T.R. SUPREME COURT
- Criminal Chamber
Basis: 2016/3945
Decision: 2016/5659
Decision Date: 29.06.2016
LOADING – INCORRECT JURISDICTION OF THE CRIMES OF LOADING AND MEMBERSHIP OF CRIMINAL ORGANIZATIONS WITH INSUFFICIENT AND INSUFFICIENT REASONS
SUMMARY: Conviction of the accused on the charges of looting and membership of a criminal organization on the contrary, with appropriate and insufficient justification, without being discussed and shown on the spot in a way that would allow the audit, the evidence regarding the direct or indirect participation of the accused in the looting against the participant, necessitated quashing.
(5237 S. K. Art. 39, 168)
Case and Decision: The judgment rendered by the Local Court is appealed by the accused … and his defense, also with a hearing; As it was understood that the accused and his defense did not attend the hearing even though they were duly informed of the hearing date and did not present any excuses, the file was discussed according to the nature, punishment type, duration and crime date of the application at the end of the examination conducted without a hearing in terms of the aforementioned accused.
Member …’s last sentence of Article 14/4 added to the Anti-Terror Law by Law No. 6526 is contrary to the Constitution of the Republic of Turkey and international treaties, and therefore applying to the Constitutional Court for annulment; In the examination carried out by rejecting the opinions of the member… that the examination of the judgment rendered because the aforementioned article conflicts with the international agreements accepted by our country, is completely overturned in accordance with the principle of equality and the right to a fair trial;
I- Establishing an organization for the purpose of committing a crime against the accused …, membership of an organization about the accused …, …, …, … and …, the provisions of the conviction established for the crimes of aiding a criminal organization about … and the Public Prosecutor’s assistance to the criminal organization about … Contrary to Article 1, violation of Article 12/1 of the Law No. 6136 about … from the accused; against the accused … against the provisions of acquittal established on charges of violating Article 12/1 of the Law No. 6136, abuse of office, attempting to influence the person performing the judicial function, not reporting the crime by the public official, concealing and destroying the evidence of the crime, providing benefits for an unauthorized business and mediating prostitution. in the examination of appeals;
Regarding the defendants who were sentenced to …, …, …, …, …, … and …; 08.10.2015 day, 2014/140- 08.10.2015 day, 2014/140- It was deemed possible to observe the decision numbered 2015/85 Principles and Decisions during the execution phase.
According to the content of the file and the minutes of the hearing, the available evidence collected and discussed at the place of decision, the reason and the discretion of the Board of Judges, the objections of the defendants …, …, …, …, … and …, …, the defendant … and the Public Prosecutor were rejected, as their appeals were not found appropriate. APPROVAL of the provisions, other than criticism, which are found to be in accordance with the procedure and the law,
II- Plundering separately against … and complaining about the accused …, attempting to plunder against …, who complained about the accused …, …, …, … As for the verdict of conviction for robbery against the accused, and the appeal requests of the Public Prosecutor regarding the acquittal of the accused … on the charges of plunder and membership of an organization:
Other appeals were not seen on the spot.
However,
1- In the action specified as the event in the indictment (2.);
It was stated that …’s father … …, who complained before the date of the incident, was the guarantor for the 7.000.-TL loan that … …, who was also the uncle of the accused … By threatening the complainant of the accused, who gave a bill of 3,150.-TL and who was angry that this bill was not paid on time, he threatened the complainant, and went to the workplace of the complainant with the defendants …, …, … and … to resolve the dispute on 05.05.2008. On 27.05.2008, a public action was taken at Tuzla Criminal Court of First Instance for the crimes of “deprivation of liberty” and “threat” against the defendants …, …, …, …, …, who were caught by the security forces while they were speaking there. and as a result of the trial, it was decided to acquit the defendants with the decision dated 26/05/2009, numbered 2008/1176-2009/564 and the decision numbered 2008/1176-2009/564 and the decision regarding these crimes was not appealed. In the face of the realization that it has been finalized,
As mentioned in the decision of the Criminal General Assembly of the Supreme Court of Appeals, dated 09.07.2013 and decision numbered 2012/2-1518, principle-2013/154,
Certain “sine qua non” conditions are sought in order for criminal proceedings to be carried out. One of these conditions, which hinders judgment, is the absence of a verdict or lawsuit, which is expressed as “Non bis in idem”.
Applied as a living legal norm without being expressly written in laws
The principle of “Non bis in idem”, which is also accepted in the doctrine and is one of the main principles of the law of procedure, is in the third paragraph of Article 253 of the CMUK numbered 1412; “If there is a previous verdict or a lawsuit filed against the same defendant on the same subject, the case shall be dismissed”, in the seventh paragraph of Article 223 of the CMK numbered 5271, which entered into force on 01.06. It is regulated as “If there is a previous judgment or a lawsuit filed for the same defendant due to the same act, the case shall be dismissed”. As it can be understood from these regulations, if there is a previous judgment or a lawsuit filed against the same defendant due to the same act, the lawsuit will be dismissed.
