The Injustice Of Deciding To Convict For The Crimes Of Looting And Criminal Organization Membership With The Grounds That Are Not Appropriate And Insufficient
T.C. JUDICIARY
6th Criminal Chamber
Main: 2016/3945
Decision: 2016/5659
Date of Decision: 29.06.2016
CRIME OF LOOTING – IMPROPER CONVICTION FOR LOOTING AND MEMBERSHIP OF A CRIMINAL ORGANIZATION ON GROUNDS THAT ARE NOT APPROPRIATE AND SUFFICIENT – THE VERDICT IS REVERSED
SUMMARY: Without discussing and showing the evidence that the defendant … participated directly or indirectly in the act of looting against the participant in a way that would allow supervision, the decision to convict the defendant for the crimes of looting and membership of a criminal organization on the grounds that it is not appropriate and sufficient required to be reversed.
(5237 S. K. art. 39, 168)
Case and Decision: The judgment rendered by the Local Court was appealed by the defendant … and his defense counsel, and it was understood that the defendant and his defense counsel did not come to the hearing even though they were duly notified of the hearing date and did not submit an excuse, and the file was discussed according to the nature, type of punishment, duration and date of the crime at the end of the examination made without a hearing for the said defendant.
Member ….’s opinion that the last sentence of Article 14/4 added to the Anti-Terrorism Law by Law No. 6526 is contrary to the Constitution of the Republic of Turkey and international treaties and therefore should be applied to the Constitutional Court for its annulment; Member ….’s opinion that the examination of the judgment given because the said article contradicts with the international treaties accepted by our country should be reversed in its entirety in accordance with the principle of equality and the right to a fair trial was rejected by majority vote;
I- The convictions of the defendant … for the crimes of establishing an organization for the purpose of committing a crime, the defendants …, …, …, … and … for the crimes of membership in an organization, the defendant … for the crimes of aiding a criminal organization, and the Public Prosecutor’s decision for aiding a criminal organization and violation of Article 12/1 of Law No. 6136 against the defendant …, violation of Article 12/1 of Law No. 6136 against the defendant …, violation of Article 12/1 of Law No. 6136 against the defendant …, and violation of Article 12/1 of Law No. 6136 against the defendant …. Article 12/1 of the Law No. 6136 against the defendant … and acquittal verdicts against the defendant … for the crimes of violation of Article 12/1 of the Law No. 6136, abuse of office, attempting to influence a judicial officer, failure of a public official to report a crime, concealing and destroying criminal evidence, providing benefits for work for which he is not authorized and mediating prostitution;
Regarding the defendants …, …, …, …, …, …, …, …, … and …, for whom a verdict of conviction was rendered; it was deemed possible to consider 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, regarding the annulment of the phrase “from electing, being elected and using other political rights” written in Article 53/1-b of the TPC, at the execution stage.
According to the contents of the file and the minutes of the hearing, the favorable evidence gathered and examined and discussed in the decision, the reasoning and the discretion of the Board of Judges, the objections of the defendants …, …, …, …, …, … and …, …, … defense counsels and the defendant … and the Public Prosecutor’s objections to the appeal were not deemed appropriate, and therefore rejected, the judgments, which are in accordance with the procedure and the law in other aspects, except for criticism, are APPROVED,
II- Defendant … was charged with separate offenses of plunder and forgery against the participant … and the complainant …, and defendants …, …, …, …, … were charged with attempted plunder against the complainant …, and defendants …, …, …, …, … were charged with attempted plunder against the participant … As for the examination of the appeal requests of the Public Prosecutor regarding the conviction verdict established for the offenses of looting against the defendant … and the acquittal verdicts established for the offenses of looting against the participant … and organization membership:
Other appellate objections are not deemed appropriate.
However,
1- In the action stated as the (2nd) incident in the indictment;
Before the date of the incident, the father of the complainant … …, the father of the defendant … …, was a guarantor for the 7.000.-TL loan taken from the bank by the defendant … …, who is also the uncle of the defendant … …, but the loan was not paid within this period, the defendant … … gave a promissory note amounting to 3.150.-TL to the complainant in return for this debt, and the defendant … …, who was angry with the execution proceedings as a result of the failure to pay this note on time, threatened the complainant and went to the workplace of the complainant together with the defendants …, …, … and … on 05.05. 05.05.2008 and as a result of the trial, the same court decided to acquit the defendants with the decision dated 26/05/2009, numbered 2008/1176-2009/564 Main and Decision, and it is understood that the decision regarding these crimes has become final as a result of the lack of appeal,
As stated in the decision of the Criminal General Assembly of the Court of Cassation dated 09.07.2013 and numbered 2012/2-1518 main-2013/154 decision,
In order to conduct criminal proceedings, certain “sine qua non” conditions are required. One of these conditions, which prevents the conduct of a criminal proceeding, is the absence of a judgment or a pending lawsuit, which is expressed as “Non bis in idem”.
