Court of Cassation 2. Criminal Department 2021/767 E., 2021/8659 K.
Refusal and Hesitation of the Judge
The Code of Criminal Procedure 22-30. Material
Convicted of theft and violation of housing immunity …, 142/2-h, 143, 35, 116/4 and 62 of the Turkish Criminal Code No. 5237. denizli 1, which is punishable by imprisonment for 1 year 6 months 22 days and 10 months in accordance with the articles. The decision of the Criminal Court of First Instance dated 31.01.2019 and based on 2018/121, No. 2019/87 of the Antalya Regional Court of First Instance 7. Following the finalization of the decision of the Criminal Court dated 18.04.2019 and No. 2019/608 and No. 2019/1031 on the basis of the decision to reject the appeal application on the basis of Denizli 1 regarding the rejection of the request for the renewal of the trial made by the convict. The Court of First Instance of Denizli 5th decision on the rejection of the appeal against the additional decision of the Criminal Court dated 15.06.2020 and dated 2018/121 October, 2019/87. Based on the request of the High Criminal Court to overturn the decision dated 02.07.2020 and numbered 2020/522 on various cases issued by the Ministry of Justice on 07.12.2020 and numbered 17256-2020 for the benefit of the law, the case file was sent to our department with the notification of the Prosecutor General of the Supreme Court dated 07.01.2021 and numbered 2020/112250 .
In the notification letter requesting to disrupt the benefit of the law;
142/2-h, 143, 35, 116/4 and 62 of the Turkish Criminal Code No. 5237 of the accused … for theft and violation of housing immunity. denizli 1, which is punishable by imprisonment for 1 year 6 months 22 days and 10 months in accordance with the articles. The decision of the Criminal Court of First Instance dated 31.01.2019 and based on 2018/121, No. 2019/87 of the Antalya Regional Court of First Instance 7. Following the finalization of the decision of the Criminal Court dated 18.04.2019 and No. 2019/608 and No. 2019/1031 on the basis of the refusal of the application for appeal as a result of the decision on the basis of Denizli 1 regarding the rejection of the request for the renewal of the trial made by the defendant. The Court of First Instance of Denizli 5th decision on the rejection of the appeal against the additional decision of the Criminal Court dated 15.06.2020 and dated 2018/121 October, 2019/87. The file covering the decision of the Heavy Criminal Court dated 02.07.2020 and numbered 2020/522 has been examined. 23/3 of the Criminal Procedure Code No. 5271. 318/1 of the same Law with the regulation in the article “If the trial is renewed, the judge who served in the previous trial cannot take part in the same job”. in the article “The request for the renewal of the trial is submitted to the court that issued the judgment. This court decides whether the claim is worth the acceptance of” shaped the regulations in the face of the judge who made the first decision have formed opinions about the case, the first sentence of the opinion, clear re-trial phase or to take to the stage earlier in the decision of whether it is worth accepting the request under the influence of the belief and opinion that can remain, therefore, as an extension of the right to a fair trial, the event is completely foreign to a different judge must review the request for a retrial for the reason that, since there was no hit in the decision to reject the appeal in writing instead of accepting the appeal in this direction, 309 of CMK 5271, regardless of the fact that Judge Necmettin Öter, who took part in the first trial in a concrete case, also took part in the decision to reject the request for the renewal of the trial. violation of the decision referred to in accordance with the article was notified on the basis of a request to violate the need for the benefit of the law.
