It Is Necessary To Investigate Whether There Is A Connection Between This Case And The Other Case In Terms Of The Application Of Chain Offense
T.C. JUDICIARY
7th Criminal Chamber
Main: 2014/24599
Decision: 2016/8643
Date of Decision: 22.06.2016
OFFENSE OF VIOLATING THE LAW NO. 4733 – IT IS NECESSARY TO INVESTIGATE WHETHER THERE IS A CONNECTION BETWEEN THIS FILE SUBJECT TO APPEAL REVIEW AND THE OTHER FILE IN TERMS OF THE APPLICATION OF A CHAIN OFFENSE – THE JUDGMENT IS REVERSED
SUMMARY: The file of the Criminal Court of First Instance numbered …. K. numbered file of the Criminal Court of First Instance, and discussing whether there is a connection between this file subject to appellate review and the other file mentioned in terms of the application of Article … of the TCC and whether the crime subject to this case subject to appellate review is subject to the case repeatedly, and if it is determined that there is a connection in the aforementioned aspects, it is a reason for reversal of the verdict, not considering that the files should be merged or the legal status of the defendant should be determined and appreciated by taking the other file into consideration.
(5237 S. K. art. 43, 53, 54) (ANY. COURT. 08.10.2015 T. 2014/140 E. 2015/85 K. )
Case and Decision: The judgment given by the local court was appealed; after the file was read according to the nature of the application, the type of punishment, the duration and the date of the crime, it was discussed and considered on behalf of the Turkish Nation;
I-In the examination of the appeal objections of the defendant …;
Although other appellate objections are not relevant,
1-The need to form a judgment by taking into consideration the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 E. – 2015/85 K., which was published in the Official Gazette dated 24.11.2015 and entered into force on the same day in terms of the application of Article 53 of the Criminal Code,
2-According to the nature of the crime committed, awarding an attorney fee in favor of the customs administration, which was decided to participate in the case, although it was not damaged by the crime,
Pursuant to Article 322 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of the Law No. 5320, since it is contrary to the law, the defendant’s appellate objections are therefore deemed appropriate and this issue does not require a retrial;
1-To remove the paragraph regarding the application of Article 53 of the TCC from the verdict and instead to write the phrase “Considering the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 E. – 2015/85 K., which was published in the Official Gazette dated 24.11.2015 and entered into force on the same day, and in accordance with the conditions in paragraphs 2 and 3 of Article 53 of the TCC, to apply the subparagraphs (a), (b), (c), (d) and (e) of paragraph 1 of the said article of the law to the defendant.”
2-THE CONFIRMATION of the judgment with correction by removing the paragraph regarding the awarding of an attorney fee in favor of the Customs Administration and leaving the other parts unchanged,
II-In the examination of the appeal objections of the defendant …;
Although other appellate objections are not relevant,
1-As a result of the examination made by taking into account the UYAP records, it is understood that there is another file numbered 2012/426 E. – 2014/629 K. of Erzurum 1st Criminal Court of First Instance, which is of the same nature as the crime subject to this case subject to appeal review and which is registered in 2015/27972 E. of our Chamber, and that the crime dated 15.01.2012, which is the subject of the other file and allegedly committed by the defendant on 6 different dates, is the same as the crime subject to this case subject to appeal review;
As stated in detail in the decision of the Criminal General Assembly of the Court of Cassation dated 08.04.2014 and numbered 2013/7-591 Main, 2014/171 Decision dated 08.04.2014, which is also accepted by our Chamber; the way the crime was committed, the characteristics in the commission of the crime, the place and time of the acts, the time elapsed between the acts, the value and benefit protected, the nature of the material subject to which the action is directed, the occurrence and development of the events and all other features reflected in the outside world are evaluated together, whether the defendant committed his actions within the scope of the execution of a decision to commit a crime and whether Article 43 of the TPC should be applied to him. article 43 of the TPC and whether the offenses dated 15.01.2012, which are subject to both cases, are subject to the case repeatedly;
The file numbered 2012/426 E. – 2014/629 K. of the Erzurum 1st Criminal Court of First Instance, registered in 2015/27972 E. of our Chamber, which is of a similar nature, was brought and examined, and whether there is a connection between this file subject to appellate review and the other file mentioned in terms of the application of Article 43 of the TCC. article 43 of the TCC and whether the offense subject to this case subject to the appeal review is subject to the case repeatedly, and if it is determined that there is a connection in the aforementioned aspects, it is not considered that the files should be merged or the legal status of the defendant should be determined and appreciated by taking the other file into consideration,
According to the acceptance and application;
2-According to the nature of the crime committed, awarding an attorney fee in favor of the customs administration, which was decided to participate in the case even though it was not damaged by the crime, 3-As it is understood that it was decided to liquidate the goods subject to the case by taking samples with the interim decision of the hearing dated 04.12.2012, it is decided to confiscate the unregistered and smuggled cigarettes subject to the case in accordance with Article 54/1 of the TPC. However, if the liquidation process has been carried out, it should be decided to confiscate the unregistered and smuggled cigarettes subject to the lawsuit in accordance with Article 54/1 of the TCC and to record the liquidation amount on behalf of the treasury in the name of the treasury in accordance with Article 54/1 of the TCC, which is contrary to the law;
3-The need to form a judgment by taking into consideration the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 E. – 2015/85 K., which was published in the Official Gazette dated 24.11.2015 and entered into force on the same day in terms of the application of Article 53 of the TCC,
Conclusion: Since it required to be reversed and the defendant’s appellate objections were deemed appropriate in this respect, it was unanimously decided on 22.06.2016 to VACATE the judgment in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of the Law No. 5320.
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