26 Oct If The Embezzlement Amount Is Paid By The Defendant On The Day Of The Investigation Before The Complaint Is Made, How Much Should The Effective Remorse Discount Be Made?
Article 248 – (1) before the investigation begins, if the embezzled property is returned in the same way or if the damage suffered is fully compensated, the penalty shall be reduced by two-thirds.
(2) in case of voluntary return of the embezzled property or total compensation for the damage incurred, half of the sentence shall be reduced before the prosecution begins. If effective remorse occurs before the sentencing, a third of the sentence will be reduced.
T.C. SUPREME COURT
5.Criminal Department
Basis: 2014/7275
Verdict: 2016/9161
Decision Date: 28.11.2016
EMBEZZLEMENT OFFENCE-WHERE THE AMOUNT SUBJECT TO EMBEZZLEMENT WAS PAID BY THE DEFENDANT ON THE DAY OF THE LAST INVESTIGATION BEFORE THE COMPLAINT WAS MADE – A REQUIREMENT TO OBSERVE THAT EFFECTIVE REMORSE OCCURRED BEFORE THE INVESTIGATION BEGAN
Summary: since it is understood that the amount subject to embezzlement was paid by the defendant prior to the filing of the complaint on the day of the last investigation, effective remorse provisions should be applied at the appropriate rate, taking into account that effective remorse occurred before the investigation began.
(5237 P. K. m. 53, 58, 247, 249) (ANY. MAH. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case reviewed pending appeal of provisions issued by local court;
8/1 of the law No. 5320 of the defense’s request for a trial examination according to the amount of punishment assigned to the defendant. in accordance with Article 318 of the Cmuk. it was considered necessary after it was decided that the review would be conducted without a hearing, with the rejection in accordance with the article:
A review of Appeals for an acquittal verdict on the defendant in the merged file;
The acquittal sentence, which is given by the discretion and justification of the evidence, is in accordance with the procedure and the law, and is not seen as appropriate, to be upheld by the rejection of the appeal appeals of the participating deputy.,
In the main case of the defendant, the appeal appeals against the sentencing provision are being examined.;
To the trial, to the evidence collected and shown at the decision place, to the court’s opinion and discretion in accordance with the results of the investigation, to the rejection of other appeals which are not seen in place according to the contents of the file examined,
But;
The amount subject to embezzlement was paid by the defendant at 9.37 pm on 15/12/2008 from the bank receipt in the file, and the investigation was started at 10.44 pm, which is the transfer time of the petition given by the deputy of the institution on the same day, in the face of the UYAP media understanding that the effective regret paragraph 2 of the same article instead. paragraph 1. determination of extra penalty by applying sentence,
Date 08/10/2015 of the Constitutional Court and E. 2014/140; K. The Decision No. 2015/85 was published in Issue No. 29542 of the Official Gazette dated 24/11/2015 and became effective as part of the Article 53 of the TCK. necessity to re-evaluate the article,
53/5 of the same law because the charged crime is committed through the abuse of rights and powers in Article 53/1-e of the TCK. in accordance with the provisions of this paragraph, only the use of rights and powers should be prohibited.,
TCK’s 58/6-7 on the defendant, who is understood to be a duplicate, according to the judicial record. non-application of articles,
Contrary to the law, the defendant’s defense and the participating attorney’s appeals are thus seen in place, the provision is 8/1 of Law No. 5320. article 321 of the Cmuk. its dissolution under the clause was decided unanimously on 28.11.2016.
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