Decision Of The Court Of Cassation On The Crime Of Violating The Privacy Of Private Life
T.C.
JUDICIARY
12TH CRIMINAL COURT
E. 2019/3962
K. 2020/5421
T. 21.10.2020
* THE CRIME OF VIOLATING THE PRIVACY OF PRIVATE LIFE (Due to an offense that requires a judicial fine or imprisonment with an upper limit of not more than five years, it will be decided to postpone the opening of the public case during the investigation phase, to postpone the prosecution during the prosecution phase and to postpone the execution of the finalized conviction – Failure to Observe That It is Erroneous to Decide to Postpone the Prosecution Due to the Crime of Violating the Privacy of Private Life )
* PUBLISHING THE VICTIM’S IMAGES ON FACEBOOK ACCOUNT ( 134/2-2 of the Turkish Penal Code in Force as of the Date of the Offense 134/2-2. Article 134/2-2. and Clause and Sentence of Article 134/2-2 of the TPC in Force as of the Date of the Offense – The Incomplete Sentence Assignment to the Defendant by Not Applying the aforementioned Article is Contrary to the Law )
* THE CRIME OF THREAT (It is included in the scope of reconciliation – Pursuant to Article 254 of the Criminal Procedure Code amended by Article 35 of the Law No. 6763, the reconciliation procedures are carried out according to the principles and procedures specified in Article 253 of the same law, and according to the result, the necessity of re-evaluating the legal status of the defendant in terms of the crime of threat in Article 106/1-1 Clause and Sentence of the TPC requires reversal of the decision for the reasons explained)
5237/m. 106, 134
5271/m. 253, 254
SUMMARY : The case is related to the offenses of insult, violation of privacy and threat. Due to a crime that requires a judicial fine in its basic form or a prison sentence with an upper limit of not more than five years; It is a mistake not to consider that it should be decided to postpone the prosecution for the crime of violating the privacy of private life, in accordance with the provision that it is decided to postpone the opening of the public case in the investigation phase, to postpone the prosecution in the prosecution phase, to postpone the execution of the finalized conviction.
In the incident, it is against the law to impose an incomplete sentence on the defendant by not applying the aforementioned article, without considering that the basic sentence imposed on the defendant, who presented the images of the victim to an unspecified number of people through his facebook account, should be increased by half in accordance with the article, paragraph and sentence 134/2-2 of the Turkish Penal Code in force as of the date of the crime.
In the face of the understanding that the crime of threatening is included in the scope of reconciliation; pursuant to Article 254 of the Criminal Procedure Code amended by Article 35 of the Law No. 6763, the reconciliation procedures shall be carried out according to the principles and procedure specified in Article 253 of the same Law, and according to the result, the necessity to re-evaluate the legal status of the defendant in terms of the crime of threatening in Article 106/1-1, paragraph and sentence of the TPC requires reversal. For the reasons explained, the decision must be reversed.
CASE : The verdicts regarding the conviction of the defendant for the crimes of insult, violation of the privacy of private life and threats were appealed by the defendant, the file was examined and the necessity was considered:
DECISION : Pursuant to the decision of our Chamber dated 09.01.2019; in the examination made by determining that the decision dated 07.11.2013, which was given to the participant … in his absence, was duly notified and the said person did not appeal the decision:
A) In the examination of the appeal request for the convictions for the offense of insult;
Until the effective date of the annulment provision of the Constitutional Court dated 23.07.2009 and numbered 2006/65 Esas, 2009/114 decision, which was published in the Official Gazette dated 07.10.2009 and numbered 27369 and entered into force on 07.10.2010, one year after its publication, until the effective date of the annulment provision dated 23.07.2009 and numbered 2006/65 Esas, 2009/114 decision. The conviction provisions regarding judicial fines up to 2000 TL (including 2000 TL), which were directly ruled in accordance with the provisions of Articles 50 and 52 of the Turkish Criminal Code No. 5237 and the provisions of the Turkish Criminal Code No. 765 and did not include any other deprivation of rights, are final in accordance with Article 305 of the Law No. 1412, which is still in force in accordance with Article 8 of the Law No. 5320, and the conviction provisions between 07.10.2010 and 14.04.2011, when the Law No. 6217 entered into force. 2011 without any exception, and after 14.04.2011, the judicial fines up to 3000 TL (including 3000 TL) directly imposed are final pursuant to the Provisional Article 2 of the Law No. 5320; It is understood that the defendant … was sentenced directly and separately on 07.11.2013 for his actions against the victims … and İrfan. Since the defendant … does not have any appeal request regarding the nature of the crime for the convictions consisting of 2240 TL, which were directly ruled separately on 07.11.2013, the defendant’s appeal request is rejected in accordance with the request in accordance with Article 317 of the Code of Criminal Procedure No. 1412, which is still in force pursuant to Article 8 of the Law No. 5320,
