No Search Can Be Made With A Verbal Order That Can Be Later Translated Into Writing
Criminal General Assembly 2017/899 E. , 2020/70 K.
“Case Law Text”
Decision Maker
Court of Cassation Chamber : 8th Criminal Chamber
Court :Heavy Penal
Numbers : 118-245
The Istanbul 7th Assize Court sentenced the defendant … to 1 year and 8 months imprisonment and a judicial fine of 100 TL pursuant to Articles 197/1, 62, 52/2, 53 and 54 of the TCC, deprivation of rights, confiscation, sending the counterfeit money to the Central Bank of the Republic of Turkey, deferring the announcement of the verdict pursuant to Article 231/5 of the Code of Criminal Procedure and determining a 5-year supervision period for the defendant.
After the finalisation of the decision dated 27.04.2010 and numbered 140-165, the Istanbul 7th Assize Court, which reconsidered the case on the grounds that the defendant committed a new offence deliberately within the supervision period, decided on 03.06.2014 and numbered 118-245 to declare the verdict, to sentence the defendant to 1 year and 8 months imprisonment and a judicial fine of 100 TL and deprivation of rights in accordance with Articles 197/1, 62, 52/2 and 53 of the Turkish Penal Code.
Upon the appeal of the verdict by the defendant, the 8th Criminal Chamber of the Court of Cassation, which examined the file, dated 23.02.2016 and numbered 11685-2086
“1- According to Article 8 of the European Convention on Human Rights entitled ‘Protection of private and family life’; everyone has the right to respect for his private and family life, his home and his correspondence. Interference by an official authority with the exercise of these rights may be resorted to only to the extent necessary in a democratic society in the interests of national security, public safety, the economic well-being of the country, the maintenance of order, the prevention of crime, the protection of health or morals and the rights and freedoms of others, and provided that it is prescribed by law.
Article 20 of the Constitution on the ‘Privacy of Private Life’ stipulates that no one’s person, private papers and belongings may be searched and seized without a duly issued judge’s order, and in cases where there is a risk of delay due to the reasons shown, without the written order of an authority authorised by law.
In criminal procedural law, whose aim is to reach the material truth, the material truth can be proved by any evidence obtained in accordance with the law. According to the Constitution, evidence obtained illegally cannot be used as evidence (Article 38/6.). Pursuant to the Criminal Procedure Code, the charged offence can only be proved by evidence obtained in accordance with the law (Art. 217/2.). If the evidence is obtained unlawfully, it shall be rejected (Art. 206/2-a.). The fact that the judgement is based on evidence obtained by unlawful methods is a definite reason for contravention of the law (Art. 289.).
Criminal Procedure Code No. 5271 regulates the procedures and principles regarding ‘search and seizure’ (Art. 116-134). According to Article 116 of the aforementioned Code, which was in force on the date of the offence, ‘If there is reasonable suspicion that the suspect or defendant may be apprehended or that evidence of a crime may be obtained, the suspect’s or defendant’s person, belongings, residence, workplace or other places belonging to him/her may be searched.’
Article 119/1 of the same Law stipulates that ‘Law enforcement officers may conduct searches upon a judge’s decision or upon the written order of the Public Prosecutor in cases where delay is inconvenient, or upon the written order of the chief law enforcement officer in cases where the Public Prosecutor cannot be reached. However, it is stipulated that searches in residences, workplaces and closed areas that are not open to the public can be carried out with the written order of the Public Prosecutor in cases where the judge’s decision or delay is inconvenient’.
The Regulation on Forensic and Preventive Searches regulates in detail how, in which cases and by whom forensic and preventive searches shall be conducted, and Article 6 of the Regulation defines ‘reasonable suspicion’ as follows ‘Reasonable suspicion is the suspicion that is generally felt in the face of concrete events according to the course of life. Reasonable suspicion is determined by taking into consideration the time and place of the search, the behaviour and attitude of the person concerned or those accompanying him/her, and the nature of the goods suspected to be carried by the law enforcement officer. Reasonable suspicion requires the existence of signs supporting the denunciation or complaint. The suspicion must be based on concrete facts. There must be concrete facts that require foreseeing that a certain thing will be found or a certain person will be caught at the end of the search.’
