T.C.
THE DECISION OF THE SUPREME COURT
CRIMINAL GENERAL ASSEMBLY
E. 2013/666 2015/91 K.
The defendants for the crime of theft are F.. S.. and H.. Y..142/1, 53/1 and 63 of the Turkish Commercial Code numbered 5237. according to articles 58/6 of the same law, they are punished with imprisonment for four years and eight months, deprivation of rights and deprivation of liberty. in accordance with article F of the defendant.. S..on 15.10.2010 days and 401-699 of the provision issued by the Criminal Court of First Instance of Didim regarding the punishment of the accused according to the execution regime specific to the accused, Defendant F.. S.. the Supreme Court, which examined the case on appeal by 6. By the Criminal Department on 27.10.2011 day and number 5124-4535;
“Other appeals have not been considered on the spot, but;
1- After it was reported that there were thieves on the New Laurel Site, after law enforcement officers who arrived at the scene saw two people running from the back of the site, people who did not stop despite the stop warning were caught after fleeing for three kilometers, one of the people who escaped, defendant F.. S.. when he was caught, there were three mobile phones on the floor under the stairs and Turkish money and dollars in the upper search, when the other accused who escaped was caught, there were two brown socks and money in the left pocket of his tracksuit, according to the incident capture custody record F.. S..K, who did not have an application and stayed in the same house, from the mobile phones found under the stairs at the place of his capture.. Y..failure to observe that the provision of effective remorse should be applied in the face of the delivery of mobile phones and coins belonging to the victim and mobile phones and coins belonging to the other victim,
2 – of 53/1 of the TPC-c the item specified in the rights that the second and third paragraphs of the same article, they are being ignored up to the conditional release of deprivation decision” of corruption isabetsizlik cmuk No. 1412 of Article 8 of the law 5320. which is in force in accordance with Article 325. according to article H, the defendant who does not appeal the verdict without disturbing it.. Y..it has also been decided to benefit from .
The local court is on 06.04.2012 days and numbered 51-178;
He resisted the first provision on the grounds that ”the defendants did not return the criminal property with their consent, it came out of them when they were caught, some of it was seized as a result of law enforcement investigations and interrogations of the defendants, for these reasons, extradition provisions requiring consent cannot be applied to them”.
This provision is also the defendant F.. S.. upon appeal by the Prosecutor General of the Supreme Court dated 24.09.2013 and numbered 181245, the file sent to the First President of the Supreme Court with the “approval” request notification was evaluated by the General Assembly of the Punishment and decided on the grounds described.
DECISION OF THE CRIMINAL GENERAL ASSEMBLY
Defendant F.. S.. the verdict established against him for violation of housing immunity was finalized by approval by the Special Department, and the examination was carried out according to the scope of the appeal, limited to the decision on the conviction of the said defendant for theft.
The dispute between the Special Department and the local court, which must be resolved by the Criminal General Assembly, is related to determining whether effective decency provisions should be applied to the accused of theft.
From the scope of the examined file;
In the capture and custody report; On the day of the incident, when the site was reported to have people suspected of being thieves, two people who noticed the officers were seen running away, despite the warning to stop, people continued to escape through the gardens and jumping off the walls inside the site, they could be caught using force, defendant F.. S..by showing the houses they entered, information is given that they declare that they took those who came out of them from these houses,
Defendant F.. S..the arrest record for the following is arranged as follows; When two people went to the scene, they started to run away after seeing the officers, as a result of the chase, the accused was caught using force because he resisted the police officers under the staircase where he was hiding, three mobile phones were found in the same place,
Defendant F.. S..during the police station search, four mobile phones, three of which are the same, one of which is of a different brand, and various amounts of money, some of which is foreign currency, were found at the police station, defendant H.. Y..on the other hand, no criminal elements were found,
Minutes of regulatory witnesses; in the early hours of the morning on the day of the event that may be considered upon notification that a thief there were two people in a site, the scene seen by the parties before they were transferred to three separate car on the site, wandering the chase started in the direction a vehicle is going, they are not able to watch the house they seamlessly from the defendants, three-mile chase after they caught in different places separated the defendants, the defendant stole mobile phones and Faruk are evaluated over the money they found, both belonging to the complainant when they ask house shows, they declared that they had found women’s tulle socks on the other defendant,
The defendants, who have a criminal record for theft, have argued that they have not accepted the charge, that the seized mobile phones have not been found on or near them, that they have never known each other,
It is understood.
168 of the Turkish Criminal Code, entitled “effective remorse”, which relates to the subject of the dispute. the substance;
“1) theft, vandalism, breach of trust, fraud, and therefore prosecute crimes but enjoy these items before and after it is completed, the perpetrator, the victim or the person who helped exactly ordered the hit by the losses of return or compensation by showing remorse if you do not completely correct, the penalty is reduced from one third to two thirds. If it is a crime of looting, the penalty is reduced from one sixth to one third.
