- Criminal Chamber
Base Number: 2018/18571
Decision Number: 2021/7505
“Justice Text”
COURT: Criminal Court of First Instance
CRIME: Opposition to Law No. 5607
PROVISION: Conviction, confiscation, liquidation
The judgment rendered by the local court is appealed; After the file was read according to the nature of the application, the type of punishment, its duration and the date of the crime, the necessity was discussed and considered on behalf of the Turkish Nation;
As a total of 57 packets of smuggled cigarettes and cigarettes without banderol were seized in the desk drawer during the search made by the law enforcement at the workplace of the accused on the date of the incident; According to the scope of the file, there is not a search warrant given by the court regarding the accused and the smuggled goods, nor is there a written search warrant issued by the Public Prosecutor on the grounds that it is inconvenient to delay, accordingly, the search made is against the procedure and the law, and the evidence obtained is in the nature of unlawful evidence. , Paragraph 6 of Article 38 of our Constitution states that “Findings obtained in violation of the law cannot be accepted as evidence.” and the 206/2-a, 217/2, 230/1 of the CMK numbered 5271. In the face of the clear regulations in the articles and paragraphs that the evidence obtained in accordance with the law can be used, and that the illegally obtained ones cannot be taken as a basis for the verdict, considering that the unlawfully obtained property of the accused, who has not accepted the accusation at any stage and which is understood to be smuggled, cannot be taken as a basis for the verdict, instead of his acquittal. judgment of his conviction,
According to the acceptance;
1- Article 61 of Law No. 7242 and 3/22 of Law No. 5607, which entered into force after being published in the Official Gazette dated 15.04.2020. Added to the article “The fines to be imposed are reduced by half if the value of the item is light, and by one third if it is very light.” 5/2 of Law No. 5607 amended by Article 62 of the same Law. It is understood that effective repentance practice has become possible at the prosecution stage pursuant to the paragraph added to the article; It is obligatory to determine whether the legal conditions of the relevant provisions are fulfilled by considering the Article 7 of the TCK No. 5237 and Article 63 of the Law No. 7242 and the second paragraph of the temporary article 12 added to the Law No. 5607, and the duty of implementing it according to the result belongs to the local court,
2- Failure to observe the rule that the day judicial fine should be converted into money after the basic day judicial fine is determined and the reasons for the increase and reduction are applied,
3- Due to the cancellation of some parts of Article 53 of the TCK No. 5237 with the cancellation decision of the Constitutional Court, dated 08.10.2015 and numbered 2014/140, Decision no. 2015/85, which was published in the Official Gazette dated 24.11.2015 and numbered 29542. there is an obligation to re-evaluate the aforementioned article,
4- 13/1 of the Law No. 5607 of the goods seized in the crime. Article 54/4 of the TCK by sending the article. While confiscation should be contented in accordance with the article, 54/1 of the TCK as an implementation article in the provision clause. showing the article, as well as ordering the liquidation of the goods,
It is against the law, since the defendant’s objections to the appeal were deemed appropriate in this respect, the provision was made in Article 8/1 of the Law No. 5320 for these reasons. It was unanimously decided on 07.06.2021 that it should be VOID pursuant to article 321 of the CMUK numbered 1412, which is in force in accordance with the article.
