Decision Date: 29.06.2016
CRIME OF LOOTING – FAILURE TO DECIDE ON A CONVICTION FOR LOOTING AND MEMBERSHIP IN A CRIMINAL ORGANIZATION ON GROUNDS THAT ARE NOT APPROPRIATE AND SUFFICIENT-
Summary: the decision to convict the accused …for the crimes of looting and membership in a criminal organization on the grounds that the evidence of the defendant’s direct or indirect participation in the act of looting against the participant was not discussed and shown on the spot in such a way as to allow an audit, on the spot and on insufficient grounds.
(5237 P. K. m. 39, 168)
Case and decision: the verdict given by The Local Court was appealed by the defendant … and his defense at trial; although the defendant and his defense were duly informed of the day of the hearing, they did not come to the hearing and did not provide an excuse, the file was discussed according to the nature, type of punishment, duration and date of crime of the application at the end of the examination without a hearing from the point of view of the said defendant.
Member … 14/4, which was added to the Anti-Terrorism Act by law 6526.the last sentence of the article is contrary to the Constitution of the Republic of Turkey and international treaties and therefore the application to the Constitutional Court for its cancellation; the Member … ‘ s views that the review of the provision given because the said article contradicts the international treaties adopted by our country is completely violated in accordance with the principle of equality and the right to a fair trial are rejected by a majority of votes;
I – to form an organization for the purpose of committing a crime the defendant, the defendants …, …, …, … and … about an organization, membership in the defendant’s crimes imprisonment for aiding a criminal organization with the provisions of the law about the criminal organization help and the public prosecutor of the defendants 6136 12/1.12/1 of law 6136 on the defendants.violation of Article; 12/1 of law 6136 on the defendant.violation of Article misconduct, judicial or hide the task to destroy incriminating evidence to report the crime of attempt to influence public servants who work for the crimes and prostitution is not authorized to broker established to provide benefits for an acquittal where the provisions of turning to the demands of the examination of Appeals;
Defendants whose rights have been convicted…, …, …, …, …, … and … related to; written in Article 53/1-b of the TCK, “election, election and other political rights to use” on the cancellation of the phrase 24.11.2015 published in the Official Gazette dated 08.10.2015 day, 2014/140-2015/85 the main and decision of the Constitutional Court, which entered into force on the same date, was observed at the execution stage.
In accordance with the content of the files and minutes of the trial, the favorable evidence, the justification and the discretion of the Board of judges, the defendants…,…,…, … and…, … their defense, as well as the appeal of the accused … and the Public Prosecutor, are not seen in place, with the rejection, other aspects other than criticism, to uphold provisions that comply with the procedure and law,
II – about the defendant participating and suffering … ’a separate looting, fraud defendants with crimes…,…, …, … …complaining about a’don’t you dare to fall for the defendants,…,…,…, … about …join’imprisonment for crimes, the public prosecutor or the defendant with participating loot the provision about …’or the provisions of loot and membership in the organization established an acquittal for the examination of Appeals for claims of crimes when it comes to:
Other appeals have not been seen in place.
1-indictment (2.) in the action specified as an event;
7,000 that his father, who complained before the date of the incident, and the defendant’s uncle, withdrew from the bank.- After he vouched for a loan of TL, but the loan was not paid during this time, the defendant …complained about this debt in exchange for 3,150.- A defendant who was angry that he gave a promissory note with a sum of TL, as a result of not being paid on time, threatened the complainant, on 05.05.2008 for the solution of this dispute, the defendants…,…, …and … went together to the workplace of the complainant with the threat of weapons, forced him into a vehicle and took him to a restaurant on his site, captured by the security forces here in the order they spoke defendants …, …, …, …, … about, “Don’t leave devoid of liberty” and a “threat” to the Criminal Court on crimes and public Tuzla 27.05.2008 opened the case by the same court dated 26/05/2009 the outcome of the trial day, 2008/1176-2009/564 the basis of the decision and by the decision of the defendants was acquitted, and this crime as a result of failure to appeal against the decision was finalized with the understanding that in the face of,
As mentioned in the Decree No. 2012/2-1518 esas-2013/154 dated 09.07.2013 of the General Assembly of the Supreme Court of Criminal Appeals,
A number of “sine qua non” (sine qua non) conditions are sought for Criminal Procedure. One of these conditions that prevents reasoning is that there are no provisions or lawsuits filed, expressed as “non bis in idem”.
