T.C. SUPREME
13.Criminal Division

Basis: 2016/5725
Verdict: 2016/11037
Decision Date: 14.06.2016

CRIME OF THEFT-FAILURE TO APPLY WITHOUT REGARD TO THE FACT THAT TC 5237 IS IN FAVOR OF THE DEFENDANTS – WHERE THE PROVISION IS BROKEN

Summary: 142/1-b, 143, 62 of TCK No. 5237. No. 765 with articles 493/1-final, 522, 59. the practice required to be violated without regard to the fact that it constituted the crimes written in its articles, that the comparison should be made accordingly, and that TC 5237 was in favor of the defendants.

(5237 P. K. m. 52, 53, 61, 62, 142, 143, 168) (765 S. K. m. 59, 493, 522)

Case and decision: the verdict given by The Local Court was appealed and the file was examined and considered as necessary:

I-in the appellate review of the provisions established because of the actions of the defendants and the Musharraf;

No. 53 of TCK 5237. although the decision to deprive him of the rights specified in the article was not made; the reason for the violation was not made, as it was considered possible to observe the conviction at the stage of execution.

According to the content of the file and the minutes of the hearing, the legally valid and favorable evidence collected and examined at the site of the decision, the reason and the discretion of the judge, since the appeals of the accused and his defenders are not seen in place, the rejection and the approval of the provisions found in accordance with the procedure and the law in accordance with the communique,

II-in an appeal review of the provisions established because of the actions of the child who was dragged into the crime against the patients and their actions;

According to the occurrence and file content, the theft, which is fixed to occur at 24:00 hours, was committed at night, regardless of the number 5237 TC 143. since there was no appeal against the application of the article, the reason for the violation was not made; 61 of the TCK. in violation of Article 168 of the same law. Article 31. if the application before the article did not change the result penalty, the reason for the violation was not made.

According to the content of the file and the minutes of the hearing, the legally valid and favorable evidence, justification and the discretion of the judge, it was understood that there was no violation of the procedure and the law in accepting and qualifying that the crimes were committed by the child who was dragged into the crime, and other appeals were not considered in place.

But;

Failure to pay a fine imposed on a child who is less than 1-18 years of age who is dragged into a crime cannot be decided on the partial or complete execution of a short-term prison sentence if the fine is not paid,

2-TCK 52/4 by establishing a provision in the form of “payment in 20 equal installments” without showing the installment interval during the installment of the judicial fine. article have been breached,

8/1 of law 5320, since the appeals of the defense of the child who was dragged into a crime were considered in this regard, the provisions were violated in violation of the communique for the reason described, and the reason for the violation did not require a retrial. article 322 of Cmuk No. 1412. based on the authority granted by the article, removing from the provision clause the part where a short-term prison sentence will be decided in whole or in part if the requirements of option sanctions are not met, and adding the sentence ”in monthly installments” to the provision paragraph on the installment of a judicial fine, other aspects other than criticism can be corrected and approved by correcting provisions that comply with the procedure and law,

III-as for the appeal review of the provisions established because of the actions of the child who was dragged into a crime, the accused, and the accused;

According to the content of the file and the minutes of the hearing, the legally valid and favorable evidence, justification and the discretion of the judge, it was understood that there was no violation of the procedure and the law in accepting that the crimes were committed by the defendants, and other appeals were not considered in place.

But;

1-in the face of understanding that the child who was dragged into a crime provided the return of the car stereo belonging to the owner by showing the place where they hid the stolen items and the stolen vehicles, about 168 TC 5237. failure to observe the need for the application of the article,

2-according to the fact that the child dragged into the crime … …broke the door lock part of the vehicle belonging to the customer and returned the criminal property subject to the act of theft from inside the vehicle during the investigation stage; TC 5237 7/2 and law 5252 9/3. in accordance with article 142/1-b, 143, 31/3, 168/1, 62 of TCK 5237, the comparison should be found by applying all relevant provisions of previous and subsequent laws to the event and comparing the results to each other. article 765 of TCK 493/1-last, 522, 523, 55/3, 59. a written decision should be made in accordance with the articles and without regard to the fact that TC 5237 is in favor of a child who has been dragged into a crime,

3-according to the admission that the defendants and the client stole the tape recorder after breaking the door lock of the vehicle; 7/2 of Tc 5237 and 9/3 of law 5252. in accordance with article 142/1-b, 143, 62 of TCK 5237, the actions of the defendants should be found by applying all relevant provisions of the previous and subsequent laws to the event and comparing the results to each other. No. 765 with articles 493/1-final, 522, 59. application in writing without regard to the fact that it constitutes the crimes written in its articles, that the comparison should be made accordingly, and that TC 5237 is in favor of the defendants,

4-by acceptance;

55/3 of TCK 765 in the provision established because of the action against the child who was dragged into a crime. Article 1 year 9 months 10 days instead of 1 year 5 months 10 days of the prison sentence is determined, the continuation of the same law 59. as a result of the application made with the Article 1 year 5 months 23 days instead of 1 Year 2 months 13 days as a result of the calculation of the missing sentence,

Since the appeals of the child and the defendants and their defense were considered in place in this regard, it was decided unanimously on 14.06.2016 that the provisions should be violated in violation of the communique for the reason described.