6. Criminal Department 2021/11450 E. , 2021/7569 K.
“text of jurisprudence”
COURT :Criminal Department
CRIMES : Qualified looting, damage to property, intentional wounding, violation of Law No. 6136
PROVISIONS : Fundamental rejection of the request for appeal
The provisions issued by the District Court of Justice were appealed, the file was examined and considered as necessary:
Covid-19th March 26, 2020 due to the outbreak 31080 date and (repeated) published in the Official Gazette numbered, in accordance with the provisional Article 1 of the law on the provision of 22/3/2020 7226 (including this date) from the date of 30/4/2020 (including this date) decided to stop working until 30.04.2020 numbered, dated the date of the time 31114 published in the official gazette, dated the date with the decision of President No. 2480 29.04.2020 be extended until 15.06.2020 due to the request of counsel for appeal within the period are considered to be the accused and investigations … ;
It has been accepted that it is possible to correct the date of the crime on the spot in the title of the reasoned decision as 04.01.2016.
I- Defendant … for damage to property, violation of Law No. 6136; in the examination of the provisions established for the crimes of damage to property about the defendant …;
Given the amount and type of punishment imposed, No. 5271 286/2 CMK-in accordance with a first instance by the courts of appeal of imprisonment of five years or less regardless of the amount of criminal fines for rejection of the merits of the appeal because they are not able to appeal decisions of the Regional Justice Court, the defendant, the defendants …, … Defendant No. 5271 of Regents of Appeals and the participating CMK — 298. refusal in accordance with the notification in accordance with the article,
II- The defendants …, in the examination of the provisions established on qualified looting and wounding crimes;
The defendant … his defense has requested an appeal against the conviction of the defendant for looting and wounding, and the defendant … and his defense has requested an appeal against the convictions of the defendant for looting, present were trustees of the defendants for the crime of plunder about imprisonment for attempted murder and assault and battery the provisions established by specifying that the defendants should be convicted for the crime of Appeals for the qualification of the crime were found.In our concrete case, however, the accused … is subject to the appeal review of the district court’s decisions on the fundamental rejection of the appeal application for prison sentences of more than 5 years established by the court of first instance for the crime of looting, but in our concrete case, the accused … is 5 years in prison for the crime of wounding qualified by the court of first instance, the court of appeal has decided to reject the appeal application of the defendants’ defense counsel and the participating attorney on the basis of … the defendant has ruled on the acquittal decision. The defendant and his deputy, who participated in this decision together with the defense counsel, appealed on the grounds that the act for both defendants constituted the crime of attempted murder. As a result, the conviction of the defendant … for the said injury offense given by the court of appeal of that place, and the acquittal of the defendant … have been considered as a preliminary problem whether the provisions are appellable.
286 of the CMK entitled ”Appeal”. in the article;
“(1)The provisions of the district court of justice other than the violation of the criminal chambers may be appealed.
a) Decisions of the regional court of justice on the fundamental refusal of the application for appeal against five years or less imprisonment and judicial fines, regardless of the amount, issued by the courts of first instance,
b) Decisions of the regional court of justice that do not increase prison sentences of five years or less issued from courts of first instance,
c)(Supplement: 20/7/2017-7035/20 art.) Decisions of the court of first instance regarding the option sanctions reversed from prison sentences issued by the regional court of justice; all kinds of decisions on option sanctions and decisions on the fundamental rejection of the appeal application,
d)(Dated 27/12/2018 of the Constitutional Court and E.:2018/71 K.: Annulled by Decision No. 2018/118; Reorganization:20/2/2019-7165/7 art.) Issued by the Regional Court justice for the first time outside the scope of the third paragraph of Article 272 and convictions, excluding the duty of the court of first instance he entered the upper limit of the law and up to two years (two years, including all kinds of crimes punishable by imprisonment and criminal fines attached to them, the decisions of the Regional Justice Court,
e) All kinds of decisions of the regional court of justice regarding the provisions issued by the courts of first instance in crimes requiring a judicial fine,
f)(Amended: 18/6/2014-6545/78 art.) Decisions on the fundamental rejection of the application for appeal only in relation to the decisions of the court of first instance regarding the confiscation of goods or earnings or the absence of a place for them,
g) For crimes requiring a prison sentence of ten years or less or a judicial fine, with respect to acquittal decisions issued by the court of first instance (…) (2) decisions on the substantive rejection of the appeal application,
h)(Amended: 18/6/2014-6545/78 art.) Such decisions made by the district court of justice in relation to the decisions of the court of first instance on the security measure or decisions on the fundamental rejection of the appeal application, that there is no place for the case to be dropped, the punishment to be given,
i) Decisions of the regional court of justice, including more than one of the penalties and decisions in the same provision, may not be appealed, provided that they remain within the limits set out in the above paragraphs.
