T.R.
SUPREME COURT
12. CRIMINAL DEPARTMENT
E. 2019/3962
K. 2020/5421
T. 21.10.2020
* CRIME OF VIOLATION OF PRIVACY LIFE (The Decision of Postponing the Initiation of a Public Prosecution during the Prosecution Phase and Sentencing the Conviction of the Conviction of the Finalized Private Life during the Prosecution Phase for a Crime Requiring a Judicial Fine or Imprisonment with a Maximum Limit of Not More than Five Years in its Basic Form It is Wrongful Not to Observe that the Decision to Postpone the Prosecution Due to Violation Crime is Necessary)
* PUBLISHING IMAGES OF THE VICTOR ON FACEBOOK ACCOUNT It is Unlawful to Determine the Defendant’s Incomplete Penalty by Not Implementing the Article )
* THREAT CRIME (Included in the Scope of Reconciliation – Pursuant to Article 35 of Law No. 6763 and Article 254 of the Amended CMK, Conciliation Procedures Are Fulfilled According to the Principles and Procedures Specified in Article 253 of the Same Law and According to the Result, Article 106/1-1 of the TCK and Sentences of Re-evaluation of the Defendant’s Legal Status in Terms of the Threat Crime Requires Reversal/The Decision Must Be Overturned for the Explained Reasons)
5237/m. 106, 134
5271/m. 253, 254
SUMMARY : The case is about insults, violation of privacy and threats. For an offense which, in its basic form, requires a judicial fine or a prison sentence with an upper limit of not more than five years; It is a mistake not to consider that it should be decided to postpone the opening of the public case during the investigation phase, to postpone the prosecution during the prosecution phase, to postpone the execution of the final sentence, and to postpone the prosecution due to the crime of violation of privacy in accordance with the decision.
In the incident, the defendant, who presented the images of the victim to an undetermined number of people through his facebook account, was sentenced to the basic penalty, Article 134/2-2 of the TCK in force as of the date of the crime. In accordance with the article, paragraph and sentence, it is illegal to assign an incomplete sentence to the accused by not applying the aforementioned article, without considering the need to increase by half.
In the face of the understanding that the crime of threat is included in the scope of reconciliation; Pursuant to Article 254 of the CMK as amended by Article 35 of Law No. 6763, conciliation procedures were carried out in accordance with the principles and procedures set forth in Article 253 of the same Law, and according to the result, TPC 106/1-1. The necessity of re-evaluating the legal situation of the accused in terms of the threat crime in the article, paragraph and sentence requires reversal. For the reasons explained, the decision should be overturned.
CASE: The provisions regarding the conviction of the accused for insulting, breaching the privacy of private life and threatening crimes were appealed by the accused, the file was examined and the necessary was considered:
DECISION: In accordance with the deposit decision of our Chamber dated 09.01.2019; In the examination carried out, it was determined that the decision dated 07.11.2013 given to the participant … in his absence was notified in accordance with the method and that the said person did not appeal the decision:
A) In the examination of the appeal against the convictions established for the crime of insult;
It was published in the Official Gazette dated 07.10.2009 and numbered 27369 and entered into force on 07.10.2010 one year after the Constitutional Court’s publication, until the date of the annulment provision numbered 5237, dated 23.07.2009 and numbered 2006/65, 2009/114 decision. Conviction provisions regarding judicial fines up to 2000 TL (including 2000 TL), which are directly ruled in accordance with the articles 50 and 52 of the TPC and the provisions of the TPC numbered 765, which do not include any other deprivation of rights, pursuant to the 8th article of the Law no. It is final in accordance with Article 305, and until 14.04.2011, when the Law No. 6217 came into force, it is possible to appeal the conviction provisions without any exceptions, and up to 3000 TL (including 3000 TL) directly adjudicated on or after 14.04.2011. ) it is understood that judicial fines are final in accordance with the Provisional Article 2 of the Law No. 5320; Since there is no appeal request regarding the criminal nature of the conviction of the accused, consisting of 2240 TL, which was ruled separately on 07.11.2013 due to the actions of the accused … REJECTED in accordance with the request, pursuant to article 317 of the CMUK numbered 1412, which is still in effect,
