Requirement To Add The Trial Expenses To The Prepayment Amount – Proposal For Prepayment On Excess Amount By Including The Proportional Fee And Proportional Attorney Fee In The Prepayment Amount
T.C. JUDICIARY
7th Criminal Chamber
Main: 2014/28371
Decision: 2016/9088
Date of Decision: 30.06.2016
SMUGGLING OFFENSE – THE NECESSITY OF ADDING THE LEGAL EXPENSES TO THE PREPAYMENT AMOUNT – THE SUGGESTION OF PREPAYMENT OVER THE EXCESS AMOUNT BY INCLUDING THE NOMINAL FEES AND NOMINAL ATTORNEY’S FEE TO THE PREPAYMENT AMOUNT – REVERSAL OF THE JUDGMENT
SUMMARY: While evaluating the actions of the defendants as collective smuggling due to the act committed by the defendants together and proposing a prepayment to the defendants to be jointly and severally liable over 4.5 times the customs cleared value calculated from the CIF value of the goods determined by the expert, it was not taken into consideration that only the trial expenses incurred during the trial should be added to the prepayment amount, but proposing a prepayment over the excess amount by including the proportional fee and proportional attorney fee in the prepayment amount required the reversal of the judgment.
(4926 S. K. art. 4, 5) (5237 S. K. art. 53, 54) (5320 S. K. art. 8) (5271 S. K. art. 226)
Case and Decision: The judgment given by the local court was appealed; after reading the file according to the nature, type of punishment, duration and date of the offense, it was discussed and considered on behalf of the Turkish Nation;
I. In the examination made in terms of the appeal request of the attorney of the participant Customs Administration regarding the acquittal verdict given about the defendant …;
According to the hearing held, the evidence gathered and explained in the decision, the reasoning and discretion shown, the objections of the participant Customs Administration’s attorney to the appeal, which are not deemed appropriate, are rejected and the verdict is APPROVED as requested,
II. In the examination made in terms of the appeal requests of the participant Customs Administration attorney and the defendant … regarding the conviction verdict established against the defendant …;
Considering that there is no evidence sufficient to punish the defendant … contrary to his defense that he committed the imputed offense, the written verdict on his conviction instead of his acquittal,
Since the appeal objections of the defendant … and the participating Customs Administration’s attorneys are therefore deemed appropriate, it shall be DISMISSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of the Law No. 5320,
III. In the examination made with regard to the appeal requests of the representative of the participating Customs Administration, the defendant … … and the defense counsel of the defendants … and … regarding the convictions against the defendants …, …, … and Ali ..;
1. Making a decision with incomplete research without bringing the decisions regarding the detection of communication to the file in a way to allow inspection,
2. Evaluating the actions of the defendants as collective smuggling due to the act committed by the defendants together and proposing a prepayment to the defendants to be jointly and severally liable over 4.5 times the customs cleared value calculated from the CIF value of the goods determined by the expert, and proposing a prepayment over the excess amount by including the proportional fee and proportional attorney fee in the prepayment amount without considering that only the trial expenses incurred during the trial should be added to the prepayment amount,
According to the acceptance;
1. Violating Article 226 of the Code of Criminal Procedure by establishing a verdict for the crime of collective smuggling pursuant to Article 5/last of the Law No. 4926 without giving the defendants, against whom a case was filed for the crime of smuggling in an assembly, the right to additional defense,
2. After the increase in the penalty of the defendants pursuant to Article 5/last article of the Law No. 4926, it is necessary to increase the value pursuant to Article 4/3 of the aforementioned Law, but to make a decision as written,
3. Without taking into consideration that the confiscation of the transport vehicle was not requested in the indictment dated 26/04/2006 and that no additional indictment was issued in this regard, a written verdict was established for the confiscation of the transport vehicle for which there was no confiscation case,
4. Confiscation of the contraband liquor subject to the crime pursuant to Article 54 of the Turkish Penal Code, while it should have been decided to confiscate the transportation vehicles pursuant to Article 4/4 of the Law No. 4926 and Article 20 of the aforementioned Law,
Conclusion: Since it is contrary to the law and the objections of the participating Customs Administration, the defendant … … and the defendants … and … are therefore deemed appropriate, it was unanimously decided on 30.06.2016, pursuant to Article 321 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of the Law No. 5320, that the appeal objections of the defendant … … and the defendants … and … be reversed. (¤¤)
Synergy Legislation and Case Law Program
You can access our other article examples and petition examples by clicking here.