Even if it is accepted that there is a delay, as stated in the decision of the CGK dated 25.11.2014 and numbered 2013/610, 2014/512, the search must be based on a written decision or order. It is not possible to conduct a search with an oral order, even if it is later translated into writing, and the requirement of writing is in accordance with the mandatory provision of Articles 20, 21 of the Constitution and 116 of the Code of Criminal Procedure. A search warrant cannot be issued with a verbal instruction documented afterwards. The approval of the seizure process in the search carried out with an unlawful search by the judge does not make the transaction lawful.
The Constitutional Court, in its decision dated 19.11.2014 and numbered 2013/6183, decided that the right to a fair trial was violated by taking the unlawful evidence obtained as a result of an unlawful search as a basis for the judgement.
In the face of the explained positive legal norms, the decisions of the Constitutional Court and the CGK; evidence obtained ‘unlawfully’ cannot be taken as a basis for judgement. This is a requirement of the right to a fair trial, which is enshrined in Article 6 of the European Convention on Human Rights and which has been added to our Constitution (Art. 36).
As for the concrete case in the light of these explanations;
According to the report dated 06.08.2008 available in the file, ‘during the body search we conducted on 4 persons whom we suspected while performing the ring duty on Haliç Street as a team affiliated to the Preventive Services Bureau of the law enforcement officers, a counterfeit 100 YTL coin was found on the person named … … together with two screwdrivers and one counterfeit 100 YTL coin was found on the person named … … and he was handed over to the Police Headquarters together with the crime elements for the necessary action to be taken.’
As can be seen, there is no reasonable suspicion of a crime against the accused and his companions, the report does not include any suspicious movements as stated in the Law and Regulation, and there is no search warrant issued by the competent authority pursuant to Article 119/1 of the Code of Criminal Procedure for the search of their clothes. In this respect, the counterfeit money subject to the crime, which was seized by searching the defendant’s body in violation of the law by stating that it was abstractly suspected, is evidence obtained by unlawful method and cannot be taken as a basis for the judgement.
In the file, if the evidence obtained by unlawful method is excluded from the evaluation, it is not possible to punish the defendant according to the existing evidence. The expert report is a tool for the evaluation of the product seized in the search. Although the defendant has no defence that can be qualified as a confession and can be the basis for his conviction alone, even if it is accepted that he has a confession, as stated in the decision of the CGK dated 25.11.2014 and numbered 2014/166-514,
it will not be considered to be supported by material evidence, and since the confession is abstract and cannot be taken as the basis for conviction, to decide on the conviction of the defendant in writing instead of the acquittal of the defendant, for whom there is no definite and convincing evidence obtained in accordance with the law, away from any doubt,
2- According to the acceptance,
Although the basic imprisonment sentence was determined from the lower limit, it was decided to be reversed due to the inconsistency caused by determining the number of unit days based on the judicial fine with the same justification”.
The Chief Public Prosecutor’s Office of the Court of Cassation, on the other hand, with the number 260162 dated 02.04.2016
“…According to the report dated 06.08.2008 available in the file, during the body search carried out by the law enforcement officers on 4 persons who were suspicious while performing the ring duty on Haliç Street as a team affiliated to the Preventive Services Bureau, a counterfeit 100 YTL coin was found on the person named … together with two screwdrivers and was handed over to the Police Headquarters together with the crime elements for the necessary action to be taken. A total of 4 more counterfeit coins were seized from two other persons who were with the defendant.
When the legislation on the subject is examined;
Article 38/6 of the Constitution stipulates that ‘Evidence obtained in violation of the law shall not be accepted as evidence’.
Articles 116, 117, 118, 119, 120, 121 and the following articles of the Code of Criminal Procedure set out the principles regarding search and seizure. Accordingly, ‘Law enforcement officers may conduct searches upon a judge’s decision or upon the written order of the Public Prosecutor in cases where delay is inconvenient, or upon the written order of the chief law enforcement officer in cases where the Public Prosecutor cannot be reached. However, searches in residences, workplaces, and closed areas not open to the public may be carried out with the written order of the Public Prosecutor in cases where there is an inconvenience in delay. The results of the search conducted with the written order of the chief law enforcement officer shall be immediately notified to the Chief Public Prosecutor’s Office’.
Pursuant to Article 206, paragraph 2, subparagraph a, and Article 217, paragraph 2 of the Code of Criminal Procedure, the evidence obtained illegally shall be rejected and the charged offence may be proved by evidence obtained in accordance with the law.
