Summary:
In the face of the absence of any prior animosity between the accused and the victims; since it only prevents them from making calls, it reveals the honor and Decency of the victims with bets..due to the fact that slandering the accused contradicts the usual flow of life, instead of punishing the actions of the participating victim, who was thrown at the accused and found support, it is illegal to issue a written acquittal decision,” the Special Chamber appealed to the legal remedy, requesting that the decision to lift the approval decision and overturn the local court’s decision….
The dispute between the Special Chamber and the Chief Public Prosecutor’s Office of the Court of Cassation, which should be resolved by the Criminal General Assembly, is related to determining whether the Decriminalization and sexual harassment crimes committed against the accused are fixed….
As it is not fixed that the crimes charged in this respect were committed by the accused, the decision of the local court regarding his acquittal and the decision of the Special Chamber approving this provision should be decided to reject the appeal, since there is no inaccuracy in the decision….
T.C.
Supreme
Criminal General Assembly
Main Number: 2013/376
Decision No:2015/189
K. Date:1.1.1901
Defendant C.. Sh..regarding the acquittal of on charges of insult and sexual harassment, Bursa 4. Upon the appeal of the decision dated 04.11.2008 and numbered 712-1090 issued by the Criminal Court of Peace by the participating deputy, the Court of Cassation, which examined the file, decided on the 14th. The Criminal Department decided to approve it on the day of 18.10.2012 and with the number 9632-10248.
The Chief Public Prosecutor’s Office of the Court of Cassation is on 30.11.2012 day and with the number 117412;
“The accused committed his criminal acts against two separate victims at the same time. Each of the victims is in the position of a witness in terms of the actions committed against the other victim. As both victims stated in their consistent statements in the same direction, the defendant committed both sexual harassment and insult crimes against the victims. There is no animosity between the victims and the accused based on Decency. On offense, with the reason to do overtime work at the factory magdure home phone to open the phone working as a watchman at the mill on asking for permission to go over and open to the defendant, the defendant committed the crime of insult against magdure and then has carried out acts of sexual harassment. The victim who did not appeal the verdict against the accused is O.. A..due to the fact that the victim was very affected by this incident, the relatives of this victim came to the factory where the crime took place after the incident and had an argument and a fight with the defendant. The Victim is O.. A.. if the subject of the crime was not affected by the incident, he would not reflect this incident, which is a matter of honor and sometimes has very bad consequences, on his family.
In the face of the absence of any prior animosity between the accused and the victims; since it only prevents them from making calls, it reveals the honor and Decency of the victims with bets..reverse the usual flow of life because of the drop Rak vilifying the defendant, the defendant, who confirmed oriented to having thrown on actions instead of punishing magdure participating in writing the acquittal provision, it is against the law” with the view that by applying the law to appeal, the decision of the Local Court and the abolition of private apartment ratification is the prompt provision, I found that deciding the deterioration.
CMK’s 308. the Court of Cassation, which conducts an examination in accordance with Article 14. The file sent by the Criminal Department to the First President of the Court of Cassation on the date of 28.02.2013 and the number 15126-2045 was evaluated by the Criminal General Assembly and the decision was made on the grounds explained, as the reasons for the appeal were not considered in place.
DECISION OF THE CRIMINAL GENERAL ASSEMBLY
He is the one who participated about the accused.. A..the acquittal provisions established for the crimes of insult and sexual harassment against the accused have been finalized without appeal, and the examination, according to the scope of the appeal, is carried out by the defendant’s participating K.. A..it was made in limited terms with the acquittal provisions established for the crimes of insult and sexual harassment against.
The dispute between the Special Chamber and the Chief Public Prosecutor’s Office of the Court of Cassation, which should be resolved by the Criminal General Assembly, is related to determining whether the Decriminalization and sexual harassment crimes committed against the accused are fixed.
