Supreme Court of the Republic of Turkey
6. Criminal Chamber
Basis: 2015/1208
Decision: 2016/5621
Decision Date: 29.06.2016
LOADING CRIME – AT THE EVENT DEVELOPING IN THE EVENT WHERE THE DEFENDANT TRIED TO HIT THE CLIENT BY WAITING THE KNIFE WHILE HOLDING THE CLIENT, AND THE CLAIM ESCAPE TO Escape, THE ACT OF THE DEFENDANT WAS ATTEMPTED TO LOOK
SUMMARY: In the incident that developed in the form of the accused, who was charged with looting, he tried to hit the complainant by swinging the knife he took out of his waist, but the complainant escaped; Without considering that the acts of the accused as a whole constitute the crime of attempted looting, making a mistake in the qualification of the crime necessitated reversal. It was decided to overturn the judgment.
Case and Decision: By appealing the judgment given by the Local Court; With the decision of non-jurisdiction dated 06.04.2015 of the 17th Criminal Chamber of the Supreme Court of Appeals, the file was discussed according to the nature of the application, the type of punishment, the duration and the date of the crime:
I- In the examination of the appeal objections against the verdict established for insulting the accused;
According to the content of the file and the minutes of the hearing, the legally valid and suitable evidence collected and discussed at the place of decision, the justification and the discretion of the Board of Judges; Since there is no procedural and illegality in accepting and characterizing that the crime was committed by the accused, other appeal objections were not deemed appropriate.
However;
Until the execution of the prison sentence is completed, the accused is deprived of exercising the rights written in Article 53/1-a-b-c-d-e of the Turkish Penal Code; however, Turkish Penal Code 53/3. Even though it has been decided to end his deprivation of exercising the rights listed in paragraph 53/1-c of the Turkish Penal Code on his descendants, if he is released on probation pursuant to the article; Published in the Official Gazette dated 24.11.2015 and entered into force on the same date, with the decision of the Constitutional Court, dated 08.10.2015, numbered 2014/140- 2015/85 Principle and Decision, written in Article 53/1-b of the Turkish Penal Code, “election, election and the phrase “using other political rights” has been cancelled,
8/1 of the Law No. 5320. Based on the authority given by Article 322 of the Criminal Procedure Code No. 1412, the section on the implementation of the 53rd article of the Turkish Penal Code was removed from the sentence, instead of it, “As a legal consequence of the defendant’s conviction with a prison sentence for the crime he has committed intentionally, the Turkish Penal Code 53/1. to be deprived of exercising the right to elect, be elected and other political rights written in subparagraphs (a, c, d and e) and subparagraph (b); 53/2 of the same Law. In terms of the application of Article 53/1, subparagraphs (a, c, d and e) and voting and other political rights written in subparagraph (b), and in accordance with paragraph 3 of the same article, the custody, guardianship over their descendants written in subparagraph (c) and not being able to use his powers of trusteeship until he is released on probation from the prison sentence he was sentenced to”, and the sentence, whose other aspects are found to be in accordance with the procedure and law, is corrected and approved,
II- As for the examination of the appeals against the verdict established for the crime of intentionally attempting to injure the accused with a weapon;
According to the occurrence and scope of the file; On the day of the incident, when the complainant was waiting in front of Ziraat Bank, which is on the connection road with the witness …, the accused came to the side of the accused, took his arm and said to the complainant, “You will give me 100-TL” and said that the complainant did not have any money, the accused said, “You will give money, if you do not give it, I will burn your house, I will kill, no one can do anything to me, they will call me … …,” he threatened the complainant, after the complainant got scared and shouted “police”, the accused tried to hit the complainant by waving the knife he took from his waist, but the complainant escaped; Without considering that the acts of the accused as a whole constitute the crime of attempted looting regulated in Articles 149/1-a, 35 of the Turkish Penal Code, mistakenly making a written judgment in the classification of the crime,
Result: It required overturning, since the appeal objections of the defendant’s defense were deemed appropriate in this respect, the verdict was reversed contrary to the request due to the explained reason, the protection of the acquired right pursuant to the 326/last article of the Criminal Procedure Law No. 1412, by sending Article 8/1 of the Law No. 5320, 29.06.2016 It was unanimously decided on.