B) As for the examination of the appeal request for the convictions for the crimes of violation of the privacy of private life and threats;
According to the trial, the evidence collected and shown in the decision, the court’s opinion and discretion formed in accordance with the results of the prosecution, and the scope of the file examined, the defendant’s other appeals regarding the conviction, the non-application of the discretionary discount clause, the deferral of the announcement of the sentences, the fact that the imprisonment sentences imposed were not converted into a judicial fine or other alternative measures and were not postponed are rejected, but;
1- The defendant … illegally published the images of the victim …’s private life through his account on the social networking site named Facebook, which is not specific and can be perceived by more than one person, until 05.12.2011, and thus violated Article 134/2 of the Turkish Penal Code. Although it is accepted that he committed the crime of violating the confidentiality of private life by disclosing the images or sounds defined in Article 134/2 of the TPC, the provisional article 1 of the Law No. 6352 on the Amendment of Certain Laws for the Enabling of Judicial Services and the Postponement of Cases and Penalties Regarding Crimes Committed through the Press and Publications, which entered into force after the date of the crime and before the date of the decision by being published in the Official Gazette dated 05.07.2012. The provisional article 1 of the Law on the Amendment of Certain Laws for the Purpose of Efficiency of Judicial Services and the Postponement of Cases and Sentences Regarding Crimes Committed through the Press and Publications states that a) In the investigation phase, it is decided to postpone the opening of the public case without seeking the conditions in Article 171 of the Criminal Procedure Law No. 5271 dated 04/12/2004, b) In the prosecution phase, it is decided to postpone the prosecution, c) It is decided to postpone the execution of the finalized conviction. ” provision, it should be decided to postpone the prosecution for the crime of violating the confidentiality of private life,
Also according to acceptance and practice:
In the article, paragraph and subparagraph 6/1-g of the Turkish Criminal Code, in the application of criminal laws, it is stated that the term “through the press and broadcasting” shall mean publications made by all kinds of written, visual, auditory and electronic mass communication tools, in view of the fact that the basic sentence imposed on the defendant, who presented the images of the victim … to the view of an indefinite number of people through his facebook account, should be increased by half in accordance with Article 134/2-2 of the Turkish Criminal Code in force as of the date of the crime. article, paragraph and sentence of the TPC in force as of the date of the offense, the defendant was sentenced to an incomplete sentence by not applying the aforementioned article,
2- In the face of the understanding that the crime of threat, which is among the sub-paragraphs added to the sub-paragraph (b) of paragraph 1 of Article 253 of the Criminal Procedure Code amended by Article 34 of the Law No. 6763 on the Amendment of the Criminal Procedure Code and Certain Laws, which was published in the Official Gazette dated 02.12.2016 and numbered 29906 after the date of the decision and entered into force on the same date; In accordance with Article 7/2 of the TPC; “If the provisions of the law in force at the time of the crime are different from the provisions of the laws that came into force later, the law in favor of the perpetrator shall be applied and executed. article and paragraph; “If the provisions of the law in force at the time the crime was committed and the provisions of the laws that came into force later are different, the law in favor of the perpetrator shall be applied and executed.” In accordance with Article 254 of the Code of Criminal Procedure amended by Article 35 of the Law No. 6763, the reconciliation procedures shall be carried out according to the principles and procedure specified in Article 253 of the same Law, and according to the result, the legal situation of the defendant shall be re-evaluated in terms of the threat crime in Article 106/1-1-1 of the TPC,
3-T.C. Since the annulment decision of the Constitutional Court numbered 2014/140 and 2015/85 regarding Article 53 of the TPC was published in the Official Gazette dated 24.11.2015 and numbered 29542, there is an obligation to re-evaluate the deprivation of rights under Article 53 of the TPC in line with the annulment decision,
CONCLUSION : Since the appellate objections of the defendant are deemed appropriate in this respect, it was decided unanimously on 21.10.2020 to VACATE the convictions for these reasons in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is still in force pursuant to Article 8 of the Law No. 5320, and to reserve the acquired right of the defendant in terms of the amount of punishment in relation to the crime of violation of the privacy of private life in accordance with Article 326/last of the same Law, considering the amount of punishment in execution.
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