If The Amount In Question Is Paid By The Defendant Before The Complaint Is Filed On The Day The Investigation Is Opened, How Much Should The Effective Remorse Discount Be?
Effective repentance (Effective Date: 01.06.2005)
ARTICLE 248 – (1) If, before the investigation begins, the misappropriated property is returned in kind or the damage suffered is fully compensated, the penalty to be imposed shall be reduced by two-thirds.
(2) If, prior to the commencement of prosecution, the property embezzled is voluntarily returned in kind or the damage suffered is fully compensated, the penalty to be imposed shall be reduced by half. If effective repentance occurs before the judgment, the penalty to be imposed shall be reduced by one-third.
CURIA OF THE REPUBLIC OF TURKEY
5th Criminal Chamber
Case: 2014/7275
Decision: 2016/9161
Date of Decision: 11/28/2016
EMBEZZLEMENT OFFENSE – THE AMOUNT SUBJECT TO EMBEZZLEMENT WAS PAID BY THE DEFENDANT BEFORE THE COMPLAINT WAS FILED ON THE DAY THE INVESTIGATION WAS LAST OPENED – NECESSITY TO CONSIDER THAT EFFECTIVE REPENTANCE OCCURRED BEFORE THE INVESTIGATION BEGAN
SUMMARY: Since it is understood that the amount subject to embezzlement was paid by the defendant before the complaint was filed on the day the last investigation was opened, effective repentance must be applied at an appropriate rate, considering that it occurred before the investigation began.
(5237 S. K. m. 53, 58, 247, 249) (ANY. MAH. 08.10.2015 T. 2014/140 E. 2015/85 K.)
The judgments rendered by the local court were appealed, and the case file was reviewed;
Considering the amount of the sentence imposed on the defendant, the defense counsel’s request for a hearing review was rejected in accordance with Article 318 of the Code of Criminal Procedure, taking into account Article 8/1 of Law No. 5320, and it was decided that the review would be conducted without a hearing. After deliberation:
Upon examination of the appeals against the acquittal ruling issued in the combined case file against the defendant;
Since the acquittal ruling, which was issued with consideration of the evidence and justification, was in accordance with the procedure and the law, the appeals of the participating attorney, which were deemed unfounded, were rejected, and the ruling was CONFIRMED.
Upon examination of the appeals against the conviction ruling issued in the main case file regarding the defendant;
Considering the trial conducted, the evidence gathered and presented in the decision, the opinion and assessment of the court in accordance with the results of the investigation, and the content of the case file examined, the other appeals were deemed unfounded and rejected.
However;
Considering that the amount in question was paid by the defendant at 9:37 a.m. on December 15, 2008, as evidenced by the bank receipt in the file, and the investigation began at 10:44 a.m. on the same day, as evidenced by the time stamp on the petition submitted by the institution’s representative, as determined from the UYAP system. Therefore, excessive punishment was imposed by applying the first sentence of paragraph 2 of the same article instead of paragraph 1 of Article 248 of the Turkish Penal Code, without considering that effective repentance occurred before the investigation began.
The decision of the Constitutional Court dated 08/10/2015 and numbered E. 2014/140; K. 2015/85, published in the Official Gazette dated 24/11/2015 and numbered 29542, entered into force, necessitating a reassessment in relation to Article 53 of the Turkish Penal Code.
Failure to consider that, since the alleged crime was committed by abusing the rights and powers specified in Article 53/1-e of the Turkish Penal Code, only the use of the rights and powers specified in this paragraph should be prohibited in accordance with Article 53/5 of the same Law,
The failure to apply Articles 58/6-7 of the Turkish Criminal Code to the defendant, who is understood to be a repeat offender according to his criminal record,
The defendant’s counsel and the representative of the participating party’s appeals were found to be valid on these grounds, as they were contrary to the law. Therefore, the ruling was REVERSED in accordance with Article 321 of the Code of Criminal Procedure, taking into account Article 8/1 of Law No. 5320, and a unanimous decision was reached on November 28, 2016.