T.C.
SUPREME
GENERAL ASSEMBLY OF SENTENCING
E. 1992/5-190
K. 1992/237
T. 28.9.1992
* ALAYHE VIOLATION BAN
* EARNED RIGHT IN TERMS OF THE AMOUNT OF PUNISHMENT
* Non-hit in the determination of criminal merit (aleyhe violation ban )
1412 / m.326/2, 291, 307, 308, 325, 343
765 / m.421/2
Summary: If a misdemeanor is found in the appellate review, this matter will be made because of the violation, even if there is no appeal. There can be no earned right in criminal merit. But in this case, the principle of acquired rights in terms of the type and amount of punishment will be raised.
Acceptance otherwise leads to different application of legal rules throughout Turkey.
Case and verdict: TCY by accepting that Kazim’s action on the charge of rape tasaddi constituted the offence of groping.421/2, 59. according to the Article 5 months of imprisonment by Kadıköy 3 NCI Criminal Court of First Instance with 17.12.1991 days and 592975 numbers, since the sentence was appealed by the defense of the accused, the 5th Criminal Department of the Supreme Court examining the file, 13.5.1992 days and 12461548 numbers;
(According to the file, the action constituted the crime of tasaddi, but the reason for the violation was not made because there was no appeal against the admission of groping, other aspects of which were in accordance with the procedure and the law ) was decided by a majority vote.
And the members who voted against; CYUY, since there can be no rights earned from criminal merit.they argued that the provision should be broken in accordance with article 326/2.
Supreme Court C. Attorney General’s office with 3.6.1992 days and 570541 numbers;
In accordance with the views of the members of the Special Department who voted against, with the view that there cannot be a right acquired from the criminal merit, the Special Department asked for the decision to approve it to be abolished and the provision to be broken.
The file was sent to the First Presidency, the punishment was read by the General Assembly, the requirement was discussed and considered:
SUPREME COURT SENTENCING GENERAL ASSEMBLY DECISION:
according to the file examined;
If the dispute between the special department and The Local Court is not against the defendant ( counter-appeal), if the provision is found to be a violation of the criminal merit, it is about whether the decision can be decided to break the sentence, or whether there will be a right acquired from the criminal merit in another narrative.
During the deliberation of the question at the General Assembly of sentencing, the appeal case was only in favor of the defendant or his. Prosecutor or CYUY.if it is opened by the persons described in Article 291 of, it has been discussed whether an appeal can be made in all aspects without the distinction of lehe alayhe, hence the violation of lehe alayhe.
As a result, the concepts of acquired rights in terms of the obligation not to violate alayhe and the amount of punishment were emphasized. If you need to look at these concepts;
1. the appeal of the interested parties against the decisions made by the local courts is a common legal case. When the appeal case is opened only by the defendant or by the interested parties described above in his favor, the principle of not making corrections that aggravate the result and give alayhe results with another narrative is called the difficulty of not breaking alayhe.
2 a right acquired in terms of the amount of punishment: when an appeal is filed by the defendant or the interested parties provided for in the law of trial, the penalty and result determined by the re-established provision on violation of the favor are not heavier than the penalty and result determined by the previous provision.
If we define the concepts in this way, the obligation not to violate the law is a procedural rule that determines the point of view when the appellate review of the provision begins. A right acquired in terms of the amount of punishment is the principle of a trial law that determines the limit of the amount of punishment at the stage after the violation of the lehe. Both are different procedural institutions whose implementation stages arise from the same legal opinion and close to each other for the same purpose, but have different legal structures.
In case 0, the verdict is by the defendant or C. If it has been appealed in favor of the defendant by the prosecutor or interested parties, it is necessary to make a decision to overturn it when a faulty application is found of criminal merit. Or will it be content with criticism of this issue.
The task of the Supreme Court is to check whether the laws are applied in accordance with the law throughout Turkey, to ensure unity in the application of the law and legal rules within the country with its case law. In this regard, if the appellate review finds a failure in the criminal nature of the provision, alayhe will make the reason for violating this matter, even if there is no appeal. But 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 in accordance with the purpose of the establishment of the Supreme Court and the province of equality. Because two defendants have been tried in different courts for the same or similar action, one of them is TCY.according to Article 202 of the TCY, the charge of embezzlement is another with erroneous admission.let’s assume that under Article 240, convictions for misconduct were made and both decisions were appealed in favor of the defendants. In this case, the Supreme Court will decide on approval, since the sentence established for embezzlement is in accordance with the law. What will the Supreme Court do if it finds that the provision for misconduct is against the law. Of course, he will decide to break the provision, emphasizing that the act constitutes a crime of embezzlement because the criminal nature is misidentified and stating that the principle of acquired rights in terms of the type and amount of punishment must be observed. Because the task of the Supreme Court is to ensure unity in the implementation of laws within the country. Essentially, agree to the contrary, the same of the actual perpetrators, sentenced for the crime of embezzlement ( the statute of limitations criminal, civil service, deprived her of the loss of the suffrage, amnesty law in the face of a possible encounter different situations… ) can lead to consequences such as while due to incorrect determination of the qualification of the crime sentenced for the crime of abuse of office with the results described above, ‘the principle of equality and a sense of justice that leads to encounter it doesn’t fit with.
