Appeal Of Penalties That Are Final In Type And Amount Decision Of The Court Of Cassation
6th Criminal Chamber 2021/11450 E. , 2021/7569 K.
“Case Law Text”
COURT :Criminal Division
CRIMES : Qualified plunder, damage to property, intentional injury, violation of Law No. 6136
JUDGMENTS : Dismissal of the appeal on merits
The judgments given by the Regional Court of Appeal were appealed, the file was examined and the necessity was considered:
Pursuant to the provisional article 1 of the Law No. 7226, which entered into force after being published in the Official Gazette dated March 26, 2020 and numbered 31080 (repeated) due to the Covid-19 outbreak, the periods decided to be suspended from 22/3/2020 (including this date) until 30/4/2020 (including this date) are 30. Due to the extension until 15.06.2020 with the Presidential Decree dated 29.04.2020 and numbered 2480, which entered into force after being published in the Official Gazette dated 04.04.2020 and numbered 31114, the appeal request of the defendant … was accepted to be in due time;
It has been accepted that it is possible to correct the date of the crime as 04.01.2016 in the title of the reasoned decision.
I- In the examination of the verdicts established for the offenses of damaging property, violation of the Law No. 6136 against the defendant … and damaging property against the defendant …;
Considering the amount and type of the sentences imposed, 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 imposed by the courts of first instance, pursuant to Article 286/2-a of the Code of Criminal Procedure No. 5271, the appeal requests of the defendant …, the defendants …, …, … defense counsels and the attorney of the participant … are rejected in accordance with the notification in accordance with Article 298 of the Code of Criminal Procedure No. 5271,
II- In the examination of the convictions of the defendants …, … for the crimes of qualified looting and injury;
The defendant … and his defense counsel appealed against the conviction of the defendant for the crimes of looting and wounding, the defendant … and his defense counsel appealed against the conviction of the defendant for the crime of looting, and the defendant … and his defense counsel appealed against the conviction of the defendants for the crime of looting and the conviction of the defendants for the crime of wounding, stating that the defendants should be convicted of the crime of attempted murder. It is stated that the decisions of the regional court of justice regarding the rejection of the appeal application regarding the sentences of imprisonment for more than 5 years established by the court of first instance for the crime of plunder against the defendants are subject to appellate review, but in our concrete case, the court of first instance ruled 5 years imprisonment for the defendant … for the crime of qualified injury and acquittal for the defendant …, and the court of appeal decided to reject the appeal application of the defendants’ defense attorneys and the participant’s attorney on the merits. This decision was appealed by the defense counsel of the defendant … and the representative of the participant on the grounds that the act constituted the crime of attempted murder for both defendants. In this respect, the preliminary issue is whether the conviction of the defendant … and the acquittal of the defendant … for the aforementioned offense of injury rendered by the Court of Appeal of that place are appealable.
Article 286 of the Code of Criminal Procedure titled “Appeal” states
“(1) The judgments of the criminal departments of the regional court of justice, except for reversal, may be appealed.
(2) However;
a) Decisions of the regional court of justice on the dismissal of the appeal against sentences of imprisonment of five years or less and judicial fines, regardless of the amount, rendered by the courts of first instance,
b) Decisions of the regional court of appeal that do not increase the sentences of imprisonment of five years or less imposed by the courts of first instance,
c)(Additional: 20/7/2017-7035/20 Art.) All kinds of decisions regarding alternative sanctions and decisions regarding the rejection of the appeal application on the merits, given by the regional court of justice regarding the decisions of the court of first instance regarding the alternative sanctions converted from imprisonment,
d)(Canceled by the Decision of the Constitutional Court dated 27/12/2018 and numbered E.:2018/71 K.:2018/118; Revised: 20/2/2019-7165/7 Art.) Except for the conviction decisions given by the regional court of justice for the first time and excluded from the scope of the third paragraph of Article 272, all kinds of regional court of justice decisions regarding the crimes that fall within the jurisdiction of the first instance courts and that require imprisonment up to two years (including two years) and judicial fines related to them,
e) All kinds of decisions of the regional court of appeal regarding the judgments rendered by the courts of first instance in offenses requiring judicial fine,
f)(Amended: 18/6/2014-6545/78 Art.) Decisions on the dismissal of the appeal application on the merits only in relation to the decisions of the court of first instance regarding the confiscation of goods or earnings or the lack of such confiscation,
g) Decisions (…) (2) regarding the acquittal decisions rendered by the court of first instance for crimes punishable with imprisonment of ten years or less or a judicial fine,
h)(Amended: 18/6/2014-6545/78 Art.) Decisions of the court of first instance regarding the dismissal of the case, non-prosecution, security measures, such decisions rendered by the regional court of appeal or decisions on the rejection of the appeal on the merits,
ı) Decisions of the regional court of appeal that include more than one of the same judgment, penalties and decisions, provided that they remain within the limits set forth in the subparagraphs above, shall not be appealable.
