Theft, Violation Of Residential Immunity 2nd Criminal Chamber 2021/18744 E. , 2022/63 K.
The file was examined and considered:
1- In the examination of the appeal request of the lawyer … against the decision on the rejection of the appeal request on the merits;
Although the decision rendered in the absence of the defendant was notified to the lawyer appointed by the Bar Association and participated in the hearings as the defence counsel of the defendant and was appealed by the said lawyer as the defence counsel of the defendant; the defendant and his lawyer with power of attorney, lawyer …. … were present together at the first instance court hearing dated 24/11/2017 and it is understood that the duty of Adv. … has ended, the appeal request of Adv. …, who has no right and authority to appeal the judgement, is rejected in accordance with Article 298 of the Code of Criminal Procedure No. 5271,
2- In the examination of the defendant’s appeal request against the decision on the rejection of the appeal request for the offence of violation of the inviolability of the dwelling;
Considering the amount and type of sentences imposed, pursuant to Article 286/2-a of the Code of Criminal Procedure No. 5271, since it is not possible to appeal the decisions of the regional court of appeal regarding the dismissal of the appeal application regarding the imprisonment sentences of five years or less and judicial fines regardless of the amount, the defendant’s appeal request is rejected as requested in accordance with Article 298 of the Code of Criminal Procedure No. 5271,
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3- In the examination of the defendant’s appeal request against the decision on the rejection of the appeal request for the offence of theft;
Article 288 of the Code of Criminal Procedure No. 5271 reads as follows: “Appeal can only be based on the reason that the judgement is contrary to the law. Failure to apply or misapplication of a rule of law is a violation of law.” and Article 294 of the same Law; “The appellant must show in the appeal application why he wants the judgement to be reversed. The reason for appeal can only be related to the legal aspect of the verdict.” In the examination limited to the aforementioned reason, it was determined that the defendant’s appeal request was for the restriction of the right of defence by acting contrary to Articles 193 and 196 of the Criminal Procedure Code;
While applying the deprivations of rights stipulated in Article 53 of the TPC No. 5237, it was deemed possible to consider the amendment made in Article 53 of the TPC with Article 10 of the Law No. 7242, which was published in the Official Gazette dated 15/04/2020 and numbered 31100 and entered into force on the same day.
Since it is understood that there is no inaccuracy in the decision on the rejection of the appeal request against the defendant for the offence of theft, and since the decision given to the defendant is in accordance with the law, the defendant’s objections to the appeal are rejected, and the appeal against the decision of the 8th Criminal Department of the Istanbul Regional Court of Appeals, which is in accordance with the procedure and the law in accordance with Article 302/1 of the Code of Criminal Procedure No. 5271, is rejected, and the verdict is approved, it was unanimously decided on 10/01/2022.
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