Within the scope of the examined file;
Defendant C.. Sh..born on 01.01.1974, married, with 1 child, graduated from primary school, attended K.. A..’s was born on 24.07.1984, single, graduated from primary school, the participants and the defendant worked as a worker in a textile factory, so they knew each other before the incident,
About the defendant, participants K.. A.. and he.. A..”the girls you know here are giving it to me and you will give it to me“ and ”I will sinkaf your mother avrada” for the alleged use of words for insult and sexual harassment, a public lawsuit was filed against,
It is understood.
Attended by K.. A.. b… that he has been working as a worker in Textile for about five months, on 28.05.2007 at 21.00, he could not finish his work because his neighbor O, who works at the same workplace.. A..’or that he said “help me, we will inform the house by phone, they will come and pick us up”, to which she agreed, defendant C, who works at the same place of work.. Sh..they went to their home and they were requested to notify the telephone, it is forbidden to use the defendant’s phone to say that they returned to work on, the defendant came to the side after 10-15 minutes and “it doesn’t concern me, who are you” she started screaming like saying words, that the defendant “we we’re not that kind of girl” in the form of respond, whereupon defendant’s “the ladies does it give me, you’ll give me something,” he said, “Now don’t talk dirty, tomorrow I’ll notify the manager,” the defendant “I am the shooter, idiot,” he replied, stating that he was complaining about the defendant,
At the trial; he is her friend.. A.. together with B.. He was working at a textile business, he was working overtime with his friend on the date of the incident, they wanted to inform their families, but because his friend did not have a phone and he did not have any credit, the defendant C, who was at the factory at the time.. Sh..they asked for permission to call their home by phone, but the defendant shouted and said, “idiots, idiots, who are you?”, they returned to their places and continued to work in order not to comply with him, the defendant came to them after 10 minutes and He..“if you had told me, I would have let you, but I didn’t let you do this,” he continued to insult her as “stupid, crazy, stupid,” and she said, “we are not the girls you know, don’t mess with us,” and he said, “do the girls here give me, and you will.”, at this time, he also stated that his friend named Sibel, who works at the factory, but did not hear the conversations because she was far away, when they wanted to leave the factory, the defendant locked the door and did not let them leave, while he continued his insults, raised his hand and walked over them, complained to the defendant and asked to be punished,
He is the participant who did not come to the appeal.. A.. in the armband; B.. Defendant C, who worked at the workplace at 21.15 am, said that he had been working as an errand boy in textiles since February 2007, and that he was working at the workplace on 28.05.2007 because his friend, with whom he worked at work, was working overtime because his work was extended.. Sh..’s house to give information to what they said they wanted to call the defendant “in the morning if you stay up late you can phone,” he said, the fate participating “we we’re not that kind of girl” to respond by saying “You know you will give me all the girls here,” she says, and they haven’t answered that they will continue their work for the defendant, the defendant came over and after a while, “your mother, your cousin, your sinkaf’ll,” he said, leaving out a word he says to upset the defendant work at 22.30 hours, meanwhile, his wife, the defendant’s factory was in front of the factory when it comes out of him what he had been doing verbal molestation, his wife and her friend herself after leaving home, the defendant went to the factory to talk with his wife’s relatives on his wife during their learning of the situation from the back of the factory they went to 24.00 hours, the defendant attacked the wife of the relatives of the defendant upon the same attitude and behavior, he and his wife tried to separate, but the defendant to the complainant, he declared,
At the trial; his friend K.. A.. with B.. That you work in textiles, K.. A..because she could not finish her work that day, she agreed to stay with him so that he would not be alone at her request, she asked permission to call the defendant, who works as a cleaner at work, to call the house and inform her husband that she had no credit, but the defendant refused permission, insulted her friend Kader and her, her friend Kader said, “The girls you know here are giving me, you will give it,” and they continued to work., at this time, he stated that his wife was curious and came to the workplace, but the defendant did not want to take her out because you could not leave before the end of the work, that he was swearing at his wife, that he was trying to attack his wife with 4-5 people next to him,
