T.C.
SUPREME COURT
CRIMINAL GENERAL ASSEMBLY
E. 2012/6-375
K. 2012/1809
T. 9.10.2012
* THEFT ( Where the Defendant Steals the Sweaters Inside by Breaking the Door Lock of the Workplace – The Defendant’s Action Will be Considered Theft of the Item That Has Been Stored in the Building or its Add-ons/5237 p.K. Md. 142/2-d will not be applied)
* THEFT OF A PROTECTED ITEM – Where the Defendant Steals Sweaters Inside by Breaking the Door Lock of the Workplace – The Defendant’s Action Will Be Considered Theft of an Item That has been Stored in a Building or Its Annexes/5237 p.K. Md. 142/2-d will not be applied)
• THE VALUE OF THE GOODS IS LOW (The Defendant Stole the Sweaters Inside by Breaking the Door Lock of the Workplace – The Value of the Goods Is Not Low, As Well as the Way the Crime Was Committed 5237 p.K. Md. 145 There are No Conditions for its Implementation )
• ATTEMPTED THEFT (The Need to Show the Article When Applying the Provisions of Attempted Theft in the Local Court)
• WITHDRAWAL OF DISCLOSURE OF THE PROVISION (Theft / Theft in Which the Defendant, Who Is Under the Age of the Date of the Crime, Steals the Sweaters Inside by Breaking the Door Lock of the Workplace – In Accordance with the Child Protection Law, If the Economic Situation of the Child’s Family or Himself Is Not Favorable, The Condition of Compensation for the Damage May Not be Sought)
• UNDERAGE AGE (Defendant / Theft Who is Underage at the Time of the Crime – Withdrawal of Disclosure of the Provision / In Accordance with the Child Protection Law, If the Economic Situation of the Child’s Family or Himself is Not Favorable, the Condition of Recovery of the Damage May Not be Sought)
* VIOLATION OF WORKPLACE IMMUNITY (The Defendant Steals the Sweaters Inside By Breaking the Door Lock of the Workplace – The Defendant’s Action Will Constitute a Qualified Theft Crime, As Well as a Violation of Workplace Immunity and Damage to Property)
* DAMAGE TO PROPERTY ( Where the Defendant Steals the Sweaters Inside By Breaking the Door Lock of the Workplace – Where the Defendant’s Action Will Constitute a Qualified Theft Crime, As Well as a Violation of Workplace Immunity and Damage to Property)
5237/m.116, 142, 145, 151
5271/m.231
765/m.493
5395/m.23
SUMMARY : In the crime of theft; disputes;
Lock the door by breaking the complainant to the workplace of the accused No. 5237 of the act that stole the goods in entering 142/1 tcy-B ( about goods that are under conservation ) within the scope of, or 142/2-substance d ( unjustly held by opening the lock with a key or other tool or counterfeit ) remains under,
Whether the defendant’s act constitutes, in addition to the crime of theft, the crimes of violating workplace immunity and damaging property,
5237 tcy 145. whether there are conditions for the application of the article ( The Value of the Goods is Less ),
Whether it is necessary to show the article of the law applied when making a discount due to an attempt,
23 of the Child Protection Law No. 5395. whether it is necessary to evaluate the article ( revocation of the disclosure of the provision ) or not,
It is collected at points.
According to the crime scene investigation report, it was determined that the lock of the steel door of the warehouse subject to theft was broken by breaking it with the help of a tool, according to the valuation minutes, the value of the stolen goods was 1,200 Pounds, the defendant covered the damage of the client it is understood that there is no information in the relevant file.
The defendant’s action is in accordance with Article 142 of TCY No. 5237. article 2. 1, which regulates that the crime of theft is committed “about the goods stored in the building or its annexes”, and not within the scope of subparagraph d of paragraph. it remains within the scope of subparagraph b of paragraph. In addition to the crime of theft, if a building or workplace was entered during the commission of a theft crime and property assets were damaged, there are also crimes of violating the immunity of a dwelling or workplace and damaging property.
