REPUBLIC OF TURKEY
SUPREME COURT
- Criminal Chamber
Basis: 2018 / 6747
Decision: 2019 / 1146
Decision Date: 28.01.2019
COURT: Criminal Court of First Instance
CRIME: Stealing, resisting not to do the duty
JURISDICTION: Conviction
The file was examined and the need was considered;
1- With regard to the convictions of the accused … with the crime of theft, Atty. In the examination of …’s appeal;
As the details were explained in the decision of the General Board of Penalties dated 18.03.2008 and numbered 9-7-56, in cases where the accused was not informed that a compulsory lawyer was appointed during the prosecution phase, the declarations and notifications made to the compulsory defense would not have legal consequences attached to him; Atty. …, despite the fact that the accused has appealed the provisions established about the accused, during his defense, it is understood that he declared that he does not want a lawyer and that it is not necessary to appoint a compulsory lawyer to the accused; Hunting. Since … does not have the right and authority to appeal the convictions dated 15.02.2013 established against the accused, Atty. …’s appeal request is REJECTED pursuant to Article 317 of CMUK numbered 1412,
2- In the examination of the appeal request of the defendants’ defense counsel regarding the convictions of the defendant …, regarding the convictions of the accused … with the crime of theft, and the convictions of the defendants …, … and … for the crimes of theft and resistance to failing to do their duty;
a) The defendants, with the Fiat Linea brand vehicle, whose license plate could not be determined exactly at night on the date of the crime, and the village of … where the shops of the complainants … and … are located. In the events where it is claimed that they were in his village and the witness … identified the accused … during the investigation phase, as the person who was in the vehicle in question and asked for his address, at around 01:15 at night on 28.12.2010; In the resolution of the camera footage showing that the vehicle in question was found in the aforementioned villages, the exact license plate of the vehicle could not be determined, the identities of the persons inside the vehicle could not be determined precisely due to the low image quality, and in the testimony of the witness at the hearing dated 07.06.2011, he could not see how many people were in the Fiat Linea vehicle, and In the face of the understanding that the person who asked for the address declared that he did not remember his face either; Contrary to the defense of the defendants, who did not accept the charges at all stages, their convictions should be decided in written form without explaining and discussing the conclusive and convincing evidence, free from any doubt, that they committed the crimes of theft,
b) In the type of crime, which is regulated as “an act of choice” and “a purposeful act” with the title of “resistance to not get the job done” in article 265 of the TCK numbered 5237, and the actions of opposing a public official with the aim of preventing the fulfillment of duty are penalized; Considering that it is foreseen that the means of execution of the act can be committed with executive behaviors in the form of “force or threat” and that acts of passive resistance that do not include the specified typical acts will not constitute this crime; Upon the notification that the perpetrators of the theft were in the vehicle with the vehicle they drove on the night of 11.01.2011, when the complainant wanted to be stopped by the gendarmerie officer …, they escaped from there by entering another road without hitting the pontoons set on the road by the complainant as a precaution. In the incident where the gendarmerie officer wanted to block the road by turning the team vehicle sideways, but it was understood that the defendants maneuvered from the side of the complainant and escaped from the open part of the road by vehicle, it was accepted that the actions of the defendants …, … and … Establishing convictions in written form with insufficient examination and insufficient justification, without discussing and showing the evidence given by him,
It was unanimously decided on 28/01/2019 that the judgments should be partially overturned as a request for the reasons explained, since the objections of the defendants …, … and … the defense counsel and the defendant … were deemed appropriate in this respect.
