If The Time Of The Offence Is Not Clear, It Is Accepted That It Was Committed During The Day
13th Criminal Chamber 2020/5344 E. , 2020/5838 K.
“Case Law Text”
REVERSAL IN FAVOUR OF THE LAW
Against the decision of Istanbul 5th Criminal Court of First Instance dated 04/12/2008 and numbered 2004/494 Esas, 2008/987, which sentenced the defendant … to 2 years and 8 months imprisonment (twice) pursuant to Articles 142/1-b and 143 of the Turkish Penal Code No. 5237, the Ministry of Justice’s letter dated 31/12/2019 and numbered 94660652-105-34-20548-2019-Kyb and the notification of the Supreme Court of Appeals Chief Public Prosecutor’s Office dated 08/01/2020 and numbered 2020/2527 were sent to our office,
IN THE AFOREMENTIONED NOTICE
According to the scope of the file, in the offence of theft committed by the defendant against the victims … and …, it is understood that it has been reported that the aforementioned decision should be reversed since it is not deemed appropriate to determine an excessive penalty by increasing the basic penalty determined for the defendant in accordance with Article 143/1 of the Turkish Criminal Code No. 5237, not considering that it should be accepted that it was committed during the daytime, in accordance with the principle that the defendant benefits from suspicion, since it is not clear in which time period the action took place.
THE NECESSITY WAS DISCUSSED AND CONSIDERED;
In the concrete case, in the theft crime committed by the defendant … against the victims … and …, it was not considered that it should be accepted that the crime was committed during the daytime in accordance with the principle that the defendant benefits from the doubt due to the uncertainty of the time period in which the action took place, and that Article 143 of the Law No. 5237 was applied in the sentences established against the defendant for the crime of theft, although the conditions did not occur.
Since the notification letter of the Chief Public Prosecutor’s Office of the Court of Cassation based on the request for reversal for the benefit of the law due to the imposition of excessive punishment by applying Article 143 of the Law No. 5237, has been deemed appropriate according to the content of the file examined, it is accepted and the defendant … for theft crimes regarding his actions against the victims … and …,
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Istanbul 5th. Criminal Court of First Instance dated 04/12/2008 and numbered 2004/494 main, 2008/987 decision in accordance with Article 309 of the Code of Criminal Procedure No. 5271, since the reversal is for the application, in accordance with subparagraph (d) of paragraph 4 of the same article, the paragraph regarding the application of Article 143 of the Turkish Criminal Code No. 5237 from the paragraphs of the judgements related to theft offences shall be removed. Article 143 of the TPC numbered 5237 from the paragraphs of the sentences related to theft crimes, the resulting sentences to be determined as 2 years imprisonment, the other parts of the sentences to be preserved as they are, the file to be returned to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to the neighbourhood, it was unanimously decided on 18/06/2020.
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