It is understood that the accused broke into the warehouse door of the client’s workplace early in the morning, put 80 sweaters with a material value of 1200 pounds in a sack from the inside, and was caught with difficulty by the workplace guard over the sounds that came out during this time, the value of the goods that are the subject of the theft crime is not low, as well as the way the crime was committed in accordance with ARTICLE 145 of TCY 5237. it is concluded that there are no conditions for the application of the article.
It is contrary to Article 232/6 of the CY numbered 5271 that the law and its article applied when the local court makes a discount on the defendant due to an attempt are not shown.
In a case where the damage is not covered, the Law No. 5728 and the 231 of the Turkish Commercial Code as amended. although there is no possibility to decide on the withdrawal of the disclosure of the provision in accordance with Article 23 of the Child Protection Law No. 5395. in the first case, this condition may not be sought if the economic situation of the child’s family or himself is not favorable.
Therefore, the disclosure of previously convicted of an intentional crime, without being imposed on the defendant because there is a barrier to the implementation of the legal closure of this institution being unable applied to be given by the court based on an assessment of local isabetsiz is a positive or negative decision.
CASE : Accused of theft V.T.142/2-d, 145, 31/3, 62, 50/1 and 52/2 of the Turkish Commercial Code No. 5237. regarding the punishment of a judicial fine of 5,400 pounds in accordance with the articles, Bakırköy 3. The Supreme Court, which examined the file on the appeal of the judgment No. 477-1497 of 14.11.2006 given by the Juvenile Court by the Public prosecutor and the defendant of that place on the 6th day of 14.11.2007. By the Criminal Department on 13.10.2008 days and number 5832-16779;
“… Other appeals have not been considered on the spot.
But;
1- In the face of the understanding that the accused stole the goods inside by breaking the door lock of the workplace of the complainant, his action is TCK No. 5237.application of Article 142/2-d in written form without regard to the fact that it constitutes a crime that complies with Article 142/1-b,
2- The defendant’s act, TCK No. 5237.nun 116/1. violation of workplace immunity in Article 151/1. failure to observe that it also constitutes a crime to damage the property in the article,
3- TCK No. 5237.No. 145. the concept of `low value of goods` in article 765 of the Turkish Commercial Code.nun 522. in the article `light ` and `too light“ criteria except that it gives a discount from the similarity of both substances in the absence of punishment, `lack of value` Law No. 5237-specific, separate, and it is a new concept, the legislator of the law with the aim of committing the crime of the event and the format of the property, the defendant’s intent was also observed by the ability to receive, and to give punishment to the extent that the value can be waived if necessary will be based on low volumes, and can be applied without adequate legal justification be explained on the condition that thought, in a concrete case, comments are made to this article outside the purpose of the referral and a reduction in the penalty is made,
4- TCK No. 765, which complies with the defendant’s action.4 of Law No. 493/1, 62, 522/1, 55/3 and 647. according to the articles of the Turkish Commercial Code No. 5237, which entered into force on 01.06.2005.142/1-b that fits the same crime, 35/2, 31/3, 50, 52; 116/1, 31/3; 151/1, 31/3. the type of punishment binding on freedom provided for in articles 7/2 of the said Law, 9/3 of the Law No. 5252 in terms of its lower and upper limits. in the light of its articles, there is an obligation to observe that the Law No. 765 is for the benefit of the accused,
5- CMK No. 5271 by not showing the article of the law applied when making a discount on the accused for attempting to commit a crime.violation of Article 232/6 of the,
6- Article 23 of the Child Protection Law No. 5395. failure to evaluate the substance of…”,
It has been decided that they will be corrupted by their lack of accuracy.
Bakırköy 3, which decided to resist the reasons for decommissioning No. 1 and 2 by interim decision and to comply with other reasons for decimation. By the Children’s Court on 25.12.2008 days and with the number 510-1522;
“… TCK.article 142/1-b for article 142/1-b, while increasing the penalty for theft in the building or its surrounding annexes, the way of entry to such places was not given importance. Theft committed in huts built for the protection of agricultural vehicles in the field has also been provided for in the provision of the article. However, in a place that does not fall under the definition of a building, for example, a condition for decommissioning was sought about the item found in the car, so that if the item was stolen in a car whose doors were not locked or windows were not closed, qualified theft was not accepted,’it said,
In accordance with paragraph 2/d of the same article, in paragraph (d) of paragraph (d), the commission of a theft crime by unfairly opening a lock with a hand-held or forged key or other tool has been considered a qualified case. The important thing for this qualified state is that the crime of theft is committed by unlocking. The lock may have been unfairly opened with a hand-held or forged key or other tool.