Article 4/A, paragraph 6 of the Law No. 2559 on the Duties and Powers of the Police stipulates that ‘The police may take necessary measures to prevent harm to themselves or others in case of sufficient suspicion that the person stopped has a weapon or other dangerous item on him or in his vehicle. For this purpose, the person may not be asked to remove his/her clothes or to open parts of the vehicle that are not visible from the outside.
However, the search of the person’s person and belongings and the parts of the vehicle that are not visible from the outside, except for external control by hand, may be carried out by the written order of the law enforcement officer to be assigned by the local authority within the principles to be determined by the Ministry of Interior, or in urgent cases, by verbal order to be confirmed in writing later. The decision of the law enforcement officer shall be submitted to the approval of the judge in charge within twenty-four hours. Regarding the vehicle searches carried out within the scope of this paragraph, the person shall be given a document containing the reason for the search.
Article 8 of the Regulation on Forensic and Preventive Searches titled search without a decision,
In the following cases, a separate search warrant or decision is not sought, and while these are listed in a limited manner, in subparagraph f;
‘In order to enter residences, workplaces and residential areas and their annexes in order to eliminate the danger of life for the public or persons or upon calls for help coming from closed places, in order to eliminate the danger of life for the public or persons in the searches made in case of crime and the reasons of compliance with the law stipulated by other laws and the exercise of the right in Article 24 of the Turkish Criminal Code No. 5237, Article 25, the state of legitimate defence and necessity and Article 26.
Paragraph 5 of Article 27 of the Regulation on Forensic and Preventive Searches states;
‘The following procedures are carried out upon a stop.
A) A check is made on the stopped person in the form of a roll call without removing any of his/her clothes. If, as a result of this procedure, there is sufficient suspicion to conclude that the person has a weapon, the officer may automatically search for weapons and other criminal property.
B) The check is carried out by the officer of the person’s gender.
C) The subject and reasons of the control shall be explained to the person concerned.
D) The duration of stopping a person or vehicle must be reasonable under the circumstances and must not exceed the allotted time.
E) The control shall be carried out in the least distressing manner.
F) If traces, artefacts, signs and evidence subject to a crime are obtained as a result of the control, the person shall be arrested.
G) If it is thought that a certain thing, such as drugs, is hidden in any part of the person, a more extensive control may be carried out.
H) Control by means of inspection is carried out at or near the place where the person or vehicle is first stopped in a way that others cannot see as much as possible. The control is not carried out by taking the person to another place.
I) If there are reasonable grounds, a law enforcement vehicle or a nearby closed place may be utilised for a more comprehensive control.
J) After the control, a report shall be prepared immediately at the scene upon request.
The procedures written in this article can also be carried out at night.
In paragraph 3 of Article 6 of the Regulation on Arrest, Detention and Statement Taking, it is regulated as follows: ‘During the arrest, measures shall be taken to prevent the destruction or deterioration of the traces and evidence of the offence.
Article 2, paragraph 1, subparagraph (j) of Article 2 of the Code of Criminal Procedure
Incriminal Offence:
‘1. The offence in progress,
2. an offence committed by a person who has already committed the offence or by a person who has been pursued and apprehended after the commission of the offence by law enforcement officers, persons injured by the offence or others,
3. The offence committed by the person who is caught with objects and evidence showing that the act has been committed a little while ago,” is defined as follows.
Within the framework of the above-mentioned concrete case and the legislation,
Pursuant to Article 20 of the Constitution and Articles 116 et seq. of the Code of Criminal Procedure, it is undoubtedly possible to conduct searches and seizures with the written order of a judge, the public prosecutor in cases of delay, and the written order of the chief law enforcement officer in cases where the public prosecutor cannot be reached.
However, in very exceptional and urgent cases, if there is a situation where even the written order of the chief law enforcement officer cannot be obtained, it should be discussed whether the evidence obtained as a result of the direct search and seizure of the law enforcement officer will be considered lawful.
Article 4/A, paragraph 6 of the Law No. 2559 on the Duties and Powers of the Police introduces a regulation on this issue, stipulating that the police may take the necessary measures to prevent harm to themselves or others in the presence of sufficient suspicion that there is a weapon or other dangerous item on the person or in the vehicle, and may perform a manual external control, in other words, a rough body search. On the contrary, it cannot be expected that the written order of the chief of the law enforcement officer should be obtained at least for the body check of a person who is arrested on suspicion of carrying a dangerous weapon, bomb or explosive dangerous substance.
