Crime Against Sexual Immunity
T.C JUDGMENT
14th Criminal Chamber
Main: 2015/ 6298
Decision: 2018 / 7135
Decision Date: 03.12.2018
The judgments given by the court of first instance were appealed and the file was examined and the necessity was considered:
In the examination of the verdict established against the defendant for the offense of violation of residential immunity;
It has been deemed possible to take into consideration the annulment decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 Esas, 2015/85 Decision numbered, which entered into force after being published in the Official Gazette dated 24.11.2015 and numbered 29542 regarding Article 53 of the TPC numbered 5237 after the verdict, at the execution stage.
Since the evidence and the claim and defense have been analyzed and appreciated by taking into account the trial, and the act that is accepted to have been committed has been advised and practiced in accordance with its elements, the defendant’s objections to the appeal, which are not deemed relevant, are rejected and the judgment is APPROVED,
As for the appellate examination of the verdict established against the defendant for simple sexual assault;
According to the trial, the evidence collected and shown in the decision, the court’s opinion and discretion formed in accordance with the results of the investigation and prosecution, and the content of the file examined, the other appellate objections that are not deemed appropriate are rejected,
However;
Since it is understood from the content of the whole file that the victim, who was born on 20.10.1995 and was sixteen years old on the date of the crime, was at home on the day of the incident, the defendant, who was a neighbor of the victim, entered the house without consent and tried to hug and kiss the victim, the action was considered to be at the level of molestation, and after the verdict, taking into account the amendment made to the crimes against sexual immunity by the Law No. 6545, which entered into force on 28.06.2014. 2014, taking into account the amendment made in the crimes against sexual inviolability with the Law No. 6545 that entered into force on 28.06.2014, instead of deciding to convict the defendant for the crime of simple sexual abuse of the child by molestation specified in the 103/1.2 sentence of the Turkish Penal Code, making a mistake in determining the nature of the crime and sentencing the defendant for the crime of simple sexual assault regulated in Article 102/1 of the Turkish Penal Code,
Since the Constitutional Court’s decision dated 08.10.2015 and numbered 2014/140 Esas, 2015/85 Decision numbered and published in the Official Gazette dated 24.11.2015 and numbered 29542, which entered into force after the verdict, and the partial annulment decision was made in terms of Article 53 of the TPC numbered 5237, it is obligatory to make a re-evaluation by taking the said issue into consideration,
Since it is contrary to the law and the defendant’s appeal objections are deemed appropriate in this respect, it was unanimously decided on 03.12.2018 to VACATE the verdict in accordance with Articles 321 and 326 of the Code of Criminal Procedure No. 1412 in accordance with Article 8/1 of the Law No. 5320, without prejudice to his vested right in terms of the amount of punishment.