Supreme Court of the Republic of Turkey
6.Criminal Department
Main: 2016/3945
Decision: 2016/5659
Date of Decision: 29.06.2016
PLUNDER CRIME – FAILURE TO REACH A VERDICT OF CONVICTION FOR LOOTING AND MEMBERSHIP IN A CRIMINAL ORGANIZATION ON THE GROUNDS THAT IT IS NOT APPROPRIATE AND SUFFICIENT – VIOLATION OF THE PROVISION
SUMMARY: The defendant …’s conviction for looting and membership of a criminal organization on the ground and on the basis of insufficient grounds otherwise required overturning the decision without discussing and showing the decision on the spot in a way that would allow the defendant to directly or indirectly participate in the looting action to be audited.
Case and Decision: The verdict given by the Local Court was also appealed by the defendant … and his defense on a trial basis; although the defendant and his defense were duly notified of the day of the trial, they did not come to the hearing and did not report an excuse, the file was discussed according to the nature, type of punishment, duration and date of the crime of the application at the end of the examination conducted without a hearing from the named defendant.
Member …’s Law No. 6526 added to the Anti-Terrorism Law 14/4.the last sentence of the article contradicts the Constitution of the Republic of Turkey and the international treaties, and therefore appeals to the Constitutional Court for cancellation; the Member …’s opinion that the examination of the provision given in accordance with the principle of equality and the right to a fair trial in accordance with the article contradicts the international treaties adopted by our country is completely overturned by the majority of the opinions rejected in the examination;
I – to form an organization for the purpose of committing a crime the defendant, the defendants …, …, …, … and … about an organization, membership in the defendant’s crimes imprisonment for aiding a criminal organization with the provisions of the law about the criminal organization help and the public prosecutor of the defendants 6136 12/1.violation of Article 12/1 of the Law No. 6136 on defendants.violation of the article; 12/1 of the Law No. 6136 on the accused …in the examination of appeals requests for acquittal provisions established for violation of the article, abuse of office, attempt to influence the judicial official, failure of a public official to report a crime, conceal, destroy evidence of a crime, benefit for work that he is not authorized to do, and mediation in prostitution;
About them the conviction of the accused,…, …, …, …, …, … and … related to the Turkish Penal Code of 53/1-d written in the article, “voting, election and other political rights, the use of the phrase” published in the official gazette dated 24.11.2015 on the cancellation of the Constitutional Court into force on the same date 08.10.2015 day 2014/140-2015/85 the basis of the observance of the decision and the decision has been observed during the execution phase it is possible.
The minutes of hearings on the content of the file and, together with the favorable decision discussed by examining the evidence, motive, and at the discretion of the board of Judges, the defendants …, …, …, …, … and …, … savunman because it is unprecedented over the objections of the defendant with the public prosecutor to appeal the rejection, criticism, and other aspects outside of the provisions approved in accordance with the law on procedures for,
II – about the defendant participating and suffering … ’a separate looting, fraud defendants with crimes…,…, …, … …complaining about a’don’t you dare to fall for the defendants,…,…,…, … about …join’imprisonment for crimes, the public prosecutor or the defendant with participating loot the provision about …’or the provisions of loot and membership in the organization established an acquittal for the examination of Appeals for claims of crimes when it comes to:
Other appeals were not considered on the spot.
But,
1- The Indictment (2.) in the action specified as the event;
7,000 that the father of the complainant, the defendant, and the uncle of the accused withdrew from the bank before the date of the incident.-TL 3.150, which he vouches for the loan, but the defendant complains about this debt after the loan has not been paid during this period.-TL claims given the deed, this stock also enraged enforcement proceedings as a result of failure to pay on time the defendant …’s on 05.05.2008 yakinani in order to solve this conflict by threatening the defendants …, …, … and …’le yakinani workplace increasingly forced into the van together with the threat of weapons and take out to a restaurant on site yakinani, captured by the security forces here in the order they spoke defendants …, …, …, …, … about, “Don’t leave devoid of liberty” and a “threat” to the Criminal Court on crimes and public Tuzla 27.05.2008 opened the case by the same court dated 26/05/2009 the outcome of the trial day, 2008/1176-2009/564 the basis of the decision and by the decision of the defendants was acquitted, and this crime as a result of failure to appeal against the decision was finalized with the understanding that in the face of,
As mentioned in the decision No. 2012/2-1518 and No. 2013/154 of the General Assembly of the Criminal Court of the Supreme Court dated 09.07.2013,
In order to conduct criminal procedure, a number of “sine qua non” (sine qua non) conditions are required. One of these conditions that prevents reasoning is that there is no judgment or lawsuit filed, which is expressed as “Non bis in idem”.