has been considered:
The event that needs to be resolved in the face of a request to overturn it for the benefit of the law relates to determining whether the court that issued the final decision on the subject of the request should make a decision on the value of admission, whether there are legal obstacles in this regard, when there are requests to renew the trial. In the Code of Criminal Procedure on the subject; Cases where the judge cannot take the case 22. it is counted in the article. 23. The judge who will not be able to participate in the trial is titled. article “(1) A judge participating in a decision or decision may not participate in a decision or decision to be made by a high court in relation to this provision. (2) A judge who has served in the same job at the investigation stage may not serve at the prosecution stage. (3) In case of renewal of the trial, the judge who served in the previous trial may not be employed in the same job. it has the form “. 23. article 3. in the justification for the paragraph; “If the trial is requested to be renewed, it has been added to the third paragraph that the judge who served in the previous trial cannot work in the same job. Thus, the judge who had previously expressed his opinion about the same dispute was prevented from serving in the process of renewal of the trial later, and the impartiality of the judge was also wanted to be ensured in this aspect and 23. it has been accepted as an article. it has been said that “. 30 of the Code of Criminal Procedure. article; “(1) When a judge hesitates on the basis of reasons requiring his prohibition, the authority appoints another judge or court to look at the case. (2) When a judge hesitates by stating reasons that would put his impartiality in doubt, the authority decides whether it is appropriate to hesitate. If hesitation is found appropriate, another judge or court is assigned to look at the case. (3) The provision of Article 29 shall be applied to the works carried out in cases where delay is objectionable.” The Code of Criminal Procedure on the subject is 318/1. paragraph 1 also states: “(1) The request for the renewal of the trial shall be submitted to the court that has issued the judgment. This court decides whether the claim is worth accepting. it has the form “. In the face of these regulations; In case of a request to renew the trial, the judge who took part in the previous trial subject to the request cannot take part in the same job, as well as the Criminal Procedure Code 318/1. in accordance with the paragraph, the decision on whether it is also worth accepting the request that will be given to the court that makes the decision, as well as subsequent actions, will not be made by the judges who served in the previous trial, and they will not be able to take part in the panel. The Criminal Procedure Code of paragraph 23/3 of the Criminal Procedure Code has a regulation in the section entitled ”Judge’s Inability to Look at the Case and Refusal”, the Criminal Procedure Code is 30. article 22 of the Code of Criminal Procedure in the face of the regulation of the issue of ”Judge’s hesitation and review authority”. 23/3, as in the cases where the marriage bond listed in the article will be determined by examining the form of population records, such as the blood-marriage bond. in case of prohibition arising from the paragraph, if the judge who received the request is the judge who decided or was on the panel, according to the Criminal Procedure Code 30/1, he must ensure that the process is processed by sending the file to the authority in accordance with the procedure established in the “Fifth Section” of the Criminal Procedure Code by making a “decision to withdraw” indicating this issue. The fact that it is considered a state of prohibition and is regulated in the “Fifth Section” of the Code of Criminal Procedure requires the resolution of the order by the procedural decision in this section. In this context, the decision on whether the request for the renewal of the trial is worth accepting should be made by the same court, but by a delegation to be formed by judges other than the judge, the president and the members who made the original decision. The judge who made the previous decision have formed opinions about the case, the first sentence of the opinion, clear, re-trial phase or to take to the stage earlier in the decision of whether it is worth accepting the request that can be influenced by the opinion and the opinion, therefore, as an extension of the right to a fair trial, the event is completely foreign to a different delegation that included judge/a judge will review the request for a retrial will be accurate. In the face of the above definitions, acceptances and evaluations; in the concrete case; denizli 5 Due to the fact that the judge who issued the conviction decision subject to the renewal request was the judge who decided to reject the request for the renewal of the trial. Since the Heavy Criminal Court decided to accept the appeal in accordance with the provisions of the above-mentioned law and decided to reject it in writing, the request to overturn it for the benefit of the law was deemed to be in place (DENIZLI) 5. Article 309 of the CMK No. 5271 of the decision No. 2020/522 of 02.07.2020 and No. 5271 issued by the Heavy Criminal Court. article 3. in accordance with paragraph 4 of the same article. in accordance with subparagraph a of paragraph merciince fulfillment at the scene of the next operation, the file will be sent to the court to be sent to the public prosecutor of the Supreme Court, on 20.04.2021 our members… and Circle …’s the same judge review the valence votes against the idea of acceptance, and it was decided by majority of votes.