The situations that can be searched without a warrant are listed one by one in Article 8 of the Regulation on Forensic and Preventive Searches, and in sub-paragraph (f), it is also stated in Article 27 of the same Regulation that if the law enforcement officer has the opinion that the person will commit or has committed a crime, in sub-paragraph (g), if it is thought that a certain thing ‘such as drugs’ is hidden in any part of the person, a more extensive check can be made.
In the concrete case, according to the incident report; according to the report dated 06.08.2008 available in the file, during the body search carried out by the law enforcement officers on 4 persons whom they suspected while performing the ring duty on Haliç Street as a team affiliated to the Preventive Services Bureau, a counterfeit 100 YTL coin together with two screwdrivers was found on the person named … and he was handed over to the Police Headquarters together with the crime elements for the necessary action.
Immediately after the incident, the situation was reported to the Public Prosecutor on duty by the security guards and an investigation was initiated in line with his instructions. Although the reasons for suspecting the defendant and his friends were not explained in the report, it is understood that the suspicion was justified according to the nature of the criminal property obtained.
Since there is now a state of red-handedness and it may be possible for the suspect to destroy the evidence of crime, after the evidence of crime was captured by the officers, the situation was immediately reported to the public prosecutor on duty and the offender and the items subject to the crime were taken under custody by acting in accordance with the instructions of the public prosecutor in charge. For this reason, since it is considered that the action taken is in accordance with the law, it is necessary to object to the decision of the Supreme Chamber in the opposite direction.”
The file, which was sent to the First Presidency of the Court of Cassation by the 8th Criminal Chamber of the Court of Cassation, which conducted an examination pursuant to Article 308 of the Code of Criminal Procedure, with the number 4498-5901 dated 23.05.2017, was evaluated by the Criminal General Assembly and decided for the reasons explained.
ON BEHALF OF THE TURKISH NATION
CRIMINAL GENERAL ASSEMBLY DECISION
The decision on the deferment of the announcement of the verdict given for the offence of counterfeiting money against the defendant …, which is not subject to review, was finalised without objection; the conviction decision given for the offence of counterfeiting money against the defendant … was finalised by the Special Chamber and the review was limited to the conviction decision given for the defendant … according to the scope of the objection.
The dispute between the Special Chamber and the Chief Public Prosecutor’s Office of the Court of Cassation, which must be resolved by the General Assembly of Criminal Chambers, is related to the determination of whether the search procedure carried out in relation to the offence of forgery of money attributed to the defendant is in accordance with the law; however, first of all, it is necessary to evaluate whether the decision was made with incomplete research regarding whether the counterfeit money subject to the crime was seized as a result of a search procedure or as a result of a search procedure.
Before proceeding to the subject of dispute, some members of the General Assembly of Criminal Chambers argued that it should be determined whether the Local Court’s judgement, which was announced due to the commission of an intentional offence within the supervision period, contains legal and sufficient justification as stipulated in Articles 141 of the Constitution and Articles 34, 230 and 232 of the Code of Criminal Procedure No. 5271, and this issue was evaluated first.
