T.C.
SUPREME
CRIMINAL GENERAL ASSEMBLY
E. 1992/5-190
K. 1992/237
T. 28.9.1992
• PROHIBITION OF CORRUPTION AGAINST
• THE RIGHT EARNED IN TERMS OF THE AMOUNT OF THE PENALTY
• FAILURE TO DETERMINE THE NATURE OF THE CRIME (Prohibition against corruption)
1412/m.326/2, 291, 307, 308, 325, 343
765/m.421/2
SUMMARY: If an error is found in the nature of the crime in the judgment under appeal, even if there is no appeal against it, the reason for overturning this matter will be made. There can be no earned right in the form of a crime. Only in this case, the principle of acquired rights in terms of the type and amount of punishment will be raised.
Otherwise, it leads to different application of legal rules throughout Turkey.
CASE AND VERDICT: TCY, considering that the action of Kazim, the defendant for the crime of rape, constitutes the crime of groping.of 421/2, 59. the punishment to imprisonment according to Article 5 month and day with the number sentence 3rd 17.12.1991 592975 Kadıköy Criminal Court by the defendant by counsel because he had been appealed 5th Criminal Chamber of the Supreme Court of viewing the file, 13.5.1992 day and 12461548 number;
(Although, according to the scope of the file, the act constitutes a crime of tasaddi, since there is no appeal against its acceptance as harassment, the reason for the violation is not made, the approval of the provision that is found in accordance with other aspects of the procedure and the law) was decided by a majority of votes.
The members who voted against it are CYUY, since there can be no right gained from the nature of the crime.they suggested that the provision should be overturned in accordance with Article 326/2 of the.
Supreme Court C. The Prosecutor General’s Office is also with 3.6.1992 days and 570541 issues;
In accordance with the views of the members of the Special Chamber who voted against, with the view that there could be no rights gained from a criminal qualification, the Special Chamber requested that the decision to approve be abolished and the provision be overturned.
The file was sent to the First Presidency, the Sentence was read by the General Assembly, and it was discussed and considered as necessary:
THE DECISION OF THE CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT:
according to the reviewed file;
If there is no dispute (counter-appeal) between the Special Chamber and the Local Court against the defendant, if there is a failure to decriminalize the sentence, it is a matter of whether the verdict can be decided to be overturned, in other words, whether there will be a right acquired from the criminal qualification.
During the deliberation of the issue at the Criminal Plenary Session, the appeal case is considered only in favor of the defendant or his C. The prosecutor, or CYUY.if it is filed by the persons described in Article 291 of the Law, it is discussed whether an appeal review can be made from all sides, therefore, an appeal can be made against the court without distinction.
As a result, the concepts of the obligation not to violate and the right acquired in terms of the amount of punishment were focused on. If it is necessary to take a look at these concepts;
1 Obligation not to overturn: An appeal filed by interested parties against decisions made by local courts is an ordinary legal case. When an appeal case is filed only by the defendant or by the interested parties described above in his favor, the principle of aggravating the outcome and not making consequential corrections against him in another expression is called the obligation not to distort the outcome.
2 The right acquired in terms of the Amount of Punishment: When an appeal is filed by the defendant or interested parties provided for in the trial law, the punishment and the result determined by the provision re-established on the violation of favor are not more severe than the punishment and the result determined by the previous provision.
If we summarize the concepts after defining them in this way, the obligation not to violate them is a procedural rule that determines the point of view when starting an appeal review of the provision. If it is a right acquired in terms of the amount of punishment, it is a principle of the trial law that sets the limit of the amount of punishment at the stage after the violation of favor. Both of them are close to each other for the same purpose and stemming from the same legal opinion, but with different legal structures, the stages of implementation are different procedural institutions.
0 otherwise, the judgment will be given by the defendant or C. If an appeal has been made by the prosecutor or interested parties in favor of the defendant, it is necessary to make a decision on overturning it when an erroneous application of a criminal nature is detected. Or will it be content with criticizing this issue.
