COURT DECISION ON APPEAL OF PENALTIES THAT ARE FINAL IN TYPE AND AMOUNT

6th Penal Chamber 2021/11450 E. , 2021/7569 K.
“Justice Text”
COURT :Criminal Chamber
CRIMES: Skilled looting, damage to property, deliberate injury, violation of Law No. 6136
PROVISIONS: Fundamental rejection of the appeal
The judgments given by the Regional Court of Justice were appealed and the file was examined and the necessary was considered:
Due to the Covid-19 epidemic, in accordance with the provisional article 1 of the Law No. 7226, which was published in the Official Gazette dated 26 March 2020 and numbered 31080 (repeated), starting from 22/3/2020 (including this date) to 30/4/2020 (this date Due to the extension of the deadlines until 15.06.2020 with the President’s Decision dated 29.04.2020 and numbered 2480, which was published in the Official Gazette dated 30.04.2020 and numbered 31114 and entered into force until 15.06.2020. in the review;
It is considered possible to correct the crime date as 04.01.2016 in the title of the reasoned decision.
I- Damage to property about the accused …, violation of Law No. 6136; in the examination of the provisions established for the crime of damaging the property about the accused;
Considering the amount and type of the sentence, appeal against the decisions of the regional court of appeal regarding the substantive refusal of the appeal application for five years or less prison sentences given by the courts of first instance and judicial fines regardless of the amount, pursuant to Article 286/2-a of the CMK No. 5271 As it is not possible, the defendants …, the defendants …, … their lawyers and the participating …’s attorney REJECT their appeals in accordance with the communiqué pursuant to article 298 of the CMK no. 5271,
II- In the examination of the provisions established on the accused persons …, … about qualified looting and injury;
Defendant …’s counsel was convicted of plundering and injuring the accused, defendant … and his defense counsel filed an appeal against the convictions for plundering, and that the participating counsel’s … They requested an appeal against the qualification of the crime, stating that a verdict should be established for the crime of crime. 5 years imprisonment for the crime of qualified injury and acquittal of the accused …. The attorney, who participated in this decision together with the defendant …’s lawyer, appealed on the grounds that the act constituted the crime of attempted murder for both defendants. In this respect, the preliminary question is whether the sentence of conviction for the accused … of the said injury crime and the verdict of acquittal for the accused … of the aforementioned injury crime, given by the court of appeal at that place, are appealable.
In Article 286 of the CMK, titled “Appeal”;
“(1) The provisions of the penal chambers of the regional court of appeal, excluding the reversal, can be appealed.
(2) However;
a) Decisions of the regional court of appeal regarding the substantive refusal of the application of appeal against prison sentences of five years or less and judicial fines, regardless of the amount, given by the courts of first instance,
b) Decisions of the regional courts of appeal that do not increase the prison sentences of five years or less given by the courts of first instance,
c) (Annex: 20/7/2017-7035/20 art.) Given by the regional court of appeal regarding the first-instance court decisions regarding alternative sanctions converted from imprisonment; all kinds of decisions on alternative sanctions and decisions on the substantive rejection of the appeal,
d)(Cancellation by the Decision of the Constitutional Court dated 27/12/2018 and numbered E.:2018/71 K.:2018/118; Re-arrangement: 20/2/2019-7165/7 art.) For the first time given by the regional court of appeal and all kinds of regional court decisions regarding crimes that fall under the jurisdiction of the courts of first instance and which require a prison sentence of up to two years (including two years), and judicial fines related to them,
e) All kinds of regional court of appeal decisions regarding the judgments given by the courts of first instance in crimes requiring judicial fines,
f) (Amendment: 18/6/2014-6545/Art. 78) Decisions on the substantive rejection of the appeal application only in relation to the first instance court decisions regarding the confiscation of goods or profits or the absence of them,
g) Regarding the acquittal decisions rendered by the court of first instance for crimes that require a prison sentence of ten years or less or a judicial fine, (…) (2) decisions on the substantive rejection of the appeal application,
h) (Amendment: 18/6/2014-6545/Art. 78) First degree regarding the security measure, that there is no room for dismissal of the case or for imposing a penalty.

such decisions made by the regional court of appeal in relation to the decisions of the court of law or the decisions regarding the rejection of the appeal application on the merits,
ı) Decisions of the regional court of appeal, which contain more than one penalty and decision, with the same provision, provided that they remain within the limits specified in the above paragraphs.
(3) (Annex: 17/10/2019-7188/29 art.) Even if it is within the scope of the decisions that cannot be appealed in the second paragraph, the decisions of the criminal chambers of the regional court of appeal can be appealed due to the crimes listed below:
a) In the Turkish Penal Code;

