The Defendant Seized Undeclared And Smuggled Cigarettes – Inappropriate Determination Of Excessive Penalty For The Defendant By Departing From The Lower Limit In A Way Incompatible With The Measures Of Equity
T.C. JUDICIARY
7th Criminal Chamber
Basis: 2014/30469
Decision: 2016/9085
Date of Decision: 30.06.2016
SMUGGLING OFFENSE – THE DEFENDANT SEIZED UN-BANDED AND SMUGGLED CIGARETTES – THE IMPROPER IMPOSITION OF EXCESSIVE PUNISHMENT FOR THE DEFENDANT BY DEPARTING FROM THE LOWER LIMIT IN A MANNER INCOMPATIBLE WITH THE MEASURES OF EQUITY – THE JUDGMENT IS REVERSED
SUMMARY: In the case where 529 packs of unbanned and smuggled cigarettes were seized from the defendant, while determining the basic penalty between the lower and upper limits, the way the crime was committed, the means used in committing the crime, the time and place of the crime, the importance and value of the subject of the crime, the gravity of the damage or danger caused, the intent of the perpetrator, According to the scope of the file, although the act of the defendant, which does not pose a gravity when compared to similar incidents, does not require a diagnosis in a way that disrupts the balance between the action and the punishment, it is inappropriate to determine an excessive punishment for the defendant by moving away from the lower limit in a way that is incompatible with the measures of fairness.
(5237 S. K. art. 52, 53, 61) (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 offense, it was discussed and considered on behalf of the Turkish Nation;
1- In the incident in which 529 packs of unbanned and smuggled cigarettes were seized from the defendant, 61. Pursuant to Article 61 of the TPC No. 5237, while determining the basic penalty between the lower and upper limits, the way the crime was committed, the means used in committing the crime, the time and place where the crime was committed, the importance and value of the subject of the crime, the importance and value of the subject of the crime, the gravity of the damage or danger caused, the intention of the perpetrator, the purpose and motive of the perpetrator should be taken into consideration, and according to the scope of the file, the act of the defendant, which does not pose a gravity when compared to similar incidents, does not require identification in a way that disrupts the balance between the action and the punishment, but the determination of excessive punishment for the defendant by moving away from the lower limit in a way that is incompatible with the measures of fairness,
2- Due to the annulment of some parts of Article 53 of the Turkish Criminal Code No. 5237 by the annulment decision of the Constitutional Court dated 08/10/2015 and numbered 2014/140, 2015/85, which entered into force after being published in the Official Gazette dated 24/11/2015 and numbered 29542, it is necessary to re-evaluate the said article,
3- Although it was decided to collect the judicial fine imposed on the defendant in 5 equal installments, the installment interval was not specified in violation of the provision of Article 52/4 of the Turkish Criminal Code No. 5237 and in a way to create hesitation in execution,
4- Establishing a verdict on the liquidation of the goods subject to the case while it should have been decided for confiscation,
Conclusion: Since it is contrary to the law and the objections of the defendant’s appeal have been deemed appropriate in this respect, it was unanimously decided on 30.06.2016, pursuant to 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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