T.C. Supreme Court 17. Sentencing Office: 2015/9562, Decision No: 2016/1673
Court :Criminal Court of First Instance
Crime : theft, disturbing housing immunity
Sentencing: conviction
The verdict given by the local court was examined on appeal, and the requirement was considered and considered:
According to the content of the files and the minutes of the hearing, the legally valid and favorable evidence, the motive and the discretion of the judge, it was understood that there was no violation of the procedure and the law in accepting that the crimes were committed by the defendant, and other reasons for the appeal were not considered in place.
But;
1) in the face of the understanding that the defendant committed theft by climbing into the House of the client sitting on the fourth floor of the building using the balcony irons of the lower floors, since the act of theft was not carried out against the hand or the item carried on top, TCK 142/1-b, which corresponds to the action of the accused. instead of Article 142/2-b of the same law. determination of excess punishment by applying with the article,
2) as for the crime of theft, the participant slept at 00.10 at night and woke up at 07.00 and, in the meantime, noticed that the theft was made from his house, the sun was born at 07.15, set at 17.02, and the decency of Article 6/1-e of the TCK and the application of Daylight Saving Time seen in the UYAP system, taken into account, the night ended at 06.15; due to the proximity of the time when the crime was reported and the start time of night time, the “defendant takes advantage of suspicion” rule should be accepted that the action was carried out during the day, and what evidence that the action was carried out at night is also shown and discussed at the site of the decision, law 5237 143. article 116/4 of the law, which is mentioned on the same grounds in terms of the crime of applying and violating the immunity of housing. establishment of provision by Article,
3) according to the incident report of 28/04/2008 and the confession of the accused, when the defendant was caught after another act of theft, he showed the House of the participant who stole the pistol captured in his house, and the understanding that the pistol from the stolen items was delivered to the participant; first of all, asking whether he had his consent due to partial return from the mushtek 168/1-4 of Tc 5237. failure to observe that the conditions of application of the effective regret provision defined in the article should be discussed,
By admissions;
4) because of the defendant’s action determined for theft, 142/2-b of TCK 5237, the 3-year prison sentence appointed in accordance with, 143 of the said Law. in accordance with the article 1/6 rate increase while 3 years 6 months imprisonment instead of 4 years imprisonment,
…/…
- in accordance with the article 1/6 rate discount while 2 years 11 months imprisonment instead of 3 years 4 months imprisonment by provision of the determination of excess punishment,
October 5) by the interim decision of 13/10/2009, it was decided to take the defendant’s additional defense in accordance with Article 142/2-b of the TC Dec.58 of the TCK in the statement of instruction. 226 of CMK 5271, by granting additional defense rights through October. 142/2-b of the TCK, which is not granted additional defense rights in violation of October. punishment in accordance with the article,
6) t.C. 53 Of The Constitutional Court, Tck. article, 2014/140 basis and 2015/85 decision no. cancellation decision, 24.11.2015 day and 29542 due to the Official Gazette published in accordance with the cancellation decision 53 of the TCK. an obligation to reassess the deprivation of rights in the article,
As the reasons for the appeal were seen in this regard, it was decided by a majority vote on 15.02.2016 to overturn the provisions in accordance with the communique for the reasons described.
(Dissenting) (Dissenting)
OPPOSITION COMMENTARY
4, which is 10 meters high from the floor belonging to the accused victim. he did not hesitate to commit the crime of theft by exiting his building on the floor using personal agility, that is, special skills, and entering through the balcony door, and the existence of special skills was confirmed in the expert report organized as a result of the discovery.
142/2 of tck. in Paragraph (b) of the article, two types of qualified states are arranged, one by “taking the item in the hand or above the person” and the other by “taking the item with special skill”.
If we connect special skill (special dexterity) to the item at hand and at the top, it will be a very unnecessary statement. Such an admission is contrary to the Will of the legislator, which we think is clearly understood in the bent. Because when items in contact with the victim are taken, special skills will not be needed to apply the qualified state.
“The cases of theft committed by pickpocketing and personal agility are covered by bendin, as well as the application of bendin on verbs committed by acclimating and using an animal.”by saying, it was revealed that Benin does not cover only the upper or hand item. “Similar situation, 142 of the TCK. we also see and apply it in paragraphs (A) and (c) of the first paragraph of the article, (A), (d), (f) and (h) of the second paragraph.
It cannot be ignored that the text of the law and the justification were prepared by the same commission, no changes were made on them, and the article in the most important document setting out the purpose of the legislator clearly stated that “personal agility” falls within the scope of the bent in the relevant bent justification.
For the reasons described, we do not agree with the acceptance (1) of the majority in the direction of overturning the court on the grounds that it established the provision through the correct qualified state.
