4. Criminal Division 2020/1991 Base Number , 2020/10523 Desicion Number
“Case Law Text”
Accused of threatening…, 5237 of the Turkish Criminal Code 106/1, 43/2 and 62/1. in accordance with Articles 6 months and 7 days of imprisonment for the Army 2. Criminal Court of First Instance dated 12/12/2019 and 2018/909 basis, 2019/804 decision, Ministry of Justice General Directorate of Criminal Affairs expressed 25/03/2020 days and 94660652-105-52-3394-2020-Puk requests, Supreme Court prosecutor general’s office 06/05/2020 days and 2020/41982 containing the thought of breaking the notice sent to the apartment, the file was examined:
In the prompt article; ” according to the scope of the file;
As described in the Decree No. 265 of the Turkish Criminal Code No. 5237 of the General Assembly of the Supreme Court of Criminal Justice dated 02/03/2010 and 2009/9-259 basis, Decision No. 2010/47. in order to prevent a public official from performing his duty, the crime occurred with the use of algebra and/or threats, in a concrete incident, the accused was drunk and caused discomfort to those around him, he insulted and threatened the guards during the identity check by the guards who came to him, the action of the accused constituted the crimes of resisting and insulting not performing the duty by threatening in general, 42 of law 5237. in its article, ” a crime that is considered a single verb is called a compound crime because one constitutes an element or aggravating cause of the other. In such crimes, the provisions on drinking do not apply.”according to the regulation in the form of effective resistance, the defendant cannot be sentenced for the crime of threat, which remains in the element of the crime of effective resistance, without regard to the establishment of the sentence in writing was not a hit.” is called.
Legal Evaluation:
265/1 of the Turkish Criminal Code entitled “Resisting not to perform the duty”. article; ” a person who uses algebra or threats in order to prevent him from doing his duty against a public official is punished with a prison sentence of six months to three years.””
42 of the Turkish Criminal Code No. 5237. in the article, compound crime is defined. according to the article; “a crime that is considered a single verb is called a even crime because one constitutes an element or aggravating cause of the other. In such crimes, the provisions on drinking do not apply.”
The scope of the file, the prompt for violation of the law, and all these explanations are considered together;
265/1 of the Turkish Criminal Code No. 5237. in its article, ” a person who uses algebra or threats to prevent him from doing his duty to a public official shall be punished with a prison sentence of six months to three years.”when the regulation in the form of the evil eye is taken, because the act of threat is an element of the crime of resisting to not perform the duty, 42 of law 5237. according to the article, it is clear that no conviction can be established for the crime of threat.
For the reasons described; accused of threatening…, 5237 of the Turkish Criminal Code 106/1, 43/2 and 62/1. in accordance with Articles 6 months and 7 days imprisonment for conviction Army 2. The Criminal Court of First Instance dated 12/12/2019 and 2018/909 basis, 2019/804 no hits in the decision.
Conclusion and decision:
For the reasons described above;
1-since the reason for the violation contained in the notification issued by the Prosecutor General of the Supreme Court on the request to violate the law is seen on the spot, established for threatening crimes, Army 2. 12/12/2019 dated and 2018/909 basis of the Criminal Court of First Instance, 2019/804 no. of the final decision, 5271 no. 309 of the Criminal Procedure Code. deterioration according to the article,
2 – Prohibition of repeating proceedings and according to Paragraph 4-d of the same article of law;
265/1 of the Turkish Criminal Code No. 5237. in its article, ” a person who uses algebra or threats to prevent him from doing his duty to a public official shall be punished with a prison sentence of six months to three years.”it was unanimously decided on 05/10/2020 that the sentence of 6 months and 7 days of imprisonment against the accused … should be abolished because the act of threat is an element of the crime of resisting not to perform the duty.