The key may also have been obtained by theft or looting. In this case, it is necessary to admit that two crimes have occurred. The lock must be opened for the purpose of committing theft or transferring stolen property to another location. It is not necessary that the lock be strong. A key or other tool should be used to open a lock that cannot be opened without it. All kinds of tools that allow you to open the lock without breaking it are considered tools. If the key that the owner forgot on the lock is turned and the theft is committed by opening the lock and the thing that will be stolen is removed from its place with any tool, this bent will not be applied,
Witness A. E.in his statement, he said that on the date of the crime, the client was working as a guard at the workplace, when he landed on him at about 08.00, the defendant was caught breaking down the door of the warehouse and taking away a bag of material,
According to the crime scene investigation report dated 01.05.2005, it was determined that the warehouse door that was the subject of the theft was steel and it was opened by using tools and forcing the lock to be broken, according to the valuation record, it was understood that the value of the stolen goods was 1,200 YTL,
Although the defendant said that he received the goods he found in the trash can, this defense is not considered acceptable when the witness’s statement and the usual course of life are taken into account,
In the face of the fact that all the defendant’s enforcement actions regarding the act of theft have been completed, he was caught while he was about to leave his workplace, TCK No. 765. 62.in the degree mentioned in the article, the state of the full attempt is in question; the defendant was 17 years old at the time of the crime,
However, it should be examined whether Article 493/1 of TCK No. 765 or Article 142/2-d of TCK No. 5237 is in favor of the defendant’s theft crime being considered fixed as of the date of the crime;
If TCK No. 5237 is applied, the amount of the freedom-binding penalty is calculated as nine months as written below; however, TCK No. 765.if the basic punishment is determined as three years in accordance with Article 493/1 of the nun, 62. according to the article, two years and three months when the value is reduced to 1/4 at the same rate; 522 due to lack of value. according to the article, it is necessary to serve a prison sentence of one year six months when it is reduced by 1/3 and twelve months when it is reduced by 1/3 due to age; the amount of punishment to be sentenced according to the TCC No. 5237 is in favor of Law No. 5237 due to the fact that the amount of punishment to be sentenced is nine months …”,
He decided that the accused should be punished as before on the grounds that he was.
Upon appeal of this provision by the Public prosecutor of that place and the defendant, the Court of Cassation C.The file was sent to the First President of the Supreme Court of Cassation on 20.02.2012 days and with the communiqué No. 163701 on the request of the Prosecutor General’s Office to “disrupt”, the sentence was evaluated by the General Assembly and decided on the grounds described:
VERDICT : 142/2-d of TCY No. 5237 for the defendant’s theft, 35, 145, 31/3, 62, 50/1 and 52/2. although it was stated that the reasons for the decimation were resisted for issues 1 and 2 in a concrete case that was decided to be punished with a judicial fine of 5,400 pounds in accordance with the articles, according to the decision made, disputes between the Private Department and the local court that should be resolved by the General Criminal Council;
1- Whether the defendant’s act, which is understood that the complainant entered the workplace by breaking the door lock and stole the goods inside, falls within the scope of article 142/1-b of TCY No. 5237, or article 142/2-d, remains within the scope of article 142,
2- 116/2 of TCY No. 5237, in addition to the defendant’s act, the crime of theft. violation of workplace immunity regulated by Article 151/1. whether it also constitutes the crimes of damage to property regulated in the article,
3- 145 of TCY No. 5237. whether there are conditions for the application of the article,
4- Which TCY is in favor of,
5- Whether it is necessary to show the article of the law applied when making a discount due to an attempt,
6- Article 23 of the Child Protection Law No. 5395. whether it is necessary to evaluate the substance of,
It is collected at points.
