The Decision of the Supreme Court of Cassation That the Judge Shows Legal And Sufficient Grounds While Exercising His Right of Discretion
T.C.
SUPREME
11. Criminal Department Main No:2012/5347
Decision No: 2012/8690
Decision Date: 15.05.2012
CRIME OF OPPOSITION TO LAW NO. 213 – PROVIDED FOR IN THE LAW
IN Deciphering THE BASIC PENALTY BETWEEN THE LOWER AND UPPER LIMIT
THE JUDGE’S DISCRETION – WHEN USING DISCRETION IS LEGAL AND
THE NEED TO SHOW SUFFICIENT JUSTIFICATION
SUMMARY: Determining the basic punishment between the lower and upper limit provided for in the law is at the discretion of the judge and Decisively
being within the power of evaluation, but in such a way as to allow this discretion in the judgment to be audited, the right
and showing the legal and sufficient justification in accordance with the rules of prose, in accordance with the content of the file
need to.
(2709 P. K. m. 141) (5237 Pp. K. m. 3, 61) (5271 Pp. K. m. 34, 230, 289) (765 Pp. m. 59)
Case: The file was examined and considered as necessary:
Decision: The trial, the evidence collected and shown at the place of decision, the investigation of the court
according to the belief and discretion formed in accordance with the results, the content of the file examined, the defendant’s defense
rejection of other appeals that are not seen on the spot,
But;
1- TCKnun No. 5237 61. in accordance with the article, the judge in a concrete case; the manner in which the crime was committed, the crime
the tools used in the commission of the crime, the time and place of the crime, the importance and value of the subject of the crime,
the weight of the harm or danger caused, the weight of the perpetrator’s fault based on caste or installment, and
taking into account the purpose and motive pursued by the perpetrator, the legal definition of the committed crime provides for
it determines the basic punishment between the lower and upper limit of Decriminalization. TCKnun No. 5237 in front of justice and the law
entitled the principle of equality 3/1. proportional to the weight of the act committed against the person who commits a crime in accordance with Article
punishment and security measures shall be imposed. In this respect; the basis between the lower and upper limit provided for in the law is Decisively
it is within the discretion and evaluation power of the judge to determine the punishment, but according to Article 141, 5271 of the Constitution
numbered CMKnun 34, 230 and 289/9. in accordance with the provisions of the provision, this discretion allows supervision
in such a way as to ensure that it complies with the rules of rights and courtesy, complies with the content of the file legally and adequately
it is imperative to show the reason. The repetition of the expressions in the texts of the law is general in these texts
unless qualified criteria are specific to the concrete event and its perpetrator, it is not a sufficient justification.
When the concrete incident is evaluated in the light of these explanations; with the repetition of legal phrases about the accused
determination of punishment from the upper limit with a legal and insufficient justification,
2- Regardless of the fact that the date of the crime is 26.11.2004, the discretionary discount is subject to Article 59 of the Turkish Penal Code No. 765. article
instead, 62 of the Turkish Penal Code No. 5237, which is not in force on the date of the crime. to be done with substance and for money
when discussing translation and postponement institutions, instead of the Law No. 647, the provisions of the Law No. 5237
enduring,
Conclusion: Contrary to the law, the appeals of the accused’s defense were considered on the spot as such
for this reason, the provision is 8/1 of the Law No. 5320. application in accordance with the article
required is CMUKnun 321 No. 1412. in accordance with the article, the unanimous decision on 15.05.2012
with that, the decision was made.
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