19 Dec Absence Of Effective Remorseful Words And Behavior
T.C.
SUPREME
CRIMINAL GENERAL ASSEMBLY
2013/666 E. 2015/91 K.
Accused of theft F.. S.. and H.. Y..’s 5237 numbered TCK’s 142/1, 53/1 and 63. in accordance with articles 58/6 of the same law, they shall be punished with a prison sentence of four years and eight months, deprivation of rights and deduction. in accordance with article F.. S..15.10.2010 day and 401-699 decision issued by the Criminal Court of First Instance of Didim regarding the punishment of repeaters in accordance with the execution regime of the defendant F.. S.. the Supreme Court, which examined the file on appeal by 6. 27.10.2011 day and 5124-4535 number of the criminal Department;
“Other appeals have not been seen in place, but;
1 – after it was reported that there were thieves on the new Bay site, law enforcement officials who came to the scene saw two people escape from the back of the site, people who did not stop despite the warning to stop were caught after fleeing three kilometers, the accused of the escaped people F.. S.. three mobile phones were found on the floor under the stairs when he was caught, as well as Turkish money and dollars in his top search, two brown socks and money were found in the left pocket of his tracksuit when the other defendant escaped, according to the arrest report.. S..’it shows which house they entered, the money that came out of their top search and the mobile phones that were under the stairs where they were caught,’ he said.. Y..in the face of the delivery of mobile phones and coins belonging to the E and mobile phones and coins belonging to the other victim, it is not observed that the effective remorse provision should be applied,
2-decision to deprive TCK of the rights specified in Article 53/1-c, ignoring the second and third paragraphs of the same article, until conditional release” to be impaired by their lack of hits and Cmuk No. 1412, Law No. 5320 8. in force in accordance with article 325. in accordance with the article, the defendant, who did not appeal the sentence without overturning it, H.. Y..it has also been decided to benefit.
Local court 06.04.2012 day and number 51-178;
” The defendants did not return the items subject to the crime with their consent, when they were caught, some of them were seized as a result of law enforcement investigations and interrogations of the defendants, and for these reasons the extradition provisions requiring consent cannot be applied in their rights, ” he resisted his first sentence on the grounds.
In this provision, the defendant F.. S.. on appeal, the file sent to the first president of the Supreme Court with the notification dated 24.09.2013 and numbered 181245, “consent”, was evaluated by the General Assembly of the criminal and decided on the grounds described.
SENTENCING GENERAL ASSEMBLY DECISION
Defendant F.. S.. according to the scope of the appeal, the review was made limited to the decision of the conviction for theft against the said defendant.
A dispute between the special department and the Local Court, which must be resolved by the general criminal Council, relates to determining whether effective provisions of remorse should be applied against the accused for the crime of theft.
From the scope of the file under review;
In the minutes of Capture and preservation; on the day of the incident, when people suspected of being thieves went to this site, two people who noticed the officers escaped, despite the warning to stop, people continued to run through the gardens inside the site and jumped from the walls, they could be caught using force, the accused F.. S..’by showing the houses they entered, they declared that they had taken those who had come out of them from these houses.,
Defendant F.. S..according to the arrest report, when he went to the scene, two people started running after seeing the officers, as a result of the chase, under the stairs where the accused was hiding, he was caught using force because he resisted police officers, there were three mobile phones in the same place,
Defendant F.. S..during the upper search of the police station, there were four mobile phones, three of which were the same, one of which was a different brand, and various amounts of money, some of which were foreign currency, the defendant H.. Y..no criminal elements were found on it,
Record regulatory witnesses; in the early hours of the morning on the day of the event there were two people that upon notification that a site may be considered a thief in the scene seen by the parties before they were transferred to three separate car wandering on the site, a chase started in the direction the vehicle is going, the defendants from the house they are not able to seamlessly watch a three-mile chase after they caught the defendants in different places separated, the defendant stole the money over mobile phones and Faruk are evaluated, they found that the complainant belonging to two house shows when they ask, they also said they found a woman’s tulle sock on the other defendant,
The defendants, who have a criminal record for theft, claim that they do not accept the charge, that the seized mobile phones are not on or near them, that they do not know each other at all,
It is understood.
168 of the Turkish Penal Code, entitled “Effective remorse”, related to the issue of dispute. references;
“1) theft, vandalism, breach of trust, fraud, and prosecute crimes before and after the completion of these items, but enjoy therefore, the perpetrator, the victim or the person who helped by showing exactly ordered the hit on the losses of remorse or compensation by return if you do not completely correct, the penalty is reduced from one third to two thirds. In the case of looting, the penalty is reduced from one-sixth to one-third.
2) in order to apply effective provisions of remorse in case of partial return or compensation, the consent of the victim is sought”, while in the form of Law No. 5377, published in the Official Gazette dated 08.07.2005, entered into force 20. by replacing it with its substance;
“1) theft, vandalism, breach of trust, fraud, fraudulent insolvency, negligence, bankruptcy and crimes to prosecute and therefore before but enjoy these items after it is completed, the perpetrator, the victim or the person who helped by showing exactly ordered the hit on return or compensation of losses by remorse completely correct if you do not enough to two-thirds of the sentence to be imposed is lowered.