From the contents of the examined file; 01.05.2005 day in the early morning hours of the defendant, the plaintiff’s warehouse belonging to workplace inside by breaking the lock of the door, from the inside out sweater put it in a bag and 80 pieces in this order on the use of force by the noise in the workplace was captured by the guard, CSI 01.05.2005 dated according to the report, the subject of theft steel door of the warehouse with the help of the lock that is opened by the breaking of a tool where it has been determined, the asset appreciation, according to the report of the stolen goods of the value of up to 1,200 pounds, it is understood that there is no information in the file that the defendant has covered the damage of the client.
After this statement, it is useful to consider the dispute issues separately.
1- Whether the defendant’s act, which is understood that the client entered the workplace by breaking the door lock and stole the goods inside, falls within the scope of Article 142/1-b or article 142/2-d of TCY No. 5237, remains within the scope of Article 142/2-d,
The basic form of the crime of theft is 141/1 of TCY No. 5237. in its article; It is defined as ”taking a movable property belonging to someone else without the consent of the owner from the place where it is located for the purpose of providing a benefit to him or someone else”, 142 of the same Law. article 1. in paragraph (b) of paragraph (b); “processing of goods that have been stored in a building or its annexes by being locked up or left in a place where everyone can enter “, in accordance with Article 2 of the same article. in subparagraph (d) of paragraph; cases of “wrongfully obtained or committed by opening a lock with an imitation key or other tool” are also regulated as qualified theft crimes.
5237 of 142/2 tcy-d held in the article and “unjustly held or counterfeit by opening the lock with a key or other tool” for the formation of the crime of theft committed, that by attaching the key actuation mechanism of the tools mentioned in article it is necessary to open the lock shaft. In other words, in cases where the lock is broken by an object, not by opening the lock to the locked place, but by entering it in other ways, such as breaking the door, there will be no mention of opening the lock.
Therefore, in the concrete case, the action of the defendant, who broke the lock on the steel door of the warehouse of the customer’s workplace with a hard object and got inside and was caught stealing 80 sweaters, was taken under Article 142 of TCY No. 5237. article 2. 1, which regulates that the crime of theft is committed “about the goods stored in the building or its annexes”, and not within the scope of subparagraph d of paragraph. it remains within the scope of subparagraph b of paragraph. As a matter of fact, the same conclusion was reached in the decision of the CGK dated 19.06.2012 and numbered 483-240.
As of this moment, there is no hit in the decision of the local court to resist this issue.
2- 116/2 of TCY No. 5237, in addition to the defendant’s act, the crime of theft. violation of workplace immunity regulated by Article 151/1. whether it also constitutes the crimes of damage to property regulated in the article:
As detailed in the decision of the CGK dated 08.12.2009 and numbered 153-285; The main rule based on the preparation of TCY No. 5237 is true ijtima and accordingly, “the more acts there are, the more crimes, the more punishment there are”. As a matter of fact, in the report of the Commission of Justice, this issue is stated as “One of the basic rules of criminal law is, ‘The more acts there are, the more crimes, the more crimes there are, the more penalties there are’. Exceptions to this are set out in the içtimai section of crimes. Except for these exceptions, punishment will be imposed individually in relation to each crime committed. Thus, each punishment given will preserve its independence” (Report of the Parliamentary Commission on Justice dated 03.08.2004 and numbered 1/593-60 ). The exceptions to this rule are in the section “Prevention of crimes” of TCY No. 5237, 42 (compound crime ), 43 ( chained crime ) and 44. It is regulated in the ( intellectual property) articles.
A compound crime, which is one of the exceptions to the actual case law and is closely related to the subject of the dispute, is 42 of the TCY. in its article; ”A crime that is considered a single act because one constitutes the element or aggravating cause of the other is called a compound crime“ and, not content with this, the provision ”the provisions of civil procedure do not apply to such crimes” has been introduced.