In the third paragraph of Article 253 of the Code of Criminal Procedure No. 1412, the principle of “Non bis in idem”, which is one of the main principles of procedural law, which is also accepted in the doctrine and which is applied as a living legal norm even if it is not explicitly written in the laws, is stated as follows: “If there is a previous judgment or a lawsuit filed for the same defendant on the same matter, the case shall be dismissed”, and in the seventh paragraph of Article 223 of the Code of Criminal Procedure No. 5271, which entered into force on 01. In the seventh paragraph of Article 223 titled “Termination of the trial and judgment” of the Code of Criminal Procedure No. 5271, which entered into force on 01.06.2005, it is regulated as follows: “If there is a previous judgment or a lawsuit filed for the same defendant due to the same act, it is decided to dismiss the case”. As it can be understood from these regulations, if there is a previous judgment or a lawsuit filed against the same defendant for the same act, the case will be dismissed.
In the light of these explanations,
In our concrete case, while it should be decided to dismiss the public case filed against the defendants due to the acts committed on the same date against the same complainant in accordance with Article 223/7 of the Code of Criminal Procedure, to decide to convict the defendants in writing by continuing the trial on the grounds of the change in the nature of the crime,
2- In the expertise report dated 29.06.2010 issued by the Istanbul Criminal Police Laboratory as a result of the examination made on the forged identity card and passport, it was stated that the photographs still present in the passport and identity card subject to the crime were pasted after the photographs in the same places were removed;
As explained in the decisions of the Criminal General Assembly dated 14.10.2003 and numbered 232-250 and dated 09.10.2012 and numbered 2011/8-335 Esas 2012/1804, the document must be objectively deceptive and the deception must be objectively understood from the document. In order for the crime of forgery of a document to occur, the document issued or altered or used must be misleading in the sense that it is real. The feature of deception is the basic element of this offense, and a document that cannot be understood to be untrue unless it is subjected to a special examination should be accepted as a forged document. Whether the forgery is of such a nature (objective) as to deceive persons and whether it is understandable at first glance must be determined in a way that leaves no room for doubt. The appreciation and determination of whether there is the ability to deceive in forgery crimes in documents belongs to the judge, by examining the identity card and passport subject to the crime and accepted to be forged, by writing its features in the hearing report, examining the deception ability in the justification, explaining and discussing in the decision how it has the quality of deception, and making a decision in writing as a result of incomplete examination without keeping the original document subject to the crime in the file to allow inspection,
3- In the act stated in the indictment as the (1st) incident, the defendants … and …. received 40.000.-TL cash from the participant …. who is engaged in white goods trade due to the need for cash, in exchange for 2 checks of 24.000.-TL before the date of the incident. -TL cash in exchange for 2 checks of 24.000.-TL, when the maturity date of the checks came, upon the failure of the efforts of the participant who wanted to collect the receivable, the defendants … and … with the fear that the debt in question would be subject to execution proceedings, the defendants … and … asked for help from the defendant …, who was not a party to the receivable-debt relationship, for the recovery of these checks, these issues were clearly understood in the conversation records reflected in the tapes, the participant’s workplace was first visited by the defendants … and the defendant …. ‘s going together and talking about the debt and the defendant …. introducing himself as a state official and trying to intimidate, however, according to the phone call records of the defendant …. who insisted on taking the checks in the ongoing process, the defendant …. also tried to take back the checks in question by taking advantage of the name and power of the defendant …. and went to the workplace of the participant for the second time with two people whose identity cannot be fully identified and left the scene of the incident by taking the participant’s 14-15. 000.-TL cash money and checks by force and left the scene of the incident,
a) Deciding to convict the defendant … for the crimes of looting and membership of a criminal organization in writing with a justification that is not appropriate and sufficient, without discussing and showing the evidence that the defendant … participated directly or indirectly in the act of looting against the participant in a way that would allow supervision,
