Smuggling Crime
T.C.
JUDICIARY
7TH CRIMINAL COURT
E. 2014/15102 K. 2014/14597 T. 8.7.2014
CASE : The judgment rendered by the local court was appealed; after reading the file according to the nature of the application, the type of punishment, the duration and the date of the crime, the necessity was discussed and considered:
DECISION : Since the objection of the Chief Public Prosecutor’s Office of the Court of Cassation dated 1.5.2014 and numbered 7-2011-152425 was deemed appropriate, the decision of our Chamber dated 19.2.2014 and numbered 2013/2164 Esas- 2014/3780 Decision was lifted with the acceptance of the objection;
1- ) On the date of the crime, since the defendant’s action constituted the crime of smuggling stipulated in Article 3/5 of the Law No. 5607 in terms of smuggled sugar and at the same time the crime regulated in the additional Article 5/1 of the Law No. 5015 in terms of smuggled fuel, in accordance with Article 44 of the Turkish Penal Code No. 5237, the defendant should be punished in accordance with the additional Article 5/1 of the Law No. 5015, which prescribes the heaviest penalty due to the single act of transporting sugar and fuel, but to be convicted of two separate crimes as written,
2- ) According to the acceptance;
a- ) Failure to apply Article 58 of the Turkish Penal Code to the defendant, who has a conviction of more than three months imprisonment for an intentional offense based on recidivism, and deciding to postpone the prison sentence imposed for opposition to the Law No. 5015, despite the fact that he has a criminal record that prevents postponement,
b- ) Deciding to confiscate the transport vehicle instead of returning it, considering that the goods subject to the case do not constitute the whole or the predominant part of the goods in terms of quantity or volume according to the load of the transport vehicle and considering the value of the contraband and the value of the transport vehicle decided to be confiscated, considering that its confiscation would be against equity within the scope of Article 54/3 of the TPC No. 5237,
CONCLUSION : Since it is contrary to the law and the defendant’s appeal objections are deemed appropriate in this respect, it was decided unanimously on 08.07.2014 that the verdict be DISMISSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of the Law No. 5320, and that the defendant’s vested right in the sentence in terms of the reason for reversal numbered 2-a be observed in accordance with Article 326 / last article of the Code of Criminal Procedure.