Decision On The Crime Of Plunder
T.C. JUDICIARY
6th Criminal Chamber
Main: 2016/3811
Decision: 2016/5600
Date of Decision: 29.06.2016
THE CRIME OF PLUNDER- THE CRIME IS A CRIME AGAINST THE STATE – THE IMPOSSIBILITY OF ESTABLISHING THREE SEPARATE CONVICTIONS IN CASE THE CRIME IS COMMITTED MORE THAN ONCE – THE JUDGMENT IS REVERSED
SUMMARY: Since the legal benefit protected in the crime of laundering the assets derived from crime is the public, economic and political structure of the country, the crime is a crime committed against the State, and without considering that Article 43/1 of the TPC No. 5237 should be applied in case the crime is committed more than once, it required a reversal to establish three separate convictions.
(Art. 37, 39, 53, 228 of TPC No. 5237)
Case and Judgment: The judgment rendered by the Local Court was appealed with a hearing by the defendants … and … defense counsels;
As it was understood that the defendants and their defenses did not come to the hearing without a valid excuse even though they were duly notified of the hearing date, at the end of the examination made without a hearing in terms of the said defendants; the file was discussed according to the nature of the application, the type of punishment, the duration and the date of the crime;
I- The conviction of the defendants … and … for the crime of plunder against the complainant …; the conviction of the defendants …, …, … for the crime of attempted plunder against the complainant …; the conviction of the defendants …, … and … for the crime of plunder against the complainant …; the conviction of the defendant … The conviction of the defendants … and … for the crime of threatening the victim …; the conviction of the defendants … and … for the crime of damaging property against the complainant …; the conviction of the defendants … and … for the crime of threatening the victim …; the conviction of the defendant … conviction for the crime of deprivation of liberty against the victim …; conviction for the crime of forgery of official documents against the defendant …; conviction for the crime of providing a place and opportunity for gambling against the defendants …, …, …, …, …; conviction for the crime of providing a place and opportunity for gambling against the defendant … In the examination of the conviction sentences against the defendants …, …, …, …, …, …, …, …, …, for the crime of forming an organization with the aim of committing a crime, and against the defendant …, for the crime of aiding an organization with the aim of committing a crime;
228/1. of the Turkish Penal Code No. 5237 stipulates a fine in addition to imprisonment; the application of Article 39 of the same law instead of Article 37/1. of the Turkish Penal Code No. 5237 for the defendant …, who directly participated in the crime of looting against the complainant …, has not been made a reason for reversal since there is no counter-appeal.
According to the contents of the file, 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 crimes committed by the defendants, the other appellate objections have not been deemed relevant.
However;
Although it was decided to deprive the defendants from using the rights written in Article 53/1-a-b-c-d-e of the TCC until the execution of their prison sentences is completed; however, if they are released conditionally in accordance with Article 53/3 of the TCC, it was decided to terminate their deprivation from using the rights listed in Article 53/1-c of the TCC on their descendants. 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 has required to be spoiled and the objections of the defendants …, …, …, …, …, …, …, …, … defense counsels and the defendants …, …, … and … have been deemed appropriate in this respect, the judgment shall be REJECTED in accordance with the notification for the reason explained, and since the reason for the reversal does not require a retrial, based on the authority granted by Article 322 of the Code of Criminal Procedure No. 1412 through Article 8/1 of the Law No. 5320. In terms of the application of Article 53/1 of the TCC, the defendants are deprived of the right to vote, to be elected and to exercise other political rights written in subparagraphs (a, c, d and e) and paragraph (b); in terms of the application of Article 53/2 of the same Law, the defendants are deprived of the right to vote, to be elected and to exercise other political rights written in subparagraphs (a, c, d and e) and paragraph (b) of Article 53/1 and paragraph 3 of the same Article. paragraph 3 of the same article, to be deprived of exercising the parental, guardianship and trusteeship powers over their own descendants written in subparagraph (c) until they are conditionally released from the prison sentence they have been sentenced to”, and the verdict, which is in compliance with the procedure and the law in other aspects, is approved by correction,
II- As for the examination of the convictions of defendants …, … against the victims … and …; defendants … and … against the complainant …; defendants …, …, … and … against the complainant …. for the offense of laundering the proceeds of crime;
Other appeal objections are not deemed appropriate.
However
1- Establishing a verdict with incomplete examination by justifying the transactions made without explaining which transactions the assets obtained from the crime are subjected to in order to conceal their illegitimate source, without explaining which transactions are subjected to the fact that they are obtained legitimately, without showing the transactions related to this, without investigating whether it is possible to confiscate the material benefits obtained by committing the crime or constituting the subject of the crime or provided for the commission of the crime and the economic gains arising as a result of their evaluation or transformation, or whether it is possible to return them to the victim of the crime,
2- Establishing three separate convictions without considering that the legal benefit protected in the crime of laundering the assets derived from crime is the public, economic and political structure of the country, that the crime is a crime against the State, and that Article 43/1 of the TPC No. 5237 should be applied if the crime is committed more than once,
Since it was deemed necessary to be spoiled and the appeals of the defendants …, …, …, …, … and the defendants … and … were deemed appropriate, it was unanimously decided on 29.06.2016 that the verdict be VACATED for the reasons explained.