EN SUPREME COURT
Criminal Department
Based on: 2014/22890
Verdict: 2016/8644
Decision Date: 22.06.2016
CRIME OF OBJECTION TO LAW NO. 4733 – ALTHOUGH HE WAS NOT HARMED BY THE CRIME, HE WAS GIVEN A LAWYER’S FEE BY THE CUSTOMS ADMINISTRATION, WHICH DECIDED TO PARTICIPATE IN THE CASE – APPROVAL OF THE PROVISION
SUMMARY:
According to the nature of the crime, in the judgment established against the defendant who was tried for the crime of opposition to law 4733, the power of attorney fee was ruled in favor of the customs administration, which decided to participate in the case even though he was not harmed by the crime, but it was decided to correct and approve the judgment.
(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- According to the nature of the crime, the decision to participate in a public case by a customs authority that has not been directly harmed by the crime does not give rise to the right of appeal, so the customs administration representative’s appeal request complies with the provision of Article 317 of the Criminal Procedure Code No. 1412, which is in force in accordance with Article 8/1 of Law No. 5320.
II- In the examination of the defendant’s appeals;
Although other objection objections are not valid,
1- It is not necessary to decide whether the deprivation of rights regulated in paragraph one (c) of Article 53 of the Turkish Penal Code should also be applied to the defendant who was sentenced to a prison sentence for a crime he committed intentionally,
2- Instead of confiscating all the illegal and unbandrolled cigarettes that are the subject of the lawsuit, confiscate the samples registered at the courthouse by incorrectly displaying the clause of the substance,
3- 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,
Conclusion:
Since the defendants’ objections are unlawful and therefore the appeal objections are considered on the spot and this does not require a retrial, 322 of the CMUK No. 1412, which is in force in accordance with Article 8/1 of Law No. 5320, is required. according to the article;
1-The paragraph on the application of Article 53 of the Turkish Penal Code was published by the Constitutional Court dated 08.10.2015 and dated 2014/140 E. – 2015/85 K. the abolition of the numbered decision in its place, 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-The provision on the confiscation of cigarettes under commercial supervision is replaced by the provision on the confiscation of illegal cigarettes without a bandolier, which is the subject of the lawsuit, “TCK 54/1.” removal of the article,
3- It was decided to abolish the provision on paying the attorney’s fee in favor of the customs authorities unanimously on 22.06.2016 and leave the other parts in the same.