The Annulment Of Some Parts Of The Article Tck By The Decision Of The Constitutional Court Published In The Official Gazette – The Necessity Of A New Evaluation Of The Article
T.C. JUDICIARY
7th Criminal Chamber
Main article: 2015/7404
Decision: 2016/9043
Date of Decision: 30.06.2016
OFFENSE OF OPPOSITION TO THE LAW NO. 5607 – ANNULMENT OF SOME PARTS OF THE ARTICLE TCK BY THE DECISION OF THE CONSTITUTIONAL COURT PUBLISHED IN THE OFFICIAL GAZETTE – NECESSITY TO RE-EVALUATE THE ARTICLE – REVERSAL OF THE JUDGMENT
SUMMARY: Due to the annulment of some parts of the article of the Turkish Penal Code by the decision of the Constitutional Court, which was published in the Official Gazette and entered into force, the necessity to re-evaluate the said article required a reversal.
(5237 S. Code Art. 43, 53)
Case: The judgment given by the local court was appealed; after the file was read according to the nature of the application, the type of punishment, the duration and the date of the crime, it was discussed and considered on behalf of the Turkish Nation;
It has been seen that it is always possible to make a decision about the goods subject to the case delivered to the Customs Administration.
Although a public case was filed against the defendant … with the TC number …, it is seen that the wrong writing of his surname … and the place where he is registered in the population in the decision is a mistake that can be corrected on the spot;
I. In the examination made according to the appeal request of the defendant … ..;
1. In the examination made for the conviction verdict established for the offense of opposition to the Law No. 5607;
Making a written decision without considering that the provision of the first paragraph of the said article shall not be applied to the defendant whose short-term imprisonment sentence was postponed pursuant to Article 53/4 of the TPC No. 5237,
Since it is contrary to the law, the defendant’s appeals are deemed appropriate for these reasons and this issue does not require a retrial, in accordance with Article 322 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8 of the Law No. 5320, by removing the section regarding the application of Article 53 of the Turkish Penal Code from the judgment, the judgment, the other parts of which are left as they are, shall be affirmed with correction,
2.In the examination of the conviction verdict for the offense of opposition to the Law No. 4733
a. In the public case filed on 10/01/2013 and 14/01/2013 for the offense of violation of the Law No. 4733, the acts that have no legal interruption between them constitute a chain crime and the punishment to be given to the defendant should be increased according to Article 43 of the Turkish Penal Code No. 5237,
b.Due to the annulment of some parts of Article 53 of the Turkish Criminal Code No. 5237 by the annulment decision of the Constitutional Court dated 08/10/2015, numbered 2014/140 and numbered 2015/85, which entered into force after being published in the Official Gazette dated 24/11/2015 and numbered 29542, there is an obligation to re-evaluate the said article,
Since it is contrary to the law and the appellate objections of the defendant are deemed appropriate in this respect, the judgment 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,
II. In the examination made according to the appeal request of the defendant … ..;
1.In the examination made for the conviction verdict established for the offense of opposition to the Law No. 5607;
According to the examination made in the uyap records in terms of the cases filed against the defendant for similar actions, in terms of the macarons subject to the case, registered in the 2014/29517 main order of our Chamber, … In the file of the Criminal Court of First Instance with the file numbered 2013/208 main and 2013/341 decision, considering that the indictment was issued on 07/03/2013 due to the similar action dated 31/12/2012, in order to determine whether the defendant’s actions are within the scope of Article 43/1 of the TPC, the said file should be merged with this file subject to appellate review, and all evidence should be evaluated together and a judgment should be established according to the result,
2.In the examination of the conviction verdict for the offense of opposition to the Law No. 4733
a. In the public case filed on 10/03/2013 and 14/03/2013 for the offense of Opposition to the Law No. 4733, the acts that have no legal interruption between them constitute a chain crime and the punishment to be given to the defendant should be increased according to Article 43 of the Turkish Penal Code No. 5237,
b.Due to the annulment of some parts of Article 53 of the Turkish Criminal Code No. 5237 by the annulment decision of the Constitutional Court dated 08/10/2015, numbered 2014/140 and numbered 2015/85, which entered into force after being published in the Official Gazette dated 24/11/2015 and numbered 29542, there is an obligation to re-evaluate the said article,
Since it is contrary to the law and the appellate objections of the defendant are deemed appropriate in this respect, it was unanimously decided on 30.06.2016, 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, that the verdict, the other issues of which were not examined, be DISMISSED.