Passive Resistance – Passive Resistance To Obstruct Duty
T.C.
JUDICIARY
4TH CRIMINAL COURT 2006/5382 2006/13684 11.7.2006
PASSIVE RESISTANCE TO AN OFFICER (Difficulty to get into the Police Vehicle and Trying to Escape – Passive Resistance is Decriminalized as a Criminal Offense / Should be Sentenced to Acquit)
PASSIVE RESISTANCE (Action Decriminalized as a Crime / Requirement for Judgment of Acquittal – Difficulty in Not Getting into a Police Vehicle and Trying to Escape)
OBSTRUCTING THE POLICE VEHICLE AND ATTEMPTING TO ESCAPE (Passive Resistance to the Officer in Charge – Passive Resistance is Decriminalized as a Crime)
RESISTANCE TO OFFICER ( Difficulty to get into a police vehicle and trying to escape – Passive resistance is no longer a criminal offense / Requirement of acquittal )
765/m.260
5237/m.265
SUMMARY : In the action that the defendant wanted to get away when he was put into the squad car because he did not give his identity card and the police officer who wanted to prevent this was injured by his own fault even though the defendant did not have any action; the act of causing difficulty and trying to escape in order not to get into the vehicle constitutes the crime of passive resistance stipulated in the Turkish Penal Code No. 765, the crime of resisting to prevent the execution of duty by force and threat is regulated in Article 265 of the Turkish Penal Code No. 5237, and the passive actions of people against the official, which do not involve force and threat, have not been adopted as a crime.
CASE : The defendant was sentenced to a judicial fine of 77 YTL. in accordance with Articles 260 of the Turkish Penal Code No. 765 and Article 4 of the Law on the Execution of Sentences No. 647 for the crime of resisting an officer in charge, by the B. 1st Criminal Court of First Instance dated 20.12. 2005 dated 20.12.2005 and numbered 2004/215 Esas and 2005/853 against the decision dated 25.5.2006 and numbered 22134 given by the Ministry of Justice with the notification dated 14.6.2006 and numbered 120203 of the Chief Public Prosecutor’s Office of the Court of Cassation containing the order for reversal request in favor of the law, and the case file was examined and discussed accordingly:
DECISION : The notification states that “according to the scope of the file, the defendant was sentenced for the offense of passive resistance in accordance with Article 260 of the TCC No. 765 on the grounds that the TCC No. 765 is more favorable. Although a conviction sentence has been established pursuant to Article 260 of the aforementioned Law, in the face of the court’s acceptance of the defendant’s action as the defendant’s refusal to give his identity upon the identity request of the police officer in charge and wanting to move away, considering that there is no element of force and violence in the incident, taking into account that the action is not regulated in the Turkish Penal Code No. 5237, it was not deemed inappropriate to give a written conviction instead of the acquittal of the defendant.”
In the action of the defendant not giving his identity card, the defendant wanted to get away while he was put into the squad car and the police officer who wanted to prevent this was injured by his own fault, although the defendant did not take any action; the act of causing difficulty and trying to escape in order not to get into the vehicle constitutes the crime of passive resistance stipulated in Article 260 of the Turkish Penal Code No. 765, 1. Article 265 of the Turkish Penal Code No. 5237, which entered into force on 6.2005, regulates the crime of resisting to prevent the execution of duty by force and threat, and since it is understood that the passive actions of people against the official, which do not involve force and threat, are not adopted as a crime, the opinion in the notification is deemed appropriate.
CONCLUSION : Based on the opinion that Article 260 of the Turkish Penal Code No. 765 is in favor of the defendant compared to Article 265 of the Turkish Penal Code No. 5237, the verdict established by applying Article 260 is reversed for the benefit of the law in accordance with Article 309/1-3 of the Code of Criminal Procedure No. 5271, and since the act of passive resistance has been decriminalized by the Turkish Penal Code No. 5237, the defendant is acquitted of the charged crime, and the sentence imposed is not to be executed, it was unanimously decided on 11.7.2006.