAS BEEN APPROVED
ABSTRACT: With the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140-2015/85, the phrase “to elect, to be elected and to exercise other political rights” contained in Article 53/1-b of the Turkish Penal Code should be canceled and corrected.
(5237 SK md. 31, 53, 61, 149, 168) (5271 SK md. 231) (ANY. MAH. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case and Decision: By going to the appeal against the decision made by the Local Court, the file was discussed taking into account the nature of the application, the type of punishment, the duration and the date of the crime:
I- In the examination of the verdict given to the defendant on the offense of insult…:
The decision to “delay the announcement of the verdict” established due to an insult offense is about the defendant … Since it is one of the decisions that cannot be appealed in accordance with the Article, the file should be RETURNED to the Chief Public Prosecutor’s Office of the Supreme Court of Appeals in order to ensure that the file is sent to the competent court responsible for examining the objection,
II- In the examination of the verdict established against the defendants … and … for the crime of looting:
The crime of looting was committed by more than one person together and at night in violation of the paragraphs (c) and (h) of paragraph 1 of article 149 of the Turkish Penal Code No. 5237, therefore, according to Article 61 of the same Law, they should be evaluated and the lower limit should be exceeded when determining the basic penalty, when applying the penalty; establishment of a written penalty on insufficient and inconsistent grounds, removal of the vehicle looted by the defendants from the victim by law enforcement agencies, return of credit cards parked in the district and discarded without the consent of the victim in accordance with Article 168/4 of the
Turkish Penal Code No. 5237, and 120.- It is stated that there is a partial refund situation due to the TL money being covered by the defendants during the prosecution phase, in accordance with Article 168/3 of the same law, the sentence imposed without seeking the consent of the victim cannot be appealed, and the appeal method cannot be applied against. Article 31/3. Since the violation of Article 61 of the same Law by applying it before the provision of the article does not affect the criminal result, the reason for violation has not been shown.
The contents of the file and the minutes of the hearing, the decision to overturn, the appropriate evidence collected and discussed at the place of the decision, the reasons and the objections of the defendants at the discretion of the Board of Judges … and …
III- In the examination of the verdict established for the crime of plunder against the accused…:
It has been stated that the crime of looting was committed by more than one person together and at night in violation of paragraphs (c) and (h) of article 149 of the Turkish Penal Code No. 5237, therefore, when determining the basic penalty according to Article 61 of the same Law, they should be evaluated and exceeded the lower limit; establishment of a written judgment with an insufficient and inconsistent justification when it should be applied;
law enforcement officials of the vehicle stolen by suspects from victims ….. 120 by the defendants during the prosecution phase due to the presence of parking in the district, the credit cards were discarded without their consent and returned to the victim.-It is understood that TL money has been paid and a partial refund situation has occurred. In accordance with Article 168/4 of the same Law, no deduction was made from the execution of the sentence without seeking the consent of the victim, and since there was no counter-appeal, the grounds for overturning were not shown.
According to the content of the file, the legally valid and valid evidence collected and discussed at the place of decision, the violation applied, the justification and the discretion of the Board of Judges; Since there is no violation of procedure and the law in the acceptance and recommendation that the crime was committed by the defendant, other appeals were not considered on the spot.
But;
Deprivation of the defendant from exercising the rights specified in Article 53/1-abcde of the Turkish Penal Code until the execution of the prison sentence is completed; but Article 53/3 of the Turkish penal Code. Although it has been decided to terminate the deprivation of the rights listed in Article 53/1-c of the Turkish Penal Code on his subordinate in the event of his conditional release in accordance with the article; By the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140-2015/85, published in the Official Gazette dated 24.11.2015 and entered into force on the same date, the phrase “election, election and “exercise of other political rights” has been removed from Article 53/1-b of the Turkish Penal Code,
Conclusion: The objections of the defendant’s defense required to be overturned because they were considered on the spot in this regard, and since the reason for the violation did not require the renewal of the trial, he was FINED EXCESSIVELY for the judgment, contrary to the explained reason, 8/1 of Law No. 5320. 322 of CMUK No. 1412. based on the authority granted by the article, “53 of the TCK. the section “execution of the sentence” was removed from the provision of article “and replaced by “53/1 of the Turkish Penal Code as a legal result of the defendant’s conviction with imprisonment for a crime he intentionally committed.
its substance. (a, c, d and e) and the phrase “deprivation of the right to elect, be elected and exercise other political rights written in subparagraphs (b)” has been introduced; 53/2 of the same Law. 53/1. in terms of the implementation of the article. The election and other political rights written in articles (a, c, d and e) and (b) and the powers of custody, guardianship and trusteeship over the child of the same article written in subparagraph (c) are valid until he is released from prison on probation. It was decided unanimously on 29.06.2016 to CORRECT and APPROVE the provision, the aspects other than criticism of which were found to be in accordance with the procedure and the law.