Republic of Turkey
Supreme Court of Appeals
14th Criminal Chamber
Case No: 2013/2488
Decision No: 2014/14868
Date of Decision: 25.12.2014
The judgments rendered by the local court were appealed, and the file was examined and the necessary considerations were made:
As a result of the examination by our Chamber of the judgments of the Izmir 11th High Criminal Court dated 23.09.2010, case number 2009/153, decision number 2010/227, regarding the crimes of qualified sexual abuse of a child and deprivation of liberty against the victim, it was understood that in the judgment dated 18.11.2011, case number 2011/13847, decision number 2011/3684, it was decided that the victim’s true age should be determined by obtaining a report from the relevant expert board of the Forensic Medicine Institute. Therefore, after first obtaining and examining this file from the court and eliminating the doubt regarding the victim’s age, the Ege case number, which was taken as the basis for the judgment, should be examined. Despite the report dated July 6, 2011, prepared by the Department of Child and Adolescent Mental Health and Diseases at the Faculty of Medicine of the University, which stated that the victim had an IQ of 90, normal intelligence, was conscious, cooperative, fully oriented to time, place, and person, and could communicate and express herself adequately, it was concluded that she could not adequately evaluate and manage the legal meaning and consequences of the event due to her existing psychopathology and previous traumatic sexual encounters, and because she perceived the event as an emotional and sexual encounter and not as sexual abuse; Considering the statements of the complainant Serap, the victim’s mother, during the proceedings, regarding the victim’s previous treatment at the Manisa Mental and Nervous Diseases Hospital for a personality disorder, it is deemed necessary to refer the victim to the relevant expert board of the Forensic Medicine Institute to determine whether she is mentally ill, whether her ability to understand the legal meaning and consequences of the act has developed, and if she is mentally ill, whether her mental illness can be understood by non-medical professionals, and to obtain a detailed report on this matter, and to determine and assess the legal status of the defendant accordingly.
Also, according to the acceptance;
In light of the reorganization of crimes against sexual inviolability in Articles 58, 59, 60 and 61 of Law No. 6545, which came into force on June 28, 2014, after the judgment, and Articles 102, 103, 104 and 105 of Law No. 5237; Article 7/2 of the Turkish Penal Code No. 5237… Considering the provision in the article-paragraph that “If the provisions of the law in force at the time the crime was committed and the provisions of the law that came into force later are different, the law that is more favorable to the perpetrator shall be applied and enforced,” it is necessary to determine the more favorable provision by comparing the results obtained by applying all the provisions of both the previous and subsequent laws to the case, and to re-evaluate the case by showing the application of both laws in the decision in a way that allows for review.
Therefore, the appeal of the defendant’s lawyer is deemed justified, and it is decided unanimously on December 25, 2014, to REVERSE the judgments in accordance with Article 321 of the Code of Criminal Procedure No. 1412, taking into account Article 8/1 of Law No. 5320.