Criminal General Assembly 2017/899 E. , 2020/70 K.
“Text Of Jrisprudence”
Who Made The Decision
Office of the Supreme Court : 8. Criminal Department
Court :Severe Punishment
Number : 118-245
197/1, 62, 52/2, 53 and 54 of the Turkish Commercial Code of the accused … for the crime of forgery of money. according to the articles, 1 year 8 months imprisonment and a judicial fine of 100 TL are punishable by deprivation of rights, confiscation, sending counterfeit money to the Central Bank of the Republic of Turkey, CMK 231/5. in accordance with Article 7 of the Istanbul Convention on the withdrawal of disclosure of the provision and the establishment of a 5-year audit period for the accused. After the finalization of the decision No. 140-165 of 27.04.2010 issued by the High Criminal Court, Istanbul 7, which reconsidered the file with a bet that the defendant had intentionally committed a new crime during the inspection period. According to the decision of the Criminal Court dated 03.06.2014 and numbered 118-245, the defendant’s TCC 197/1, 62, 52/2 and 53 on the disclosure of the provision that has been left undisclosed. in accordance with the articles, it was decided to be punished with 1 year 8 months in prison and a judicial fine of 100 TL and deprivation of rights.
The Court of Cassation, which examined the case on appeal of the verdict by the defendant, 8. By the Criminal Department dated 23.02.2016 and numbered 11685-2086;
“1- Article 8 of the European Convention on Human Rights entitled ‘Protection of private life and family life’. according to the article; everyone has the right to respect for his private life, family life, residence and communication. The intervention of an official authority in the exercise of these rights can be applied in a democratic society only to the extent necessary for the protection of national security, public safety, the economic well-being of the country, the protection of order, the prevention of crimes, health or morality, and the rights and freedoms of someone else, and provided that it is provided for by law. Article 20 of the Constitution on the ‘Privacy of Private Life’. in the article, duly issued, unless it is the decision of a judge; also shown depending on the reasons where delay is prejudicial, unless there is a written order of the authority authorized by law; no one will search for the top private papers and stuff, and that provides them shall be confiscated.
In criminal procedural law, the purpose of which is to achieve material truth, material truth can be proved by any evidence obtained in accordance with the law. According to the Constitution, findings obtained in violation of the law cannot be used as evidence (m.38/6.). In accordance with the CMK, the charged crime can only be proven by evidence obtained in accordance with the law (m. 217/2.). If the evidence was obtained in violation of the law, it is refuted (m.206/2-a.). The fact that the judgment is based on evidence obtained by unlawful methods is the exact reason for the violation of the law (m. 289.).
the procedures and principles regarding the ‘search and seizure’ process in CMK No. 5271 (m. 116-134) has been edited. 116 of the aforementioned Law in force on the date of the crime. according to the article, ‘If there is a reasonable doubt that he may be caught or criminal evidence may be obtained, the suspect or defendant’s top, belongings, residence, workplace or other places belonging to him may be searched. 119/1 of the Same Law. in the article ‘On the decision of the judge or in case of delay, in cases where it is inconvenient for the Public Prosecutor to be reached, and in cases where the Public Prosecutor cannot be reached by dec written order of the law enforcement officer, law enforcement officers can make a call. However, it is stipulated that the search at the residence, workplace and closed areas that are not open to the public can be carried out by written order of the Public Prosecutor in cases where the judge’s decision or delay is inconvenient. dec.
In the Regulation on Judicial and Preventive Searches, it is also regulated in detail in what way, in what cases, by whom judicial and preventive searches will be conducted, 6 of the Regulation. in its article, ‘reasonable doubt‘ is defined as follows: ‘Reasonable doubt is a suspicion that is usually felt in the face of concrete events according to the flow of life. Reasonable doubt is determined taking into account such reasons as the time, place of the call and the attitude and manner of behavior of the person concerned or those who are with him, the nature of the item that the law enforcement officer doubts has been moved. In reasonable doubt, there must be signs supporting a notice or complaint. It is necessary that the suspicion on the specified issues is based on concrete facts. Concrete facts that require predicting that a certain thing will be found at the end of dec search or that a certain person will be caught should be found to be present.’
