While The Confiscation Of The Contraband Subject To The Crime Should Be Decided, Liquidation By Destruction Was Also Decided
T.C. JUDICIARY
7th Criminal Chamber
Main: 2014/28897
Decision: 2016/8781
Date of Decision: 23.06.2016
OFFENSE OF VIOLATING THE LAW NO. 4733 – WHILE IT SHOULD HAVE BEEN SUFFICIENT TO DECIDE ON THE CONFISCATION OF THE CONTRABAND SUBJECT TO THE CRIME, IT WAS ALSO RULED TO LIQUIDATE THE CONTRABAND BY DESTRUCTION – APPROVAL OF THE VERDICT WITH CORRECTION
SUMMARY: In the verdict established against the defendant who was charged with the crime of opposing the Law No. 4733, it was decided to approve the verdict by correcting the verdict, even though it was necessary to decide on the confiscation of the smuggled and un-bandrolled cigarettes subject to the crime, but it was also decided to liquidate them by destruction.
(5237 S. K. art. 53, 54) (ANY. COURT. 08.10.2015 T 2014/140 E. 2015/85 K.)
Case and Decision: 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;
I- In the examination of the appeal of the attorney of the participant Customs Administration;
The appellate review request of the attorney of the participant Customs Administration, who did not appeal the verdict within the legal period, is rejected in accordance with Article 317 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 defendant’s appeal;
1- 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 and numbered 2014/140, 2015/85, which entered into force after being published in the Official Gazette dated 24/11/2015 and numbered 29542, it is necessary to re-evaluate the said article,
Pursuant to paragraph 3 of Article 53 of the Turkish Criminal Code No. 5237, it should be decided that the deprivation of rights written in subparagraph (c) of paragraph 1 of the aforementioned article for the defendant, whose non-short-term imprisonment sentence has been postponed, should not be applied only in terms of the parental, guardianship or trusteeship powers of the defendant over his own descendants, and it should be decided to deprive the defendant of these rights and powers related to those other than his descendants until the execution of the sentence is completed,
2- Deciding on the confiscation of the smuggled and un-bandrolled cigarettes subject to the crime pursuant to Article 54 of the Turkish Penal Code No. 5237, but also ruling for their liquidation by destruction,
Conclusion Since it is contrary to the law, the defendant’s appellate objections are deemed appropriate for these reasons and these issues do not require a retrial, in accordance with Article 322 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of the Law No. 5320
1- Deleting the section on the application of Article 53 of the Turkish Criminal Code No. 5237 and replacing it with the following statement: “Considering the canceled issues in the decision of the Constitutional Court dated 08/10/2015 and numbered 2014/140 E., 2015/85 K., published in the Official Gazette dated 24/11/2015 and numbered 29542, the application of Article 53/l-2-3 paragraphs (except subparagraph “e”) of the Turkish Criminal Code No. 5237.”
2- It was unanimously decided on 23.06.2016 to approve the verdict with correction by removing the paragraph numbered 2 regarding the liquidation of the cigarettes subject to the case by destruction and adding the subparagraph “2- Confiscation of the smuggled and unbanned cigarettes subject to the case in accordance with Article 54/1 of the Turkish Penal Code No. 5237,” and leaving the other parts as they are.
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