Excessive Penalty Determined By Incorrectly Calculating The Resulting Penalty While Increasing According To The Article Of The Turkish Penal Code In The Sentence Established Against The Defendant
T.C. JUDICIARY
3rd Criminal Chamber
Main article: 2016/238
Decision: 2016/15323
Date of Decision: 30.06.2016
OFFENSE OF INJURY – EXCESSIVE PENALTY WAS IMPOSED BY ERRONEOUSLY CALCULATING THE RESULTANT PENALTY WHILE INCREASING THE PENALTY ACCORDING TO THE ARTICLE OF THE TCKNI IN THE JUDGMENT ESTABLISHED AGAINST THE DEFENDANT – APPROVAL OF THE JUDGMENT WITH CORRECTION
SUMMARY: In the verdict established against the defendant, while increasing the sentence according to Article 86/3.e of the TCC, the sentence was calculated as “2 years and 3 months imprisonment” instead of “1 year and 15 months imprisonment” and the sentence was determined as “2 years and 3 months imprisonment” and the verdict had to be corrected and approved.
(5237 S. K. art. 53, 86) (5271 S. K. art. 221) (ANY. COURT. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case and Decision: The judgment given by the local court was appealed and the documents were read;
The requirements were discussed and considered:
Although some phrases in Article 53 of the Turkish Criminal Code No. 5237 were annulled by the Constitutional Court’s decision dated 08.10.2015 and numbered 2014/140 main-2015/85, which entered into force after being published in the Official Gazette dated 24.11.2015 and numbered 29542, this issue has not been made a reason for reversal since it can be taken into consideration during the execution phase.
1) In the examination of the appellate objections to the verdict against the defendant for the offense of intentional injury to the participant …;
According to the trial, the evidence collected and explained in the decision, the court’s belief and appreciation formed as a result of the prosecution, the reasoning and practice, the defendant’s objections to the appeal, which are not deemed appropriate, are rejected and the verdict is APPROVED in accordance with the request,
2) In the examination of the appellate objections to the verdict against the defendant for the offense of intentional injury to the participant …;
Rejecting other objections that are not deemed relevant;
a) In the verdict established against the defendant, while increasing the sentence according to Article 86/3.e of the TPC, the resulting sentence was calculated as “2 years and 3 months imprisonment” instead of “1 year and 15 months imprisonment” and an excessive sentence was determined,
b) Writing the name of the participant … incorrectly as “…..” in the verdict against the defendant, violating Article 221 of the Code of Criminal Procedure,
Conclusion Since it has required to be reversed and the defendant’s objections on appeal have been deemed appropriate in this respect, the judgment should be reversed for this reason in accordance with Article 321 of the Code of Criminal Procedure No. 1412 in force with Article 8/1 of the Law No. 5320, but since this issue does not require a retrial, in accordance with Article 322 of the Code of Criminal Procedure No. 1412, the expression “2 years and 3 months” in the paragraph regarding the application of Article 86/3. e in the paragraph regarding the application of Article 86/3. e of the sentence numbered 1, the expression “2 years and 3 months” should be removed and the expression “1 year and 15 months” should be added instead of it, and again in the sentence numbered 1, “On 28/03/2011, the defendant … on 28/03/2011 against the complainant ….. with a rotary knife, which is considered as a weapon, in a way that cannot be eliminated by simple medical intervention;” and by removing the expression “…..” from the sentence in the sentence numbered 1 and replacing it with the expression “…” and by leaving the other parts of the verdict as it is, it was unanimously decided on 30.06.2016.
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