Republic of Turkey
SUPREME COURT OF APPEALS
2nd Criminal Chamber
Case No: 2011/6659
Decision No: 2012/45024
Decision Date: 05.11.2012
CRIME OF INSULTING PUBLIC OFFICIALS – FROM THE ALTERNATIVE PENALTIES
SHORT-TERM IMPRISONMENT SENTENCE WAS IMPOSED AS A NECESSITY DUE TO RECOURSE
THE DECISION THAT THERE IS NO ROOM TO CONVERT THE SHORT-TERM IMPRISONMENT SENTENCE INTO A JUDICIAL FINE
THE INCORRECTNESS OF THE DECISION
SUMMARY: In the concrete case, since a short-term imprisonment sentence was imposed as a necessity due to recidivism from the alternative penalties, there is no legal obstacle to converting this sentence into a judicial fine or one of the measures if the other conditions required by law are met, it was stated that there is a legal obstacle, and this situation The decision that there is no room for converting the short-term imprisonment sentence, which was determined without evaluation, into a judicial fine is incorrect. (Law No. 5237, Articles 50, 58)
Case: The file was examined and the necessary action was considered:
Decision: Article 58, paragraph 3 of the Turkish Penal Code No. 5237 and Article 50, paragraph 2 of the same Law regulate this. When these regulations are evaluated together; since the judge does not have the right to choose from the alternative sanctions foreseen in the article applied due to the defendant being a repeat offender, imprisonment was necessarily imposed,
there is no legal obstacle to converting this sentence into one of the alternative sanctions written in Article 50/1 of the same Law, if the conditions are met. However;
Turkish Penal Code No. 5237 According to Article 50/2 of the law, if the applied article provides for imprisonment and a fine as alternatives, and the court chooses imprisonment without necessity, then the imprisonment can no longer be converted into a fine.
For the reasons explained, since a short-term imprisonment sentence was imposed as a necessity due to recidivism in the concrete case, and although there is no legal obstacle to converting this sentence to a fine or one of the measures required by law when the other conditions are met, the decision that there is no room for converting the short-term imprisonment sentence, which was determined without evaluating this situation by stating that there is a legal obstacle, into a fine is deemed unacceptable.
Conclusion: This necessitates reversal, and since the defendant’s appeals are found to be justified in this respect, the judgment is REVERSED as requested for these reasons, by unanimous decision on 05.11.2012.