T.R. SUPREME COURT
7. Criminal Chamber
Basis: 2016/10041
Decision: 2016/9083
Decision Date: 30.06.2016
CRIME OF USE OF CONFIDENCE BY SERVICE – NO POSITIVE OR NEGATIVE DECISION IS MADE ABOUT THE ISSUE – THE PROVISION SHOULD BE OVERFINED
SUMMARY: Pursuant to Article . of the TPC, the deprivation of rights written in sub-clause (c) of paragraph . without considering the necessity of deprivation of these rights and authorities until the execution of the sentence is completed, the establishment of a verdict on the contrary, the absence of a positive or negative decision about the subject matter of the case, necessitated annulment.
Litigation: By appealing the judgment rendered by the local court; 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;
In the examination made according to the appeal of the defendant’s counsel;
Since the additional decision of the court on the rejection of the appeal request, dated 18/02/2016 and numbered 2014/238 Main 2016/31 Decision, was found in accordance with the procedure and the law, the defendant’s defense counsel’s objections were rejected and the judgment was APPROVED as a request,
In the examination made considering that the appeal of the participating administration’s deputy was against the judgment given within the scope of Law No. 5607;
1- On 16/10/2014, to the transport vehicle under the administration of the accused, sealed and with a marker in Mersin province, 19.824 liters of fuel oil from Petrolcülük A.Ş. to be delivered to Muş province, on 17/10/2014 at 02:00 in Baykan district, to the transport vehicle. As a result of the intervention and determinations of firefighters and law enforcement officers, 3 of the caps on the top of the tanker are unsealed and two of them are sealed, 2060 liters of fuel were seized in the tanker without a marker and contrary to technical regulations according to the PAL report, the defendant could not explain the 86-minute delay in his route and the situation regarding the fuel. As it is understood that the fuel was smuggled into the country, it is stated in the 3/11-last article of the Law no. 5607 amended with the 89th article of the Law no. 6545 that was in force on the date of the crime: the penalty shall be imposed pursuant to its provision.” Taking into account the decision of the superior, a written judgment is made about the accused in accordance with the 3/5 and 3/10 articles of the Law No. 5607 with reference to the 3/11-last sentence,
2- The defendant, who does not have any obstacle to the suspension of the announcement of the verdict regulated in Article 231 of the CMK, in terms of objective conditions, who requested the adjournment of the announcement of the verdict in his defense taken at the court of instruction, and who was not aware of the public loss because there was no KEMT document attached to the instruction, Declaring that the amount, which is the sum of customs duties and other taxes with equivalent effect and financial burdens, is a public loss, and depending on the result, a decision should be made by considering paragraph 231/9 of the Criminal Procedure Code, but it is decided that there is no reason to postpone the announcement of the verdict on the grounds that the public loss has not been remedied,
Due to the cancellation of some parts of Article 53 of the Turkish Penal Code No. 5237 with the cancellation decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 and numbered 2015/85, which was published in the Official Gazette dated 3-24.11.2015 and numbered 29542, there is an obligation to re-evaluate the aforementioned article,
Pursuant to the third paragraph of the 53rd article of the Turkish Penal Code, the deprivation of rights written in the paragraph (c) of the paragraph . Making a written sentence without considering that it is necessary to deprive people of these rights and powers until the execution of the sentence is completed,
4-Failure to make a positive or negative decision about the subject matter of the lawsuit,
Since the appeal objections of the representative of the participating … administration, which are contrary to the law, were deemed appropriate in this respect, the provision was made in Article 8/1 of the Law No. 5320. It was unanimously decided on 30.06.2016 that it should be overturned in accordance with Article 321 of the Criminal Procedure Law No. 1412 in force.
