Failure To Observe That The Unfair Act Constituting A Crime Should Be Evaluated Within The Scope Of Article 150 Of TCK No. 5237
T.C. JUDICIARY
6th Criminal Chamber
Basis: 2013/28250
Decision: 2016/5651
Date of Decision: 29.06.2016
THE CRIME OF ABUSE OF TRUST DUE TO SERVICE – FAILURE TO OBSERVE THAT THE WRONGFUL ACT CONSTITUTING A CRIME SHOULD BE EVALUATED WITHIN THE SCOPE OF ARTICLE 150 OF TCK NO. 5237 – THE JUDGMENT IS REVERSED
SUMMARY: Failure to take into consideration that the criminal wrongful act committed by the defendant …, who is a real estate agent and has no negativity reflected in his criminal record, acting together with his close friend, the other defendant …, who had a receivable from the victim on the day of the incident, should be evaluated within the scope of Article … of the TPC No. 5237, is a reason for reversal of the judgment.
(5237 S. K. art. 53, 150) (ANY. COURT. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case and Decision: The judgment given by the Local Court was appealed; the file was discussed according to the nature of the appeal, type of punishment, duration and date of offense:
I) Regarding the examination of the appellate objections to the convictions of defendants … and … for deprivation of liberty and defendant … for abuse of trust due to service;
According to the content of the file and the trial minutes, the legally valid and favorable evidence collected and discussed at the decision, the reasoning and the discretion of the Board of Judges; since there is no violation of the procedure and the law in the acceptance and characterization of the crimes committed by the defendants, other appellate objections have not been deemed relevant.
However;
Although it was decided to deprive the defendants from using the rights written in Article 53/1-a-b- c-d-e of the TCC until the execution of their prison sentences is completed, but if they are released conditionally in accordance with Article 53/3 of the TCC, it was decided to end their deprivation from using the rights listed in Article 53/1-c of the TCC on their descendants; 24. 11.2015 dated 08.10.2015, with the decision of the Constitutional Court dated 08.10.2015, numbered 2014/140- 2015/85 Main and Decision, which was published in the Official Gazette dated 24.11.2015 and entered into force on the same date, the phrase “from electing, being elected and exercising other political rights” written in Article 53/1-b of the TPC was canceled,
Since the objections of the defendants …, … and … have been deemed appropriate in this respect, the verdict will be reversed for the reason explained, and since the reason for reversal does not require a retrial, based on the authority granted by Article 322 of the Code of Criminal Procedure No. 1412 through Article 8/1 of the Law No. 5320. In terms of the application of Article 53/1 of the TPC, the defendants are deprived of the right to vote, to be elected and to exercise other political rights written in subparagraphs (a, c, d and e) and paragraph (b); in terms of the application of Article 53/2 of the same Law, the defendants are deprived of the right to vote, to be elected and to exercise other political rights written in subparagraphs (a, c, d and e) and paragraph (b) of Article 53/1 and paragraph 3 of the same Article. paragraph 3 of the same article, they shall be deprived of exercising their parental, guardianship and trusteeship powers over their own descendants written in subparagraph (c) until they are conditionally released from the prison sentence they have been sentenced to” and the verdict, which is in compliance with the procedure and the law in other aspects, shall be affirmed with correction,
II) As for the examination of the appellate objections against the convictions of the accused … for the offense of plunder;
Other appellate objections are not deemed appropriate.
However;
Failure to take into consideration that the criminal wrongful act of the defendant …, who is engaged in real estate, who has no negativity reflected in his criminal record, acting together with his close friend, the other defendant …, who had a receivable from the victim on the day of the incident, should be evaluated within the scope of Article 150/1 of the Turkish Criminal Code No. 5237,
Conclusion: Since it required to be reversed and the appellate objections of the defendant … were deemed appropriate in this respect, it was unanimously decided on 29.06.2016 that the verdict be reversed for the reason explained, contrary to the request.
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