The principle of “Non bis in idem”, which is also accepted in the doctrine and is one of the main principles of the law of reasoning, which is applied as a legal norm that lives without being clearly written in the laws, is 253 of the Code of Criminal Procedure No. 1412. in the third paragraph of the article; “If there is a provision on the same issue that was previously issued for the same defendant or a lawsuit has been filed, the case is decided to be dismissed”, Criminal Procedure Code No. 5271, which entered into force on 01.06.2005, entitled “Termination of the hearing and provision” 223. in the seventh paragraph of the article,; ”Due to the same act, a decision is made to dismiss the case if there is a provision made in advance for the same defendant or a lawsuit has been filed,” it is regulated. As can be understood from these regulations, due to the same act, if there is a provision that has already been made about the same defendant or a lawsuit has been filed, the case will be decided to be dismissed.
In the light of these explanations,
The Criminal Procedure Code of the public case filed against the defendants mentioned in our concrete case due to the actions taken on the same date against the same complainant is 223/7. in accordance with the article, it is necessary to decide on the refusal, while continuing the trial on the grounds of a change in the nature of the crime, to decide on the conviction of the defendants in written form,
2-forensic laboratory examination on the birth certificate and passport fraud as a result of the appraisal report dated 29.06.2010 by organized crime in the subject of the photo identification card, and passport in the same place before and after removing of photos currently available, specifying that they are glued in the face of;
As detailed in the decisions of the Criminal General Assembly dated 14.10.2003 and numbered 232-250, dated 09.10.2012 dated 2011/8-335 and numbered 2012/1804, the objective nature of the document should be found to be deceptive and the arbitrariness of deception should be objectively understood from the document. In order for the crime of forgery to occur in the document, the document that has been edited or modified or used must be misleading the person that it is real. The property of deception is the main element of this crime, and a document that cannot be understood to be real unless it is subjected to a special examination should be considered a fake document. It is necessary to determine whether the forgery is of an objective nature to deceive people and whether it is understandable at first glance, so that there is no room for doubt. Whether you are capable of deception crimes of forgery in documents appreciated, and determination belongs to the judge and the subject of a crime and false birth certificate and your passport that is considered to be, by the evaluation of the properties written into the minutes of the hearing ability of justification-what these deception-deception on the nature of the decision that is having discussed the subject of the document is explained in a way that allows you to control crime in the file kept in the original copy of the review is the outcome of the decision in writing without missing,
3- The indictment (1.) in the action referred to as the incident, 2 24,000 from the defendants … and from the participant … engaged in the trade of white goods due to the need for cash before the date of the incident.-40,000 in exchange for a check for TL.-With the fear that the participant who wants to collect the checks will receive TL cash money when the due date comes, the defendants … and … will be subject to enforcement proceedings on the failure of their efforts, the defendant who is not a party to the receivable-debt relationship … seeks help from the defendant who is not a party to these checks, these considerations are clearly understood in the interview records reflected in the tapes, first of all, the accused and the accused go to the place of work of the participant and have conversations about the debt, where the accused introduces himself as a government official and tries to intimidate, however, according to the phone records of the defendant … who insisted on receiving the checks during the ongoing process, the defendant … tried to get the checks back by using the name and power of the defendant … 14-15,000 who joined the workplace for the second time with two people whose identity could not be fully identified, as well as those who joined with a gun threat.-In a concrete incident where he left the scene by forcibly taking his checks with TL cash money,
