Supreme Court of the Republic of Turkey
4. Criminal Chamber
2020/1991
“Justice Text”
106/1, 43/2 and 62/1 of the Turkish Penal Code No. 5237. The decision of the Ordu 2nd Criminal Court of First Instance, dated 12/12/2019 and numbered 2018/909 and numbered 2019/804, regarding the sentence of 6 months and 7 days of imprisonment in accordance with the articles of As it is seen that the requests numbered 94660652-105-52-3394-2020-Kyb were sent to the Department with the notification of the Supreme Court of Appeals Chief Public Prosecutor’s Office dated 06/05/2020 and numbered 2020/41982, the file was examined:
In the request letter; “According to the scope of the file;
As explained in the decision of the Criminal General Assembly of the Supreme Court of Appeals dated 02/03/2010 and numbered 2009/9-259 and decision no. 2010/47, the crime of resisting in order not to perform the duty regulated in Article 265 of the Turkish Penal Code No. 5237 is an optional mobile crime. It is understood that the crime was committed by the use of force and/or threat to prevent the public official from doing his duty, that the accused was drunk and disturbed the people around him, that the guards who came to him insulted and threatened the guards during the identity check. In the 42nd article of the Law No. 5237, where failing to perform the duty constitutes the crimes of resistance and insult, “The crime that is considered as a single act because one of them constitutes the factor or aggravating reason of the other is called a compound crime. In such crimes, the provisions of the meeting do not apply.” According to the regulation in the form of a sentence in the form of a written sentence, without considering that the accused cannot be punished separately for the threat of threat, which is an element of the crime of active resistance, it was not correct. is called.
Legal Evaluation:
Article 265/1 of the Turkish Penal Code, titled “Resisting not to do one’s duty”. substance; “Anyone who uses force or threat to prevent a public official from performing his duty is sentenced to imprisonment from six months to three years.” is in the form.
Compound crime is defined in Article 42 of the Turkish Penal Code No. 5237. according to the article; “The crime that is considered a single act because one of them constitutes the element or aggravating reason of the other is called a compound crime. In such crimes, the provisions of the meeting do not apply.”
When the scope of the file, the request for reversal for the benefit of the law and all these explanations are evaluated together;
265/1 of the Turkish Penal Code No. 5237. “A person who uses force or threat against a public official to prevent him from doing his duty is sentenced to imprisonment from six months to three years.” Considering the regulation in the form of threatening, it is clear that a separate conviction cannot be made for the crime of threat in accordance with Article 42 of the Law No.
For the reasons explained; 106/1, 43/2 and 62/1 of the Turkish Penal Code No. 5237. The decision of the Ordu 2nd Criminal Court of First Instance, dated 12/12/2019 and numbered 2018/909 and numbered 2019/804, regarding his conviction with a prison sentence of 6 months and 7 days in accordance with Articles of Association, was not correct.
Conclusion and Decision:
For the reasons explained above;
1- Since the reason for the reversal in the notice issued by the Chief Public Prosecutor’s Office of the Supreme Court of Appeals regarding the request for reversal of the law is seen on the spot, the final decision of the Ordu 2nd Criminal Court of First Instance, dated 12/12/2019 and numbered 2018/909 and numbered 2019/804, which was established for the crimes of threat, is no. 5271. INTERRUPTION pursuant to Article 309 of the Criminal Procedure Code,
2-According to the prohibition of repetition of the trial and 4-d paragraph of the same Law;
265/1 of the Turkish Penal Code No. 5237. “A person who uses force or threat against a public official to prevent him from doing his duty is sentenced to imprisonment from six months to three years.” Considering the regulation in the form of threatening, it was unanimously decided on 05/10/2020 that the 6 months and 7 days imprisonment sentence of the accused …
