Effective regret (EXEC. DATE: 01.06.2005)
ARTICLE 248 – (1) Before the investigation begins, if the embezzled property is returned in its original form or the damage suffered is fully compensated, the penalty to be imposed will be reduced by two-thirds.
(2) Before the prosecution begins, if the embezzled property is voluntarily returned as is or the damage suffered is fully compensated, half of the penalty will be reduced. If effective repentance occurs before the verdict, one-third of the sentence will be reduced.
T.R. Supreme Court
5th Criminal Chamber
Base: 2014/7275
Decision: 2016/9161
Decision Date: 28.11.2016
EMBEZZLE CRIME – IT SHOULD BE OBSERVED THAT THE AMOUNT SUBJECT TO EMBEDDED WAS PAID BY THE DEFENDANT BEFORE THE FILE OF THE COMPLAINT ON THE DAY WHEN THE LAST INVESTIGATION WAS OPENED – IT SHOULD BE OBSERVED THAT THE ACTIVE REGRET HAS TAKEN PLACE BEFORE THE INVESTIGATION HAS STARTED.
SUMMARY: Since it is understood that the amount subject to embezzlement was paid by the defendant before the complaint was made on the day when the last investigation was opened, effective regret provisions should be applied at the appropriate rate, taking into account that effective regret occurs before the investigation begins.
(5237 Law No. 53, 58, 247, 249) (ANY. MAH. 08.10.2015 T. 2014/140 E. 2015/85 K.)
The verdicts given by the local court were appealed and the file was examined;
Depending on the amount of the penalty imposed on the defendant, the defense counsel’s request for a review with a hearing is based on Article 8/1 of Law No. 5320. After the decision was made to conduct the review without a hearing, the following was considered necessary:
In examining the appeal objections against the acquittal verdict given in the combined file about the defendant;
The verdict of acquittal, given by appreciating the evidence and showing its justification, is APPROVED by rejecting the appeal objections of the participating attorney, who is not considered appropriate since it is in accordance with the procedure and the law,
In examining the appeal objections against the conviction given in the main file about the defendant;
Rejection of other appeal objections that are not considered appropriate according to the trial conducted, the evidence collected and shown at the decision-making place, the court’s opinion and appreciation in accordance with the results of the investigation, and the content of the file examined,
However;
When it was understood from the bank receipt in the file that the amount subject to embezzlement was last paid by the defendant at 9.37 on 15/12/2008, and that the investigation started on the same day at 10.44, the transfer time of the petition submitted by the institution’s representative, it was understood from the UYAP environment that effective remorse occurred before the investigation began, without taking into account Article 248/1 of the TCK. Assigning an excessive penalty by applying the first sentence of the second paragraph of the same article instead of the above paragraph,
Constitutional Court dated 08/10/2015 E. 2014/140; K. Since the decision numbered 2015/85 came into force by being published in the Official Gazette dated 24/11/2015 and numbered 29542, there is a necessity to make a re-evaluation regarding Article 53 of the Turkish Penal Code,
Since the charged crime was committed by abusing the rights and powers in Article 53/1-e of the Turkish Penal Code, Article 53/5 of the same Law. Failure to observe that, in accordance with the article, only the use of the rights and powers in this paragraph should be prohibited,
58/6-7 of the Turkish Penal Code regarding the defendant, who is understood to be a repeater according to his criminal record. non-implementation of articles,
Since the appeal objections of the defendant’s defense counsel and the participating attorney are deemed to be unlawful, the judgment is based on Article 8/1 of Law No. 5320. It was unanimously decided on 28.11.2016 that it be REVERSED in accordance with Article 321 of the Code of Criminal Procedure, taking into account the article.