b) Although the participant, according to the content of the live identification report dated 29.06.2010 issued after the operation, identified the defendant … as “the person who came to the workplace with the defendant … on the date of the incident and waited at the door with a walkie-talkie in his hand with his instructions”, in the hearing dated 04.02.2011 she stated that she “resembled the person standing in front of the door”, and in the hearing dated 24.11. In the hearing dated 24.11.2011, in the hearing dated 04.02.2011, he stated that he did not remember exactly, but the employee of the workplace … … could identify the person”; since the said person is the only witness of the incident, without determining his statements on the merits, and by continuing the hearing with an incomplete investigation, deciding to acquit the defendant … of the crimes of looting and membership of a criminal organization due to his action against the participant in writing,
c) In relation to the cash and checks allegedly looted from the participant …, in the hearings dated 01.08.2012 and the following hearings, in line with the requests of the defendant … defense counsel “to provide the possibility of application with Article 168 of the Law No. 5237, which is in their favor after the full determination of the resulting damage”, without considering that the victim’s statement in this direction should be taken when necessary or the court should determine ex officio and provide the opportunity to be compensated by giving a reasonable period of time, to continue the trial and to decide in writing,
4- According to the content of the reversal numbered (3), it was left undiscussed at the place of decision whether or not Article 39 of the Law No. 5237 could be applied to the defendant …,
Since the objections of the defendants …, …, …, …, …, …, …, …, …, … and the defendant … and the Public Prosecutor were deemed appropriate in this respect, it was decided on 29.06.2016 with the majority of votes, despite the dissent of Mr. Member … for the reasons for reversal numbered (1), (3-c), (4).
VOTE AGAINST
At the end of the judgment of the public case filed regarding the action of the defendants against the victim …, since I do not see any inconsistency in the judgment established by the Court and I find the application correct, I do not agree with the reversal opinion numbered (1) regarding this judgment;
I do not agree with the reversal opinions numbered (3-c) and (4) of the majority in view of the occurrence, file content and available evidence.
VOTE AGAINST
The courts in charge according to the repealed Article 250/1 of the Code of Criminal Procedure, which were abolished by Article 105/6 of the Law No. 6352 on the Amendment of Certain Laws for the Efficiency of Judicial Services and the Postponement of Cases and Penalties Regarding Crimes Committed through the Press and Publications, but which, pursuant to the provisional Article 2/4 of the same Law, were assigned to hear the cases filed in these courts until they are concluded with a final judgment. Although the courts in charge pursuant to Article 250/1 of the abrogated Code of Criminal Procedure have been abolished pursuant to the provisional Article 14/1 added to the Anti-Terrorism Law No. 3713 by Article 1 of the Law No. 6526 on the Amendment of the Anti-Terrorism Law and the Criminal Procedure Law and Certain Laws, which entered into force upon its publication in the Official Gazette dated March 6, 2014 and numbered 28933, paragraph 4 of the aforementioned article stipulates, “The examination of the files that were decided by these courts and are in the Chief Public Prosecutor’s Office of the Court of Cassation or in the departments of the Court of Cassation shall continue.” I believe that in order for the Republic of Turkey to be able to fight against organized crimes, especially terrorism, due to its position, there is a need for specialized courts, which do not have the drawbacks that the Legislature put forward in its justification for abolishing the specially authorized courts, which are in accordance with universal rules of law, whose limits of authority and duties are well drawn, and whose infrastructure is well established.
Although this is my opinion, my opposition is related to the point that when abolishing these courts, the inclusion of a provision as explained above, which distinguishes between defendants whose files have not yet been finalized and defendants whose files have been finalized and sent to the Court of Cassation, does not coincide and contradicts the reasons for abolition.
This is because
Article 2/f of the Law No. 5271 defines “prosecution as the phase that starts with the acceptance of the indictment and lasts until the finalization of the judgment”, and according to this definition, the files at the appeal stage are pending files whose prosecution continues. In the face of this definition, I believe that it is not the right solution to make a distinction between the files whose prosecution process has not yet been completed; those that have not yet been decided by the specially authorized courts should be sent to the general (normal) heavy penal courts, and those at the appeal stage should be examined by the Court of Cassation. As I will explain below, despite this provision of the Law, I am of the opinion that the files in the Court of Cassation, just like the files that have not been decided, should be returned to their place of origin and their trials should be held in the general (normal) courts, without being subjected to any examination, on the grounds that the courts in question have been abolished. Any other solution, i.e. following the rule that these files will be examined by going into the merits, would be contrary to the Universal Declaration of Human Rights dated December 10, 1948 and the European Convention on Human Rights dated November 4, 1950.
