T.C. SUPREME COURT
6.Criminal Department
Base: 2016/3811
Decision: 2016/5600
Date of Decision: 29.06.2016
PLUNDER CRIME – WHERE THE CRIME IS A CRIME COMMITTED AGAINST THE STATE – IF THE CRIME IS COMMITTED MORE THAN ONCE, IT IS WRONG TO ESTABLISH THREE SEPARATE CONVICTIONS – WHERE THE PROVISION IS BROKEN
ABSTRACT: Since the legal benefit protected in the crime of laundering the values of assets arising from the crime is the public, economic and political structure of the country, the crime is a crime committed against the State, if the crime is committed more than once, it is 43/1 of the TCC No. 5237. the establishment of three separate convictions required overturning.
(5237 P. K. m. 37, 39, 53, 228)
Case and Decision: The verdict issued by the Local Court is appealed by the defendants … and … their defense at trial;
It is understood that the defendants and their defense were duly notified of the day of the trial, but did not come to the hearing without valid excuses, but at the end of the examination conducted without a hearing from the defendants mentioned; the file was discussed according to the nature, type of punishment, duration and date of the crime of the application;
I – Defendants, and … …complaining about’imprisonment for the crime of plunder for; defendants …, …, … to complain about for the crime of imprisonment for attempting to plunder; … defendants, and … …complaining about’E ‘ for imprisonment for the crime of plunder; about the defendant, the victim of a threat of imprisonment for the crime; and … …complaining about defendants’imprisonment for a felony vandalism; defendants and about … the victim …’imprisonment for the crime of the threat to e; about the defendant, the victim …’e ‘ imprisonment on charges of deprivation of liberty for the defendant, about imprisonment for the crime of forgery; defendants …, …, …, … about gambling imprisonment on charges of providing space and opportunity to play for; the defendant, to establish an organization with the aim of committing the crime, the defendants …, …, …, …, … about the crime of being a member of the organization, which was established for the purpose of committing the crime, the defendant, about the imprisonment for the crime of helping organizations established for the purpose of committing a crime in the review of the provisions of;
228/1 of the Turkish Commercial Code No. 5237. the establishment of a sentence without taking into account that the article provides for a fine in addition to a prison sentence; 37/1 of the TCK No. 5237 about the defendant who directly participates in the crime of looting against the complainant. instead of article 39 of the same Law. since there is no counter-appeal, the reason for the violation has not been made.
According to the contents of the file, the legally valid and favorable evidence collected and discussed at the decision site, the justification and the discretion of the Board of Judges, there was no violation of the procedure and law in admitting and qualifying that the crimes were committed by the defendants, so other appeals were not considered on the spot.
But;
Deprivation of the defendants from exercising the rights set forth in Article 53/1-a-b-c-d-e of the TCC until the execution of their prison sentences is completed; however, Article 53/3 of the TCC does not allow them to exercise the rights written in Article 53/1-a-b-c-d-e of the TCC. although, in accordance with article 53/1-c of the Turkish Commercial Code, it has been decided to terminate their deprivation of exercise of the rights listed in paragraph 53/1-c on their own subsections if they are conditionally released; the decree No. 08.10.2015 days, 2014/140-2015/85 of the Constitutional Court, published in the Official Gazette dated 24.11.2015 and entered into force on the same date, as well as the statement written in Article 53/1-b of the TCK, “for exercising the right to elect, elect and other political rights”, has been canceled,
Required to be overturned, the defendants …, …, …, …, …, … since the appeals of the defenders and the defendants …, … and … have been considered in place as of this moment, the VIOLATION of the provision in accordance with the communique for the reason described does not require a retrial, since the reason for the violation does not require Law 8/1 of 5320. article 322 of the CMUK No. 1412. based on the authority granted by Article 53 of the TCC from the provision paragraph. instead of removing the section on the application of the article, “As a legal result of the defendants’ convictions with imprisonment for a crime they intentionally committed, Article 53/1 of the TCC. in terms of the application of article 53/2 of the same Law, they shall be deprived of the right to elect, be elected and exercise other political rights written in subparagraphs (a, c, d and e) and subparagraphs (b). from the point of view of the application of Article 53/1. electoral and other political rights written in paragraphs (a, c, d and e) and (b) of article (a, c, d and e), as well as in article 3 of the same. pursuant to paragraph (C) written in accordance with their own descendants custody, guardianship and powers until they were sentenced to a conditional release from imprisonment kayyimlik use” of the sentence by writing the other aspects, procedures and corrected by the provision APPROVED in accordance with the law,
II- As for the examination of the provisions of the convictions established for laundering the values of assets arising from the crime against the accused …, about …, about the victims … and …; about the defendants … and …, about the complainant …; about the defendants …, …, … and …, about the complainant;
Other appeals were not considered on the spot.
But;
1-the crime by hiding the source of the value of assets obtained from them are derived from legitimate illegitimate way, which is about where the process was subjected to the announcement, which processes in relation to it, without showing, obtained by processing of the crime, or the subject of the crime or the commission of a crime provided for in forming their evaluation of material interests or economic gains that arise as a result of the conversion with the confiscation of restitution to the victims of crime or whether it is possible without further research, to review actions by justifying the establishment of an incomplete provision,
2-According to the acceptance, since the legal benefit protected in the crime of laundering the values of assets arising from the crime is the public, economic and political structure of the country, the crime is a crime committed against the State, if the crime is committed more than once, 43/1 of the TCC No. 5237. establishment of three separate convictions without regard to the fact that the article should be applied,
Since the appeals of the defendants …, …, …, … their defense and the defendants … and … were considered on the spot, it was decided unanimously on 29.06.2016 that the verdict should be OVERTURNED for the reasons described.