“Non bis in idem” principle, which is applied as a legal norm that lives without being explicitly written in the laws, is also accepted in the doctrine and is one of the main principles of the law of reasoning 253 of Cmuk 1412. in the third paragraph of Article; ” if there is a provision or a case filed for the same defendant on the same issue, the decision to dismiss the case is decided”, CMK 5271, which entered into force on 01.06.2005, 223, entitled “termination of the trial and sentence”. in the seventh paragraph of the article,; ” Because of the same act, if there is a prior provision or a case filed for the same defendant, the decision to dismiss the case is decided.” As can be understood from these regulations, because of the same act, if there is a prior provision or a case filed against the same defendant, the decision to dismiss the case will be decided.
In light of these explanations,
223/7 of the CMK of the public case against the defendants mentioned in our concrete event due to actions taken on the same date against the same complainant. in accordance with the article, a decision on rejection should be made, while a decision on the conviction of the defendants in written form, continuing the trial, citing a change in the nature of the crime,
2-as a result of the examination on the forged identity card and passport, the expert report organized by the Istanbul Criminal Police Laboratory dated 29.06.2010 stated that the still existing photos in the passport and identity card subject to crime were glued after the removal of the photo in the same places before.;
Details of the General Assembly of punishment 14.10.2003 day and 232-250 no., 09.10.2012 day 2011/8-335 as explained in the basic 2012/1804 no., the document should have an objective nature of deception and the arbitrariness of deception should be objectively understood from the document. In order for the crime of forgery to occur in the document, the document edited or modified or used must be misleading to the person that it is real. Deception is the main element of this crime, and a document that cannot be understood to be real unless it is subjected to Special Examination should be considered a false document. Whether the forgery is objective and understandable at first glance should be determined in a way that does not give room for doubt. Whether you are capable of deception crimes of forgery in documents appreciated, and determination belongs to the judge and the subject of a crime and false birth certificate and your passport that is considered to be, by the evaluation of the properties written into the minutes of the hearing ability of justification-what these deception-deception on the nature of the decision that is having discussed the subject of the document is explained in a way that allows you to control crime in the file kept in the original copy of the review is the outcome of the decision in writing without missing,
3- The indictment (1.) in the action referred to as the incident, the accused … with …participating in the white goods trade due to the need for cash …before the date of the incident 2 pieces 24,000.- 40,000 for a check for£.-TL receivable maturity of the checks they receive in cash the day of participating in the efforts go in vain when it comes to seeking to collect on the debt in question will be subject to enforcement proceedings and defendants … for fear that…’s the back of the cheque will be taken on-the parties of the relationship lender is a non-defendants …to ask for help from the operation reflected on these issues in the interview record clearly understood, at the workplace of the participant, the accused …and the accused …went together and talked about the debt, where the accused … introduced himself as a government official and tried to intimidate him, but according to the phone call records of the defendant …who insisted on receiving the checks in the ongoing process, the defendant …tried to return the checks in question by using his name and power, going to the workplace of the second time with two people whose identity could not be fully identified, 14-15, 000 who participated with the threat of a gun.- In a concrete incident where he left the scene by forcibly taking his checks with TL cash,
(a) a decision on the conviction of the accused …for the crimes of looting and membership in a criminal organization in writing on the grounds that the evidence of direct or indirect participation in the act of looting against the participant is not discussed and shown on the spot, in such a way as to allow an audit,
b) joining the diagnostic report dated 29.06.2010 held live after the operation based on the content of one of the defendants, …click “event on the date of coming to work in conjunction with instruction in hand with the defendant and his walkie-as a person who was in the doorway” to identify, despite Hearing dated 04.02.2011, “the party likened to standing in front of door”, dated 24.11.2011 at the hearing, he can’t remember exactly, but can identify the employee in the workplace” to declare in the face; due to the fact that the person named was the only witness to the incident, without their narrative of the merits, satisfied with the incomplete investigation, the trial continued in writing, the defendant …was acquitted of the crimes of looting and membership in a criminal organization due to his action against the participant,
c) in relation to cash and checks allegedly looted from the participant …the defendant … in the hearings dated 01.08.2012 and further, “168 of law 5237, which was in their favor after the full determination of the resulting damage.” in accordance with the requests for recognition of the possibility of application with the article, if necessary, the victim’s declaration in this direction or the court re’sen determination to be made and given a reasonable period of time should be met without consideration, continuing the trial in a written decision,
4 – (3) according to the content of the violation of the defendant … 39 Of Law 5237.the decision on whether to apply with the article is left unchallenged at the site,
Defendants …, …, …, …, …, …, … since the appeals of the defense and the defendant … and the Public Prosecutor were considered in place in this regard, the decision was made on 29.06.2016, despite the opposition of Mr. member …in terms of the reasons for the violation of (1), (3-C), (4).
At the end of the reasoning of the public case filed against the action of the defendants against the victim…, since I did not see a hit in the provision established by the court and found the application correct, with the thought of breaking (1) for this provision;
I do not agree with the high majority’s (3-c) and (4) distortion considerations in the face of formation, file content and available evidence.