Namely
1-Special Authorized Courts have been abolished in order to put an end to the distinction between the “Right to a Fair Trial” and the “High Criminal Courts”, and this has been stated in the general and aforementioned article justification of the aforementioned Law; thus, it is aimed to put an end to the special investigation and prosecution procedures necessary for the right to a fair trial by ensuring that all High Criminal Courts are subject to the same procedural rules. When we look in line with this purpose, the regulation that the files in the Chief Public Prosecutor’s Office of the Court of Cassation and in the departments of the Court of Cassation will continue to be examined is not in compliance with Article 10 of the Universal Declaration of Human Rights and Article 6 of the European Convention on Human Rights.
Because, although the Legislator himself stated in the justification of the Law that the specially authorized courts were abolished in order to ensure the right to a fair trial and acknowledged that these courts are more insecure than the normal heavy criminal courts; the provision that the judgments rendered by these courts will be examined like the judgments rendered by the normal heavy criminal courts creates a result that contradicts the justification and purpose of the abolition.
2- Courts are obliged to act in accordance with the principle of equality in all their proceedings. With Law No. 6526, evidence collection methods have been changed; restrictive provisions for suspects and defendants in investigations and prosecutions previously covered by Article 250 of the Code of Criminal Procedure have been abolished, and legal security and equality of trial have been ensured. However, as a result of the abolishment of the Special Authorized Courts, creating a difference between the defendants of the cases that were not decided by these courts and sent to other heavy penal courts and the defendants of the cases whose decisions are under appellate review at the Court of Cassation; the principle of equality stipulated in Article 7 of the Universal Declaration of Human Rights and the principle of equality stipulated in Article 7 of the Universal Declaration of Human Rights. Article 7 of the Universal Declaration of Human Rights and Article 14 of the European Convention on Human Rights, which stipulates that everyone shall enjoy the rights and freedoms set forth in the Convention without discrimination, and in terms of our domestic law, it is contrary to Articles 10 titled “Equality before the Law”, 36 titled “Freedom of Right to Seek Justice”, 37 titled “Guarantee of a Legal Judge” and 38 titled “Crimes and Punishments” of our Constitution.
As seen;
The legal regulation in question, as it stands, is both contrary to our Constitution and in conflict with the duly enacted international treaties to which we are a party.
Now, the problem here is whether we can overcome the aforementioned provision of the Law, which contradicts our Constitution and the international treaties we have explained above, and if so, how we can do so.
In fact, while this issue was a problem, with the amendment made to Article 90/5 of our Constitution by the Law No. 5170 dated 07.05.2014, the provisions of international treaties were given supremacy, and this issue has been solved fundamentally and there is no longer any debate today.
Namely
With Article 90/5 of our Constitution, it is accepted that in case of a conflict between a provision of law and a duly enacted treaty regulating fundamental rights and freedoms, the provisions of the treaty shall prevail.
If we evaluate our concrete case based on this provision, it is clear that the last sentence of the 4th paragraph of the provisional Article 14 added to the Anti-Terrorism Law with Article 1 of the Law No. 6526 contradicts the Constitution of the Republic of Turkey and the international treaties accepted by our country. The last sentence of paragraph 4 of the provisional article 14 added to the Anti-Terrorism Law by Article 1 of Law No. 6526 clearly contradicts the Constitution of the Republic of Turkey and the international treaties accepted by our country, and the problem must be solved by giving precedence to the above-mentioned provisions of the Universal Declaration of Human Rights and the European Convention on Human Rights, and the judgments rendered by the specially authorized courts must be reversed in their entirety, without examining other aspects, in accordance with the principle of equality before the law and the right to a fair trial, in order to conduct their proceedings in general (normal) heavy criminal courts and to establish a judgment according to the result. I am of the opinion that accepting a contrary opinion would not only lead to results that contradict the justification and purpose of the legislator to abolish these courts, but would also be contrary to the fundamental values of the law, which can be gathered under the headings of justice, propriety and legal security.
