Attorney Fee Awarded In Favor Of The Customs Administration, Which Was Decided To Participate In The Case Although It Was Not Harmed By The Crime
T.C. JUDICIARY
7th Criminal Chamber
Main: 2014/22890
Decision: 2016/8644
Date of Decision: 22.06.2016
OFFENSE OF OPPOSITION TO THE LAW NO. 4733 – AWARD OF ATTORNEY FEE IN FAVOR OF THE CUSTOMS ADMINISTRATION, WHICH WAS DECIDED TO PARTICIPATE IN THE CASE EVEN THOUGH IT WAS NOT DAMAGED BY THE CRIME – APPROVAL OF THE VERDICT WITH CORRECTION
SUMMARY: In the judgment established against the defendant who was charged with the crime of opposition to the Law No. 4733, according to the nature of the crime charged, although the awarding of an attorney fee in favor of the customs administration, which was decided to participate in the case although it was not damaged by the crime, required a reversal, it was decided to approve the judgment by correcting it.
(5237 S. K. art. 53, 54) (ANY. COURT. 08.10.2015 T 2014/140 E. 2015/85 K.)
Case and Decision: The judgment given by the local court was appealed; after the file was read according to the nature of the application, the type of punishment, the duration and the date of the offense, it was discussed and considered on behalf of the Turkish Nation;
I-According to the nature of the crime, since the fact that the customs administration, which is not directly damaged by the crime, was decided to participate in the public case does not give the right to appeal the verdict, the appeal request of the customs administration’s attorney is rejected in accordance with Article 317 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of the Law No. 5320,
II-In the examination of the appeal objections of the defendant …;
Although other appellate objections are not relevant,
1-Failure to take into consideration that the defendant, who was sentenced to imprisonment for the crime he committed intentionally, should also be sentenced to the deprivation of rights regulated in subparagraph (c) of paragraph 1 of Article 53 of the TCC,
2- Instead of the confiscation of all cigarettes subject to the case, which are smuggled and un-bandrolled, it is sufficient with the confiscation of the samples registered in the judicial custody by showing the article paragraph incorrectly,
3-According to the nature of the imputed crime, awarding an attorney fee in favor of the customs administration, which was decided to participate in the case even though it was not damaged by the crime,
Conclusion Pursuant to Article 322 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of the Law No. 5320, since it is contrary to the law, the defendant’s appellate objections are therefore deemed appropriate and this issue does not require a retrial;
1-To remove the paragraph regarding the application of Article 53 of the TCC from the verdict and instead to write the phrase “Considering the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 E. – 2015/85 K., which was published in the Official Gazette dated 24.11.2015 and entered into force on the same day, and in accordance with the conditions in paragraphs 2 and 3 of Article 53 of the TCC, to apply the subparagraphs (a), (b), (c), (d) and (e) of paragraph 1 of the said article of the law to the defendant.”
2- Deleting the paragraph on the confiscation of cigarettes registered in the judicial custody and replacing it with the phrase “the confiscation of un-bandered and smuggled cigarettes subject to the case pursuant to Article 54/1 of the TPC”,
3- It was unanimously decided on 22.06.2016 to approve the judgment with correction by removing the paragraph regarding the award of an attorney fee in favor of the customs administration and leaving the other parts unchanged.
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