T.R. SUPREME COURT
- Criminal Chamber
Basis: 2014/3174
Decision: 2016/9031
Decision Date: 30.06.2016
CRIME OF OBJECTING THE LAW NUMBER 4733 – THE REGISTRATION OF THE VEHICLE USED IN THE CRIME IS INFORMED AND THE PROVISION IS ESTABLISHED BY INCOMPLETE EXAMINATION WITHOUT A DECLARATION ABOUT THE CONSIDERATION.
SUMMARY: The establishment of the judgment as a result of the incomplete examination necessitated the annulment, without the registration owner of the vehicle used in the crime being informed of the case, without taking a statement about the confiscation and without discussing whether the vehicle belongs to a bona fide third person or not. It was decided to overturn the judgment.
(5607 No. K. Art. 3) (5237 No. K. Art. 53) (5271 No. K. Art. 226, 257) (4733 P. K. Art. 8) (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;
1- Except for the defendant … …’s claim that 5200 cartons of smuggled cigarettes, which were the subject of the crime, belonged to … and that he made an offer to him to be transported, the defendant’s defense of … decision making,
2- Article 3/5 of the Law No. 5607 on the accused … …. 8/4 of the Law No. 4733, without being given the right of additional defense, although a public lawsuit was filed with the request to be punished in accordance with the article. Article 226/1 of the CMK by establishing a provision due to opposition to the article. violation of the article,
3- The registration owner of the vehicle used in the crime, 257/2 of the CMK. In accordance with the article, a written verdict is made as a result of incomplete examination, without being informed of the case, without taking a statement about the confiscation and without discussing whether the vehicle belongs to a bona fide third person or not,
4- 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 and numbered 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,
Pursuant to paragraph 3 of article 53 of the TCK numbered 5237, the defendant … is released on probation from serving in guardianship or trusteeship, with the custody rights of the accused …… and making a written sentence without considering the necessity of deprivation of powers until the execution of the sentence is completed,
5- While the confiscation of the subject matter should be contented with, Article 8/4 of the Law No. 4733. It is also decided to be liquidated by destruction pursuant to the article,
6- It has been decided to accept the customs administration, which does not have the right to participate in the lawsuit, as a participant, and it is decided that “attorney fee in favor of the participating institution” in a way that cannot be understood in favor of which institution, although it has the title of participant in …
Conclusion: It is against the law, since the objections of the defendants are deemed appropriate in this respect, the verdict is in Article 8/1 of the Law No. 5320. It was unanimously decided on 30.06.2016 that the CMUK numbered 1412, which is in force pursuant to Article 321, be overturned.
