15 Jan A DECISION ON THE NEED TO DECIDE WHETHER THE PROVISIONS OF THE POSTPONEMENT SHOULD BE APPLIED BY DISCUSSING THE CONDITIONS IN SUCH A WAY AS TO ALLOW SUPERVISION – THE CHILD WHO HAS BEEN DRAGGED INTO A CRIME DOES NOT HAVE A CRIMINAL RECORD PREVENTING THE POSTPONEMENT
T.C. THE DECISION OF THE SUPREME COURT
3.Criminal Department
Based on: 2015/34296
Decision: 2016/15146
Date of Decision: 28.06.2016
INJURY OFFENCE – THE CHILD WHO HAS BEEN DRAGGED INTO THE CRIME DOES NOT HAVE A CRIMINAL RECORD PREVENTING POSTPONEMENT – THE CONDITIONS ARE DISCUSSED IN SUCH A WAY AS TO ALLOW SUPERVISION AND IT IS NECESSARY TO DECIDE WHETHER THE POSTPONEMENT PROVISIONS WILL BE APPLIED – VIOLATION OF THE PROVISION
ABSTRACT: Taking into account that the child who was dragged into the crime does not have a criminal record preventing postponement, 51/1 of the TCC. while the conditions stipulated in the article should be discussed in a way that allows for supervision and it should be decided whether the provisions of the postponement should be applied, the legal and insufficient grounds of the TCC are as follows: “the amount of punishment given, the way the crime was committed, the victimization of the participant, taking into account that its elements were not formed” 51. the decision not to implement the article required the provision to be overturned.
(5237 P. K. m. 51, 53, 86, 87) (5271 P. K. m. 191) (ANY. MAH. 08.10.2015 T. E. 2014/140 2015/85 K.)
Case and Decision: The provisions issued by the local court are appealed and the documents are read;
It was discussed and considered as necessary;
1) In the examination of appeals against the provision of a conviction established on the defendant for intentional wounding;
The article of the law applied during the increase of the defendant’s sentence determined in accordance with Articles 86/1, 86/3-e, 87/1-c of the TCK numbered 5237 to 5 years in accordance with Article 87/1-last of the TCK was written as article “87/1-d-last of the TCK”, it was considered a typo that could be corrected at the scene.
The decision of the Constitutional Court dated 24.11.2015 and entered into force by publication in the Official Gazette No. 29542 dated 08.10.2015 and No. 2014/1401-2015/85 Decision No. 5237 of the Turkish Commercial Code No. 53. although some of the provisions in the article have been canceled, the reason for the violation has not been made since this issue can be taken into account at the execution stage.
According to the trial, the evidence collected and disclosed at the place of the decision, the Court’s belief and discretion formed as a result of the prosecution, the justification and practice shown, the defendant’s defense appeals are rejected and the verdict is upheld as requested,
2) In the examination of appeals against the provision of a conviction established for intentional wounding of a child who has been dragged into a crime;
a) Violation of Article 191/1-b of CMK No. 5271 by obtaining the defense of the child who has been dragged into a crime without reading the decision of dismissal that replaces the indictment,
b) 51/1 of the Turkish Commercial Code No. 5237. paragraph 2. taking into account that the upper limit of postponement in accordance with the subparagraph is 3 years for minors and that the child involved in the crime does not have a criminal record preventing postponement, 51/1 of the TCC. while the conditions stipulated in the article should be discussed in a way that allows for supervision and it should be decided whether the provisions of the postponement should be applied, the legal and insufficient grounds of the TCC are as follows: “the amount of punishment given, the way the crime was committed, the victimization of the participant, taking into account that its elements were not formed” 51. decision not to apply the article,
c) The article of the law applied during the increase of the punishment of a child dragged into a crime in accordance with Articles 86/1, 86/3-e, 87/1-c of the TCK No. 5237 to 5 years in accordance with Article 87/1-last of the TCK is written as article “87/1-d-last of the TCK,
By admission, too;
d) Article 53/1 of the Turkish Commercial Code No. 5237 on a child who was under the age of 18 at the time of the crime who was dragged into the crime. article 53/4 of the Turkish Commercial Code No. 5237. establishment of a provision in writing without regard to the fact that it will not be applied in accordance with the article,
Conclusion: Since the appeals of the child advocates who required to be overturned and were dragged into the crime are considered valid as of this moment, the provision is 8/1 of the Law No. 5320 for these reasons. article 321 of CMUK No. 1412, which is in force with Article. according to the article, it was decided by unanimous decision on 28.06.2016 to DISRUPT it as requested.
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