Decision On The Offense Of Abuse Of Trust Due To Service
T.C. JUDICIARY
7th Criminal Chamber
Main article: 2016/10041
Decision: 2016/9083
Date of Decision: 30.06.2016
OFFENSE OF ABUSE OF TRUST DUE TO SERVICE – FAILURE TO MAKE A POSITIVE OR NEGATIVE DECISION ON THE SUBJECT MATTER OF THE CASE – NECESSITY OF REVERSAL OF THE JUDGMENT
SUMMARY: Pursuant to Article .of the Turkish Penal Code, it should be decided that the deprivation of rights written in subparagraph (c) of paragraph (c) of the paragraph .of the said article should not be applied only in terms of the powers of custody, guardianship or trusteeship of the defendant on his own descendants, and that he should be deprived of these rights and powers related to those other than his descendants until the execution of the sentence is completed, but without considering that it should be decided otherwise, and the failure to make a positive or negative decision about the property subject to the case required a reversal.
(5237 S. K. art. 53) (5271 S. K. art. 231)
Case: 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 crime, it was discussed and considered on behalf of the Turkish Nation;
In the examination made according to the appeal of the defendant’s defense counsel;
Since the additional decision of the court dated 18/02/2016 and numbered 2014/238 Esas 2016/31 Decision of the court on the rejection of the appeal request is in accordance with the procedure and the law, the appeal objections of the defendant’s defense counsel are rejected and the judgment is APPROVED as requested,
In the examination made by considering that the appeal of the participant … administration attorney is directed to the judgment given within the scope of Law No. 5607;
1- On 16/10/2014, the defendant took delivery of 19. 824 liters of fuel oil from … Petrolcülük A.Ş. in Mersin province in a sealed and marked way to the transport vehicle under the management of the defendant. 824 liters of fuel oil to take it to Muş province, on 17/10/2014 at 02:00 on the day of 17/10/2014, as a result of the intervention and determinations of the fire brigade and law enforcement officers to the transport vehicle that caught fire in Baykan district, 3 of the lids on the upper part of the tanker were unsealed and two were sealed, Since 2060 liters of fuel oil was seized in the tanker without marker and in violation of technical regulations according to the PAL report, and since the defendant could not explain the 86-minute delay in the route and the situation regarding the fuel oil, since it was understood that the fuel oil subject to the case was smuggled into the country, in accordance with Article 89 of the Law No. 6545, which was in force on the date of the crime. However, in the event that it is understood that fuel oil that does not contain marker or whose level is invalid is smuggled into the country illegally, a penalty shall be imposed based on the provision of the tenth paragraph.” Taking into account the mandatory provision of Article 3/11-last paragraph of the Law No. 5607, which was in force on the date of the offense, it should be applied in accordance with Articles 3/5 and 3/10 of the said law by means of the 3/11-last sentence of the Law No. 5607, without considering that the application should be made in accordance with Articles 3/5 and 3/10 of the aforementioned law,
2-CPC Article 231. The defendant, who has no obstacle in terms of objective conditions to the deferral of the announcement of the verdict regulated in Article 231 of the Code of Criminal Procedure, who requested the deferral of the announcement of the verdict in his defense taken in the instruction court and who was not aware of the public damage since there was no KEMT warrant attached to the instruction, Deciding that the amount, which is the sum of customs duties and other co-effective taxes and financial burdens stipulated in the import of the goods subject to the case, is public damage and according to the result, if necessary, a decision should be made by considering paragraph 231/9 of the Criminal Procedure Law, while deciding not to defer the announcement of the verdict on the grounds that the public damage has not been eliminated,
3-Since some parts of Article 53 of the Turkish Criminal Code No. 5237 were annulled by the annulment decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140, 2015/85, which entered into force after being published in the Official Gazette dated 24.11.2015 and numbered 29542, there is an obligation to re-evaluate the said article,
Pursuant to the 3rd paragraph of Article 53 of the TPC, it should be decided that the deprivation of rights written in the subparagraph (c) of the paragraph (c) of the said article for the defendant, whose non-short-term imprisonment sentence has been postponed, should not be applied only in terms of the powers of custody, guardianship or trusteeship of the defendant over his own descendants, and that he should be deprived of these rights and powers related to those other than his descendants until the execution of the sentence is completed,
4- Failure to make a positive or negative decision on the subject matter of the case,
Since it is contrary to the law and the appellate objections of the representative of the participant …administration are deemed appropriate in this respect, it was unanimously decided on 30.06.2016 to VACATE the judgment in accordance with Article 321 of the Code of Criminal Procedure No. 1412 in force pursuant to Article 8/1 of the Law No. 5320.
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