The Child Dragged To Crime Does Not Have A Criminal Record Preventing Postponement – Decision On The Necessity Of Deciding Whether To Apply The Postponement Provisions By Discussing The Conditions In A Way To Allow Supervision
T.C. JUDICIARY
3rd Criminal Chamber
Basis: 2015/34296
Decision: 2016/15146
Date of Decision: 28.06.2016
THE CRIME OF INJURY – THE CHILD DRAGGED INTO THE CRIME DOES NOT HAVE A CRIMINAL RECORD THAT PREVENTS POSTPONEMENT – THE NECESSITY OF DECIDING WHETHER TO APPLY THE POSTPONEMENT PROVISIONS BY DISCUSSING THE CONDITIONS IN A WAY THAT WILL ALLOW SUPERVISION – REVERSAL OF THE VERDICT
SUMMARY: Considering that the child dragged into the crime has no criminal record that prevents postponement, the conditions stipulated in Article 51/1 of the TCC should be discussed in a way that will allow supervision, and it should be decided whether the postponement provisions should be applied or not, while deciding not to apply Article 51 of the TCC with the legal and insufficient justification of “the amount of the punishment given, the way the crime was committed, taking into account the victimization of the participant, since its elements did not occur” required the reversal of the verdict.
(5237 S. K. art. 51, 53, 86, 87) (5271 S. K. art. 191) (ANY. COURT. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case and Decision: The judgments given by the local court were appealed and the documents were read;
Necessity was discussed and considered;
1) In the examination of the appellate objections regarding the conviction of the defendant for the offense of intentional injury;
The writing of the article of the law as “Article 87/1-d-last of the TPC” during the increase of the defendant’s sentence determined in accordance with Articles 86/1, 86/3-e, 87/1-c of the TPC numbered 5237 to 5 years in accordance with Article 87/1-last of the TPC was accepted as a clerical error that can be corrected on the spot.
Although some provisions in Article 53 of the TPC No. 5237 were annulled by the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 Esas-2015/85 Decision, which entered into force after being published in the Official Gazette dated 24.11.2015 and numbered 29542, this issue has not been made a reason for reversal since it can be taken into consideration at the execution stage.
According to the trial, the evidence gathered and explained in the decision, the Court’s belief and discretion formed as a result of the prosecution, the reasoning and practice, the defendant’s defense’s objections to the appeal are rejected and the judgment is APPROVED as requested,
2) In the examination of the appellate objections regarding the conviction of the child dragged into crime for the offense of intentional injury;
a) Violation of Article 191/1-b of the Code of Criminal Procedure No. 5271 by taking the defense of the child dragged into crime without reading the decision of non-jurisdiction that replaces the indictment,
b) Deciding not to apply Article 51 of the TPC with the legal and insufficient justification that “the amount of the sentence imposed, the way the crime was committed, the elements of the crime did not occur considering the victimization of the participant”, while the conditions stipulated in Article 51/1 of the TPC should be discussed in a way to allow supervision and it should be decided whether the provisions of the postponement should be applied or not, taking into account that the upper limit of the postponement is 3 years for minors and the child dragged into the crime has no criminal record that prevents postponement,
c) Writing the article of the law as “Article 87/1-d-last” of the TPC when increasing the sentence of the child dragged into crime as per Articles 86/1, 86/3-e, 87/1-c of the TPC no. 5237 to 5 years as per Article 87/1-last of the TPC,
According to the acceptance;
d) Establishing a written verdict without considering that Article 53/1 of the TPC No. 5237 shall not be applied to the child dragged into the crime, who was under the age of 18 on the date of the crime, in accordance with Article 53/4 of the TPC No. 5237,
Conclusion Since the appeals of the defense counsels of the child dragged into crime were deemed appropriate in this respect, it was unanimously decided on 28.06.2016 to VACATE the judgment as requested in accordance with Article 321 of the Code of Criminal Procedure No. 1412 in force with Article 8/1 of the Law No. 5320 for these reasons.