Since The Duty Of Examining The Decision Of Resisting The Reversal Decision Belongs To The Criminal Chamber Of The Court Of Cassation Whose Decision Was Resisted, A Decision Of Non-Jurisdiction Should Be Made – Court Of Cassation Decision
T.C. JUDICIARY 5TH CRIMINAL CHAMBER E. 2017/880, K. 2017/973, T. 16.3.2017
– THE CRIME OF MISUSE OF PURPOSE OF OFFICE (Since the duty of examining the decision of resisting the decision of reversal belongs to the Criminal Chamber of the Court of Cassation whose decision was resisted, a decision of non-jurisdiction should be made)
– DIVISION OF WORK BETWEEN THE CRIMINAL DEPARTMENTS (In the Decision of the Board of Presidents of the Criminal Departments, it was adopted that the duty of examining the file upon objection belongs to the department that issued the decision of reversal and not to the department to which the crime was transferred with the division of labor – Crime of Abuse of Duty)
– DECISION OF NULLITY OF AUTHORITY ( Crime of Abuse of Duty – Since the duty of examining the decision of resisting the decision of reversal belongs to the Criminal Chamber whose decision is resisted, it is necessary to make a decision of nullity of jurisdiction)
SUMMARY : In the Decision of the Board of Presidents of the Criminal Chambers, the duty of examining the file upon appeal belongs to the Chamber that made the decision of reversal, not to the Chamber to which the crime assigned by the division of labor is transferred, In the concrete dispute, since it is understood that the 4th Criminal Chamber of the Court of Cassation made a decision of reversal by examining the appeal and the court resisted this reversal decision made by the 4th Criminal Chamber of the Court of Cassation; Since the duty to examine the decision of resistance given upon the decision of reversal belongs to the Criminal Chamber of the Court of Cassation whose decision is resisted, it is necessary to make a decision of non-jurisdiction.
CASE : The file was examined and considered:
DECISION : As a result of the trial of the public case filed for the crimes of misconduct in office with executive behavior and misconduct in office with negligent behavior, the judgment given by the Bursa 14th Criminal Court of First Instance on 19/10/2010 and numbered 2009/1797 Main and 2010/1401 Decision was decided to be reversed by the decision of the 4th Criminal Chamber of the Court of Cassation on 06/02/2013 and numbered 2011/16501 Main and 2013/3101 Decision,
Bursa 14th Criminal Court of First Instance resisted the aforementioned decision of the 4th Criminal Chamber of the Supreme Criminal Chamber with the decision dated 12/06/2013 and numbered 2013/437 Esas, 2013/760, and a notification was issued by the Chief Public Prosecutor of the Court of Cassation addressed to the Criminal General Assembly of the Court of Cassation with the date 11/04/2015 and number 2013/303153,
Pursuant to the provisional Article 10 added to the Law No. 5320 by Article 38 of the Law No. 6763 on the Amendment of the Criminal Procedure Law and Certain Laws, which entered into force on 02/12/2016, the aforementioned decision of resistance was sent to the 4th Criminal Chamber of the Court of Cassation, “which is the department whose decision was resisted”, with the Referral Decision of the Criminal General Assembly of the Court of Cassation dated 14/12/2016 and numbered 2015/357 Esas and 2016/1550,
Upon the referral decision of the Criminal General Assembly of the Court of Cassation with this justification, the 4th Criminal Chamber of the Court of Cassation with the decision dated 09/02/2017 and numbered 2017/362 Esas and 2017/3733
“… In our concrete case, in view of the fact that the reversal decision given by our Chamber was dated 06.02.2013 and the notification was dated 11.04.2015; after four years, the profile of members and examining judges has changed and it is thought that it would be right for the parties of the case that the department, which has specialized and specialized with the new division of labor during this period, should look at the case file.
On the other hand; Although the “department” in the regulation “Resist decisions are sent to the department whose decision is resisted” in paragraph 3 of Article 307 of the Criminal Procedure Law No. 5271, “the department” in the regulation “Resist decisions are sent to the department whose decision is resisted” should be understood as the “new department” authorized to hear that case by the Supreme Court of Cassation Grand General Assembly, which determines the division of labor of the departments with the authority granted in accordance with Article 14 of the Supreme Court of Cassation Law No. 2797;
After the regulations on the division of labor of the Criminal Chambers of the Court of Cassation, which were in force on the date of 06/02/2013, when the 4th Criminal Chamber of the Supreme Criminal Chamber issued a decision of reversal, and on the date of the notification dated 11/04/2015, which is the subject of the dispute, the second sentence of the third paragraph of Article 307 of the Criminal Procedure Law No. 6763, which entered into force after being published in the Official Gazette dated 02/12/2016 and numbered 29906, was amended and the second sentence of the third paragraph of Article 307 of the Code of Criminal Procedure No. 5271 was amended and the following paragraph was added; “Resist decisions are sent to the department whose decision is resisted. The Chamber shall examine the decision of resistance as soon as possible and, if it deems it appropriate, shall correct its decision; if not, it shall send the file to the Criminal General Assembly of the Court of Cassation. The sentences “cannot be resisted against the decisions given by the Criminal General Assembly of the Court of Cassation upon resistance” have been added, and this provision is regulated in a way that is not open to interpretation, for this reason, paragraph 3 of Article 307 of the Criminal Procedure Code amended by Law No. 6763 should be relied upon in the solution of the dispute, as a matter of fact, in the second paragraph added to Article 308 of the Criminal Procedure Code No. 5271 with Article 99 of Law No. 6352, which includes a similar regulation, “Upon objection, the file is sent to the department whose decision is objected to. ”, the Board of Presidents of the Criminal Chambers adopted the opinion in its Decision dated 19/04/2016 and numbered 2016/Bşk-77 Esas, 2016/77 that “Pursuant to the mandatory provision of Article 308 of the Code of Criminal Procedure No. 5271 amended by Article 99 of the Law No. 6352, the duty of examining the file upon objection belongs to the Chamber that issued the decision of reversal, not to the Chamber to which the crime assigned by the division of labor was transferred,
In the concrete dispute, since it is understood that a decision of reversal was made by the 4th Criminal Chamber of the Supreme Court of Appeals and the court resisted this reversal decision made by the 4th Criminal Chamber of the Supreme Court of Appeals; In accordance with the mandatory provision of Article 307 of the Code of Criminal Procedure No. 5271 amended by Article 36 of the Law No. 6763 on the Amendment of the Criminal Procedure Law and Some Laws, which entered into force by being published in the Official Gazette dated 02/12/2016 and numbered 29906,
CONCLUSION : Since the duty to examine the decision of resistance given upon the decision of reversal belongs to the 4th Criminal Chamber of the Court of Cassation whose decision was resisted, it was unanimously decided on 16.03.2017 that the file shall be sent to the Board of Presidents of the Criminal Chambers in order to resolve the conflict of duty between the 4th Criminal Chamber of the Court of Cassation, which previously decided on the absence of duty, and our Chamber.