T.R. SUPREME COURT
- Criminal Chamber
Basis: 2014/28897
Decision: 2016/8781
Decision Date: 23.06.2016
THE CRIME OF OBJECTING THE LAW NUMBER 4733 – WHEREAS IT SHOULD BE CONSIDERED TO CONFIDENCE WITH THE CONFIDENTIALITY OF THE CONSEQUENTIAL IMMEDIATE IMMEDIATE IMMEDIATE CRIME, AND IT WAS NOT JUDGED TO LIQUID IT BY DESTRUCTION – APPROVED BY CORRECTION
SUMMARY: In the judgment established on the accused who was charged with the crime of violating the law numbered 4733, it was decided to confiscate the smuggled and non-bandrole cigarettes, which were the subject of the crime, while it was decided to liquidate them by destruction, although it required reversal, the verdict was corrected and approved.
(5237 S. K. art. 53, 54) (ANY. MAH. 08.10.2015 T 2014/140 E. 2015/85 K.)
Litigation and Decision: The judgment rendered by the local court is appealed; After the file was read according to the nature of the application, the type of punishment, its duration and the date of the crime, the necessity was discussed and considered on behalf of the Turkish Nation;
I- In the examination of the appeal of the representative of the Customs Administration involved;
The appeal review request of the participating Customs Administration representative, who did not appeal the provision within the legal period, is subject to Article 8/1 of the Law No. 5320. Rejection pursuant to article 317 of the CMUK numbered 1412, which is in force in accordance with the article,
II- In the examination made according to the defendant’s appeal;
1- With the annulment decision of the Constitutional Court dated 08/10/2015, basis 2014/140 and numbered 2015/85, which was published in the Official Gazette No. 29542 dated 24/11/2015, some parts of Article 53 of the TCK No. 5237 There is an obligation to re-evaluate the aforementioned article due to its cancellation,
Pursuant to paragraph 3 of Article 53 of the TPC No. 5237, the deprivation of rights written in sub-paragraph (c) of paragraph 1 of the aforementioned article, for the accused whose sentence of non-short-term imprisonment has been postponed, should be applied only in terms of the custody, guardianship or trusteeship powers of the defendant over his/her descendants. a written verdict, without considering that he is not, and that it is necessary to decide to deprive him of these rights and powers until the execution of the sentence is completed,
2- Confiscation of smuggled and non-bandrole cigarettes, which are the subject of the crime, should be contented with the decision to confiscate in accordance with Article 54 of the TCK No. 5237, but also to decide to dispose of them by destruction,
Conclusion: Since the objections of the accused are unlawful and the objections of the accused are deemed appropriate for these reasons and these issues do not require a retrial, in accordance with Article 322 of the CMUK no.
1- Removal of the section regarding the implementation of Article 53 of the TCK No. 5237, instead of the Constitutional Court published in the Official Gazette dated 24/11/2015 and numbered 29542, dated 08/10/2015 and 2014/140 E. , 2015/85 K. Taking into account the abrogated matters in the decision numbered
2- Paragraph 2 regarding the disposal of the cigarettes subject to the lawsuit by destruction is replaced with the sub-paragraph “2- Confiscation of smuggled and non-bandrole cigarettes in accordance with Article 54/1 of the Turkish Penal Code No. 5237,” and the provision is revised and approved by leaving the other parts unchanged, 23.06 It was decided unanimously on .2016.