105/6 of the law No. 6352 on amending certain laws to enable Judicial Services and postponing cases and penalties for crimes committed through Press Publication. repealed by article; however, provisional 2/4 of the same law. in accordance with article 250/1, the CMK is repealed, which is tasked with looking at cases filed in these courts until they are concluded with the final provision. according to Article 1 of the law on amendments to certain laws with the Anti-Terrorism Law No. 6526 and the Criminal Procedure Law, which entered into force by being published in the Official Gazette No. 28933 dated March 6, 2014. provisional article 14/1 added to the Anti-Terrorism Law No. 3713. although it has been removed in accordance with Article 4 of the aforementioned article. he said: “these courts will continue to review the files found in the Attorney General’s Office of the Supreme Court or in the offices of the Supreme Court.”it has been decreed. According to the position of the Republic of Turkey; terror, including the fight against organised crime; the special authority courts legislator lifting; lifting does not carry drawbacks revealed in the reason; in accordance with the rules of universal law; the boundaries of the powers and duties are well drawn; well established infrastructure; I’m having faith that there is a need to the specialised courts.
Although this is my opinion, my opposition is to the point that when these courts are abolished, the provision as described above, which distinguishes between defendants whose file has not yet been completed, and defendants whose file has been decided and sent to the Supreme Court, does not coincide with and contradicts the reasons for removal.
Article 2/f of law 5271 refers to” prosecution: the stage starting with the acceptance of the indictment and passing until the finalization of the provision”, defined as, according to this definition, files at the appeal stage are derdest files whose prosecution continues. In the face of this definition, yet the prosecution process incomplete files; those who have not been decided by specially authorized courts, General (normal) high were sent to criminal court; the appeal is in the way of what is under examination by the Supreme Court if necessary by editing the correct solution is not a distinction I think. As I will explain the reasons below, despite the provision of this law; in their files in the Supreme Court, as in the files that have not been decided; without any review, I am of the opinion that they should be returned to their area and their reasoning should be carried out in general (normal) courts. A December November 10, 1948, Universal Declaration of human rights and the European Convention on human rights of November 4, 1950 would be contrary to the decision, that is, to comply with the rule that these files will be examined by entering into the basis.
That is to say;
1-specially authorized courts “the right to a fair trial” and “heavy penal Courts” has been removed in order to end the distinction between, and this was stated in the aforementioned article also said general and of the law; thus, all are subject to the rules of procedure Criminal Court, which is required for ensuring that the right to a fair trial by the Special Investigation and prosecution procedures it is intended to last. For this purpose, we look at; editing that the files found in the Prosecutor General’s Office of the Supreme Court and the offices of the Supreme Court will continue to be examined; 10 Of The Universal Declaration Of Human Rights. and 6 of the European Convention on Human Rights. it doesn’t fit their substance.
Indeed, the legislator himself, specially authorized courts is removed in order to provide the right to a fair trial, the law has set in the grounds of this regular criminal court according to the court, although he admits that even more precarious; the decisions of these courts, established by the provisions of the Criminal Court, such as it intends to examine normal; creates a result that is inconsistent with the purpose and rationale of removal.
2-courts are obliged to act in accordance with the principle of equality in all their transactions. According to law 6526, methods of collecting evidence were changed; previously, 250 cmk. restrictive provisions for suspects and defendants in investigations and prosecutions remaining within the scope of the article were removed, ensuring legal security and judicial equality. But as a result of the abolition of Special competent courts, with defendants in cases that are not decided by these courts and sent to other severe criminal courts; making a difference by distinguishing between the defendants of the files whose decisions are reviewed on appeal in the Supreme Court; 7 of the Universal Declaration of Human Rights. 14 of the European Convention on Human Rights, which provides for the enjoyment of all without discrimination from the rights and freedoms set out in the convention, with the principle of equality provided for in Article. Article 10 of our Constitution entitled “equality before the law”; 36 entitled “Freedom to seek rights”; 37 entitled “guarantee of a legal Judge”; 38 entitled “crimes and punishments”. it’s a violation of their substance.
As such, the Legal Regulation in question is contrary to our Constitution and conflicts with the international treaties to which we are a party and which have been duly enacted.
Now, here the problem is gathered at the point of whether we can overcome the provision of the law mentioned, which is contrary to our Constitution and the international treaties we have explained above; if we can, how can we do so.
In fact, this issue, while a problem, is 90/5 of our Constitution. article 07.05.2014 date and 5170 with the amendment to the Law No., the provisions of the international treaty were recognized as superiority, the basis of which was resolved and there was no discussion for this day.