As a result of the trial of the public case filed with the request for the defendant to be sentenced in accordance with Articles 197/1, 53/1 and 54/1 of the Turkish Penal Code for the offence of forgery of money, Istanbul 7th Assize Court sentenced the defendant to 1 year and 8 months imprisonment in accordance with Articles 197/1, 62, 52/2, 53 and 54 of the Turkish Penal Code with the number 140-165 on 27.04.2010. It was decided to sentence the defendant to 1 year and 8 months imprisonment and 100 TL judicial fine, deprivation of rights, confiscation, sending the counterfeit money to the Central Bank of the Republic of Turkey, deferring the announcement of the verdict pursuant to Article 231/5 of the Code of Criminal Procedure and subjecting the defendant to supervision for 5 years, and the decision became final on 18.05.2010 without objection,
With the additional decision of Bakırköy (Closed) 7th Criminal Court of Peace dated 18.11.2013 and numbered 29-723, it was decided to punish the defendant with a judicial fine of 6.000 TL converted from imprisonment in accordance with Articles 191/1, 62/1, 50/1-a and 52/2-4 of the Turkish Penal Code and this decision became final on 27.12.2013 without appeal,
The Istanbul 7th Assize Court, which reconsidered the file upon the denunciation made, decided on 03.06.2014 with the number 118-245 and dated 03.06.2014, after including the opinions put forward in the claim and defence, that the verdict, the announcement of which was deferred, was decided to be announced in accordance with Article 231/11 of the Code of Criminal Procedure due to the fact that the defendant committed a deliberate crime within the supervision period. In other words, it was decided to sentence the defendant to 1 year and 8 months imprisonment and 100 TL judicial fine and deprivation of rights in accordance with Articles 197/1, 62, 52/2 and 53 of the Turkish Penal Code,
Upon the appeal of this judgement by the defendant, the 8th Criminal Chamber of the Court of Cassation, on 23.02. 2016 dated 23.02.2016 and numbered 11685-2086; the counterfeit money subject to the crime seized as a result of a body search carried out in violation of the law by stating that it was abstractly suspected that the counterfeit money subject to the crime seized as a result of a body search carried out in violation of the law is in the nature of evidence obtained by unlawful method and therefore cannot be taken as a basis for the judgement,
and that the conviction of the defendant can be based on a definite and convincing evidence that is free from all kinds of doubts the conviction of the defendant instead of the acquittal of the defendant who had no evidence, and although the basic imprisonment sentence was determined from the lower limit, it was decided to overturn the judgement due to the inaccuracies in determining the number of unit days based on the judicial fine determined in addition to the imprisonment sentence by moving away from the lower limit with the same justification,
The Chief Public Prosecutor’s Office of the Court of Cassation, with the date 02.04.2016 and number 260162, applied to the legal remedy of objection with the opinion that the search procedure regarding the seizure of counterfeit money subject to the crime was in accordance with the law,
In the UYAP interrogation regarding the crime taken as the basis for the announcement of the verdict; Bakırköy (Closed) 7th Criminal Court of Peace dated 07.03.2012 and numbered 29-723 and decided to apply a probation measure to the defendant in accordance with Article 191/2 of the Turkish Penal Code amended by Article 7 of the Law No. 5560, for the offence of possession of narcotic substances for use committed on 07.10.2011. Article 191/2 of the TCK amended by Article 7 of the Law No. 5560, during the execution of this decision, upon the notification by the Bakırköy Chief Public Prosecutor’s Office that the defendant did not comply with the provisions of the measures, the Bakırköy (Closed) 7th Criminal Court of Peace, which reconsidered the file in accordance with the fifth paragraph of the same article, decided to apply a probation measure to the defendant.
Criminal Court of Peace continued the trial and decided to sentence the defendant with a judicial fine of 6.000 TL converted from imprisonment in accordance with Articles 191/1, 62/1, 50/1-a and 52/2-4 of the TPC with the number 29-723 dated 18.11.2013 and this decision became final on 27.12.2013 without appeal, and during the execution phase, Article 68 of the Law No. 6545, which entered into force with its publication in the Official Gazette on 28.06.2014, was amended by Article 191. Bakırköy 41st Criminal Court of First Instance, to which the file was transferred due to the abolition of the criminal courts of peace pursuant to the first paragraph of the provisional Article 6 added to the Law No. 5320 by Article 84 of the Law No. 6545 upon the rearrangement of Article 191 of the TPC with Article 68 of the Law No. 6545,
which entered into force by being published in the Official Gazette on 28.06.2014, reconsidered the file and with the number 63-106 dated 15.01.2018, the defendant committed the offence subject to examination on 14.03.2010 and was convicted by Bakırköy (Closed) 4th Criminal Court of Peace on 07.06.2018 for the offence of purchasing narcotic substances for use. Criminal Court of Peace dated 07.06.2011 and numbered 2460-1091, it was decided to annul the conviction of Bakırköy (Closed) 7th Criminal Court of Peace dated 18.11.2013 and numbered 29-723, and to dismiss the public case filed against the defendant in accordance with Article 191/5 of the TPC amended by Article 68 of the Law No. 6545, and this decision became final on 01.02.2018 without objection,
In the examination of the defendant’s criminal record; It was decided by the Bakırköy 9th Assize Court dated 23.06.2011 and numbered 307-241 to sentence him to 4 years and 2 months imprisonment and a judicial fine of 80 TL in accordance with Articles 188/3, 62/1 and 52/2 of the Turkish Penal Code and according to the UYAP inquiry made, this sentence was finalised by being approved by the decision of the 10th Criminal Chamber of the Court of Cassation dated 16.12.2013 and numbered 21384-11384,
It is understood that
The third paragraph of Article 141 of the Constitution of the Republic of Turkey titled “Open hearings and reasoned decisions” is regulated as follows: “All kinds of decisions of all courts shall be written with justification.”
