With The Decision Of The Constitutional Court,
The Article Of The Turkish Penal Code, Which States That The Phrase “From Voting And Exercising Other Political Rights” Has Been Annulled
T.C. JUDICIARY
6th Criminal Chamber
Basis: 2013/32150
Decision: 2016/5596
Date of Decision: 29.06.2016
OFFENSE OF LOOTING – THE CONSTITUTIONAL COURT’S DECISION ANNULLED THE ARTICLE OF THE ARTICLE OF THE TCKN THAT PROHIBITS THE EXERCISE OF THE RIGHT TO VOTE, TO BE ELECTED AND 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” written in Article 53/1-b of the TPC has required the judgment to be approved by correction.
(Article 31, 53, 61, 149, 168) (Article 231 of the Code of Criminal Procedure No. 5271) (ANY. COURT. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case and Decision: The judgment given by the Local Court was appealed and the file was discussed according to the nature of the appeal, type of punishment, duration and date of offense:
I- In the examination of the judgment against the defendant … for the offense of insult:
Since the decision regarding the “deferment of the announcement of the verdict” established for the defendant … for the crime of insult is one of the decisions that cannot be appealed in accordance with Article 231/12 of the Code of Criminal Procedure No. 5271, the file shall be returned to the Chief Public Prosecutor’s Office of the Court of Cassation to ensure that it is sent to the court authorized and authorized to examine the objection,
II- In the examination of the verdict on the defendants … and … for the offense of plunder:
The crime of plunder was committed by more than one person together and at night in violation of subparagraphs (c) and (h) of paragraph 1 of Article 149 of the Turkish Criminal Code No. 5237, for this reason, while determining the basic penalty in accordance with Article 61 of the same Law, these should be evaluated and the penalty should be applied by exceeding the lower limit; to establish a written judgment with an inadequate and inappropriate justification, the vehicle that the defendants looted from the victims was found parked in the …. district by the law enforcement officers, and the credit cards were found in a discarded state and returned to the victim without voluntary return, and 120. -TL money was paid by the defendants during the prosecution phase, since there is a partial return situation, the reduction of the sentence with Article 168/3-2 of the same law without asking for the consent of the victim in accordance with Article 168/4 of the Turkish Criminal Code No. 5237 has not been made a reason for reversal since there is no counter-appeal and the violation of Article 61 of the same law by applying Article 168/3 of the Turkish Criminal Code No. 5237 before Article 31/3 is not effective on the final sentence.
According to the contents of the file and the minutes of the hearing, the reversal complied with, the favorable evidence gathered and examined and discussed at the decision, the reasoning and the appreciation of the Board of Judges, the objections of the defense of the defendants … and … were not deemed appropriate, and therefore, the judgment, which is in accordance with the procedure and the law except for the criticism, is APPROVED in accordance with the notification,
III- In the examination of the verdict against the defendant … for the offense of plunder:
The crime of plunder was committed by more than one person together and at night in violation of subparagraphs (c) and (h) of paragraph 1, paragraph 1 of Article 149 of the Turkish Criminal Code No. 5237, for this reason, while determining the basic penalty in accordance with Article 61 of the same Law, these should be evaluated and the penalty should be applied by exceeding the lower limit, but to establish a written judgment with an inadequate and inappropriate justification; the vehicle that the defendants looted from the victims was found parked in the …. . and the credit cards were found parked in the district of and the credit cards were thrown away and returned to the victim without a consensual return, and the 120.-TL money was paid by the defendants during the prosecution phase, since there is a partial return situation, the reduction of the sentence with Article 168/3-2 of the same Law without asking for the consent of the victim in accordance with Article 168/4 of the TPC No. 5237 has not been made a reason for reversal since there is no counter-appeal.
According to the contents of the file, the legally valid and favorable evidence collected and examined and discussed at the decision, the reversal complied with, the reasoning and the discretion of the Board of Judges; Since there is no violation of the procedure and law in the acceptance and characterization of the crime committed by the defendant, other appellate objections have not been deemed relevant.
However;
Although it was decided to deprive the defendant from using the rights written in Article 53/1-a-b-c-d-e of the TCC until the execution of the prison sentences is completed; however, if he is released conditionally in accordance with Article 53/3 of the TCC, it was decided to terminate the deprivation of using the rights listed in Article 53/1-c of the TCC on his descendants; 24. 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,
Conclusion: Since it required to be reversed and the appellate objections of the defendant … defense were deemed appropriate in this respect, the verdict will be reversed for the reason 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” was removed from the paragraph of the verdict and replaced with the following sentence 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 on “the application of Article 53 of the TCC” was removed from the paragraph of the verdict and replaced with “As a legal consequence of the defendant’s conviction with imprisonment for the crime he committed intentionally, in terms of the application of Article 53/1 of the TCC, (a, a, b, c, d). In terms of the application of Article 53/1 of the TPC, the defendant shall be deprived of the right to vote, to be elected and to exercise other political rights written in subparagraphs (a, c, d and e) and paragraph (b); in terms of the application of Article 53/2 of the same Law, the defendant shall be deprived of the right to vote, to be elected and to exercise other political rights written in subparagraphs (a, c, d and e) and paragraph (b) of Article 53/1 and paragraph 3 of the same Article. paragraph 3 of the same article, to be deprived of exercising the powers of custody, guardianship and trusteeship over his/her own descendants written in subparagraph (c) until his/her conditional release from the prison sentence he/she was sentenced to”, and the verdict, which is in accordance with the procedure and the law in other aspects except for the criticism, was approved with corrections, unanimously, on 29.06.2016.
You can access our other article examples and petition examples by clicking here.