T.R. SUPREME COURT
- Criminal Chamber
Basis: 2013/32150
Decision: 2016/5596
Decision Date: 29.06.2016
LOADING CRIME – WITH THE DECISION OF THE CONSTITUTIONAL COURT, THE PRESENTATION OF ELECTION AND OTHER POLITICAL RIGHTS WRITTEN IN THE TPC ARTICLE IS CANCELED, AND THE PROVISION IS APPROVED
SUMMARY: With the decision of the Constitutional Court, dated 08.10.2015, numbered 2014/140-2015/85, the phrase “to elect, be elected and to exercise other political rights” written in article 53/1-b of the TPC was annulled. needed to be corrected.
(5237 S. K. art. 31, 53, 61, 149, 168) (5271 S. K. art. 231) (ANY. MAH. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case and Decision: By appealing the judgment given by the Local Court; The file was discussed according to the nature of the application, the type of punishment, its duration and the date of the crime:
I- In the examination of the verdict established for insulting the accused …:
The decision regarding the “postponement of the announcement of the verdict”, established on the offense of insult, regarding the accused… RETURN the file to the Office of the Chief Public Prosecutor of the Court of Cassation in order to ensure that the file is sent to the court authorized and responsible for examining the objection, since it is one of the decisions that cannot be appealed in accordance with Article
II- In the examination of the verdict established for the crime of plunder about the defendants … and …:
It is stated that the crime of looting is committed by more than one person together and at night, in violation of subparagraphs (c) and (h) of paragraph 1 of Article 149 of the TCK No. 5237, therefore, when determining the basic penalty in accordance with Article 61 of the same Law, their evaluation and the lower limit should be exceeded. While penalty should be applied; the establishment of a written sentence with insufficient and inconsistent justification, the vehicle looted by the accused from the victims by the law enforcement officers. 168/4 of the TCK No. 5237, since the credit cards are returned to the victim without consent by being parked in the district, in a discarded condition, and the 120.-TL money is met by the defendants at the prosecution stage, and there is a partial refund situation. Pursuant to article 168/3 of the same law without asking the consent of the victim, there is no counter-appeal, and there is no counter-appeal. 31/3 of the article. Acting in violation of Article 61 of the same Law by applying it before the article is not effective on the result penalty, so no reason for reversal has been made.
The content of the file and the minutes of the hearing, the reversal observed, the appropriate evidence gathered and discussed at the place of decision, the reason and, according to the discretion of the Board of Judges, the objections of the defendants … and …
III- In the examination of the verdict established for the crime of plundering about the accused …:
It is stated that the crime of looting is committed by more than one person together and at night, in violation of subparagraphs (c) and (h) of paragraph 1 of Article 149 of the TCK No. 5237, therefore, when determining the basic penalty in accordance with Article 61 of the same Law, these should be evaluated and the lower limit should be exceeded. making a provision in writing with an insufficient and inconsistent justification when it should be implemented; Since the vehicle looted by the suspects from the victims was parked in the ….. district by the law enforcement officers, and the credit cards were thrown away and returned to the victim without consent, 120.-TL money was paid by the defendants at the prosecution stage, and there was a partial return situation. 168/4 of Pursuant to the article 168/3-2 of the same Law, without asking the consent of the victim, the reduction of the sentence from the sentence was not made, since there was no counter-appeal, the reason for the reversal was not made.
According to the content of the file, the legally valid and appropriate evidence collected and discussed at the place of decision, the reversal applied, the justification, and at the discretion of the Board of Judges; Since there is no procedural and illegality in accepting and characterizing that the crime was committed by the accused, other appeal objections were not deemed appropriate.
However;
Deprivation of the accused from exercising the rights set forth in Article 53/1-a-b-c-d-e of the TPC until the execution of their prison sentence is completed; however, Article 53/3 of the TCK. Even though it has been decided to end the deprivation of exercising the rights enumerated in Article 53/1-c of the TCK on his descendants, if he is released on probation pursuant to the article; With the decision of the Constitutional Court, dated 08.10.2015 and numbered 2014/140-2015/85, which was published in the Official Gazette dated 24.11.2015 and entered into force on the same date, it is written in Article 53/1-b of the TCK that “election, election and the phrase “using other political rights” has been cancelled,
Result: It required reversal, since the objections of the defense of the accused … were deemed appropriate in this respect, the verdict was OVERFINED contrary to the request for the reason explained, because the reason for the reversal did not require a retrial, 8/1 of the Law No. 5320. Based on the authority given by Article 322 of the CMUK numbered 1412, from the provision clause “Article 53 of the TCK”.The section on “the implementation of the sentence” was removed and replaced with “As a legal consequence of the defendant’s conviction with a prison sentence for the crime he has committed intentionally, Article 53/1 of the TCK. to be deprived of the right to elect, be elected and to exercise other political rights written in subparagraphs (a, c, d and e) and subparagraph (b); 53/2 of the same Law. In terms of the implementation of Article 53/1. Article (a, c, d and e) and election and other political rights written in subparagraph (b) and the powers of custody, guardianship and trusteeship over his/her descendants written in subparagraph (c) of the same article until he is released from prison on probation. It was decided unanimously on 29.06.2016 to CORRECT and APPROVE the provision, whose aspects other than criticism, were found to be procedural and legal.
