Implementation Of The Execution Regime Specific To Defendants Who Are Defaulters – Necessity To Decide On The Implementation Of Probation Measures After The Execution Of The Sentence – Misrepresentation Of The Referral Article
T.C. JUDICIARY
3rd Criminal Chamber
Basis: 2016/186
Decision: 2016/15336
Date of Decision: 30.06.2016
OFFENSE OF WOUNDING – APPLICATION OF THE EXECUTION REGIME SPECIFIC TO CRIMINALS AGAINST THE DEFENDANT WHO IS A REPEAT OFFENDER – THE NECESSITY TO DECIDE ON THE APPLICATION OF THE PROBATION MEASURE AFTER THE EXECUTION OF THE SENTENCE – MISREPRESENTATION OF THE REFERRAL ARTICLE – APPROVAL OF THE VERDICT WITH CORRECTION
SUMMARY: While it should be decided to apply the execution regime specific to repeat offenders and the probation measure after the execution of the sentence for the defendant who is a recidivist, the court’s indication of Article 108/4 of the Law No. 5275 as the referral article required a reversal.
(5237 S. K. art. 53, 58) (5275 S. K. art. 108) (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;
Necessity was discussed and considered;
While deciding on the deprivation of rights pursuant to Article 53 of the Turkish Criminal Code No. 5237, it was not taken into consideration that it should be decided that the defendant should not be able to use the rights specified in Article 53/1-c of the Turkish Criminal Code No. 5237 until the date of conditional release for his own descendants and until the execution of the prison sentence is completed for those other than his own descendants. 11.2015 dated 08.10.2015 and numbered 2014/140 Esas – 2015/85 Decision, which entered into force after being published in the Official Gazette dated 24.11.2015 and numbered 29542, can be taken into consideration at the execution stage, taking into account the new legal situation created by the annulment decision.
The other objections, which are not deemed relevant, are rejected, however;
While it should be decided to apply the execution regime specific to repeat offenders and the probation measure after the execution of the sentence in accordance with Article 58/7 of the Turkish Criminal Code No. 5237, the court indicated Article 108/4 of the Law No. 5275 as the referral article,
Since it has required to be spoiled and the defendant’s objections on appeal have been deemed appropriate in this respect, the verdict will therefore be REJECTED 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. Pursuant to Article 322 of the Code of Criminal Procedure No. 1412, it was decided unanimously on 30.06.2016 to affirm the verdict by correcting the verdict by removing the sentence “to apply the probation measure discretionarily to start after the execution of the sentence in accordance with Article 108/4 of the Law No. 5275” in the paragraph of the verdict paragraph regarding the application of the provisions of repetition and adding the sentence “to apply the probation measure after the execution of the sentence in accordance with Article 58/7 of the TPC” instead.