Article 34, paragraph one of the Code of Criminal Procedure No. 5271 titled “Reasoned decisions” reads as follows: “All decisions of judges and courts, including dissenting votes, shall be written with reasons. Article 230 shall be taken into consideration in writing the justification. The dissenting votes shall also be shown in the copies of the judgements.”,
In Article 230 titled “Matters to be shown in the justification of the judgement”
“(1) The following matters shall be shown in the justification of the judgement of conviction:
a) The opinions put forward in the claim and defence.
b) Discussion and evaluation of the evidence, indication of the evidence taken as basis for the judgement and the evidence rejected; in this context, the evidence found in the file and obtained by unlawful methods shall be shown separately and clearly.
c) The opinion reached, the act of the accused which is deemed to constitute an offence and its characterisation; determination of the sentence according to the order and principles set out in Articles 61 and 62 of the Turkish Penal Code, taking into account the requests put forward in this regard; determination of the security measure to be applied instead of or in addition to the sentence according to Articles 53 et seq. of the same Code.
d) The grounds for the postponement of the sentence, the conversion of the imprisonment sentence into a judicial fine or one of the measures or the application of additional security measures or the acceptance or rejection of the requests regarding these matters.
(2) In the justification of the judgement of acquittal, it must be shown which of the circumstances specified in the second paragraph of Article 223 is relied upon.
(3) In the justification of the verdict of non-prosecution of sentence, it is necessary to indicate which of the circumstances specified in the third and fourth paragraphs of Article 223 are relied upon.
(4) In the event that a decision or judgement other than those specified in the paragraphs above is rendered, the reasons thereof shall be shown in the justification.”,
In Article 232 titled “Justification of the judgement and the matters to be included in the judgement paragraph”
“(1) At the beginning of the judgement, it shall be written that it is given ‘on behalf of the Turkish Nation’.
(2) At the beginning of the judgement
a) The name of the court that issued the judgement,
b) the name and surname of the president and members of the court or the judge, the public prosecutor and the clerk of the court, the name and surname of the participant, the victim, his/her attorney, legal representative and defence counsel, and the clear identity of the accused,
c) The place, date and time period of the offence, except for the acquittal decision,
d) The date and duration of the defendant’s detention or arrest and whether he/she is still under arrest,
It shall be written down.
(3) If the reasons for the judgement are not fully recorded in the minutes, they shall be placed in the case file within fifteen days at the latest as of the date of their announcement.
(4) Decisions and judgements shall be signed by the judges participating in them.
(5) If one of the judges is unable to sign the judgement, the reason for this shall be written under the judgement by the president of the court or the most senior of the judges who participated in the judgement.
(6) In the paragraph of the judgement, the decision rendered pursuant to Article 223, the applicable articles of law, the amount of the penalty imposed, whether there is the possibility to apply for legal remedies and to claim compensation, and if there is the possibility to apply, the duration and the authority must be clearly indicated in a manner that leaves no room for doubt.
(7) Copies and summaries of the judgements shall be signed and sealed by the presiding judge or the judge and the clerk of the court.”,
“.
Accordingly, pursuant to Article 141 of the Constitution and Articles 34, 230 and 232 of the Code of Criminal Procedure No. 5271, court judgements must be written with justification, including counter votes, and the judgement must consist of title, problem, justification and conclusion (judgement) sections. In the “title” section; the name of the court that rendered the judgement, the name and surname of the president and members of the court or the judge, the public prosecutor, the minutes clerk, the name and surname of the participant, the victim, the victim’s attorney and legal representative, if any, the clear identity of the defendant and the name and surname of the defence counsel, if any,
the place, date and time period of the crime, except for the acquittal decision, the date and duration of the defendant’s detention or arrest and whether he/she is still under arrest must be stated, in the “problem” section; In the “justification” section; after discussing and evaluating the available evidence, the evidence taken as basis for the verdict and the evidence rejected should be determined, the link between the evidence and the result should be emphasised, the legal characterisation should be included by explaining why this result was reached and the bases of the practices explained in the conclusion section should be mentioned, and in the “conclusion (verdict)” section, in accordance with Articles 230 and 232 of the Code of Criminal Procedure, the 223.
