Republic of Turkey
COURT OF APPEALS
14th CRIMINAL CHAMBER
E.2013/5363
K.2015/2314
D.2.3.2015
INSULT (Since the Insult was Committed in Response to a Wrongful Act, a Decision of No Punishment is Necessary)
TORT (Since the Insult was Committed in Response to a Wrongful Act, a Decision of No Punishment is Necessary)
SIMPLE SEXUAL ASSAULT (Since the Insult was Committed in Response to a Wrongful Act, a Decision of No Punishment is Necessary)
ANIMITY BETWEEN THE PARTICIPATING DEFENDANTS (Simple Sexual Assault/Since the Insult was Committed in Response to a Wrongful Act, a Decision of No Punishment is Necessary) )
5237/Art. 102,125,129
SUMMARY: While it should be decided that direct punishment is not warranted based on the fact that the insult was committed in response to a wrongful act, first issuing a conviction and then applying the aforementioned article is unlawful.
In the crime of simple sexual assault, the defendant should be acquitted, given the lack of clear, concrete, and convincing evidence beyond any doubt that the crime occurred, other than the statements of the defendant with whom the defendant has a feud.
CASE: The verdicts rendered by the local court were appealed, and the case file was reviewed and its merits were taken into consideration:
DECISION: The defendant S. was found guilty of intentional injury and threats, and the defendants A. and İ. In reviewing the convictions for intentional wounding:
Except for those commuted from prison sentences by Article 26 of Law No. 6217, which entered into force on April 14, 2011, and the temporary Article 2 added to Law No. 5320, the resulting fines of up to (inclusive) 3,000 TL are final. Since the penalties imposed on the participating defendants are final in terms of the amount of the penalties imposed on them pursuant to Article 305/1 of the Criminal Procedure Code No. 1412, and appealing the aforementioned judgments is not possible, the participating defendant A.’s appeal of these judgments is dismissed in accordance with Article 8/1 of Law No. 5320, in accordance with Article 317 of the Criminal Procedure Code No. 1412. In reviewing the verdict rendered against the defendant S. for insult:
The court rejected all other appeals that were deemed unfounded based on the trial, the evidence collected and presented at the court’s hearing, the court’s opinion and judgment based on the results of the investigation and prosecution, and the contents of the file reviewed.
However;
Article 129/1 of Law No. 5237. According to Article 10 of the Criminal Procedure Law, it should have been decided that direct punishment was not warranted on the grounds that the insult was committed in response to a wrongful act, but the conviction judgment should have been rendered first, and then the aforementioned article should have been applied.
Regarding the appeal review of the verdict of simple sexual assault against the participating defendant A.:
Based on the circumstances and the entirety of the case file, and considering the absence of any clear, conclusive, concrete, and credible evidence beyond any doubt that the crime occurred, other than the statements of S., with whom A. had a feud, A. was convicted in writing, rather than acquitted of the predicate offense.
CONCLUSION: Unlawful. The appeals of the Public Prosecutor of that location and the participating defendant A. were found to be valid in this regard. Therefore, the verdicts should be reconsidered in accordance with Article 8/1 of Law No. 5320 and Article 321 of the Criminal Procedure Law No. 1412. It was unanimously decided on 02.03.2015 that the decision be REVERSED in accordance with the article and th e appeal fee be refunded if requested.