Incomplete Investigation Without Informing The Registered Owner Of The Vehicle Used In The Crime And Obtaining His Statement On Confiscation
T.C. JUDICIARY
7th Criminal Chamber
Basis: 2014/30174
Decision: 2016/9031
Date of Decision: 30.06.2016
OFFENSE OF OPPOSITION TO LAW NO. 4733 – THE COURT RULED WITH INCOMPLETE INVESTIGATION WITHOUT INFORMING THE REGISTERED OWNER OF THE VEHICLE USED IN THE OFFENSE AND OBTAINING HIS DECLARATION ON CONFISCATION – REVERSAL OF THE VERDICT
SUMMARY: Establishing a verdict as a result of incomplete examination without informing the registration owner of the vehicle used in the crime about the case, without obtaining his statement on confiscation and without discussing whether the vehicle belongs to the third party in good faith at the decision point, required a reversal. It is decided to revoke the judgment.
(5607 S. K. art. 3) (5237 S. K. art. 53) (5271 S. K. art. 226, 257) (4733 S. K. art. 8) (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- Deciding to convict the defendant as written instead of acquitting the defendant since there is no sufficient evidence to prove the contrary of the defendant …’s defense that the defendant … committed the imputed crime, except for the allegation that the 5200 cartons of smuggled cigarettes subject to the crime caught in the vehicle belonged to the defendant … and that he offered him to carry them,
2- Although a public case was filed against the defendant … … … with the request for punishment pursuant to Article 3/5 of the Law No. 5607, violating Article 226/1 of the Code of Criminal Procedure by establishing a verdict for opposition to Article 8/4 of the Law No. 4733 without granting additional defense right,
3- Establishing a written verdict as a result of incomplete examination without informing the registration owner of the vehicle used in the crime about the case pursuant to Article 257/2 of the Code of Criminal Procedure, without obtaining his statement on confiscation and without discussing the issue of whether the vehicle belongs to a third party in good faith at the decision place,
4- 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,
Pursuant to paragraph 3 of Article 53 of the Turkish Criminal Code No. 5237, it should be decided that the defendant … … written in subparagraph (c) of paragraph 1 of the same article … … should be conditionally released from parental rights over his own descendants and from performing a service belonging to guardianship or trusteeship, and that he should be deprived of these rights and powers regarding those other than his descendants until the execution of the sentence is completed,
5- While the confiscation of the goods subject to the case should have been sufficient, the court also ruled for the liquidation by destruction pursuant to Article 8/4 of the Law No. 4733,
6- It has been decided to accept the customs administration, which does not have the right to participate in the case, as a participant, and although … has the status of a participant, the award of “attorney fee in favor of the participating institution” in a way that cannot be understood in favor of which institution,
Conclusion It was unanimously decided on 30.06.2016 to overturn the verdict 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, since the appellate objections of the defendants were deemed appropriate in this respect.
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