Decision rendered pursuant to Articles 230 and 232 of the Code of Criminal Procedure and Article 223 of the same Code, the articles of law applied according to the order and principles set out in Articles 61 and 62 of the TPC, and the amount of the penalty imposed, and according to Articles 53 and following of the same Code.
The security measure to be applied instead of or in addition to the sentence, the grounds for the postponement of the sentence, the conversion of the imprisonment sentence into a judicial fine or one of the measures or the application of additional security measures or the acceptance or rejection of the requests regarding these issues, whether there is the possibility to apply for legal remedies and to request compensation, and if it is possible to apply for legal remedy, the legal remedy, its form, duration and authority should be clearly indicated in a way that does not leave any room for doubt.
In order to resolve the dispute in a healthy manner, the “justification” section of the court decisions should be emphasised separately.
Pursuant to Article 230 of the Code of Criminal Procedure No. 5271, in the justification section of the judgement, it is obligatory to show the act that is accepted to constitute an offence, to qualify it and to show the bases of the practices in the conclusion (judgement) section. Justification is the explanation of the grounds of the judgement in accordance with reason, law and the content of the file.
For this reason, in the justification section, the information and documents taken as basis for the judgement or rejected and the grounds thereof must be indicated, and these grounds must be valid, sufficient and legal. Making a decision without a legal, sufficient and valid justification will not be in accordance with the purpose of the legislator and will lead to arbitrariness in practice. In this respect, in order to prevent arbitrariness, to satisfy the parties, and to enable a healthy supervision, the judgement must be reasoned.
In addition, the fact that the judgement does not contain a justification will constitute one of the definite contradictions to the law in accordance with Articles 289/1-9 of the Code of Criminal Procedure No. 5271 and Article 308/7 of the Code of Criminal Procedure No. 1412, which must be applied as of the date of the decision pursuant to Article 8 of the Law No. 5320.
On the other hand, the European Court of Human Rights (ECtHR) states that in order to protect rights and freedoms in a real sense in a trial, the courts hearing the case have the duty to examine the grounds, claims and evidence of the parties effectively (Dulaurans v. France, B. No: 34553/97, 21/3/2000, § 33.) The ECtHR characterises situations in which the courts’ approach to the case leads them to avoid responding to the applicants’ claims and examining their main complaints as a violation of Article 6 of the European Convention on Human Rights (ECHR) in terms of the right to a fair examination of the case (Kuznetsov v. Russia, B. No: 184/02, 11/4/2007, §§ 84, 85.)
The ECtHR has also reiterated in a number of judgments that the courts of first instance have a wide margin of appreciation with regard to the structure and content of the judgments, particularly in the admission and assessment of evidence (Van Mechelen and Others v. the Netherlands, B. Nos. 21363/93, 21364/93, 21427/93 and 22056/93, 23/4/1997, § 50; Barbera Messegue and Jabardo v. Spain, B. No. 10590/83, 6/12/1988, § 68.)
In this context, the ECtHR emphasises that it is the duty of the courts of first instance to decide whether a particular type of evidence (witness statement, expert report or expert opinion) is admissible, the manner of its evaluation or, indeed, whether the applicant is guilty or not, unless it is arbitrary and to such an extent as to result in a violation of fundamental rights and freedoms (Garcia Ruiz v. Spain, B. No: 30544/96, 21/1/1996, § 28; S.N.v. Sweden, B. No: 34209/96, 2/7/2002, § 44.)
Furthermore, the ECtHR attaches importance to the fact that although the courts of first instance are not obliged to respond to all the allegations submitted to them, the fact that they have examined the substantive issues according to the nature of the concrete case should be included in the reasoned judgement in an explicit or implicit manner (Boldea v. Romania, B. No: 19997/02, 15/2/2007, § 30; Hiro Balani v. Spain, B. No: 18064/91, 9/12/1994, § 27.) It states that the courts are under the obligation to “adequately explain the legally valid grounds on which they base their decisions”, which is necessary for the parties to exercise their right of appeal (Hadjianastassiou v. Greece, B. No: 12945/87, 16/12/1992, § 33.)