For these reasons, I do not agree with the opinion of the majority to examine the case on the merits and the decision based on this opinion.
VOTE AGAINST
The courts assigned according to the repealed Article 250/1 of the Code of Criminal Procedure, which were abolished by Article 105/6 of the Law No. 6352 on the Amendment of Certain Laws for the Efficiency of Judicial Services and the Postponement of Cases and Penalties Regarding Crimes Committed through the Press and Publications, published in the Official Gazette dated 5.7.2012; however, pursuant to the provisional Article 2/4 of the same Law, the courts assigned according to the repealed Article 250/1 of the Code of Criminal Procedure were assigned to hear the cases filed in these courts until they are concluded with a final judgment. Although the courts in charge according to Article 250/1 of the abrogated Code of Criminal Procedure have been abolished pursuant to the provisional Article 14/1 added to the Anti-Terrorism Law No. 3713 by Article 1 of the Law No. 6526 on the Amendment of the Anti-Terrorism Law and the Criminal Procedure Law and Certain Laws, which entered into force upon its publication in the Official Gazette dated March 6, 2014 and numbered 28933, paragraph 4 of the aforementioned article stipulates, “The examination of the files given by these courts and kept in the Chief Public Prosecutor’s Office of the Court of Cassation or in the departments of the Court of Cassation shall continue.” This provision is contrary to the Constitution of the Republic of Turkey and the European Convention on Human Rights.
Namely
1- The specially authorized courts were abolished in order to ensure the “Right to a Fair Trial” and “Judicial Unity”. This is stated in the general justification of the aforementioned Law and the justification of the aforementioned article; it is aimed to end the special investigation and prosecution procedures necessary for the right to a fair trial by aiming to subject all heavy criminal courts to the same procedural rules.
However, by maintaining the distinction between special and general courts in the last sentence of paragraph 4 of the provisional Article 14 added to the Anti-Terror Law by Law No. 6526, a regulation has been made contrary to Articles 10 titled “Equality before the law”, 36 titled “Freedom to seek rights”, 37 titled “Guarantee of legal judges” and 38 titled “Principles regarding crimes and punishments” of the Constitution of the Republic of Turkey and Article 6 of the European Convention on Human Rights on the right to a fair trial and the principle of unity of judiciary has been violated.
2- Courts are obliged to act in accordance with the principle of “equality before the law” enshrined in Article 10 of the Constitution in all their proceedings. Law No. 6526 has changed the methods of evidence collection and has made the trial law lawful and reliable. In investigations and prosecutions previously covered by Article 250 of the Code of Criminal Procedure, the existing restrictive provisions for suspects and defendants have been abolished, thereby ensuring their right to legal security and equality of trial.
3-This sentence also contradicts the provisions of Article 36 of the Constitution, which states that “Everyone has the right to seek justice and the right to claim and defend himself as a plaintiff or defendant before the judicial authorities and to a fair trial”; Article 37, which states that “No one shall be brought before any authority other than the court to which he is legally subject”; and Article 38, which states that “Evidence obtained in violation of the law shall not be accepted as evidence”.
4-One of the fundamental rules of modern constitutions is that the legislator shall not engage in absurdity. By abolishing the courts authorized under Article 250 of the Code of Criminal Procedure, the legislator has recognized that these courts are more insecure than regular heavy penal courts
5-Creating a difference between the defendants of the cases sent to other heavy penal courts by abolishing the courts authorized under Article 250 of the CCP and the defendants of the cases whose decisions are under appeal review at the Court of Cassation is also contrary to the principle of equality written in Article 10 of the Constitution.
6-In accordance with Article 90/last of the Constitution, “In case of disputes that may arise due to the fact that international treaties on fundamental rights and freedoms duly put into force and laws contain different provisions on the same subject, the provisions of the international treaty shall prevail”, the regulation is in violation of Article 6 of the ECHR on the right to a fair trial, and therefore it must be annulled.
In summary, since the last sentence of paragraph 4 of the provisional Article 14 added to the Anti-Terrorism Law with Article 1 of Law No. 5526 is contrary to the Constitution of the Republic of Turkey and the international treaties accepted by our country, it is necessary to apply to the Constitutional Court in accordance with Article 152 and to postpone the appellate review until the result of the decision,
You can access our other article examples and petition examples by clicking here.