Supreme Court of the Republic of Turkey
7. Criminal Chamber
Basis: 2014/30469
Decision: 2016/9085
Decision Date: 30.06.2016
CRIME OF Smuggling – DEFENDANT WHO CONTACTED WITHOUT BANDROOM AND ILLEGAL CIGARETTES – IMPOSSIBLE CONSEQUENCE OF OVERSEASING OF THE JURISDICTION BY TAKING AWAY FROM THE LOWER LIMIT IN A WAY INCOMPATIBLE WITH THE MEASUREMENTS OF EQUITY
ABSTRACT: In the incident in which 529 packs of unregistered and smuggled cigarettes were seized from the accused, while determining the basic penalty between the lower and upper limits, the way the crime was committed, the means used in committing the crime, the time and place of the crime, the importance and value of the crime, the severity of the damage or danger, the perpetrator’s The elements of his intention, purpose and motive should be taken into account, and it is wrong to assign too much punishment to the accused by moving away from the lower limit in a way that does not comply with the criteria of equity, although it does not require the temptation of the accused’s act, which is not serious, when compared to similar events, according to the scope of the file.
Litigation and Decision: The judgment rendered by the local court is appealed; 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;
1- In the incident in which 529 packs of unregistered and smuggled cigarettes were seized from the accused, while determining the basic penalty between the lower and upper limits in accordance with Article 61 of the Turkish Penal Code No. 5237, the way the crime was committed, the means used in committing the crime, the time and place of the crime, the importance and value of the subject of the crime. The severity of the harm or danger, the perpetrator’s intent, purpose and motive should be taken into account. determination of more punishment for the accused by moving away from the border,
2- With the annulment decision of the Constitutional Court dated 08/10/2015 and basis 2014/140 and numbered 2015/85, which was published in the Official Gazette dated 24/11/2015 and numbered 29542, some parts of the 53rd article of the Turkish Penal Code numbered 5237. There is an obligation to re-evaluate the aforementioned article due to its cancellation,
3- Despite the decision to collect the judicial fine in 5 equal installments by instalments, the installment interval is not specified, contrary to the provision of Article 52/4 of the Turkish Penal Code No. 5237 and creating hesitation in the execution,
4- Establishment of a decision regarding the liquidation of the goods subject to the lawsuit, when it is necessary to confiscate them,
Conclusion: Since it was against the law and the defendant’s appeals were deemed appropriate in this respect, it was unanimously decided on 30.06.2016 to OVERRIDE, pursuant to Article 321 of the Criminal Procedure Code No. 1412, which is in force in accordance with Article 8/1 of the Law No. 5320.
