Supreme Court of the Republic of Turkey
6. Criminal Chamber
Basis: 2013/28250
Decision: 2016/5651
Decision Date: 29.06.2016
THE CRIME OF BIASING CONFIDENCE DUE TO THE SERVICE – Failing to consider that the tort constituting a crime should be evaluated within the scope of TPC ARTICLE 150, numbered 5237
SUMMARY: It is not observed that the wrongful act of the accused, who is dealing with real estate, who has no negativity reflected in his criminal record, acting together with his close friend, the other accused, who is to be taken from the victim on the day of the incident, should be evaluated within the scope of the article of the Turkish Penal Code No. 5237. is the reason for the breakdown.
Case and Decision: By appealing the judgment given by the Local Court; The file was discussed according to the nature of the application, the type of punishment, its duration and the date of the crime:
I) Deprivation of liberty regarding the accused … and …; As for the examination of the appeals against the provisions established on the offenses of breach of trust due to service;
According to the content of the file and the minutes of the hearing, the legally valid and suitable evidence gathered and discussed at the place of decision, the reason and the discretion of the Board of Judges; Since there was no procedural and illegality in accepting and characterizing that the crimes were committed by the accused, the other appeal objections were not deemed appropriate.
However;
Until the execution of their prison sentences, the defendants are deprived of exercising the rights written in Article 53/1-a-b-c-d-e of the Turkish Penal Code, however, the Turkish Penal Code 53/3. Even though it has been decided to end their deprivation of exercising the rights listed in paragraph 53/1-c of the Turkish Penal Code on their descendants, if they are 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 regarding the implementation of Article 53 of the Turkish Penal Code was removed from the sentence, instead of it, “As a legal consequence of the defendants’ imprisonment for the crime they have 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, custody, guardianship and custody over their descendants as written in subparagraph (c). Not being able to use their trusteeship powers until they are released on probation from the prison sentence they are convicted of, by writing the sentence, the other aspects of which are found to be in accordance with the procedure and law, to be corrected and APPROVED,
II) As for the examination of the appeals against the accused against the provisions established for the crime of plundering;
Other appeals were not seen on the spot.
However;
Failing to consider that the wrongful act of the accused, who is dealing with real estate and has no negativity reflected in his criminal record, acted together with his close friend, the other accused, that he will receive from the victim on the day of the incident, and that the wrongful act constituting a crime should be evaluated within the scope of article 150/1 of the Turkish Penal Code No. 5237. ,
Conclusion: It was unanimously decided on 29.06.2016 that the verdict was quashed contrary to the request for the reason explained, since the appeal objections of the defendant’s defense were deemed appropriate in this regard.
