T.R. SUPREME COURT
- Criminal Chamber
Basis: 2014/24599
Decision: 2016/8643
Decision Date: 22.06.2016
CRIME NUMBER 4733 – APPEAL EXAMINATION SUBJECT TO INVESTIGATION IF THERE IS A CONNECTION BETWEEN THIS FILE AND THE OTHER FILE IN TERMS OF IMPLEMENTATION OF A CHAIN CRIME, IT SHOULD BE INVESTIGATED
SUMMARY: Criminal Court of First Instance …. K. file is brought and examined, and it is discussed whether there is a connection between this file subject to appeal review and the other file in terms of the application of Article … Failure to think that the legal status of the accused should be determined and appreciated by combining the files or considering the other file is the reason for the annulment of the judgment.
(5237 S. K. art. 43, 53, 54) (ANY. MAH. 08.10.2015 T. 2014/140 E. 2015/85 K. )
Litigation and Decision: 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;
I- In the examination of the defendant’s appeals;
Although other appeal objections are not valid,
1- In terms of the implementation of Article 53 of the TCK, the decision of the Constitutional Court, dated 08.10.2015 and numbered 2014/140 E. – 2015/85 K., which was published in the Official Gazette dated 24.11.2015 and entered into force on the same day, should be decided need,
2-According to the nature of the offense committed, an attorney’s fee is awarded in favor of the customs administration, which is decided to participate in the case even though it has not been harmed by the crime,
As the defendant’s objections to appeal are unlawful and therefore deemed appropriate and this issue does not require a retrial, in accordance with Article 322 of CMUK numbered 1412, which is in force pursuant to Article 8/1 of Law No. 5320;
1-Removal of the paragraph regarding the implementation of Article 53 of the TCK, instead of the Constitutional Court’s decision dated 08.10.2015 and 2014/140 E. – 2015/85 K. Taking into account the decision numbered and in accordance with the conditions in paragraphs 2 and 3 of Article 53 of the TCK, subparagraphs (a), (b), (c), (d) and (e) of the first paragraph of the aforementioned law article are applied, Writing the phrase “
2- Removing the paragraph regarding the provision of attorney’s fees in favor of the Customs Administration, leaving the other parts unchanged, and APPROVING the provision,
II- In the examination of the defendant’s appeals;
Although other appeal objections are not valid,
1- As a result of the examination made by taking into account the records of UYAP, the defendant is of the same nature as the crime subject to the appeal investigation, and the decision of the Erzurum 1st Criminal Court of First Instance, which was registered in our Chamber in 2015/27972 E. 2012/426 E. – 2014/ It is understood that the crime dated 15.01.2012, which is the subject of another file numbered 629 K., is the subject of the other file and alleged to have been committed on 6 different dates by the accused, is the same as the crime that is the subject of this case, which is the subject of the appeal;
As the details are stated in the decision of the Supreme Court Criminal General Assembly, dated 08.04.2014 and numbered 2013/7-591 Main, 2014/171 Decision; The way the crime was committed, the features of the crime, the place and time of the crimes, the time elapsed between the actions, the protected value and benefit, the nature of the material subject to which the action was directed, the occurrence and development of the events and all other features reflected on the outside world were evaluated together and the defendant’s actions were evaluated as a result of the decision to commit a crime. In terms of determining whether it was carried out within the scope of its execution, whether Article 43 of the TPC would be applied to it and whether the crimes dated 15.01.2012, which were the subject of both cases, were repeatedly subject to the case;
The file of the Erzurum 1st Criminal Court of First Instance, numbered 2012/426 E. – 2014/629 K., which was registered at the time of 2015/27972 E. of our Chamber, which has a similar nature, was brought and examined, between this file subject to appeal review and the other file mentioned in the TCK. Discussing whether there is a connection in terms of the application of Article 43 of the Turkish Criminal Code and whether the crime subject to the appeal investigation is subject to the case repeatedly, if it is determined that there is a connection in the aforementioned aspects, it is not considered that the legal status of the accused should be determined and appreciated by combining the files or considering the other file. ,
According to the acceptance and application;
2-According to the nature of the offense committed, the attorney’s fee was decided in favor of the customs administration, which was decided to participate in the case even though it was not harmed by the crime. Pursuant to article 54/1 of the TCK, the confiscation of smuggled and non-bandrole cigarettes, which is the subject of the lawsuit, is only possible if the liquidation process has been carried out. in accordance with the article without banderol and leakage n
Failure to observe that the confiscation of sample cigarettes and that the liquidation cost should be recorded as revenue on behalf of the treasury is against the law;
3- In terms of the implementation of Article 53 of the TCK, it is necessary to take into account the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 E. – 2015/85 K., which was published in the Official Gazette dated 24.11.2015 and entered into force on the same day. need,
Result: It required overturning, since the defendant’s appeals were deemed appropriate in this respect, the provision was made in Article 8/1 of Law No. 5320. It was unanimously decided on 22.06.2016 that it should be TERMINATED pursuant to article 321 of CMUK numbered 1412, which is in force pursuant to the article.
