The Crime Of Plunder And Effective Repentance
T.C. JUDICIARY
6th Criminal Chamber
Main: 2016/840
Decision: 2016/4388
Date of Decision: 25.05.2016
THE CRIME OF PLUNDER – IT IS NECESSARY TO TAKE INTO CONSIDERATION THE FACT THAT THE ARTICLE OF THE ARTICLE OF THE TCKN WHICH EXCLUDES THE EXPRESSION “ELECTION AND EXERCISE OF OTHER POLITICAL RIGHTS” HAS BEEN ANNULLED – THE VERDICT IS UPHELD WITH CORRECTION
SUMMARY: In the face of the fact that … amusement park tokens were found from the defendants … and one … TL, ….. amusement park tokens and a machete used in the crime were found and taken under custody, and then it was understood that these money and tokens were returned to the complainants by the police; the application of Article 168 of the Turkish Criminal Code No. 5237 against the defendants, although the conditions for voluntary return did not occur, was not a reason for reversal since there was no counter-appeal …. With the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140-2015/85, which was published in the Official Gazette dated 08.10.2015 and entered into force on the same date, the fact that the phrase “from electing, being elected and using other political rights” written in Article 53/1-b of the TPC was canceled is a reason for reversal, but since this issue does not require a retrial, it was decided to approve the verdict by correction.
(5237 S. K. art. 53, 149, 168) (5271 S. K. art. 326) (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 the file was discussed according to the nature of the appeal, the type of punishment, the duration and the date of the offense:
According to the statements of the parties, they stated 20:30 as the time when the crime was committed and the Court’s acceptance was in this direction; against the understanding that the sun set at 19:50 on the date of the crime in …/Merkez according to the daylight saving time application, the defendants were charged with Article 149/1 (h) subparagraph (1) of Article 149/1 of the Turkish Penal Code No. 5237, although the elements of the crime did not occur. Although subparagraph (h) of Article 61 of the same Law was also applied; since the crime of looting was committed with weapons and with more than one person and therefore more than one qualified case occurred in the incident, this situation was not effective on the result, considering that when determining the basic penalty in accordance with Article 61 of the same Law, the penalty should be determined by moving away from the lower limit; In addition, according to the “Arrest, Body Search, Consensual Surrender, Conservation and Delivery Report” dated 03.06.2015 and the “Delivery and Receipt Minutes” dated 04.06. 2015 dated 04.06.2015, after the act of looting against the complainants … and …, after the complainants informed the police, the defendants who were caught in the vicinity of … Park Shopping Mall near the scene of the incident upon the complainants notifying the police because they matched the description, when their identities were checked, when it was determined that they were suspicious persons whose names were mentioned by the complainants, when the accusation against them was explained, they made statements based on denial, and in the body searches made; the defendants who were understood to have looted from the complainants … and … One 10 TL and 13 amusement park tokens were found from …, one 50 TL, one 20 TL, two 10 TL, 3 5 TL and 14 amusement park tokens and a machete used in the crime were found and taken under custody, and then it was understood that these money and tokens were returned to the complainants by the police. Article 168 of the TPC No. 5237 has not been made a reason for reversal since there is no counter-appeal.
According to the contents of the file and the minutes of the hearing, the legally valid and favorable evidence collected and examined and discussed in 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 that the crimes were committed by the defendants, the other appellate objections have not been deemed relevant.
However
1-)Although it was decided to deprive the defendants from exercising the rights written in Article 53/1-a-b-c-d-e of the TCC until the execution of the prison sentences imposed on them is completed; however, if they are released conditionally pursuant to Article 53/3 of the TCC, it was decided to end their deprivation from exercising the rights listed in Article 53/1-c of the TCC on their descendants; 24. With the Constitutional Court’s decision dated 08.10.2015 and numbered 2014/140-2015/85, which was published in the Official Gazette dated 11.11.2015 and entered into force on the same date, the phrase “to vote, to be elected and to exercise other political rights” written in Article 53/1-b of the TPC was annulled,
2-) Instead of holding the defendants, who committed the crime together, responsible for the trial expenses caused by them separately, deciding to “collect them equally” contrary to Article 326/2 of the Code of Criminal Procedure No. 5271,
Since the appellate objections of the defendant … defense and the defendant … and his defenders have been deemed appropriate in this respect, the verdict is hereby DISMISSED against the request for the reasons explained,
Conclusion:
Article 53 of the TCC” and ‘to be collected equally from the defendants’ and replaced them with ‘As a legal consequence of the defendants’ conviction with imprisonment for the crime they committed intentionally, in terms of the application of Article 53/1 of the TCC, they are deprived of the right to elect, be elected and use 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. In terms of the application of Article 53/2 of the same Law, they are deprived of the right to vote, to be elected and to exercise other political rights under sub-paragraphs (a, c, d and e) and sub-paragraph (b) of Article 53/1, and under paragraph 3 of the same Article. Paragraph (a, c, d and e) subparagraphs of Article 53/1 and subparagraph (b) and 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 by adding the phrases ‘the trial expenses caused by the defendants to be taken separately’, it was unanimously decided on 25.05.2016 to affirm the verdict, which was found to be in accordance with the procedure and law in other aspects except for the criticisms, by correction.