In Article 142/1-b of TCY No. 5237, where the crime of theft is regulated in respect of the goods that have been stored in the building or annexes that the defendant committed on the date of the incident; “The crime of theft; …b ) About an item that has been locked up or stored in a building or extensionsa … if committed, a prison sentence of two to five years is imposed,” although at first glance it may be said that the statements such as “the more acts there are, the more crimes there are, the more penalties there are” are exceptions to the rule, that is, it meets the definition of a compound crime, the legislator has regulated by this article that the crime of theft has been committed about “the item stored in the building or its annexes” as a qualified condition, and has not sought entry into the building or its annexes as an element in terms of the occurrence of this crime. Accordingly, it is possible that this qualified form of the crime of theft can be committed by entering the building or its add-ons about the “item stored in the building or its add-ons”, as well as without entering the building or add-on, and in both cases, Article 142/1-b of the Law will have to be applied. In another expression; according to the regulation in the article, it is important from a qualified point of view that the stolen goods are stored in the building or its annexes, and not whether they are entered into the building or its annexes. If the legislator wants to regulate this type of crime as a compound crime, he should edit the text of the article in the form of “if it is committed by entering buildings or their extensions”, while his preference for the current regulation also confirms this fact.
Therefore, during the commission of the crime of theft in the event of damage to the building or the crime of theft and assets have entered the workplace in addition to the immunity of your residence or workplace with the destruction of vandalism crimes occur, and accordingly, the perpetrator should be punished for the crimes.
As a result of this, the evaluation of the law in favor of the accused is carried out in accordance with Article 493/1 of TCY No. 765. according to Article 5237 of the Turkish Commercial Code No. 142/1-b, 116/2 and 151/1, it is necessary to be compared according to the result obtained as a result of the application made within the scope of Articles 116/2 and 151/1.
As of this moment, the provision of resistance of the local court in relation to this dispute issue is incorrect.
3- ) Article 145 of TCY No. 5237. whether there are conditions for the application of the article:
The issue has come before the Criminal General Assembly before and was resolved on 30.03.2010 days and 11/17-65, 15.12.2009 days and 242-291 and 13.11.2007 days and decisions 210-234.
5237 tcy 145. article 1 contains the provision “(1) Due to the low value of the goods that constitute the subject of the crime of theft, the penalty to be given may be reduced, as well as the punishment may be waived”, while the provision mentioned is 29.06.2005 days before the date of the crime and 16 of the Law No. 5377. article; “ ( 1 ) that constitute the crime of theft due to the scarcity of the subject of the value of the goods, the penalty can be reduced, as the fault by considering the properties and processing methods, giving a penalty dispensable” in the form of theft crimes modified item with the “value”to judge because of the lack of, give a wide discretion in the direction of a reduced sentence or penalty has been granted.
Both the initial form and the modified form of the said article are based on the fact that, by common definition, the value that constitutes the subject of the crime of theft is less. It was not clarified what was meant by the legislator with a lack of value, to prevent pauses, no numerical limitation was introduced, but the judge was granted discretion and evaluation authority in relation to the material event subject to trial. However, the legislator limited the discretion of the judge to an abstract and distinct discipline. That; in other words, a violation based on value has a low level that makes it completely justified not to be punished. The judge will be able to assess the small amount of this value stolen or attempted to be stolen either with a reduced penalty or by not imposing a penalty in accordance with the specifics of the commission of the crime.
In the amendment after the first text of the article; it is clear that writing the phrase “taking into account the manner and characteristics of the commission of the crime” after the “reduction in punishment” option and before the “may be waived from punishment” option will not differentiate the value of the property subject to the crime. Therefore, it should not be concluded that a higher value will be searched for in the ”do not give less punishment“ option, and in the case of ”stop giving a penalty”, it is necessary to search for a lower value.
As of this, Article 145 of the Law No. 5237. in the implementation of Article 522 of the Turkish Commercial Code No. 765. no interpretation should be made in connection with the concepts of “light” or “very light” provided for in the article, and the Supreme Court should not be expected to determine the annual value measures in parallel with its case law in the process of applying the said article. 145 of the Law No. 5237. article 522 of the Turkish Commercial Code No. 765 of the said provision should be observed. it should be recognized that it differs from its substance.