The right to a reasoned judgement aims to ensure and supervise the fair trial of individuals; it is also necessary for the parties to know whether the claims they put forward during the proceedings have been examined in accordance with the rules and also for the public to learn the reasons for the judicial decisions taken on their behalf in a democratic society (Sencer Başat and Others [GK], B. No: 2013/7800, 18/6/2014, §§ 31, 34.)
Exactly what elements should be included in a judgement depends on the nature and circumstances of the case. If the claims and defences put forward in a clear and concrete manner during the proceedings have an impact on the outcome of the case, in other words, if they are capable of changing the outcome of the case, the courts must respond to these issues, which are directly related to the case, with a reasonable justification (Sencer Başat and others, § 35.). Otherwise, the court’s failure to provide a “relevant and sufficient response” on a matter that the court accepts to be effective on the outcome of the case, or leaving unanswered the procedural or substantive allegations that require a response, may lead to a violation of rights (Sencer Başat and Others, § 39.).
As a matter of fact, the same points were emphasised in the Constitutional Court’s decision dated 25.05.2017 and numbered 11798.
When the dispute is evaluated in the light of these explanations,
In the verdict regarding the defendant’s conviction for forgery of money; without considering that the Local Court should establish a verdict that does not require the existence of another verdict, the verdict, the announcement of which was deferred after the opinions put forward in the claim and defence were included, was decided to be announced due to the defendant committing a deliberate crime within the supervision period, in other words, by not discussing and evaluating the evidence by being content with the reason for the announcement of the verdict, it was understood that the 230.
In the face of the fact that it is understood that the judgement subject to the decision of resistance is contrary to subparagraph (b) of the first paragraph of Article 230 of the Code of Criminal Procedure and subparagraph (c) of the same paragraph by not stating the opinion reached and the act of the defendant, which is accepted to constitute a crime, in the reasoned decision; it should be accepted that the judgement subject to the decision of resistance does not contain legal and sufficient justification as stipulated in Articles 141 of the Constitution and Articles 34, 230 and 232 of the Code of Criminal Procedure No. 5271.
On the other hand, the conviction sentence dated 18.11.2013 and numbered 29-723 of the Bakırköy (Closed) 7th Criminal Court of Peace, which was taken as the basis for the announcement of the verdict by the Local Court, was transferred by the Bakırköy 41st Criminal Court of First Instance, to which the file was transferred due to the abolition of the criminal courts of peace pursuant to the first paragraph of the provisional Article 6 added to the Law No. 5320 by Article 84 of the Law No. 6545, on 15. 01.01.2018 and numbered 63-106,
however, considering that the conviction decision given by the Bakırköy 9th Assize Court dated 23.06.2011 and numbered 307-241 for the offence of drug trafficking committed by the defendant on 06.10.2010 can be taken as a basis for the announcement of the verdict, this issue, which does not affect the result, has not been made a reason for reversal.
In this respect, the objection of the Chief Public Prosecutor’s Office of the Court of Cassation should be accepted with different reasoning.
In the face of the result reached; the dispute issues regarding the determination of whether the decision was made with incomplete research regarding whether the counterfeit money subject to the crime was seized as a result of a search operation or as a result of a search operation, and if it is accepted that it was seized as a result of the search operation, whether this transaction is in accordance with the law, have not been evaluated at this stage.
CONCLUSION:
For the reasons explained;
1- Acceptance of the objection of the Chief Public Prosecutor’s Office of the Court of Cassation with the amended justification,
2- The reversal decision of the 8th Criminal Chamber of the Court of Cassation dated 23.02.2016 and numbered 11685-2086 is hereby REMOVED,
3- The verdict of the Istanbul 7th Assize Court dated 03.06.2014 and numbered 118-245 is DISMISSED without examining the other aspects due to the lack of legal and sufficient justification as stipulated in Article 141 of the Constitution and Articles 34, 230 and 232 of the Code of Criminal Procedure No. 5271,
4- It was unanimously decided at the meeting held on 11.02.2020 to refer the file to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to its neighbourhood.
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