13 Nov IN THE PROVISION ESTABLISHED ABOUT THE DEFENDANT, AN INCREASE IS MADE IN ACCORDANCE WITH THE ARTICLE OF THE Turkish Civil Code , WHILE THE RESULT IS THAT AN EXCESSIVE PENALTY IS ASSIGNED BY INCORRECTLY CALCULATING THE PENALTY
T.C. SUPREME COURT DECISION
3.Criminal Department
Base: 2016/238
Decision: 2016/15323
Date of Decision: 30.06.2016
OFFENSE OF WOUNDING – THE PROVISION ESTABLISHED ABOUT THE ACCUSED IS INCREASED IN ACCORDANCE WITH THE ARTICLE OF THE TCKNIN, WHILE THE RESULT IS THAT AN EXCESSIVE PENALTY IS ASSIGNED BY INCORRECTLY CALCULATING THE PENALTY – CORRECTION AND APPROVAL OF THE PROVISION
ABSTRACT: In the provision established about the accused, Article 86/3 of the TCC.according to Article e, when increasing, the resulting penalty was calculated as “2 years and 3 months imprisonment” instead of “1 year and 15 months imprisonment” and the extra penalty was determined, the provision had to be corrected and approved.
(5237 P. K. m. 53, 86) (5271 Pp. K. m. 221) (ANY. MAH. 08.10.2015 T. E. 2014/140 2015/85 K.)
Case and Decision: The decision given by the local court is appealed and the documents are read;
It was discussed and considered as necessary:
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 and No. 5237 of the TCK No. 53. although some of the phrases in the article have been canceled, the reason for the violation has not been made because this issue can be taken into account at the execution stage.
1) In the examination of appeals against the verdict established on the defendant for the crime of intentionally wounding the participating …;
According to the trial conducted, the evidence collected and disclosed at the place of decision, the court’s belief and discretion formed as a result of the prosecution, the justification shown and the practice, the defendant’s appeals that are not considered on the spot are rejected and the decision is upheld in accordance with the request,
2) In the examination of appeals against the verdict established on the defendant for the crime of intentionally wounding the participating …;
Rejection of other objections that are not considered appropriate;
a) In the provision established on the defendant, Article 86/3 of the TCC.according to article e, when increasing, the resulting penalty is calculated as “2 years and 3 months imprisonment” instead of “1 year and 15 months imprisonment,
b) The name of the participant … in the provision established about the defendant is “….. incorrect spelling of the form indicates that CMK 221. violation of the article,
Conclusion: Since the appeals of the accused required to be overturned and the appeals of the defendant were considered in place as of this date, the decision was therefore made in accordance with Section 8/1 of Law No. 5320. article 321 of CMUK No. 1412, which is in force with Article. in accordance with Article 322 of CMUK No. 1412, the request may be OVERTURNED, but since this issue does not require a retrial. in accordance with article 86/3 of provision No. 1.by removing the phrase “2 years 3 months” from the paragraph on the application of Article e and adding the phrase “1 year 15 months” instead of it, again on 28/03/2011 of the “Defendant …” in the provision No. 1; the complainant …. from the sentence in the form of ”complying with the act of intentionally wounding a person so that it cannot be removed by simple medical intervention with a rotary knife, which is considered to be from the opposite weapon;“….. it was unanimously decided on 30.06.2016 to CORRECT AND APPROVE the provision by removing the phrase “…” and writing the phrase “…” instead of leaving the other parts exactly, on the day of 30.06.2016.
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