In addition to this assessment, the judge will take into account the manner of commission of the crime, the position of the victim or accused, the place and time of the incident in each concrete incident, 3 of TCY No. 5237. as stated in its article, it will ensure criminal justice by sentencing a criminal to be “commensurate with the weight of the act committed”. As can be seen, the system introduced by the article does not consist only in determining the value of the goods according to objective criteria and not giving a discount or punishment for the fine. The nature of the incident, the position of the victim, the personality of the perpetrator and the way the crime was committed will be evaluated in each incident, taking into account the factors that lead the perpetrator to the injustice that has occurred and the effects of this injustice on the victim, it will be determined whether the option to apply the article and, in particular, not to be punished will be appropriate for the perpetrator of the act, and the justification of the discretion will also be shown in the decision.
However, here is Article 147 of TCY No. 5237. 145 with the provision “committing a crime of theft to meet a severe and urgent need”, which is regulated in its article. the concept of “lack of value” provided for in the article should not be confused. 145. 147, which regulates the state of necessity with the lack of value provided for in Article. the conditions of application of the article are different from each other, 147. the distinctive criterion of the article is that theft is carried out to satisfy a severe and urgent need.
In comparison, 145. the most important criterion in the application of the article is undoubtedly the value measure and this value is less than enough to justify the “non-punishment” state.
In the light of these explanations, when the concrete event is evaluated in relation to the third dispute issue;
It is understood that the accused broke into the warehouse door of the client’s workplace early in the morning, put 80 sweaters with a material value of 1200 pounds in a sack from the inside, and was caught with difficulty by the workplace guard over the sounds that came out during this time, the value of the goods that are the subject of the theft crime is not low, as well as the way the crime was committed in accordance with ARTICLE 145 of TCY 5237. it is concluded that there are no conditions for the application of the article.
As of this date, Article 145 of TCY No. 5237 is being filed against the accused. the decision to resist the local court applying the article is not in place.
4- ) Which TCY is in favor of:
According to both laws, in order to determine which TCY is in favor of the defendant, it is necessary to evaluate its results by applying it separately.
493/1, 62, 522 and 55/3 of TCY No. 765, when the provision is established about the defendant in accordance with TCY No. 765; TCY No. 765. 4 of the Law No. 647 on the punishment of 1 year of imprisonment established in accordance with articles. according to the article, according to the date of the crime, the diary will be converted into money from 12 pounds, and the accused will have to be punished with a judicial fine of 4,380 pounds as a result.
When a provision is established about the defendant in accordance with TCY No. 5237;
a- ) In the crime of theft; 142/1-b, 35 and 31/3 of TCY No. 5237. 50/1 and 52/2 of the Turkish Commercial Code of imprisonment for 9 months determined in accordance with articles. according to the articles, it is punishable by a judicial fine of 5,400 pounds by cashing out 20 pounds per day,
b- ) In case of violation of workplace immunity; 116/1 and 31/3 of the Turkish Commercial Code. 50/1 and 52/2 of the Turkish Commercial Code of imprisonment for 3 months determined in accordance with articles. according to the articles, it is punishable by a judicial fine of 20 pounds per day and a judicial fine of 1,800 pounds per day,
c- ) In the crime of damage to property; 151/1 and 31/3 of the TCY. 50/1 and 52/2 of the Turkish Commercial Code of imprisonment for 2 months determined in accordance with articles. according to the articles, it is punishable by a judicial fine of 20 pounds per day and a judicial fine of 1,200 pounds per day,
It will be necessary. In this case, the total amount of the penalty to be given in case of the application of TCY No. 5237 against the defendant will be 8,400 Pounds Sterling.
In this respect, since the provisions of TCY No. 765 on the accused are in favor, the provision of resistance of the local court is also invalid in relation to this dispute issue.
5- Whether it is necessary to show the article of the law applied when making a discount due to an attempt:
Both the first provision and the decision to resist were made in accordance with Article 268/4 of the CPC No. 1412, which was in force at the time of the decision. in accordance with Article 232/6 of the CSR No. 5271, which is regulated in a similar way to the article; “Provision in paragraph, article 223, according to the decision of what it is applied and the amount of the penalty of the law, and law and an effective remedy, the ability to request compensation whether you are the opportunity to apply if you have time and the question of authority must be clearly displayed so that he won’t” clear legal regulation is shaped as the name implies, the defendant applicable laws and the imprisonment provision in paragraph demonstration of the provision of materials is required.