(3)(Annex: 17/10/2019-7188/29 Art.) Even if they are within the scope of the decisions that cannot be appealed as specified in the second paragraph, the decisions of the criminal departments of the district court of appeal rendered due to the following crimes may be appealed
a) Offenses under the Turkish Penal Code;
1. Insult (Article 125, third paragraph),
2. Threats to create fear and panic among the public (Article 213),
3. Incitement to commit a crime (Article 214),
4. Praising crime and criminals (Article 215),
5. Inciting or insulting the public to hatred and hostility (Article 216),
6. Incitement to disobey the law (Article 217),
7. Insulting the President (Article 299),
8. Insulting the signs of sovereignty of the State (Article 300),
9. Denigrating the Turkish Nation, the State of the Republic of Turkey, the institutions and organs of the State (Article 301),
10. Armed organization (Article 314),
11. Offenses of public dissuasion from military service (Article 318). b) Offenses in the second and fourth paragraphs of Article 6 and the second paragraph of Article 7 of the Anti-Terror Law. c) Offenses in the first paragraph of Article 28, Article 31 and Article 32 of the Law on Meetings and Demonstrations.”
The regulation is included.
According to Article 286 (1) of the Code of Criminal Procedure, the rule is that all decisions other than the reversal decisions of the courts of appeal are subject to appeal.
The exceptions to this rule are regulated in the second (nine (9) paragraphs) and third paragraphs of Article 286 of the CPC.
One of the important principles governing the criminal procedure is that the exceptions cannot be subjected to an expansive interpretation against the defendant.
First of all, it should be noted that the exceptions in the third paragraph added to Article 286 of the Code of Criminal Procedure by Law No. 7188 are exceptions according to the type of crime, and the crime of wounding subject to trial is not one of these exceptions.
It is also clear that there is no exception under the other subparagraphs of the second paragraph. However, with the case law of the Criminal General Assembly of the Court of Cassation dated 04/10/1993 and numbered 2-187/222, it has been concluded that the issue should be examined in detail in terms of the exceptions in subparagraph b) of the article.
Pursuant to the case law of the Criminal General Assembly of the Court of Cassation, which is also adopted by our Chamber, it is possible to appeal even decisions that are final in terms of type and amount. Accordingly, for example, if a definitive judicial fine is imposed for simple wounding, the participant or the public prosecutor may appeal this judgment on the grounds that the act constitutes the crime of attempted murder. Our Chamber is of the opinion that this case law should also be applied in post-appeal appeals.
Therefore, since it is understood that the representative of the participant appealed the final judgment against the defendants for the offense of wounding in terms of qualification, in the appellate examination of the judgments established against the defendants for the offenses of plunder and wounding;
Article 288 of the Code of Criminal Procedure No. 5271 reads as follows: “An appeal can only be based on the grounds that the judgment is contrary to the law. Failure to apply or misapplication of a rule of law is a violation of law.”, Article 294 of the same Code “The appellant must show in the appeal application why he wants the judgment to be reversed. The reason for the appeal can only be related to the legal aspect of the judgment.” and Article 301 of the same Law “The Court of Cassation shall only examine the issues specified in the appeal application and, if the appeal request is due to procedural deficiencies, the facts specified in the appeal application. “, the appeal request of the defendant …’s defense counsel is that there is not enough evidence for the defendant to be punished, that the nature of the crime is attempted theft even if it is assumed that he participated in the crime, that the defendant made a defense through SEGBİS, but his right to defense was violated because it was not fully and completely recorded in the minutes, that the discount reasons were not applied in his favor, that the defendant … Appeal request of the defense counsel is that there is no conclusive and sufficient evidence against the defendant, the principle of the defendant benefits from the doubt is not observed, the defendant should be acquitted; the appeal request of the participant … attorney is that the sentences imposed on the defendants for the crimes of damage to property and looting are low and that the defendants should be sentenced for the crime of attempted murder and that the favorable provisions should not be applied;
According to the occurrence and file content, it is understood that there is no inconsistency in the sentences imposed on the defendants for the offense of plunder.
In addition, the existence of any of the cases of absolute contradiction to the law listed in Article 289 of the Code of Criminal Procedure could not be determined in the file.
According to the trial and the content of the file, it is understood that there is no inconsistency in terms of the reasons for appeal put forward in the judgments established against the defendants for the offense of qualified plunder, and 302/1 of the Code of Criminal Procedure No. 5271. Pursuant to Article 302/1 of the Code of Criminal Procedure No. 5271, it was unanimously decided on 20.04.2021 that the appeal of the defendant …, the defendants …, the defendants …, …, … defense counsels and the representative of the participant … be rejected on the merits and the verdicts be upheld partially in accordance with the notification, and the file be sent to Burhaniye Heavy Penal Court pursuant to Article 304/1 of the Code of Criminal Procedure, and a copy of our decision be sent to the 8th Criminal Chamber of Izmir Regional Court of Justice.
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