Criminal Chamber
Base Number: 2020/10625
Decision Number: 2020/18808
“Justice Text”
COURT: Criminal Court of First Instance
CRIME: Insult
JURISDICTION: Conviction
DECISION
The judgment rendered by the Local Court was appealed, and the file was discussed according to the duration of the application, the nature of the decision and the date of the crime:
Since there were no grounds for refusal of the appeal, the matter was passed on.
In the examination made according to the minutes, documents and justification content reflecting the trial process in which the conscientious opinion was formed; Other reasons were not seen in situ.
However;
In the event where the accused insulted the intern lawyer who went to the foreclosure together with the bailiff, the issue of whether the attendant fulfills the aforementioned conditions, considering that the attendee will be considered a public official while performing the works listed in Article 26 of the Law No. Deciding to punish the accused in accordance with Article 125/3-a of the Turkish Penal Code with an incomplete prosecution without being investigated from the bar association records,
According to the acceptance;
The Simple Trial Procedure was regulated in Article 24 of the Law No. 7188 of 17/10/2019 and Article 251 of the Criminal Procedure Law No. 5271.
However, with regard to the implementation of this regulation, with Article 31 of the Law No. 7188, with the subparagraph (d) of the temporary article 5, which was added to the Criminal Procedure Law No. 5271; The provision “As of 01/01/2020, the rapid trial procedure and the simple trial procedure shall not be applied in the cases where the prosecution phase has been passed, has been adjudicated or has been finalized”.
Examining the issue through concrete norm control, the Constitutional Court decided to annul the provision in the aforementioned provisional article 5/d, considering it contrary to Article 38 of the Constitution in terms of “simple trial procedure”, where the phrase “prosecution phase has begun” is included in the same paragraph.
Although the Constitutional Court’s decision did not decide to annul the files that were adjudicated, the prosecution phase continued until the finalization regarding the files that were adjudicated by Article 2/1-(f) of the Law No. 5271, and Article 251/3 of the same Law. If a sentence of conviction is given pursuant to the article, a reduction of one quarter from the final sentence is foreseen, and this situation brings a favorable regulation in terms of the files whose appeal examination is ongoing,
In the annulment decision of the Constitutional Court; Since it is pointed out that the new regulation brought in favor of the accused should be applied in terms of files that have passed the “prosecution phase” with the provisional article 5 added to the Criminal Procedure Law No. 5271 in accordance with Article 31 of the Law No. 7188, the Criminal Procedure Law No. In terms of the crimes covered by the article; Article 38 of the Constitution and Turkish Penal Code No. 5237 7 and Criminal Procedure Law No. 5271 251 et al. obligation to re-evaluate in accordance with the
It was unanimously decided on 08/12/2020 that the judgment be quashed, in accordance with the communiqué, and that the case be sent to the main/sentencing court to be continued and concluded, starting from the stage before the reversal of the proceedings.