0, if the Supreme Court determines that the crime has been misled, it must decide to overturn the provision that is contrary to the law, reserve the right acquired in terms of the type and amount of the penalty.
If the president and board members vote against it, the appeal, which is the usual way of law, is a case. Therefore, it is a recognized right for the defendant to file an appeal. By the defendant or in his favor C. If this right is exercised by the prosecutor or the interested parties, if it is accepted that it may have consequences against the accused, the accused or the interested parties who may resort to this path in his favor will hesitate to file an appeal and will have to agree to a provision that they believe is unfair. In order to eliminate this disadvantage, if there is no appeal against the defendant, the decision cannot be corrected against the defendant, which constitutes an absolute violation of the law of the provision ( CYUY.308. Md. the principle of” reformrnatio in Peius ” has been enshrined in the laws of proceedings as a procedural rule.
Indeed, CYUY.358 of the German Criminal Trials Act of 1887. in the case of the application of the article lehe, alayhe did not agree to the correction. For this reason, our judicial law does not allow for correction in the case of a lehe application, as in the source law. (CYUY.of 308. except for cases of absolute legal violations in the article )
The defendant who has filed an appeal or those who have appealed in his favor act in order to correct the decision in favor of the defendant. Ignoring this purpose and allowing correction; 326. in the justification adopted by the Istanbul Commission of the article; “… as a result of the vaki appeal in favor of the prisoner, no royalties with kavaidi madelet and the right to impose a heavier penalty than the sentence assigned by the previous provision could be seen.”it also contradicts his opinion. 0 as soon as an appeal is filed in favor of the accused, the matters against the accused constitute an acquired right for him.
On the other hand, although the appeal case is filed in favor of the defendant, making a correction against the defendant will mean making a violation in favor of the opposite party, making a decision on the case that has not been filed results in involuntary decision-making.
As a matter of fact, the ban on violating alayhe has also been implemented in different areas as a rule of judgment. As is known, one of the most important conditions for filing an appeal is the right. For this reason, the acquittal decisions cannot be examined because they do not have the right to appeal the defendant. In such cases, even if there are reasons that require the violation of the provision, the provision cannot be violated.
CYUY on the other hand.in 325. if the provision in accordance with the article is broken when an appeal is made against one of the defendants, it also does not appeal to defendants who do not appeal, while it does not appeal to defendants who do not appeal in cases of violation. According to the fact that the order is only lehe, they are not affected by the violation of alayhe, the failure to comply with the ban on alayhe violation for the Lehe appellant is also contrary to the accepted purpose of the order institution.
Also CYUY.in Article 294, C. It has been made clear that the sentence could be overturned in favour of the defendant if the prosecution appealed. If the appellant had adopted a rule that there could be a violation against him, C. A regulation such as the provision that the prosecutor’s appeal could be overturned in favor of the defendant, who was the opposite party, would not have to be put into law.
CYUY, as it is known.a written order issued in Article 343 of is an extraordinary way of law and can be taken against decisions made without appeal. In the examination conducted in this way, only those who are alayhe are identified, while those who are lehe have legal consequences. If the obligation not to violate alayhe is not observed in an appeal case, which is the usual way of law, the defendant will not appeal a provision that carries both lehe and alayhe’s reasons for violating it, and the sentence will be finalized without the supervision of the Supreme Court. After that, the defendant who chooses the path of the extraordinary law will face a lighter result, while the appeal, which is the path of the ordinary law, will face a heavier result, since the path of the written order will be driven and only the violation of the lehe will result in this path. It is unthinkable that the legal system would allow such a situation.
And it has to be explained, CYUY.Article 307 of the legal opposition is explained as the reason for the appeal. This regulation is related to the reasons for nisbi’s appeal. Article 308 contains the reasons for absolute appeal. In the case of the reasons for the nisbi appeal contained in Article 307, the obligation not to violate aleyhe applies, while in the case of the absolute reasons for the appeal written in Article 308, the Prohibition of not to violate aleyhe will not apply, in which case the principle of acquired rights in terms of the type and amount of the penalty will be raised. To give an example; let’s assume that two defendants whose actions are the same have been sued for embezzlement in a Criminal Court, and the other for abuse of office in a Criminal Court of First Instance. Let’s assume that both courts have convicted him of misconduct. If these decisions come to the Supreme Court on the lehe appeal case; If the Supreme Court finds that the acts are not of abuse of office, but constitute a crime of embezzlement, the decision of the Criminal Court of First Instance will be valid in the decision of the Criminal Court, making the decision of the Criminal Court of First Instance CYUY.he shall take into account the principle of acquired rights in terms of the type and amount of the penalty when violating the rule of duty in Article 308 of the penalty.
0 on the case of lehe appeal, the rejection of the appeal must be decided, since the principle of non-infringement must be taken into account. ) they put forward their opinion.
Conclusion: Supreme Court C. In the second negotiation, it was decided by a majority vote to accept the appeal of the attorney general’s office, to abolish the consent of the Special Department, to consider the principle of rights acquired in terms of the amount of punishment.