1. Insult (article 125, third paragraph),
2. Threat to create fear and panic among the public (article 213),
3. Provocation to commit a crime (article 214),
4. Praising the crime and the guilty (article 215),
5. inciting or humiliating the public to hatred and enmity (article 216),
6. Provocation to disobey the law (article 217),
7. Insulting the President (article 299),
8. Insulting the signs of state sovereignty (article 300),
9. Insulting the Turkish Nation, the State of the Republic of Turkey, the institutions and organs of the State (article 301),
10. Armed organization (article 314),
11. The crimes of alienating the people from military service (article 318). b) Offenses in the second and fourth paragraphs of Article 6 and the second paragraph of Article 7 of the Anti-Terror Law. c) Offenses included in the first paragraph of Article 28, Article 31 and Article 32 of the Law on Meetings and Demonstrations.”
    Its arrangement is included.
    286 (1) of the CMK. rule according to the provision of the article; All decisions are subject to appeal, except for the reversal decisions made by the courts of appeal.
    Exceptions to this rule; It is regulated in the second (nine (9) paragraphs) and third paragraphs of Article 286 of the CMK.
    One of the important principles that dominate the criminal procedure is that the exceptions cannot be subject to an expansive interpretation against the accused.
    First of all, it should be noted that the exceptions in the third paragraph added to Article 286 of the CMK with the Law No. 7188 are exceptions according to the type of crime, and the crime of injury is not one of these exceptions.
    It is clear that there is no exception in the other clauses of the second paragraph. However; It has been concluded that the subject should be examined in detail in terms of the exceptions in subparagraph b) of the article, with the jurisprudence of the Criminal General Assembly of the Court of Cassation dated 04/10/1993 and numbered 2-187/222.
    In accordance with the jurisprudence of the Criminal General Assembly of the Court of Cassation adopted by our Chamber, it is possible to appeal against the criminal nature of even the decisions that are final in terms of type and amount. Accordingly, if, for example, a definitive judicial fine has been imposed for the crime of simple injury, the participant or the public prosecutor may appeal this provision on the grounds that the act constitutes the crime of attempted murder. Our Chamber is of the opinion that this case-law should also be applied in the post-appeal appeal.
    Therefore, since it is understood that the participating attorney appealed the final decision of the defendants for the crime of injury in terms of qualifications, in the appeal examination of the provisions established for the crime of looting and injury;
    Article 288 of the CMK numbered 5271 states that “The appeal is based on the fact that the provision is unlawful. Failure to apply or misapply a rule of law is unlawful.”, Article 294 of the same Law states that “The appellant has to show in the appeal application why he/she wants the judgment to be reversed. The reason for the appeal can only be related to the legal aspect of the judgment.” and Article 301 of the same Law states that “The Court of Cassation examines only the matters stated in the appeal application and the events that indicate this in the appeal, if the appeal is due to procedural deficiencies.” Considering that the defendant’s appeal is regulated in the form of … the defendant’s appeal request is not sufficient evidence to punish the defendant, even if it is assumed that he participated in the crime, the nature of the crime is attempted theft, the defendant made a defense through SEGBİS, but the right of defense was violated because it was not recorded fully and completely in the minutes, the reasons for reduction in favor were not applied, the accused … that the defense counsel’s appeal request is not conclusive and sufficient evidence about the accused, that the principle that the accused benefits from doubt is not observed, that the accused should be acquitted; In the examination carried out for the aforementioned reasons, it was determined that the appeal request of the attorney who participated …
    According to the formation and the content of the file, it has been understood that there was no inaccuracy in the provisions established for the crime of plundering.
    In addition, the existence of any of the cases of certain unlawfulness listed in Article 289 of the CMK could not be determined in the file.
    According to the trial and the content of the file, it was understood that there was no mismatch in terms of the grounds of appeal in the provisions established for the crime of qualified looting, and Article 302/1 of the CMK no. 5271. pursuant to article,APPROVAL OF THE PROVISIONS, partially in accordance with the communiqué, with the ESSENTIAL REJECTION of the defendant …, the defendants …, … their lawyers and the participant …’s attorney, which did not appear in place, and the APPROVAL OF THE PROVISIONS, CMK. It was unanimously decided on 20.04.2021 that the file be sent to the Burhaniye High Criminal Court, and a copy of our decision to the 8th Penal Chamber of the İzmir Regional Court of Justice.