The Defendant’s Action Constitutes The Crime Of Attempted Looting In The Incident In Which The Defendant Attempted To Hit The Victim By Waving The Knife From His Waist And The Victim Escaped And Survived
T.C. JUDICIARY
6th Criminal Chamber
Main: 2015/1208
Decision: 2016/5621
Date of Decision: 29.06.2016
CRIME OF PLUNDER – IN THE INCIDENT WHERE THE DEFENDANT ATTEMPTED TO HIT THE COMPLAINANT BY WAVING THE KNIFE HE TOOK OUT FROM HIS WAIST AND THE COMPLAINANT ESCAPED AND ESCAPED, THE DEFENDANT’S ACTION CONSTITUTED THE CRIME OF ATTEMPTED PLUNDER – REVERSAL OF THE JUDGMENT
SUMMARY: In the incident where the defendant, who was charged with the crime of looting, attempted to hit the complainant by waving the knife he took out of his waist, but the complainant escaped by running away; without considering that the actions of the defendant constitute the crime of attempted looting as a whole, the judgment was established by making a mistake in the qualification of the crime, which required a reversal. It is decided to revoke the verdict.
(5237 S. K. art. 35, 53, 149) (ANY. COURT. 08.10.2015 T 2014/140 E. 2015/85 K.)
Case and Decision: The judgment given by the Local Court was appealed and sent to our Chamber with the decision of the 17th Criminal Chamber of the Court of Cassation dated 06.04.2015, and the file was discussed according to the nature of the application, type of punishment, duration and date of offense:
I- In the examination of the appellate objections to the verdict established against the defendant for the offense of insult;
According to the contents of the file and the minutes of the hearing, the legally valid and favorable evidence collected and examined and discussed at the decision, the reasoning and the discretion of the Board of Judges; Since there is no violation of the procedure and the law in the acceptance and characterization of the crime committed by the defendant, other appellate objections are not deemed relevant.
However;
Although it was decided to deprive the defendant from using the rights written in Article 53/1-a-b-c-d-e of the TCC until the execution of the prison sentence is completed; however, if he is released conditionally pursuant to Article 53/3 of the TCC, it was decided to terminate the deprivation of using the rights listed in Article 53/1-c of the TCC on his descendants; 24. 11.2015 dated 08.10.2015, with the decision of the Constitutional Court dated 08.10.2015, numbered 2014/140- 2015/85 Main and Decision, which was published in the Official Gazette dated 24.11.2015 and entered into force on the same date, the phrase “from electing, being elected and exercising other political rights” written in Article 53/1-b of the TPC was canceled,
Since it required to be spoiled and the appeals of the defendant … defense counsel were deemed appropriate in this respect, the verdict is reversed contrary to the request for the reason explained, and since the reason for reversal does not require a retrial, based on the authority granted by Article 322 of the Code of Criminal Procedure No. 1412 with reference to Article 8/1 of the Law No. 5320, the section on the application of Article 53 of the TCC was removed from the paragraph of the verdict and replaced with the following sentence: “As a legal consequence of the defendant’s conviction with imprisonment for the crime he committed intentionally, he is deprived of the right to elect, be elected and use other political rights written in subparagraphs (a, c, d and e) and subparagraph (b) of Article 53/1 of the TCC, in terms of the application of Article 53/2 of the same Law. In terms of the application of Article 53/1 of the TCC, the defendant shall be deprived of the right to vote, to be elected and to exercise other political rights written in subparagraphs (a, c, d and e) and subparagraph (b); in terms of the application of Article 53/2 of the same Law, the defendant shall be deprived of the right to vote, to be elected and to exercise other political rights written in subparagraphs (a, c, d and e) and subparagraph (b) of Article 53/1 and subparagraph 3 of the same Article. In accordance with paragraph 3 of the same article, he shall not be able to use the parental, guardianship and trusteeship powers over his sub-lineage written in sub-paragraph (c) until he is conditionally released from the prison sentence he has been sentenced to”, and the verdict, which is in accordance with the procedure and the law in other aspects, shall be approved with correction,
II- As for the examination of the appellate objections to the verdict established against the defendant for the offense of attempted intentional injury with a weapon;
According to the occurrence and the scope of the file; on the day of the incident, while the complainant was waiting in front of the Ziraat Bank on the connection road together with the witness …, the defendant came to the complainant and entered the arm of the complainant and addressed the complainant and said “you will give me 100-TL”, upon the complainant’s statement that he did not have money, the defendant said “you will give money, if you do not give money, I will burn your house, I will kill your children, no one can do anything to me, no one can do anything to me, you will give me … …they will say”, and when the complainant got scared and shouted “police”, the defendant attempted to hit the complainant by waving the knife he took out from his waist, but the complainant escaped by running away; without considering that the actions of the defendant as a whole constitute the crime of attempted looting regulated under Articles 149/1-a, 35 of the Turkish Penal Code. Without considering that the actions of the defendant as a whole constitute the crime of attempted looting regulated in Articles 149/1-a, 35 of the TPC, the court made a mistake in the qualification of the crime and sentenced as written,
Conclusion It was decided unanimously on 29.06.2016 that the verdict should be reversed contrary to the request for the reason explained, and that the vested right should be preserved in accordance with Article 326/last article of the Code of Criminal Procedure No. 1412 by referring to Article 8/1 of the Law No. 5320.
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