That is to say;
90/5 of our Constitution. in the event of conflict with a treaty rule governing fundamental rights and freedoms, it was agreed that the provisions of the treaty would apply.
Based on this provision, if we consider our concrete event, Law No. 6526 1. provisional Article 14 added to the Anti-Terrorism Law. Article 4. it is clear that the last sentence of the paragraph contradicts the Constitution of the Republic of Turkey and the international treaties adopted by our country, and the solution of the problem by recognizing the superiority of the provisions described above of the Universal Declaration of Human Rights and the European Convention on Human Rights and the provisions given by special competent courts; in accordance with the principle of equality before the law and the right to a fair trial, without examining other aspects, it must be completely violated in general (normal) severe criminal courts; in order to make their reasoning and establish a verdict according to the result. I believe that accepting the opposite idea would have contradictory consequences for the lawmaker’s justification and purpose for removing these courts, as well as contradicting the basic values of the law, which can be collected under the headings of Justice, place and legal security.
For these reasons, I do not agree with the opinion of the high majority in the file in question and the decision made in accordance with this opinion.
5.7.2012 105/6 of the law No. 6352 published in the official gazette on amending some laws in order to enable Judicial Services and postponing cases and penalties for crimes committed through Press Publication. repealed by article; however, provisional 2/4 of the same law. in accordance with article 250/1, the CMK, which is tasked with looking at cases filed in these courts until they are concluded with the final provision, is repealed. according to the article, the courts officer; 1 of the law amending some laws with the Anti-Terrorism Law and Criminal Procedure Law No. 6526, which entered into force by being published in the Official Gazette No. 28933 dated March 6, 2014. provisional article 14/1 added to the Anti-Terrorism Law No. 3713. although it has been removed in accordance with Article 4 of the aforementioned article. he said: “these courts will continue to review the files found in the prosecutor general’s office of the Supreme Court or in the offices of the Supreme Court.”it has been decreed. This provision is contrary to the Constitution of the Republic of Turkey and the European Convention on human rights.
That is to say;
1-Special competent courts have been abolished in order to ensure the “right to a fair trial” and “judicial unity”. This is stated in the general justification of the aforementioned law and in the justification of the aforementioned article; it is aimed to end the Special Investigation and prosecution procedures necessary for the right to a fair trial, so that all severe criminal courts are subject to the same procedural rules.
However, by law 6526, temporary 14 added to the Anti-Terrorism Law. Article 4. in the last sentence of the paragraph, the Special-General Court distinction is maintained; 10 of the Constitution of the Republic of Turkey entitled “equality before the law”; 36 of “freedom to seek rights”; 37 of “legal Judge assurance” and 38 of “principles related to crimes and penalties”. Articles 6 of the European Convention on Human Rights on the right to a fair trial. a violation of the article was made and the principle of judicial unity was violated.
2-Courts, in all their operations, 10. it must act in accordance with the principle of “equality before the law” contained in the article. According to law 6526, the methods of collecting evidence have changed; the law of trial has been made legal and reliable. Previously, Cmk’s 250. in the investigations and prosecutions remaining within the scope of the article, the existing restrictive provisions in terms of suspects and defendants were removed, ensuring equality of legal security rights of persons and judicial proceedings.
3-also this sentence, 36 of the Constitution. “with the freedom to seek Rights, Everyone has the right to a fair trial by claim and defense as a plaintiff or defendant before the judicial authorities”; 37. “no one can be brought before any other authority than the court to which he is subject by law” and 38. it is also a violation of the provisions contained in the article that “findings obtained that are contrary to the law cannot be considered as evidence”.
4-one of the Basic Rules of modern constitutions is the rule that the legislator will not engage in absurdity. Legislator, CMK 250. by abolishing the courts mandated by the article, he recognized that these courts are more precarious than normal criminal courts
5-CMK 250. Article 10 of the Constitution also makes a difference between the defendants of cases whose decisions are reviewed on appeal in the Supreme Court and the defendants of files whose decisions are sent to other criminal courts by abolishing the courts charged with the article. it contravened the principle of equality written in the article.
6-Article 90 of the Constitution/the last item is included in the “international treaties on fundamental rights and freedoms duly put into effect due to the inclusion of provisions in different laws on the same subject to the provisions of the International Covenant disputes that may arise shall prevail” rule as required by regulation 6 to the ECHR on the right to a fair trial. because it is contrary to the article, it must be canceled.
In summary, Act 1 of 5526. provisional Article 14 added to the Anti-Terrorism Law. Article 4. since the last sentence of the paragraph is contrary to the Constitution of the Republic of Turkey and the international treaties adopted by our country, 152. application to the Constitutional Court in accordance with the article and withdrawal of the appeal review until the result of the decision to be made