14.Criminal Department 2018/2958 E. , 2018/2138 K.
“text of jurisprudence”
COURT OF CASSATION : Criminal Court of Cassation
CRIME : Intentional wounding, depriving a person of his freedom, simple sexual abuse of a child in a way that disrupts his physical or mental health
SENTENCE : Conviction
The provisions issued by the court of first instance were appealed and the file was examined and considered as necessary:
In the examination of the provision established on the offense of intentional wounding about the child who was dragged into the crime;
As emphasized in the Decision of the General Assembly of the Supreme Court of Criminal Justice dated 21.06.2005 and numbered 61/82, adopted by our Department, the legal regulation on the date of the judgment should be taken into account in order to determine whether the judgment is appealable, Law No. 6217, which entered into force on 14.04.2011, 26. provisional article 2, which was added to the Law No. 5320. translated from a prison sentence, except as a result dominated with substance 3.000 TL (TL 3.000 including fines, criminal fines and thrown directly given certain qualifications 1320 TL conclusive as to the amount of crime has not been able to appeal because, as aforementioned Appeals for the provision of Law No. 5320 8/1. in accordance with Article 317 of CMUK No. 1412. REFUSAL in accordance with the article,
As for the appeal review of the provision established on the deprivation of liberty of a person about a child who has been dragged into a crime;
109/3-f of the Turkish Commercial Code No. 5237 for the commission of an act against a child victim in the punishment of a child who has been dragged into a crime. as the result of the increase in the amount of the increase to be made in half instead of one fold in accordance with the article is not effective for the punishment and again the action is performed for a sexual purpose, the reason for the violation was not made because the justification was shown incorrectly as ”mental health is impaired” and a correctable material error was accepted on the spot when the increase was made with a bet.
Since the claim and defense with evidence have been analyzed and evaluated taking into account the trial, concessions and exercises have been made in accordance with the elements of the act accepted as such, except for criticism, the child who has been dragged into the crime has been sentenced to be UPHELD by rejecting appeals that are not seen in the place of the defense,
As for the appellate review of the provision on a child who has been dragged into a crime for simple sexual abuse of a child in such a way as to impair his or her physical or mental health;
Considering the statements of the victim … at the stages and the doctor’s report, the court’s acceptance of the nature of the action is in accordance with the scope of the file, the opinion requesting a violation in this regard was not included in the communique.
Refusal of other appeals that are not considered on the spot in accordance with the content of the file reviewed, in accordance with the opinion and discretion of the court formed in accordance with the results of the investigation and prosecution, the evidence collected and shown at the place of decision, the content of the file reviewed,
But;
58, 59, 60 and 61 of the Law No. 6545, which entered into force on 28.06.2014 after the provision. articles 102, 103, 104 and 105 of the Law No. 5237. 13 of the crimes against sexual inviolability contained in the articles and Law No. 6763, which entered into force on 02.12.2016. article 103 of the Turkish Commercial Code. in the face of the reorganization of Article 5237 of the Turkish Commercial Code, 7/2. article-paragraph “If the provisions of the law in force at the time of the commission of the crime and the laws that enter into force afterwards are different, the law in favor of the perpetrator is applied and the execution is carried out.” considering the provision of the judgment in favor of the earlier and later all provisions of law applying to the outcomes of the event determined by comparison both with each other and by the application of the law to allow control of the decision to be shown in re-assessment required,
Since the appeals of the child defender who was dragged into the crime, which required a violation, are considered to be in place as of this moment, the provision is 8/1 of Law 5320. according to Article 321 of CMUK No. 1412. its DETERIORATION in accordance with the article was decided unanimously on 22.03.2018.
