Crime Of Plunder
T.C JUDGMENT
6th Criminal Chamber
Basis: 2016/ 2213
Decision: 2018 / 7269
Decision Date: 27.11.2018
The file was discussed according to the nature of the appeal, type of sentence, duration and date of offense:
Other appellate objections are not deemed appropriate.
However;
1) Before the respondent …. separated from her husband, the witness …., whom she was in the process of divorce due to the incompatibility between them, when they were living together in the common family residence in Sultanbeyli district, they shopped on credit from the supermarket in the same neighborhood where the witness was also an employee, about 2 years ago the respondent left the common residence and … The defendant …, who is the owner of a supermarket and who asked for his receivable from the witness… due to his settlement in the province of Sultanbeyli, contacted the participant upon the failure of the witness…, whose economic situation was not suitable, to pay the debt, but he delayed the defendant by claiming different excuses, this matter was also known by the defendant …, who is the older brother of the witness…, on 04. 07.07.2014, the victim …, who came to Sultanbeyli district with the hope of reconciling with her husband, came to the residence of the defendant …, where the witness … lived, around 23. 00, and the meeting with the defendant and his brother … did not yield a positive result, the victim left the defendant’s house at midnight, the defendant … and the witness … telephoned the defendant … and informed him that the victim … had come to the district and that he could collect his debt, and in order to provide suitable conditions for him to collect his debt, the defendant … called the participant, who was his brother-in-law, and asked him to come to a park to talk once again, and the victim asked him to come to the park described to him
when the defendant … arrived, while he was talking with the witness and his brother-in-law …, the defendant … arrived, and after this stage, the witness … left the scene,
The defendant … wanted the victim to pay the debt left behind by the victim, and upon the victim’s negative response, the defendant … wanted to collect the receivable of the defendant …, and the defendant …. wanted the victim to pay the debt left behind by the victim, and the defendant …. wanted the victim to pay the debt left behind by the victim. In order to get rid of the retrospective debt, they forced the victim into an automobile, drove him around for a while and beat him with their hands, the defendant … took the victim’s mobile phone, which he threatened to throw down from the suspension bridge, and 140. 00 TL and 3 bank cards, they attempted to withdraw money from the ATM, but they returned the cards to the victim when they could not succeed due to the lack of money in the accounts, the participant, who took the opportunity to slow down the car, jumped out of the vehicle at around 01.30 and escaped and applied to the police, as a result of the investigations carried out by the police teams with his accompaniment, at 02.20 on the same night. 20, both defendants were caught in the vehicle with the license plate number …, and the defendant … handed over the 140 TL money and the cell phone subject to the crime, which he took out of his pants pocket, to the police officers during the body search;
Considering that the actions and statements of the defendant … constitute the offenses that require a lesser penalty and fall within the scope of Article 150/1 of the Turkish Criminal Code No. 5237 and considering that the defendant … should be sentenced in accordance with Articles 86/2 and 106/2-c of the same law by means of Article 150/1 of the Turkish Criminal Code, making a mistake in the legal characterization of the crime and making a decision in writing with a justification that is not appropriate and sufficient,
2) According to the acceptance;
a-Failure to consider that the conditions of effective remorse stipulated in Article 168 of the TCC cannot be mentioned in the fact that the defendant …, who was captured by the law enforcement officers, took the cell phone subject to the crime and 140 TL. money out of his pocket and handed it over, which was certain to be seized during the body search,
b-The necessity to re-evaluate the amendment that emerged with the annulment decision of the Constitutional Court dated 08.10.2015, numbered 2014/140 Esas, 2015/85, which entered into force after being published in the Official Gazette dated 24.11.2015, regarding Article 53 of the TPC, which is the natural consequence of the conviction sentence,
Since it required to be reversed and the appeal objections of the defendant … defense counsel were deemed appropriate in this respect, it was unanimously decided on 27/11/2018 that the verdict be reversed in accordance with the request for the reasons explained.