In the light of these explanations,
223/7 of the CMK, the public case brought against the defendants mentioned in our concrete case due to the actions carried out on the same date against the same complainant. While it should be decided to be rejected pursuant to the article, it is decided to convict the accused in written form by continuing the trial, by showing the change in the character of the crime,
2-As a result of the examination carried out on the forged identity card and passport, in the appraisal report dated 29.06.2010 by the Istanbul Criminal Police Laboratory, it is stated that the still existing photographs in the passport and identity card, which are the subject of the crime, were pasted after the photograph in the same places was removed;
As the details are explained in the resolutions of the General Board of Penalty dated 14.10.2003 and numbered 232-250, 09.10.2012 day 2011/8-335 and numbered 2012/1804, the document must have an objective deception quality and the deception must be understood objectively from the document. In order for the crime of forgery to occur in the document, the document that has been edited or changed or used must be of a nature that deceives the person that it is real. The deception feature is the main element of this crime, and unless it is subjected to a special examination, a document that cannot be understood to be authentic should be considered as a fake document. It should be determined without a doubt whether the forgery is capable of deceiving people (objectively) and whether it is understandable at first glance. The discretion and determination of whether there is the ability to deceive documents in forgery crimes is up to the judge. Making a written decision as a result of incomplete examination without keeping the original document in the file,
3- In the action stated as the incident in the indictment (1st), the defendants received 40,000.-TL in cash in exchange for 2 checks of 24.000.-TL before the date of the incident from the participants dealing with the white goods trade due to the cash needs of … and …. The interview, which was recorded on tapes, where the defendants … and … asked for help from the accused …, who was not a party to the debt-credit relationship, in the recovery of these checks, fearing that the debt in question would be subject to enforcement proceedings after the efforts of the participant, who wanted to collect the receivable when the checks were due, were in vain. It is clear in the records that these issues are clearly understood, the defendants … and the accused … went to the workplace of the participant and talked about the debt, and the accused … tried to intimidate himself by introducing himself as a state official, but insisted on receiving the checks in the ongoing process. According to the phone call records, the accused tried to get the checks back by taking advantage of the name and power of the accused for the second time. In the concrete incident, the person who went to the workplace with two people whose identities could not be fully identified, left the scene by forcefully taking 14-15,000.-TL cash and checks of the person who joined with the threat of a gun,
a) Conviction of the accused on the charges of looting and membership of a criminal organization, in a written form with appropriate and insufficient justification, without the evidence showing that he directly or indirectly participated in the looting against the participant, without being discussed and shown on the spot in a way that will allow inspection,
b) According to the content of the live identification report dated 29.06.2010, which was prepared after the operation, the participant identified … as the person who came to the workplace with the defendant … on the date of the incident and was waiting at the door with the radio in his hand at his instruction, dated 04.02.2011 In the hearing, he stated that he “looked like the person standing in front of the door”, and in the hearing dated 24.11.2011 he did not remember exactly, but the employee of the workplace could identify him; the defendant was acquitted of the crimes of plundering and membership of a criminal organization due to his action against the participant, in written form, without determining his statements on the merits, as the person mentioned was the only witness of the incident, and by being content with an incomplete investigation, and continuing the hearing,
c) It is plundered from the participating …
Regarding the alleged cash and checks, in the hearings dated 01.08.2012 and the following, in line with the demands of the defendant … defense that “after the full determination of the damage that has occurred, the possibility of implementation will be given to them in accordance with Article 168 of the Law No. or giving a written decision, continuing the proceedings, without considering that the court should make an ex officio determination and provide a reasonable time to meet it,
4- According to the content of the reversal number (3), it is left undisputed at the place of decision whether an application can be made with the 39th article of the Law No. 5237 about the accused …
Since the objections of the defendants …, …, …, …, …, …, … defenders and the defendant … and the Public Prosecutor were deemed appropriate in this respect, the verdict was OVERFINED for the reasons explained, on 29.06.2016 (1), (3-c) , (4), it was decided by a majority of votes against the opposition of the Honorable Member ….
NEGATIVE VOTE
As I did not see any inaccuracy in the judgment established by the Court at the end of the trial of the public lawsuit regarding the action of the defendants against the victim …
In the face of the occurrence, the content of the file and the available evidence, I do not agree with the reversals of the majority (3-c) and (4).
NEGATIVE VOTE
