T.R. SUPREME COURT
7. Criminal Chamber
Basis: 2014/28897
Decision: 2016/8781
Decision Date: 23.06.2016
THE CRIME OF OBJECTING THE LAW NUMBER 4733 – WHICH SHOULD BE CONSIDERED TO CONSIDER THE CONFIDENTIAL CONFIDENTIALITY OF THE CRIME, IT WAS NOT JUDGED TO BE LIQUIDED BY DESTRUCTION – APPROVED BY CORRECTION
SUMMARY: In the judgment established on the accused who was charged with the crime of violating the law numbered 4733, it was decided to confiscate the smuggled and non-bandrole cigarettes, which were the subject of the crime, while the decision to liquidate them by destruction necessitated reversal, but the judgment was decided to be corrected and approved.
Litigation and Decision: The judgment rendered by the local court is appealed; After the file was read according to the nature of the application, the type of punishment, its duration and the date of the crime, the necessity was discussed and considered on behalf of the Turkish Nation;
I- In the examination of the appeal of the representative of the Customs Administration involved;
The appeal review request of the participating Customs Administration representative, who did not appeal the provision within the legal period, is subject to Article 8/1 of the Law No. 5320. its rejection pursuant to Article 317 of the Criminal Procedure Code No. 1412, which is in force in accordance with Article
II- In the examination made according to the defendant’s appeal;
1- With the annulment decision of the Constitutional Court dated 08/10/2015 and basis 2014/140 and numbered 2015/85, which was published in the Official Gazette dated 24/11/2015 and numbered 29542, some parts of the 53rd article of the Turkish Penal Code numbered 5237. There is an obligation to re-evaluate the aforementioned article due to its cancellation,
Pursuant to paragraph 3 of Article 53 of the Turkish Penal Code No. 5237, the deprivation of rights written in sub-paragraph (c) of paragraph 1 of the aforementioned article for the accused, whose sentence of imprisonment is not short-term, should be applied only in terms of custody, guardianship or trusteeship powers over his/her descendants. a written verdict, without considering that it is necessary to deprive people of these rights and powers until the execution of the sentence is completed,
2- Confiscation of smuggled and non-bandrole cigarettes, which are the subject of the crime, should be contented with the confiscation of cigarettes pursuant to Article 54 of the Turkish Penal Code No. 5237, and it should be decided that they are also disposed of by destruction,
Conclusion: Since the objections of the accused are unlawful and the defendant’s objections are deemed appropriate for these reasons and these issues do not require a retrial, in accordance with Article 322 of the Criminal Procedure Code No. 1412, which is in force pursuant to Article 8/1 of the Law No.
1- Removal of the section regarding the implementation of Article 53 of the Turkish Penal Code No. 5237, instead of the Constitutional Court published in the Official Gazette dated 24/11/2015 and numbered 29542, dated 08/10/2015 and 2014/140 E. , 2015/85 K. Taking into account the annulled issues in the decision no.
2- Paragraph 2 regarding the disposal of the cigarettes subject to the lawsuit was removed and replaced by the subparagraph “2- Confiscation of smuggled and non-bandrole cigarettes subject to the lawsuit pursuant to Article 54/1 of the Turkish Penal Code”, and the provision was revised and approved, leaving the other parts unchanged, 23.06 It was decided unanimously on .2016.
