T.C. SUPREME COURT
Based on: 2014/28897
Date of Decision: 23.06.2016
CRIME OF OPPOSITION TO LAW NO. 4733 – THE CONFISCATION OF ILLEGAL GOODS SUBJECT TO CRIME MUST BE SETTLED BY A DECISION, WHILE ITS DESTRUCTION BY DESTRUCTION IS ALSO RULED – CORRECTION AND APPROVAL OF THE PROVISION
ABSTRACT: In the provision established on the accused charged with the crime of opposition to law No. 4733, it was decided to be satisfied with the decision to confiscate illegal and bandroll-free cigarettes subject to crime, while it was decided to correct and approve the provision if it required destruction and its liquidation by destruction.
(5237 Pp. K. m. 53, 54) (ANY. MAH. 08.10.2015 T 2014/140 E. 2015/85 K.)
Case and Decision: The verdict given by the local court was appealed; the application was discussed and considered on behalf of the Turkish Nation after the file was read according to the nature, type of punishment, duration and date of the crime;
I- In the examination of the appeal of the deputy of the Customs Administration participating in;
8/1 of the Law No. 5320 on the request for an appeal review by the deputy of the participating Customs Administration, which does not appeal the provision within the statutory period. article 317 of CMUK No. 1412, which is in force in accordance with its article. refusal in accordance with the article,
II- According to the defendant’s appeal, the examination is;
1- the decision of the Constitutional Court dated 08/10/2015 and based on 2014/140, annulment No. 2015/85 and TCC No. 5237, which entered into force by being published in the Official Gazette No. 29542 dated 24/11/2015, is the 53rd amendment of the Turkish Commercial Code No. 5237. due to the cancellation of some parts of the article, there is an obligation to re-evaluate this article,
article 53 of the Turkish Commercial Code No. 5237. article 3. in accordance with paragraph 1 of the article referred to about the defendant, whose non-short-term prison sentence he has been sentenced to has been postponed. it is stipulated in writing that the deprivation of rights written in paragraph (c) of paragraph (c) should not be applied only in terms of the defendant’s custody, guardianship or trusteeship powers over his own child, while it should be decided to deprive these rights and powers related to those other than the child until the execution of the sentence is completed,
2- Illegal and non-bandrolled cigarettes that are subject to crime are subject to Article 54 of the TCC No. 5237. according to the article, it is necessary to be satisfied with the decision on confiscation, but also to judge its liquidation by destruction,
Conclusion: Contrary to the law, since the defendant’s appeals are considered in place for these reasons and these considerations do not require a retrial, CMUK No. 1412, which is in force in accordance with Article 8/1 of Law No. 5320, 322, is contrary to the law. in accordance with the article, from the paragraph of provision
1- article 53 of the Turkish Commercial Code No. 5237. the removal of the section on the implementation of the article, instead of “08/10/2015 and 2014/140 E of the Constitutional Court published in the Official Gazette dated 24/11/2015 and numbered 29542. , 2015/85 K. taking into account the canceled issues in decision No. 53 / l-2-3 of Article 5237 of the TCC (except for paragraph ”e”), the addition of the phrase ”,
2- By removing and replacing paragraph 2 on the liquidation of the cigarettes subject to litigation by destruction “2-Illegal and bandrol-free cigarettes subject to litigation 54/1 of the TCC No. 5237.in accordance with article confiscation,” it was unanimously decided on 23.06.2016 to correct and approve the provision by adding the bend and leaving other parts exactly.