As is accepted in the teaching and practice, if the law and its substance applied in the paragraph of the provision are not shown or similar violations are not made as a reason for violation alone, but are otherwise a reason for violation, they should be added to other reasons for violation.
In a concrete case, it is contrary to Article 232/6 of the CY numbered 5271 that the local court does not show the law and its article applied when making a discount on the defendant due to an attempt. Although this issue cannot be the cause of disruption alone, it is a good practice to add it to the disruption if there are other causes of disruption.
6- Article 23 of the Child Protection Law No. 5395. whether it is necessary to evaluate the substance of:
The institution for the withdrawal of disclosure of the provision is the 23rd representative of the Child Protection Law No. 5395, which entered into force for the first time on 15.07.2005 in our law. ” ( 1) If the punishment determined at the end of the trial for the crime committed on the child is imprisonment for up to three years (including three years) or a judicial fine; the court may decide to release the explanation of the sentence.
( 2) The following are the conditions necessary for the decision to withdraw the disclosure of the provision to be made:
a ) The child has not previously been convicted of a premeditated crime.
b ) There is an opinion that the child will not commit a crime again.
c) There is no need to judge a punishment about the child based on his personality traits, attitude and behavior at the hearing.
d) Complete elimination of the damage caused to the victim or the public by the commission of the crime by exactly returning it, making it prior to the crime, or compensating it. If the amount of damage caused to the public by the commission of a crime cannot be determined, an amount of money that will be assessed by the court will be deposited with the Financial cashier at a time. However, this condition may not be sought if the economic situation of the child’s family or himself is not favorable.
( 3) In case of a decision to withdraw the disclosure of the provision, the child shall be subject to a probation measure for a period of five years. During this period, it may be decided that the child will attend an educational institution, be banned from going to certain places, be obliged to attend certain places, or fulfill another obligation that will be appreciated. During the audit period, the case time-out stops.
( 4) If the condition specified in paragraph (d) of the second paragraph cannot be fulfilled, one of the following obligations may be imposed on the defendant during the probation period and a decision may be made to withdraw the disclosure of the provision:
a ) Full elimination of the damage caused to the victim or the public by the commission of the crime, paid in monthly installments.
b) In the event that the amount of damage suffered by the public cannot be determined by committing the crime, the amount of money to be assessed by the court shall be deposited to the Finance teller in monthly installments.
( 5) If he is not sentenced to imprisonment for a deliberate crime committed during the probation period and is treated in accordance with the obligations, the case is decided to be dropped. ( 6) If the child is convicted of a deliberate crime requiring a prison sentence committed during the probation period or acts contrary to his obligations, the court shall explain the provision he has left back. However, the court, taking into account the status of fulfillment of obligations, may make a discount of up to half the rate on the punishment established on the child.
( 7) The decision to withdraw the disclosure of the provision may be appealed.
( 8) The decision to withdraw the disclosure of the provision is recorded in a special system for them. These records can only be used for the purpose set out in this article if requested by the Public prosecutor, judge or court in connection with an investigation or prosecution.”
231 of the Law No. 5271. 5-14, which was added to its article by Law No. 5560, which entered into force on 19.12.2006. with the help of the paragraphs, this institution was also adopted for elders, in accordance with Article 40 of the same Law. article 23 of the Law No. 5395. article; “At the end of the trial for the crime committed on the child, if there are conditions in the Criminal Procedure Code, the court may decide to release the explanation of the sentence. However, in terms of these persons, the supervision period is three years, and except for the difference in the supervision period, juvenile offenders and adult offenders are subject to the same conditions in terms of revoking the disclosure of the sentence, except for the change in the form of ”three years of supervision period”.
