19th PENAL CHAMBER | Basis No: 2015/17807 | Decision No: 2015/9225 “LEGAL PRECEDENT” Notification No: KYB – 2015/306126
SUMMARY: Regarding the crime of non-compliance with alimony provisions, the Ankara 11th Enforcement Penal Court decided to drop the complaint against the defendant Ü.K. on the grounds that the right to complain was not exercised within the 3-month period pursuant to Article 347 of the Execution and Bankruptcy Law (EBL) No. 2004. An objection was filed against this decision, which was rejected by the Ankara 12th Enforcement Penal Court. Consequently, the Ministry of Justice requested a reversal for the benefit of the law (kanun yararına bozma) against the rejection of the objection.
THE NOTIFICATION CLAIMS: Although the Ankara 11th Enforcement Penal Court decided to drop the right to complain on the grounds that the crime of non-payment of alimony occurred on 26/11/2013 following the notification of the execution order, and that the 3-month period starts from the date of discovery and the non-payment of alimony can be known immediately; it is established that:
Pursuant to Article 347 of Law No. 2004, the right to complain expires 3 months from the date the act is discovered and in any case 1 year from the date the act was committed.
In the execution file (Ankara 15th Execution Office, No. 2012/6528) regarding the current alimony debt for March, April, and May of 2014, the creditor performed no transactions in the file after these dates.
There is no information or document within the scope of the file indicating that the creditor had become aware (muttali) of the non-payment prior to the complaint.
Therefore, the date of discovery must be accepted as 19/06/2014, the date the complaint was filed with the Enforcement Court.
Considering that the 3-month and 1-year statutes of limitation (hak düşürücü süreler) provided in Article 347 had not yet expired as of the date of the complaint, the rejection of the objection instead of its acceptance was found improper.
LEGAL ANALYSIS AND JUDGMENT: As the content of the notification by the Chief Public Prosecutor’s Office of the Court of Cassation based on the request for reversal for the benefit of the law was found justified; it was UNANIMOUSLY DECIDED on 24/12/2015 to REVERSE the decision of the Ankara 12th Enforcement Penal Court pursuant to Article 309/4 of the Criminal Procedure Code (CPC), and for the subsequent proceedings to be carried out locally by the court.