Criminal Division
Case No.: 2018/18571
Decision No.: 2021/7505
“Judgment Text”
COURT: First Instance Criminal Court
OFFENSE: Appeal under Law No. 5607
JUDGMENT:
Conviction, forfeiture, liquidation
An appeal has been filed against the decision of the local court; the case file was reviewed based on the nature of the appeal, the type and duration of the sentence, and the date the offense was committed; the necessity of the decision was discussed and evaluated on behalf of the Turkish nation;
on the day of the incident, during a search conducted by law enforcement at the defendant’s workplace, a total of 57 packs of contraband cigarettes and unpackaged cigarettes were seized from a drawer; according to the scope of the case file, there is no search warrant issued by the court regarding the defendant or the contraband goods, and furthermore, the prosecution has not issued a written search warrant on the grounds that delay would be detrimental; Therefore, the search was conducted in violation of procedure and the law, and the evidence obtained is inadmissible.
Article 38, Paragraph 6 of our Constitution states, “Evidence obtained in violation of the law shall not be admissible as evidence,” and Articles 206/2-a, 217/2, and 230/1 of the Criminal Procedure Code No. 5271. In accordance with the clear provisions in the relevant articles and paragraphs regarding the admissibility of evidence obtained in compliance with the law and the inadmissibility of evidence obtained through unlawful means as the basis for a judgment, and considering that the defendant, who has not admitted to the charges at any stage and whose goods are understood to have been brought in through smuggling, cannot have the goods obtained through unlawful means used as the basis for a judgment instead of an acquittal,
;
1- Article 61 of Law No. 7242, which entered into force upon its publication in the Official Gazette on April 15, 2020, and Article 3/22 of Law No. 5607 have been amended to include the provision: “If the value of the goods is low, the fine shall be reduced by half; if it is very low, it shall be reduced to one-third.” Article 5/2 of Law No. 5607 has been amended by Article 62 of the same Law.
According to the paragraph added to the article, it is understood that the application of effective repentance during the trial phase has become possible; Taking into account Article 7 of the Turkish Penal Code No. 5237, Article 63 of Law No. 7242, and the second paragraph of the transitional Article 12 added to Law No. 5607, it is mandatory to determine whether the legal conditions of the relevant provisions have been met, and the application of this determination falls within the jurisdiction of the local court.
2-
Failure to comply with the rule requiring the conversion of the daily fine into a monetary amount after the base daily fine has been determined, and the application of factors for increases or decreases,
3- The Constitutional Court’s decision dated October 8, 2015, and numbered 2014/ 140 dated October 8, 2015, and the Decision No. 2015/85 published in the Official Gazette No. 29542 dated November 24, 2015, which annulled certain provisions of Article 53 of the Turkish Penal Code No. 5237, necessitates a re-evaluation of the said article. 4-
Article 13/1 of Law No. 5607 and Article 54/4 of the Turkish Penal Code (TCK) regarding property seized in connection with a crime must be applied. Confiscation must be carried out in accordance with the provisions of Article 54/1 of the TCK. The decision to display the article and liquidate the property
is contrary to the law; since the defendant’s objections on appeal were deemed valid in this regard, and for this reason, this provision was introduced in Article 8/1 of Law No. 5320. On June 7, 2021, it was unanimously decided to declare it invalid pursuant to Article 321 of Law No. 1412, which is currently in force.