The Constitutional Court’s Decision Annulled The Phrase Of The Turkish Penal Code That Prohibits The Exercise Of The Right To Vote And Other Political Rights
T.C. JUDICIARY
6th Criminal Chamber
Basis: 2013/27679
Decision: 2016/5564
Date of Decision: 28.06.2016
OFFENSE OF LOOTING – THE CONSTITUTIONAL COURT’S DECISION ANNULLED THE ARTICLE OF THE STATUTE OF LIMITATIONS ON THE RIGHT TO VOTE AND EXERCISE OTHER POLITICAL RIGHTS – AFFIRMING THE VERDICT WITH CORRECTION
SUMMARY: With the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140-2015/85, the annulment of the phrase “from electing, being elected and using other political rights” in Article 53/1-b of the TPC required the judgment to be approved by correction.
(2709 S. K. art. 90) (5237 S. K. art. 53) (5271 S. K. art. 150, 234, 239) (5320 S. K. art. 13) (Article 8 of the Regulation on the Procedures and Principles of the Assignment of Counsel and Attorneys and the Payments to be made pursuant to the Criminal Procedure Law) (ANY. COURT. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case and Decision: Since the judgment given by the Local Court was appealed; the file was discussed according to the nature of the application, type of punishment, duration and date of offense:
I- In the examination of the appellate objections to the judgments against the defendants …, … and … for the offense of plunder and against the defendant … for the offenses of plunder and deprivation of liberty;
According to the contents of the file and the minutes of the hearing, the favorable evidence collected and examined and discussed at the decision, the reasoning and the appreciation of the Board of Judges, the objections of the participant …’s attorney on appeal were not deemed appropriate, and the judgment, which is in accordance with the procedure and the law, is APPROVED as requested,
II- As for the examination of the appeals against the convictions of the defendants …, … and … for deprivation of liberty and intentional injury and against the defendant … for intentional injury;
According to the contents of the file and the minutes of the hearing, the legally valid and favorable evidence collected and examined and discussed in the decision, the reasoning and the discretion of the Board of Judges, there is no violation of the procedure and the law in the acceptance and characterization of the crimes committed by the defendants, and the other appellate objections have not been deemed relevant.
However
1-) The defendants were deprived of exercising the rights written in Article 53/1-a-b-c-d-e of the TCC until the execution of their prison sentences is completed; however, if they are released conditionally pursuant to Article 53/3 of the TCC, it was decided to terminate their deprivation of exercising the rights listed in Article 53/1-c of the TCC on their descendants. 11.2015 dated 08.10.2015, with the decision of the Constitutional Court dated 08.10.2015, numbered 2014/140-2015/85 Main and Decision, which was published in the Official Gazette dated 24.11.2015 and entered into force on the same date, the phrase “from electing, being elected and exercising other political rights” written in Article 53/1-b of the TPC was canceled,
2-) In the light of the last paragraph of Article 90 of the Constitution of the Republic of Turkey and Article 6/3-c of the European Convention on Human Rights, Article 8 of the Regulation on the Procedures and Principles of the Appointment of Counsel and Attorneys and the Payments to be made pursuant to the Criminal Procedure Law, which was prepared based on Articles 150, 234 and 239 of the Code of Criminal Procedure No. 5271 and Article 13 of the Law No. 5320. Pursuant to Article 8 of the Regulation on the Procedures and Principles of the Appointment of Counsel and Attorneys and the Payments to be made pursuant to the Criminal Procedure Law, which was prepared based on Article 13 of the Law No. 5320, it was not considered that the fees of the mandatory defense assigned by the bar association for the defendants cannot be ruled to be charged from the defendants, and that these fees will be covered from the appropriation allocated for this purpose in the budget of the Ministry of Justice,
Conclusion: Since it has required to be reversed and the objections of the defendants …, …, …, … and defendant …’s defense counsels have been deemed appropriate in this respect, the verdict will be reversed for the reasons explained, and since the reason for reversal does not require a retrial, based on the authority granted by Article 322 of the Code of Criminal Procedure No. 1412 through Article 8/1 of the Law No. 5320, the section regarding the application of Article 53 of the TCC will be removed from the paragraph of the verdict and replaced with the following sentence The section on the application of Article 53 of the TCC was removed and replaced with the following sentence: “The defendants, as a legal consequence of their conviction with imprisonment for the crime they committed intentionally, are deprived of the right to elect, be elected and use other political rights written in subparagraphs (a, c, d and e) and subparagraph (b) in terms of the application of Article 53/1 of the TCC; in terms of the application of Article 53/2 of the same Law. In terms of the application of Article 53/2 of the same Law, they are deprived of the right to vote, to be elected and to exercise other political rights under sub-paragraphs (a, c, d and e) and sub-paragraph (b) of Article 53/1, and under paragraph 3 of the same Article. paragraph 3 of the same article, they shall not be able to exercise their parental, guardianship and trusteeship powers over their own descendants written in subparagraph (c) until they are conditionally released from the prison sentence they have been sentenced to”; and by removing the section on the defense fee from the paragraphs of the verdict established against the defendants … and …, it was decided on 28.06.2016, with the majority of votes, that the verdict, which was found to be in accordance with the procedure and the law in other aspects, be APPROVED WITH CORRECTIONS.
VOTE AGAINST:
In the examination of the acquittal verdict on the defendants …, … and … for the crime of plunder; When the allegations, defenses and evidence in the file are evaluated together; the participant … claimed at all stages that the defendants threatened him with a gun, forced him into the vehicle and took his two mobile phones and 1000.-TL money by force, and that he was beaten with sticks by the defendants, and although the defendants admitted that they beat the participant, they argued that they did not force him into the vehicle and loot his phones and money, according to the records from the ….. According to the records taken from the Presidency of Communication within the file, the cell phones subject to the crime were not used after the day of the incident, but the phone with the IMEI number …… was started to be used in … where the defendant … was working as of 21/09/2009, and again …. IMEI numbered phone was used as of 29/09/2009 in … where the other defendants …. and …. l, where the other defendants and reside, and in this way, in the face of the understanding that the participant’s claim is supported by concrete evidence; I am of the opinion that a verdict of conviction should be given since the crime of plunder attributed to the defendants has been established, and this part of the verdict should be reversed, therefore, I do not agree with the opinion of the majority and the decision of approval regarding the crime of plunder against the defendants …, … and ……
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