Decision On The Offense Of Violation Of Law No. 4733
T.C. JUDICIARY
7th Criminal Chamber
Main: 2014/30079
Decision: 2016/9027
Date of Decision: 30.06.2016
OFFENSE OF OPPOSITION TO THE LAW NUMBERED 4733 – DECISION OF DEFERMENT OF THE ANNOUNCEMENT OF THE VERDICT AGAINST THE DEFENDANT, WHO HAS NO CRIMINAL RECORD, ON GROUNDS THAT ARE NOT IN ACCORDANCE WITH THE SCOPE OF THE FILE – REVERSAL OF THE VERDICT
SUMMARY: Deciding not to defer the announcement of the verdict on grounds that do not comply with the scope of the file, without explaining how the negative conviction that the defendant, who has no criminal record and whose negative personality reflected in the file cannot be determined, will not commit a crime again, required a reversal. It is decided to revoke the verdict.
(5271 S. K. art. 231) (5237 S. K. art. 51, 53) (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. In the defense of the defendant, who does not have an obstacle to the deferral of the announcement of the verdict regulated in Article 231 of the Code of Criminal Procedure, although he requested the application of the deferral of the announcement of the verdict, taking into account that there is no information and document related to the damage in the file and that the amount of damage has not been notified to the defendant, it is necessary to notify the defendant that the amount, which is the “total amount of customs duties and other co-effective taxes and financial burdens stipulated in the importation” of the goods subject to the lawsuit to be calculated by the customs office, is public damage, and according to the result, if necessary, a decision should be made by considering Article 231/9 of the Code of Criminal Procedure. While it is necessary to make a decision by considering the Article 231/9 of the Code of Criminal Procedure, not applying Articles 51 of the Turkish Criminal Code No. 5237 and 231 of the Code of Criminal Procedure No. 5271 on grounds that do not comply with the scope of the file, without explaining how the negative opinion that the defendant, who has no criminal record and no negative personality reflected in the file, will not commit a crime again, was formed,
II. Due to the annulment of some parts of Article 53 of the Turkish Penal Code No. 5237 by the decision of the Constitutional Court dated 08/10/2015, numbered 2014/140 main and 2015/85 decision, 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 paragraph 3 of Article 53 of the TPC, it should be decided that the defendant written in subparagraph (c) of paragraph 1 should be conditionally released from parental rights over his own descendants and from serving in a service belonging to guardianship or trusteeship, and that he should be deprived of the rights and powers related to those other than his descendants and other deprivations of rights written in paragraph 1 until the execution of the sentence is completed,
III. According to the date of the crime and the nature of the seized goods, awarding an attorney fee in favor of the customs administration, which is not damaged by the crime and has no right to participate in the case,
Conclusion It was unanimously decided on 30.06.2016 to overturn the verdict in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/l of the Law No. 5320, since it is contrary to the law and the appellate objections of the defendant are deemed appropriate in this respect.