B) As for the examination of the appeal against the convictions established for the offenses of breaching the privacy of private life and threatening;
According to the trial, the evidence gathered at the place of decision, the opinion and discretion of the court in accordance with the results of the prosecution, the scope of the file examined, the defendant’s statement, the application of the discretionary reduction clause, the announcement of the judgments not being postponed, the sentenced prison sentences not converted into judicial fines or other alternative measures, and the rejection of other appeals regarding the non-adjournment, however;
1- By publishing the images of the accused … regarding the private life of the victim … on his account on the social networking site called facebook, which is unspecified and has the possibility to be perceived by more than one person, until 05.12.2011, by illegally publishing 134/2 of the TPC. . Although it is accepted that he has committed the crime of violating the privacy of his private life by revealing the images or sounds defined in the article and paragraph, Amendments to Some Laws and Press Provisional Article 1 of the Law on Postponement of Lawsuits and Penalties for Crimes Committed Through Broadcasting states that “It has been committed through the press and broadcasting or other methods of expressing thoughts and opinions until 31/12/2011; for an offense which, in its basic form, requires a judicial fine or a prison sentence with an upper limit of not more than five years; a) In the investigation phase, it is decided to postpone the opening of the public case without seeking the conditions in Article 171 of the Criminal Procedure Law dated 04/12/2004 and numbered 5271, b) to postpone the prosecution during the prosecution phase, c) to postpone the execution of the finalized conviction.” In accordance with the provision, it is not observed that the prosecution should be postponed due to the crime of violating the privacy of private life,
According to acceptance and practice:
From the expression in the 6/1-g article, paragraph and subparagraph of the TCK, in the application of penal laws, through the press and publication; In the face of the statement that the broadcasts made by all kinds of written, visual, audio and electronic mass media can be understood, the defendant who presented the images of the victim … to the eyes of an undetermined number of people on his facebook account, in the basic penalty ruled, 134/2 of the TCK in force as of the date of the crime. -2nd. In accordance with the article, paragraph and sentence, without considering the need to increase by half, the determination of the accused incomplete by not applying the aforementioned article,
2- After the decision date, it was published in the Official Gazette dated 02.12.2016 and numbered 29906 and entered into force on the same date, with the Law No. 6763 on Amending Certain Laws and Article 34 of the Law on Amendments to Article 253 of the Criminal Procedure Code (b) 106/1-1 of the TCK, which is among the sub-paragraphs added to the paragraph. In the face of the understanding that the crime of threat defined in the article and paragraph is included in the scope of reconciliation; 7/2 of the TCK. in accordance with the article and its paragraph; “If the provisions of the law in force at the time the crime was committed and the laws that came into force later on are different, the law in favor of the perpetrator shall be applied and executed.” In accordance with the article 35 of the Law No. 6763 and article 254 of the amended CMK, conciliation procedures are carried out in accordance with the principles and procedures specified in article 253 of the same Law, and according to the result, Article 106/1-1 of the TCK. There is an obligation to re-evaluate the legal situation of the accused in terms of the threat crime in the article, paragraph and sentence,
3-T.R. In the re-evaluation of the deprivations of rights in Article 53 of the TCK, in line with the annulment decision of the Constitutional Court, due to the annulment decision numbered 2014/140 and decision no. necessity,
CONCLUSION: It required reversal, and since the defendant’s appeals were deemed appropriate in this respect, the provisions were therefore infringed, pursuant to Article 321 of the Code of Criminal Procedure No. 1412, which is still in effect pursuant to Article 8 of Law No. It was unanimously decided on 21.10.2020 that the acquired right of the accused be reserved in terms of the amount of punishment regarding the crime of violation of confidentiality, taking into account the execution.