a) The defendant …’s conviction for looting and membership of a criminal organization in writing on an on-site and insufficient grounds without discussing and showing the decision on the spot in such a way as to allow the evidence of direct or indirect participation in the act of looting directed at the participant to be audited,
b) joining the diagnostic report dated 29.06.2010 held live after the operation based on the content of one of the defendants, …click “event on the date of coming to work in conjunction with instruction in hand with the defendant and his walkie-as a person who was in the doorway” to identify, despite Hearing dated 04.02.2011, “the party likened to standing in front of door”, dated 24.11.2011 at the hearing, he can’t remember exactly, but can identify the employee in the workplace” to declare in the face; due to the fact that the named one is the only witness of the incident, his statements about the merits have not been determined, he has been satisfied with the incomplete investigation, and the defendant has been acquitted of looting and membership of a criminal organization due to his actions against the participant in the trial in a written manner,
c) Regarding the cash and checks allegedly looted from participating …, the defendant … stated at the hearings dated 01.08.2012 and the continuation of his defense, “the law No. 5237, which is in their favor after the full determination of the damage caused, is 168.in accordance with the article ”Recognition of the possibility of its implementation”, it is necessary to make a decision in writing in continuation of the trial, without taking into account that the victim’s statement in this direction or providing the opportunity to meet it by personally determining the court and giving a reasonable period of time,
4- according to the content of violation No. (3) of Law No. 5237 on the accused … 39.leaving the decision on whether to implement the article unchallenged at the place of application,
To break it done until now, defendants …, …, …, …, …, …, … the objections of the public prosecutor and the defendant savunman appeal in this regard is seen because of the reasons explained in the provision CORRUPTION in the history of 29.06.2016 (1), (3-C), (4) the causes of destruction in terms of the numbered dear member …’s despite opposition by majority of votes, it was decided.
VOTE AGAINST
At the end of the procedure of the public case opened against the defendants, the victim …, I did not see any inconsistency in the provision established by the Court and found the application correct, with the idea of overturning (1) No. 1 for this provision;
In the face of the occurrence, file content and available evidence, I do not agree with the thoughts of the high majority of (3-c) and (4) corruptions.
VOTE AGAINST
105/6 of the Law No. 6352 on Amending Some Laws in Order to Activate Judicial Services and Postponing Cases and Penalties Related to Crimes Committed Through Press Release. article 2/4 of the same Law; however, it is temporarily repealed by Article 2/4 of the same Law. in accordance with article 250/1 of the CMK, which is charged with caring for cases filed in these courts until they are concluded with a final verdict, repealed by Article 250 of the CMK. according to article 1 of the Law on Amendments to Certain Laws of the courts, the Anti-Terrorism Law No. 6526 and the Code of Criminal Procedure of March 6, 2014, which was published in the Official Gazette No. 28933 and entered into force on March 6, 2526. provisional article 14/1, which was added to the Anti-Terrorism Law No. 3713. although it has been abolished in accordance with Article 4 of the said article. according to the paragraph, “The examination of the files issued by these courts and found in the Public Prosecutor’s Office of the Supreme Court or in the apartments of the Supreme Court is continued.” provision was put on. According to the position of the Republic of Turkey,; terror, including the fight against organised crime; the special authority courts legislator lifting; lifting does not carry drawbacks revealed in the reason; in accordance with the rules of universal law; the boundaries of the powers and duties are well drawn; well established infrastructure; I’m having faith that there is a need to the specialised courts.
Although this is my opinion, my opposition relates to the point that when these courts are being abolished, the inclusion of a provision as described above that distinguishes between defendants whose file has not yet been completed and defendants whose file has been decisively sent to the Supreme Court does not coincide with and contradicts the reasons for the abolition.