The accused is in the armband; B.. He has been working as a worker in textiles for about nine years, on 28.05.2007 at 21.15, K., who worked as a worker at the workplace.. A.. and he.. A..they said that they wanted to call them to come and pick them up from home, and when he said that he was not authorized to make a phone call, they left, saying, “I’ll see you later,” 10-15 minutes later, when he went to the department where they were to collect garbage, K.. A..he said, “you are not my interlocutor,” and he replied, “you are not my interlocutor either,” K.. A..’s would complain to the boss to say, “let’s sing together:” let’s say you wanted to go out to open the door for attendees at 22.30 hours, the door opened and they tease and verbally insult you didn’t phone because of the rift between them started don’t get the thing out, charges and has stated that it does not accept the compromise,
On Trial; previous defenses again, and it wasn’t true claims about the accusations for about 10 years in the same place, working alone for the first time such a thing coming to work in the same workplace attendees, you know, in the evening on the day of the event attendees on their own in the workplace, they were left to shift them if you want to open the phone, he himself claimed that harassment doesn’t allow for such a lack of jurisdiction as it is not an insult, not banging the doors at the end of the workday before the event you can participate in while employees are warned to hurry.. That Vulture insulted him as an “idiot”, this situation warden F.. what you told the lady, F.. she is the lady’s attendee..’he argued that he was angry and insulted,
Sibel Kelemci, the only witness of the incident, stated that she had nothing to do with the incident, but that she had heard the accused swearing at the clients in the rumor that emerged at the factory after the incident.
The aim of a material fact in a concrete case, access to justice, punish the perpetrators of crimes constant, prevent corruption and the deteriorating public order whose purpose is to reestablish public order, and universal principles in the criminal process, one of the most important of doctrine and practice; “innocence” or “presumption of innocence” and in Latin it is called an extension of; “in dubio pro reo” expressed “doubt that the accused benefit” principle. The essence of this principle is that the doubt regarding any problem that must be taken into account in order to decide on the defendant’s conviction in a criminal case is necessarily evaluated in the interest of the defendant. This rule, which has a fairly wide scope of application, also applies if there is a doubt about whether the crime in question has been committed, if it has been committed, whether it has been committed by the defendant or the manner in which it was committed. The main condition for the decision to punish the accused for a crime is that the crime can be proven absolutely without leaving any doubt. Events and allegations whose manner of occurrence is suspicious or not fully clarified cannot be interpreted against the accused and a conviction verdict cannot be established. Criminal conviction; It should not be based on any possibility, but on a definite and clear proof. This proof should not be based on the opinion reached by relying on some of the collected evidence and ignoring the other part, but on a definite and clear proof and should be clear that will not allow any doubt or otherwise to occur. Punishing the accused based on a high probability, even if it is high, will mean sentencing before reaching the truth, which is the most important goal of criminal procedure.
When the concrete event is evaluated in the light of this information;
Shortly before the event started to be friends and in the workplace, respondents who work within and between each other contradictions in the statement of the presence of Fate is shown as witnessed by participating in, and was there during the event and declared that the experience and knowledge of an impartial witness Sibel kelemci defamation and sexual harassment is not to declare that the defendant attendees with O.. A.. considering the fact that there is hostility between the accused, that the accused has argued persistently and Decisively with the participants at all stages, but that he has not insulted or sexually harassed, that he has been working at the same workplace for about ten years, it remains in the dimension of doubt that the accused has committed the crimes. In order for a conviction to be established, the crime must be fixed, otherwise, in accordance with the principle that the defendant benefits from suspicion, the defendant must be acquitted.
Since it is not fixed that the crimes charged in this respect were committed by the accused, the decision of the local court regarding his acquittal and the decision of the Special Chamber approving this provision should be decided to reject the appeal, since there is no inaccuracy in the decision.
Thirteen members of the General Assembly, who did not agree with the majority opinion, voted against the decision to accept the appeal with the opinion that “the defendant’s conviction should be decided”.
result:
For the reasons explained;
1- REJECTION of the appeal of the Chief Public Prosecutor of the Supreme Court of Cassation,
2- The Supreme Court of Cassation to send the file to the location of C. The deposit to the Prosecutor General’s Office was decided by a majority of votes in the negotiation held on 02.06.2015.
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