Republic of Turkey
Supreme Court of Appeals
11th Criminal Chamber Case No: 2012/5347
Decision No: 2012/8690
Decision Date: 15.05.2012
CRIME OF VIOLATING LAW NO. 213 – THE JUDGE’S DISCRETIONARY POWER IN DETERMINING THE BASIC PENALTY BETWEEN THE LOWER AND UPPER LIMITS PROVIDED FOR IN THE LAW – THE NECESSITY OF SHOWING LEGAL AND SUFFICIENT JUSTIFICATION WHEN EXERCISING DISCRETION
SUMMARY: Determining the basic penalty between the lower and upper limits provided for in the law is within the judge’s discretionary and
evaluative power.
In the judgment, it is necessary to show legal and sufficient justification that allows for the review of this discretion, in accordance with the rules of fairness and equity, and consistent with the file contents. (2709 S. K. m. 141) (5237 S. K. m. 3, 61) (5271 S. K. m. 34, 230, 289) (765 S K. m. 59)
Case: The file was examined and the necessary considerations were made:
Decision: In accordance with the trial conducted, the evidence gathered and presented in the decision, the court’s belief and discretion formed in line with the investigation results, and the content of the examined file, the other appeals of the defendant’s counsel, which are deemed unfounded, are rejected.
However;
1- In accordance with Article 61 of the Turkish Penal Code No. 5237, the judge in the concrete case; The judge determines the basic penalty between the lower and upper limits of the penalty prescribed in the legal definition of the crime, taking into account the manner in which the crime was committed, the tools used in committing the crime, the time and place of the crime, the importance and value of the subject matter of the crime, the severity of the damage or danger caused, the severity of the perpetrator’s intentional or negligent fault, and the purpose and motive pursued by the perpetrator. According to Article 3/1 of the Turkish Penal Code No. 5237, titled “Principle of Equality before Justice and Law,” a penalty and security measure proportionate to the severity of the act committed is imposed on the person who commits the crime. Therefore, determining the basic penalty between the lower and upper limits prescribed by law is within the judge’s discretion and evaluation authority, however, pursuant to Article 141 of the Constitution, and Articles 34, 230 and 289/9 of the Code of Criminal Procedure No. 5271… According to the articles, it is mandatory to show a legal and sufficient justification that is in accordance with the rules of equity and fairness, consistent with the case file, and allows for the review of this discretion in the judgment. The repetition of expressions in the legal texts is not a sufficient justification unless the general criteria in these texts are specific to the concrete case and the perpetrator. In light of these explanations, when the concrete case is evaluated;
1- The sentence was imposed on the defendant with a legally insufficient justification, by merely repeating legal phrases,
2- The discretionary reduction was made with Article 62 of the Turkish Penal Code No. 5237, which was not in force at the time of the crime, instead of Article 59 of the Turkish Penal Code No. 765, without considering that the date of the crime was 26.11.2004, and
while discussing the institutions of conversion to a fine and postponement, the provisions of the Law No. 5237 were relied upon instead of the Law No. 647,
Conclusion: Since the appeal of the defendant’s lawyer is deemed justified in this respect, the judgment is hereby REVERSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320, for this reason, unanimously decided on 15.05.2012.