Because;
article 2 / f of Law No. 5271 “prosecution: the phase beginning with the adoption of the indictment and ending with the finalization of the verdict” is defined as, according to this definition, the files at the appeal stage are the derdest files that continue the prosecution. Against this definition, I think that separating files that have not yet been completed by the prosecution process; those that have not been decided by special competent courts from being sent to general (normal) criminal courts; and those at the appeal stage by editing to be examined by the Supreme Court is not the right way to solve. As I will explain the reasons below, despite the provision of this Law; in the files found in the Supreme Court, just like in the undecided files; I am of the opinion that only a general violation of the law was made on the grounds that these courts were abolished without any examination, and they were returned to the scene and their reasoning was carried out in the general (normal) courts. November December 10, 1948 – The Universal Declaration of Human Rights and the European Convention on Human Rights of November 4, 1950 – the contrary solution, that is, compliance with the principle that these files will be examined by entering into the basis of the Universal Declaration of Human Rights of December 1948 and the European Convention on Human Rights of November 4, 1950.
That is to say;
1-specially authorized courts “the right to a fair trial” and “heavy penal Courts” has been removed in order to end the distinction between, and this was stated in the aforementioned article also said general and of the law; thus, all are subject to the rules of procedure Criminal Court, which is required for ensuring that the right to a fair trial by the Special Investigation and prosecution procedures it is intended to last. In line with this purpose, it is arranged that the examination of the files located in the Public Prosecutor’s Office of the Supreme Court and the Supreme Court’s offices will be continued; Article 10 of the Universal Declaration of Human Rights. and Article 6 of the European Convention on Human Rights. it does not comply with its articles.
Indeed, the legislator himself, specially authorized courts is removed in order to provide the right to a fair trial, the law has set in the grounds of this regular criminal court according to the court, although he admits that even more precarious; the decisions of these courts, established by the provisions of the Criminal Court, such as it intends to examine normal; creates a result that is inconsistent with the purpose and rationale of removal.
2- The courts must act in accordance with the principle of equality in all their proceedings. the methods of collecting evidence have been changed by Law No. 6526; previously, CMK’s 250. in the investigations and prosecutions remaining within the scope of the article, restrictive provisions regarding suspects and defendants have been removed and equality of legal security and trial has been ensured. However, as a result of the abolition of Specially Authorized Courts, defendants of cases that are not decided by these courts and sent to other serious criminal courts with; to make a difference by distinguishing between the defendants of the files whose decisions are under appeal review in the Supreme Court; dec. 7 of the Universal Declaration of Human Rights. article 14 of the European Convention on Human Rights, which stipulates that everyone shall enjoy the rights and freedoms set forth in the convention without discrimination, with the principle of equality provided for in Article 14. according to the article and from the point of view of our domestic law, our Constitution is entitled “Equality before the law” 10; “Freedom to Seek Rights” 36; “Assurance of a Legal Judge” 37; “Decriminalization and Penalties” 38. it creates a contradiction to its substances.
As seen;
The said Legal regulation, as such, is contrary to our Constitution and conflicts with the international treaties to which we are a party and which have been duly put into effect.
Now, the problem here is whether we can exceed the said provision of the Law, which constitutes a violation of our Constitution and the international treaties that we have explained above; if we can exceed it, how can we do it.
In fact, this issue, while a problem, is part of Article 90/5 of our Constitution. with the amendment of the article to the Law dated 07.05.2014 and numbered 5170, the provisions of the international treaty were recognized as superior and resolved from the ground up, and there is no discussion left for this day.
That is to say;
90/5 of our Constitution. in accordance with the article; It has been duly entered into force with the provision of a law, and in the event of a conflict of treaty rule governing fundamental rights and freedoms, it has been agreed that the provisions of the treaty will be applied.
Based on this provision, if we evaluate our concrete case, Law No. 6526 1. provisional article 14, which was added to the Anti-Terrorism Law. article 4. it is clear that the last sentence of the paragraph contradicts the Constitution of the Republic of Turkey and the international treaties adopted by our country, and the Universal Declaration of Human Rights and the European Convention on Human Rights are resolved by giving superiority to the provisions described above, and the provisions issued by special competent courts; in accordance with the principle of equality before the law and the right to a fair trial, without examining other aspects, it must be completely overturned in general (normal) criminal courts; their reasoning must be conducted and, as a result, overturned in order to establish a verdict. Acceptance of a different opinion; it will lead to consequences that contradict the law-maker’s justification and purpose of abolishing these courts, as well as contradict the basic values of the law, which can be collected under the headings of justice, locality and legal security, I believe.