Even if the delay is considered to be an inconvenience, the call must be based on a written decision or order, as specified in dec. 25.11.2014 of the CGK and 2013/610, 2014/512. Even if it is deciphered later, it is not possible to search by oral order, and the requirement for writing is 20, 21 of the Constitution and 116 of the Code of Criminal Procedure. it is required by the superior provision of its articles. A search warrant cannot be issued with an oral instruction that is subsequently dec. The approval of the confiscation process in the search carried out with an unlawful search to the judge also does not make the transaction lawful. Decriminalization of the confiscation process in the search carried out with an unlawful search also does not make the transaction lawful.
In its decision dated 19.11.2014 and numbered 2013/6183, the Constitutional Court also decided that the right to a fair trial was violated based on the decisiveness of the unlawful evidence obtained as a result of the search conducted in violation of the procedure.
In the face of the positive legal norms described, the decisions of the Constitutional Court and the CGK; The evidence obtained ‘in violation of the law’ cannot be based on the judgment. This is also the European Convention on human rights.6 which is included in the article and added to our Constitution (m. 36) it is a requirement of the right to a fair trial.
As for the concrete event in the light of these explanations;
According to the minutes available in the file dated 06.08.2008, ‘During the search of the top law enforcement officers on 4 persons whose condition we suspect while performing ring duty on Haliç Caddesi as a team affiliated to the Preventive Services Bureau, one fake 100 YTL coin along with two screwdrivers was found on the named person and handed over to the Police Headquarters with the criminal elements to take the necessary action.’ As it can be seen, there is no reasonable suspicion of a crime in any way regarding the accused and his friends he was with, as stated in the Law and Regulation in the minutes, suspicious movements are not included, as well as 119/1 of the CMK to search for them. there is also no search warrant issued by the competent authority in accordance with Article Dec. In this respect, the fake money subject to the crime, which was seized by searching the defendant’s superiors in violation of the law by stating that it was suspected abstractly, is evidence obtained by an illegal method and cannot be based on a verdict.
According to the available evidence, if the evidence obtained by an unlawful method is excluded from consideration, there is no possibility of punishing the accused. The expert report is a tool for evaluating the product obtained during the search. Can be described as a basis for the defendant’s confession and conviction, although there are defenses that can be alone, and considered to be of confession, even if cgk of 2014/166 dated 25.11.2014-514 as stated in the decision, is not supported by material evidence, and profess taken on the basis of the abstract nature of the conviction is not obtained in accordance with the law, is not conclusive and convincing evidence beyond all reasonable doubt that the defendant’s conviction of acquittal instead of in writing,
2- According to the acceptance as well,
Although the basic prison sentence was determined from the lower limit, it was decided that the number of unit days based on a judicial fine on the same grounds would be distorted by their inconsistency by ”causing a contradiction by determining the number of days from the institution”.
The Prosecutor General’s Office of the Supreme Court of Cassation is dated 02.04.2016 and numbered 260162;
“…According to the minutes available in the file dated 06.08.2008, during the search of 4 persons suspected of his condition while performing his ring duty on Haliç Caddesi as a team attached to the Preventive Services Bureau of Law enforcement officers, a fake 100 YTL money was found on the named person along with two screwdrivers and handed over to the Police Headquarters with the criminal elements to take the necessary action. A total of 4 more fake coins were seized from two other people who were with the accused.
Looking at the legislation on the subject;
38/6 of the Constitution. article “Findings obtained contrary to the law are not accepted as evidence” has been regulated as follows.
CMK 116, 117, 118, 119, 120, 121 and in the articles of continuation, the principles related to decommissioning and seizure have been determined. According to this, ‘In cases where it is inconvenient for the judge to decide or delay, the Public Prosecutor and the Public Prosecutor cannot be reached, the law enforcement officers may make a call by written order of the law enforcement officer. However, a search in a residential building, workplace, and closed areas that are not open to the public can be carried out by a written order of the Public prosecutor in cases where there is a decency in the judge’s decision or delay. The results of the search carried out by written order of the dec enforcement officer are immediately notified to the Prosecutor General’s Office. the arrangement is made in the form of ’.
CMK’s 206. article 2. subparagraph a of paragraph 217. article 2. according to the paragraphs, the evidence obtained in violation of the law will be rejected and the charged crime can be proven with evidence obtained in accordance with the law.
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