From the point of view of adult defendants, 231 of the Criminal Code. 5-14, which was added to its article by Law No. 5560. with jokes, initially limited crimes related to a complaint of imprisonment or criminal fines imposed one year or less, which was adopted for this institution, 08.02.2008 into force on Law Day and then 23.01.2008 5728 562. article 231 of the Law No. 5271. article 5. the phrase “one year” in the paragraph is “two years”, 14. the paragraph is; “ ( 14 ) of this article be turned back to the announcement of the provision of Article 174 of the Constitution protected the provisions relating to crimes does not apply in relation to the reform laws,” format changed in two years or less imprisonment or criminal fines imposed initially on behalf of the defendants, thus making it applicable to adult crimes related to a complaint which is applied on a limited basis this institution, Article 174 of the Constitution. the crimes contained in the Revolutionary Laws enshrined in the article have been converted to cover all crimes, including discrete ones.
However, in accordance with Law No. 5739, which entered into force on 01.03.2008, and Law No. 3713, Article 13. amendment to Article 10 and Addition to the Military Criminal Code No. 1632 October 1632. with the article; The scope of application of the institution has been narrowed again by excluding the disclosure of the provision from the scope of terrorist crimes committed by persons over the age of 15 and the crimes contained in the Law No. 1632 from the scope of the disclosure of the provision.
Our corporate law the entry of the announcement of the award to be left back, and then summarized the changes in the law in relation to it once this way, when it comes to the merits of the dispute; the announcement of the verdict in a concrete case that can be applied back to the defendant in terms of releasing about three separate is there a legal regulation which entered into force on different dates:
Firstly, the 23rd Child Protection Law No. 5395, which was published in the Official Gazette on 15.07.2005 and entered into force before the amendment to the Law No. 5560, which entered into force on 19.12.2006, was in force on 15.07.2005. is the provision.
Secondly; Article 231 of the Law No. 5271. 5-14, which was added to its article by Law No. 5560, which entered into force on 19.12.2006. paragraphs 23 of the Child Protection Act No. 5395 and as amended by Law No. 5560. these are the provisions of Art. 23 of the Child Protection Law No. 5395 with this amendment. by removing the detailed regulation on the revocation of the disclosure of the provision in the article, it was stipulated that the revocation of the disclosure of the provision could be applied if there are conditions in the CY about the children, however, the audit period for the children was set at 3 years. However, 231 of CYR. 14, which was added to the article as a result of the amendment made by Law No. 5560. since the institution for the withdrawal of disclosure of the provision due to the regulation in the paragraph, investigation and prosecution may be applied only to crimes related to the complaint, there is no possibility to apply to the defendant who committed the crime of theft, which is not subject to a complaint in the event of a dispute, which is not subject to a complaint.
And the third is the 231st Century. Item No. 5728 state and law in force after the amendment of the Child Protection Law No. 5395 about the children 3 years and 23 different 5560 determining the duration of the audit with the law. these are the provisions of Art.
23 of the Child Protection Law No. 5395 on compensation for damage suffered by the victim, which is closely related to the subject of our dispute. in the first case of the article, it is stated that this condition may not be sought if the economic situation of the child’s family or himself is not favorable, as amended by the Law No. 5728 of the CY 231. there is no similar regulation in the article.
In the concrete case, there is no clarification in the file that the damage caused by the customer at the door of the workplace is covered by the damage determined as 1200 pounds for the theft crime and the damage caused at the door of the workplace. If it is a crime to violate the immunity of the workplace, no harm will be mentioned. In a case where the damage is not covered, the Law No. 5728 and the 231 of the Turkish Commercial Code as amended. although there is no possibility to decide on the withdrawal of the disclosure of the provision in accordance with Article 23 of the Child Protection Law No. 5395. in the first case, this condition may not be sought if the economic situation of the child’s family or himself is not favorable.
Therefore, the disclosure of previously convicted of an intentional crime, without being imposed on the defendant because there is a barrier to the implementation of the legal closure of this institution being unable applied to a positive or negative decision by the court based on an assessment of local it is appropriate that it be given.
As a result, since the reasons for resisting all dispute issues are incorrect, the local court should decide to overturn the decision to resist.
CONCLUSION : For the reasons described;
1- Bakirkoy 3. VIOLATION of the Children’s Court’s decision to resist dated 25.12.2008 and numbered 510-1522 in relation to all dispute issues,
2- The file was transferred to the Prosecutor General’s Office of the Supreme Court of Cassation to be sent to the scene, it was unanimously decided at the meeting held on 09.10.2012
