Intentional Assault, Deprivation Of Liberty, Simple Sexual Abuse Of A Child In A Manner That Harms Their Physical Or Mental Health
14th Criminal Chamber 2018/2958 E. , 2018/2138 K.
“Case Law Text”
COURT: High Criminal Court
CRIME: Intentional injury, deprivation of liberty, simple sexual abuse of a child in a manner that harms their physical or mental health
JUDGMENT: Conviction
The judgments rendered by the court of first instance were appealed, and the case file was reviewed and considered:
In reviewing the judgment rendered for the crime of intentional injury against the child involved in the crime;
As emphasized in the Decision dated 21.06.2005 and numbered 61/82 of the Criminal General Assembly of the Court of Cassation, which is also adopted by our Chamber, the legal regulation in force on the date of the judgment must be taken into account in determining whether the judgment is appealable. Pursuant to the temporary Article 2 added to Law No. 5320 by Article 26 of Law No. 6217, which entered into force on April 14, 2011, fines of up to 3,000 TL (including 3,000 TL) imposed as a result, except for those converted from prison sentences, are final, Since the amount of the judicial fine of 1,320 TL imposed directly for the alleged offense is final, an appeal is not possible. Therefore, the appeal against the aforementioned ruling is REJECTED in accordance with Article 317 of Law No. 1412, taking into account Article 8/1 of Law No. 5320.
Regarding the appeal review of the ruling established for the crime of deprivation of liberty against the child involved in the crime;
In the punishment of the child involved in the crime, since the act was committed against a victim of child age, the increase to be made in accordance with Article 109/3-f. was applied at half the rate instead of double the rate, which did not affect the final sentence. Furthermore, since the act was committed for sexual purposes, the reason given for the increase, namely “due to mental health issues,” was considered a correctable clerical error and was not grounds for reversal.
The evidence, allegations, and defense were analyzed and assessed in light of the hearing, and the act, the proof of which was accepted, was described and applied in accordance with its elements, excluding the criticisms. Therefore, the appeal objections of the child’s defense counsel, which were not found to be valid, were rejected, and the judgment was CONFIRMED.
Regarding the appeal review of the judgment established for the crime of simple sexual abuse of a child, which harms the physical or mental health of the child involved in the crime;
Considering the statements of the victim … at the stages and the doctor’s report, the court’s acceptance of the nature of the act is in line with the scope of the file, and therefore, the opinion requesting reversal in this regard in the notification letter has not been accepted.
Based on the trial, the evidence gathered and presented at the hearing, the court’s opinion and discretion in accordance with the results of the investigation and prosecution, and the contents of the case file under review, other appeals for review that are not deemed appropriate are rejected.
However;
Following the ruling, Articles 58, 59, 60, and 61 of Law No. 6545, which entered into force on June 28, 2014, and Articles 102, 103, 104, and 105 of Law No. 5237, which deal with crimes against sexual integrity, and 2016, and the re-regulation of Article 103 of the Turkish Penal Code, the provision in Article 7/2 of Turkish Penal Code No. 5237 stating that “If the provisions of the law in force at the time the crime was committed and the provisions of the law that came into force later are different, the law favorable to the offender shall be applied and enforced.” Therefore, it is necessary to reassess the case by comparing the results obtained by applying all provisions of the previous and subsequent laws to the case and indicating the application of both laws in the decision in a manner that allows for review.
This necessitated reversal, and the appeals of the child’s defense counsel, who was driven to commit the crime, were therefore deemed valid. Accordingly, the ruling was REVERSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, taking into account Article 8/1 of Law No. 5320, and a unanimous decision was reached on March 22, 2018.