The duty of the Court of Cassation is to supervise whether the laws are applied and enforced in accordance with the law throughout Turkey, to ensure the unity in the application of the laws and legal rules within the country with its case law. In this respect, if the appellate review finds an inaccuracy in the nature of the crime in the provision made, it will make the reason to overturn this matter even if there is no appeal against it. However, in this case, it leads to the application of the principle of acquired rights in terms of the type and amount of punishment, which cannot be considered appropriate for the purpose of establishing the Supreme Court and the principle of equality. Because two defendants were tried in different courts for the same or similar act, one of them was TCY.in accordance with Article 202 of the Criminal Code, one is charged with embezzlement, and the other is charged with erroneous admission.let’s consider that decisions on convictions for misconduct in office have been made in accordance with Article 240 of the and both decisions have been appealed in favor of the defendants. In this case, the Supreme Court of Cassation will make a decision to approve the provision established for embezzlement in accordance with the law. What will the Supreme Court do if it finds that the provision established for misconduct in office is contrary to the law. Of course, he will decide on the violation of the provision, emphasizing that the act constitutes a crime of embezzlement because the nature of the crime has been incorrectly determined, and noting that the principle of vested rights in terms of the type and amount of punishment must be followed. Because the task of the Supreme Court is to ensure unity in the implementation of laws within the country. Essentially, I agree to the contrary, the same, the actual perpetrators of the crime, sentenced for embezzlement of the statute of limitations criminal, civil service, deprived of the suffrage loss, encounter different situations in the face of a possible amnesty law… ) can lead to consequences such as while due to incorrect determination of the qualification of the crime and sentenced for the crime of abuse of office with the results described above ‘encounter with a sense of justice that leads to the principle of equality and it doesn’t fit.
0 otherwise, upon appeal in favor, if the Supreme Court determines that the offense has been misled, it must decide to overturn the provision that is contrary to the law, reserving the right acquired in terms of the type and amount of punishment.
Therefore, the Supreme Court A: The decision to accept the appeal of the Prosecutor General’s Office and to approve the decision of the Special Chamber should be removed and the provision should be overturned because the defendant’s act constitutes the crime of rape.
If the Chairman and board members vote against the rule, it is a case of appealing, which is the usual way of law. Therefore, it is a recognized right of the accused to file an appeal case. C by or in favor of the defendant. If this right is exercised by the prosecutor or interested parties, if it is accepted that there may be consequences against the defendant, the defendant or interested parties who may resort to this method in his favor will hesitate to file an appeal and will have to agree to a decision that they believe is unfair. In order to remedy this drawback, it is stated that the decision cannot be corrected against the defendant if there is no appeal against the defendant, which constitutes an absolute violation of the law of the provision (CYUY.308. Md. ) the cases are discrete, but the obligation not to distort them, which may be overturned in favor of the defendant, the principle of “reformatio in Peius” has been included in the trial laws as a procedural rule.
As a matter of fact, CYUY.358 of the German Criminal Proceedings Act of 1887, which is the source of the. if the article is applied in favor of, it has not accepted the correction against it. For this reason, our trial law does not allow us to correct it against you in the event of a favor application, as in the source law. ( CYUY.of 308. except for cases of absolute violation of the law in the article)
The defendant who has filed an appeal case or the appellants who have appealed in his favor act with the aim of correcting the decision in favor of the defendant. Ignoring this purpose and allowing correction against it; 326. on the grounds adopted by the Istanbul commission of the article; “… As a result of the timely appeal in favor of the prisoner, the imposition of a punishment more severe than the punishment established by the previous provision could not be considered cavaidi madelet and hakkı acquis and kabili copyright.” it also contradicts your opinion. 0 in this case, as soon as an appeal is filed in favor of the defendant, the considerations against the defendant constitute a vested right for him.
On the other hand, even if the appeal case is filed in favor of the defendant, since making a correction against the defendant will mean making a reversal in favor of the other party, establishing a judgment on the case that has not been filed will lead to involuntary decision-making.
As a matter of fact, the prohibition against corruption has been implemented in various fields as a rule of trial. As is known, one of the most important conditions for filing an appeal case is to have the right. For this reason, acquittal decisions cannot be examined because the defendant has no right to appeal. In such cases, the provision cannot be overturned even if there are reasons that require the provision to be overturned against it.
On the other hand, CYUY.of 325. if the provision is overturned on appeal against one of the defendants in accordance with the article, it also applies to defendants who do not appeal, while it does not apply to defendants who do not appeal in cases of violation against it. Since the order is only for the benefit, they are not affected by the violation, it is also contrary to the accepted purpose of the order institution for the applicant not to comply with the ban on violation for the benefit of the appellant.
Also CYUY.in Article 294 of the, c. It is clearly stated that the verdict may be overturned in favor of the defendant if the prosecutor appeals against it. If it had been adopted as a rule that a violation could be made against an appellant, C. An arrangement such as the provision that a reversal can be made in favor of the defendant who is the opposite party to the prosecutor’s appeal against it would not be necessary to put it into law.