2) If effective remorse is shown after the start of the prosecution but before the verdict is given, up to half of the sentence will be reduced.
3) the penalty to be given to a person who shows effective remorse for the crime of looting is reduced to half in cases that fall into the first paragraph and up to one-third in cases that fall into the second paragraph.
4) in order to apply effective provisions of remorse in case of partial return or compensation, the consent of the victim is also sought.”
As clearly emphasized in the decision of the General Assembly on 27.05.2008 and 127-147; 168 of the TCK. in order for the “effective remorse” provisions contained in the article to be applied, if the crimes considered limited in the article are committed, the perpetrator must fully remedy the damage suffered by the victim by showing remorse in person by returning or compensating him in kind.
Article 523 of TCK No. 765, as it is regulated. it’s quite different from its substance. 29.06.1955 day and 10-16 case law with the decision to merge 11.11.1997 day and 248-288 decision of the General Assembly of punishment, especially as described in many decisions, 765 TCK 523. the article is based on” return and compensation”. No. 168 of TCK No. 5237. its article highlights the basis of “regret” rather than Tasmin.
According to the prevailing opinion in the teaching; 168 of TCK No. 5237. article 765, No. 523 of the TCK. contrary to its article, it is accepted that it is based on “regret rather than satisfaction”. (Durmuş Tezcan-Mustafa Ruhan Erdem-Murat Önok, Theoretical And Practical Criminal Special Law, 11. Edition, Seçkin Publishing House, Ankara 2014, p. 696-702; Veli Ozer Uzbek-Mehmet Nihat Kambur-Koray Dogan-Pinar Legsiz-Ilker Tepe, Special Provisions Of Turkish Criminal Law, 8. Edition, Seçkin Publishing House, Ankara 2015, p. 615-618; Sedat Bakıcı, special provisions of Criminal Law, Justice Publishing House, Ankara 2008, p. 934; Erdal Noyan, Crimes of theft, Justice Publishing House, Ankara 2007, p. 396; Ali Parlar-Muzaffer Hatipoglu, interpretation of the Turkish Penal Code, Ankara 2007, c. 2, p. 1318; Huseyin Eker, Crimes Of Theft, 2. Edition, Justice Publishing House, Ankara 2014, p.756)
168 of the TCK. during the regulation of the article, the article stated that “the perpetrator, perseverance or helper must completely eliminate the damage suffered by the victim by showing remorse in the same way or compensation”, and possible hesitations were intended to be avoided. Because the phrase “showing regret in person” mentioned in the text is a clear indication that the regulation does not attribute importance to “return and compensation alone”, but to “return and compensation as a result of regret”. As a matter of fact, the issue was raised during the negotiations on the article mentioned in the Commission of the Grand National Assembly of Turkey and the chairman of the session; “is it not important to remedy the damage”, Izzet Ozgenc, one of the academics responsible for the preparation of the law; “the joke that this article protects is not only to eliminate the victim’s victimization, but also to make the person regret it”. (Department of broadcasting affairs of the Ministry of Justice, Turkish Criminal Code with minutes, Ankara 2005, p. 616)
As a result of these explanations, in cases such as the realization of extradition and compensation through forced execution, the elimination of the damage by third parties without the consent of the perpetrator or unaware of it, as a result of the fact that the object was thrown while the perpetrator was fleeing to avoid capture, or the seizure of the perpetrator while fleeing, there can be no mention of the true remorse of the perpetrator, TCK 168. the terms of application of the article will also not be formed. However, in order for effective provisions of regret to be applied, the condition that the damage suffered by the victim is completely eliminated by giving back or compensation is met, while the regret felt is not necessarily required to be expressed in words, but it may be possible to show it through behavior according to the characteristics of the event.
In the light of these explanations, when the concrete event is evaluated;
Defendant F.. S..’s to be followed by law enforcement officers to understand that the subject of a crime will be caught hiding under the stairs was on their cell phones, and the phone is not a result of the defendant’s showing, where it is located by law enforcement officers, seized the money from the top search after the Houses of the victim in theft crimes to occur because it will not be made to regret by law enforcement officers and the victims they entered the house with a simple research is not necessarily the estimate of, a decision must be made to uphold the Local Court resistance provision, which is in accordance with the procedure and law, since no other word or behavior indicating the remorse of the accused, who does not accept the musnet charges at all stages, is also not reflected in the file, and in this case there is no possibility to apply an effective remorse provision against the accused.
Four members of the General Assembly, who did not agree with the majority opinion, voted against the idea that “the Local Court provision that does not apply effective provisions of remorse should be violated against the defendant, who allows him to return the victims by showing the house where he received mobile phones and money subject to crime.”
RESULT:
For reasons described;
1-Didim in accordance with the procedure and Law 1. 06.04.2012 day and 51-178 of the Criminal Court of First Instance,
2-in order for the file to be sent to the district of the Supreme Court to the prosecutor general’S office, 07.04.2015 was decided by a vote in the negotiation.
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