For these reasons, I do not agree with the high majority’s opinion on the merits and the decision made based on this opinion in the file in question.
NEGATIVE VOTE
105/6 of the Law No. 6352 on the Amendment of Certain Laws for the Efficiency of Judicial Services and the Postponement of Lawsuits and Penalties for Crimes Committed through the Media, published in the Official Gazette dated 5.7.2012. repealed by the article; however, provisional 2/4 of the same Law. 250/1 of the CMK, which is assigned to try the lawsuits filed in these courts until they are finalized with a final decision, pursuant to the article. Courts assigned according to the article; Provisional Article 14/1 was added to the Anti-Terror Law No. 3713 with Article 1 of the Law No. 6526 on the Anti-Terrorism Law and the Law on Criminal Procedure and some Laws, which entered into force after being published in the Official Gazette no. 28933, dated 6 March 2014. Although it has been removed in accordance with the article; In the 4th paragraph of the aforementioned article, “The files given by these courts and in the Office of the Chief Public Prosecutor of the Court of Cassation or in the chambers of the Court of Cassation continue to be examined.” provision has been made. This provision is contrary to the Constitution of the Republic of Turkey and the European Convention on Human Rights.
Namely;
1- Specially authorized courts were abolished in order to ensure the “Right to a Fair Trial” and “Judicial Union”. This issue was stated in the general justification of the aforementioned Law and in the justification of the aforementioned article; it is aimed to put an end to the special investigation and prosecution procedures necessary for the right to a fair trial, by aiming that all heavy penal courts be subject to the same procedural rules.
However, in the last sentence of the 4th paragraph of the temporary article 14 added to the Anti-Terror Law with the Law No. 6526, the distinction between special and general courts is maintained; 10 of the Constitution of the Republic of Turkey titled “Equality before the law”; 36 titled “Freedom to seek rights”; Article 37 titled “Guarantee of a legal judge” and Article 38 titled “Principles on Crimes and Punishments” and Article 6 of the European Convention on Human Rights regarding the right to a fair trial have been made and the principle of judicial unity has been violated.
2- Courts must act in accordance with the principle of “equality before the law” in Article 10 of the Constitution in all their proceedings. Evidence collection methods have changed with the Law No. 6526; judicial law has been made lawful and reliable. Previously, in investigations and prosecutions within the scope of Article 250 of the CMK, the existing restrictive provisions regarding suspects and defendants were abolished, and legal security rights and equality of trial were ensured.
3- Likewise, this sentence is included in Article 36 of the Constitution, “Everyone has the right to a fair trial with the right to claim and defend as plaintiff or defendant before the judicial authorities with the freedom to seek rights”; It also violates the provisions of Article 37, “No one can be brought before an authority other than the court to which they are legally subject”, and Article 38, “Findings obtained in violation of the law cannot be accepted as evidence”.
4- One of the basic rules of contemporary constitutions is the rule that the legislator will not engage in futility. The legislator has accepted that these courts are more precarious than normal heavy penal courts, by abolishing the courts in charge with Article 250 of the CMK.
5-Creating a difference between the defendants of the cases sent to other heavy penal courts by abolishing the competent courts under Article 250 of the CMK and the defendants of the files whose decisions are subject to appeal at the Court of Cassation also violated the principle of equality written in Article 10 of the Constitution.
6- Pursuant to the rule, which is included in the 90/last article of the Constitution, “In case of conflicts that may arise due to the fact that international agreements on fundamental rights and freedoms that have been duly put into effect and laws contain different provisions on the same subject, the provisions of international agreements shall be taken as basis”; The regulation should be annulled as it is contrary to Article 6 of the ECHR on the right to a fair trial.
In summary, since the last sentence of the 4th paragraph of the temporary article 14 added to the Anti-Terror Law with the 1st article of the Law No. 5526 is contrary to the Constitution of the Republic of Turkey and the international agreements accepted by our country, the application to the Constitutional Court in accordance with the article 152 and the appeal will be made. withdrawal of the review,