(3)(Supplement:17/10/2019-7188/29 art.) Even if it is within the scope of the decisions that cannot be appealed specified in the second paragraph, the decisions of the criminal departments of the regional court of justice issued for the following crimes may be appealed:
a) contained in the Turkish Criminal Code;
1. Insult (article 125, third paragraph),
2. A threat in order to create fear and panic among dec people (article 213),
3. Incitement to commit a crime (article 214),
4. Praising the guilty and the guilty (article 215),
5. Inciting or humiliating people to hatred and hostility (article 216),
6. Incitement to disobey the law (article 217),
7. Insult to the President (article 299),
8. Humiliation of the signs of sovereignty of the state (article 300),
9.Humiliation of the Turkish Nation, the State of the Republic of Turkey, the institutions and organs of the State (article 301),
10. Armed organization (article 314),
11. Releasing people from military service (article 318), their crimes. b) The crimes contained in the second and fourth paragraphs of Article 6 and the second paragraph of Article 7 of the Anti-Terrorism Law. c) Crimes contained in the first paragraph of Article 28, article 31 and Article 32 of the Law on Meetings and Demonstration Marches.”
Its arrangement is given below.
286 (1) of CMK. according to the provision of the article, the rule is that all decisions made by the courts of appeal, except for decisions on overturning, are subject to appeal.
Exceptions to this rule are the provisions of Article 286 of the CMK. it is regulated in the second (nine(9) paragraphs) and third paragraphs of the article.
One of the important principles of the principles that dominate criminal procedure is that exceptions cannot be interpreted against the defendant.
First of all, it should be noted that Law No. 7188 and CMK No. 286. the exceptions in the third paragraph added to the article are exceptions according to the type of crime, and the offense of wounding the subject of trial is not one of these exceptions.
It is also clear that there is no exception to the other paragraphs of the second paragraph. However, with the case law No. 2-187/222 dated 04/10/1993 and numbered 2-187/222 of the Criminal General Assembly of the Supreme Court of Cassation, it has been concluded that the issue should be thoroughly examined in terms of the exceptions in subparagraph b) of the article.
In accordance with the case law of the General Assembly of the Supreme Court of Criminal Justice also adopted by our Department, even decisions that are final in terms of type and amount can be appealed against the nature of the crime. Accordingly, if a judicial fine of a certain nature has been imposed for, for example, simple wounding, the participating or Public prosecutor may appeal this provision on the grounds that the act constitutes a crime of attempted murder. Our department believes that this case law should also be applied to the appeal after the appeal.
Since it is understood that Dolasılı, the participating deputy appealed the final decision made on the defendants for wounding in terms of qualification, in the appellate review of the provisions established on the defendants for looting and wounding;
288 of CMK No. 5271. the article ”Appeal is based only on the reason that the provision is unlawful. Non-application or incorrect application of a rule of law is an violation of the law.”, 294 of the same Act. the article states that “The appellant must show in the appeal that he wants the provision to be overturned for some reason. The reason for the appeal can only be related to the legal aspect of the provision.” and Article 301 of the same Law. according to the article ”The Court of Cassation, if the appeal is caused only by the issues specified in the appeal application and procedural deficiencies, it conducts investigations into the events indicating this in the appeal application.” considering that the request for an appeal by the defendant … is not enough evidence to punish the defendant, even if it is assumed that he participated in the crime, the nature of the crime is attempted theft, the defendant’s right to defend has been violated because he has defended himself through SEGBIS, but the minutes have not been fully and completely reviewed, the reasons for the reduction in his favor have not been applied, counsel for the accused … the request for appeal is not accurate and adequate evidence about the defendant a doubt, that the decision of acquittal, the defendant accused of the benefit should be given to whether the principle has been observed; punishment of the crime of vandalism and looting of Appeals of trustees were present less about defendants, and the defendants should be convicted for the attempted murder about, provisions in favor of determined and performed for the aforementioned reasons that is not intended for should not be applied during;
According to the case and the contents of the file, it was understood that there were no inaccuracies in the provisions established about the defendants for the crime of looting.
Also in the file is CMK’s 289. the existence of any of the cases of definite violation of the law mentioned in the article has also not been determined.
According to the contents of the file, it is understood that there is no inconsistency in the provisions established for qualified looting of the defendants in terms of the reasons for the appeal put forward, CMK No. 5271 302/1. in accordance with article 304/1 of the CMK, the accused …, the accused …, their defense and the participating … have the right to APPROVE the PROVISIONS in partial accordance with the communique with the FUNDAMENTAL REFUSAL of the APPEAL REQUEST, which is not considered to be in place, and in part in accordance with the communique. in accordance with article 8 of the Izmir Regional Court of Justice, an example of our decision is submitted to the Burhaniye High Criminal Court in accordance with the dossier. It was unanimously decided to send him to the Criminal Department on 20.04.2021.