If the Embezzled Amount Is Paid by the Accused Before the Complaint is Filed on the Day the Investigation is Opened, How Much Should the Effective Regret Deduction Be Made

Active regret (YUR. TAR.: 01.06.2005)

ARTICLE 248 – (1) Before the investigation begins, if the embezzled property is returned in kind or the damage incurred is fully compensated, two-thirds of the penalty to be imposed is reduced.

(2) If the embezzled property is returned voluntarily or the damage incurred is fully compensated, half of the penalty to be imposed shall be reduced before the commencement of the prosecution. If effective repentance occurs before the verdict, one-third of the punishment to be given is reduced.

T.C. SUPREME

5.Criminal Department
Basis: 2014/7275
Verdict: 2016/9161
Decision Date: 28.11.2016

CRIME OF EMBEZZLEMENT – THE AMOUNT SUBJECT TO EMBEZZLEMENT WAS PAID BY THE ACCUSED ON THE DAY OF THE OPENING OF THE LATEST INVESTIGATION BEFORE THE COMPLAINT WAS FILED – DUE TO THE NEED TO OBSERVE THAT EFFECTIVE CONTRITION OCCURRED BEFORE THE INVESTIGATION BEGAN

SUMMARY: Since it is understood that the amount subject to embezzlement was paid by the defendant on the day the latest investigation was opened before the complaint was filed, effective regret provisions should be applied at the appropriate rate, taking into account that effective regret occurred before the investigation began.

(5237 Pp. K. m. 53, 58, 247, 249) (ANY. MAH. 08.10.2015 t. E. 2014/140 2015/85 K.)

The decisions given by the local court were appealed and the file was examined;

According to the amount of the penalty assigned to the accused, the defense’s request for a trial examination is 8/1 of the Law No. 5320. in accordance with Article 318 of the CMUK. with the refusal in accordance with the article, the necessity was considered after the decision was made to conduct the examination without a hearing:

In the examination of the appeals against the acquittal verdict given in the combined file about the accused;

The acquittal verdict, which is given by showing appreciation and justification of the evidence, is in accordance with the procedure and the law, and therefore the appeal objections of the participating attorney, which are not considered in place, are rejected and the verdict is UPHELD,

In the examination of the appeals against the conviction verdict given in the main file about the accused, the;

The court’s opinion and discretion formed in accordance with the results of the investigation, the evidence collected and shown at the place of decision, the rejection of other appeals that are not considered appropriate according to the content of the file being examined,

But;

The amount subject to embezzlement was last paid by the defendant on 15/12/2008 at 9.37 am from the bank receipt contained in the file, and the investigation began at 10.44 am, the transfer time of the petition submitted by the deputy of the institution on the same day, in the face of the understanding from the UYAP environment that effective regret occurred before the investigation began, regardless of 248/1 of the TCK. instead of paragraph 2 of the same article. paragraph 1. determination of excessive punishment by applying the sentence,

The date of the Constitutional Court 08/10/2015 and E. 2014/140; K. Due to the fact that the decision numbered 2015/85 was published in the Official Gazette dated 24/11/2015 and numbered 29542 and entered into force, Article 53 of the TCK. there is a necessity to re-evaluate the article in relation to,

53/5 of the same Law due to the fact that the charged crime was committed by abusing the rights and powers in Article 53/1-e of the Turkish Penal Code. failure to observe that only the exercise of the rights and powers in this paragraph should be prohibited in accordance with Article,

According to the criminal record, 58/6-7 of the Turkish Penal Code about the defendant, who is understood to be duplicated. non-application of articles,

Since the appeals of the defendant’s defense attorney and the participating attorney are considered illegal, the provision is in accordance with Article 8/1 of Law No. 5320. in accordance with Article 321 of the CMUK. it was unanimously decided on 28.11.2016 to be overturned in accordance with the article.

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