2) In order to implement the provisions of effective remorse in case of partial refund or compensation, the consent of the victim is sought”, while Article 20 of Law No. 5377, published in the Official Gazette dated 08.07.2005, entered into force. modified with substance;
“1) theft, vandalism, breach of trust, fraud, fraudulent insolvency, negligence, bankruptcy, and therefore prosecute crimes, but enjoy these items before and after it is completed, the perpetrator, the victim or the person who helped by showing exactly ordered the hit by the losses of remorse return if you do not completely correct or compensation, about two-thirds of the sentence to be imposed is lowered enough.
2) If effective remorse is shown after the start of the prosecution, but before the verdict is given, up to half of the punishment to be given will be reduced.
3) The penalty to be given to the person who shows effective remorse for the crime of looting shall be reduced to half in the cases of entering into the first paragraph and up to one third in the cases of entering into the second paragraph.
4) In order to implement the provisions of effective remorse in the event of partial refund or compensation, the consent of the victim is also sought”.
As clearly emphasized in the decision of the Criminal General Assembly dated 27.05.2008 and numbered 127-147; Article 168 of the TCC. in order to implement the “effective remorse” provisions contained in the article, if the crimes listed in the article are committed in a limited way, the perpetrator must personally show remorse and fully remedy the damage suffered by the victim by returning or compensating them in kind.
The mentioned article is regulated by Article 523 of the Turkish Commercial Code No. 765. it is quite different from its substance. 29.06.1955 day and Decision No. 10-16 to Merge the Case Law and as explained in many decisions of the Criminal General Assembly, especially decision No. 248-288 on 11.11.1997 day and decision No. 523 of the Turkish Commercial Code No. 765. the article is based on the principle of ”refund and compensation”. article 168 of the Turkish Commercial Code No. 5237. the article, on the other hand, highlights the “regret” principle rather than compensation.
According to the prevailing opinion in the teaching; 168 of the TCC No. 5237. article 523 of the Turkish Commercial Code No. 765. in contrast to the article; It is accepted that it is based on the principle of “regretting compensation too much”. (Durmus Tezcan-Mustafa Ruhan Erdem-Murat Önok, Theoretical and Practical Criminal Private Law, 11. Edition, Distinguished Publishing House, Ankara 2014, p. 696-702; Veli Özer Özbek-Mehmet Nihat Kambur-Koray Doğan-Pinar Legsız-Ilker Tepe, Special Provisions of Turkish Criminal Law, 8. Edition, Distinguished Publishing House, Ankara 2015, p. 615-618; Sedat Bakıcı, Special Provisions of Criminal Law, Justice Publishing House, Ankara 2008, p. 934; Erdal Noyan, Theft Crimes, Justice Publishing House, Ankara 2007, p. 396; Ali Parlar- Muzaffer Hatipoğlu, Interpretation of the Turkish Penal Code, Ankara 2007, c. 2, p. 1318; Hüseyin Eker, Theft Crimes, 2. Edition, Justice Publishing House, Ankara 2014, p.756)
168 of the TCK. during the regulation of the article, it was wanted to prevent possible hesitations by adding the phrase “the perpetrator, the instigator or the helper must personally show remorse and fully repair the damage suffered by the victim by giving back or compensation in kind” to the article. Because the phrase “showing regret in person” mentioned in the text is a clear indication that the regulation attaches importance not to “return and compensation alone”, but to “return and compensation as a result of regret”. As a matter of fact, during the negotiations on the article mentioned in the Commission of the Grand National Assembly of Turkey, the issue was raised and the chairman of the session; “Is it not important to eliminate the damage”, Izzet Özgenç, one of the academics responsible for the preparation of the law;“the joke protected by this article is not only to eliminate the victim’s grievance, but also to make the person feel remorse”, he answered. (Ministry of Justice Department of Broadcasting Affairs, Turkish Criminal Code with Minutes, Ankara 2005, p. 616)
Defendant F.. S..’s to be followed by law enforcement officers to understand that the subject of a crime will be caught on their cell phones was hiding under the stairs, and is not a result of the defendant’s showing of the phone, where it is located by law enforcement officers, after the money was seized from the top to search the Houses of the victim in crimes of theft, to be made by law enforcement officers to conduct a simple research will not occur regret because they entered the house with the victims and the estimate is not necessarily, at all stages, since there is no other word or behavior showing the remorse of the defendant who has not accepted the charges of muesnet at all, and in this case there is no way to effectively apply the provision of remorse about the defendant, the approval of the provision of resistance by the local court in accordance with the procedure and the law should be decided.
The four Members of the General Assembly who disagreed with the majority opinion voted against the opinion that “the provision of the local court that does not apply the provisions of effective remorse about the defendant who provided for his extradition to the victims by showing the mobile phones and the house where he received the money that was the subject of the crime should be overturned”.
result:
For the reasons described;
1- Didim 1, which is in accordance with the procedure and the law. APPROVAL of the provision of resistance of the Criminal Court of First Instance dated 06.04.2012 and numbered 51-178,
2- The file was transferred to the Prosecutor General’s Office of the Supreme Court of Cassation in order to be sent to the scene, it was decided by a majority vote at the meeting held on 07.04.2015
