REPUBLIC OF TÜRKİYE COURT OF CASSATION 4th Penal Chamber
Basis No: 2017/2083
Decision No: 2017/25851
Date: 27.11.2017
THE CRIME OF THREAT – AMENDMENT TO THE LAW ENTERING INTO FORCE AFTER THE JUDGMENT – THE CRIME OF THREAT BEING INCLUDED IN THE SCOPE OF CONCILIATION – NECESSITY TO RE-EVALUATE THE LEGAL STATUS OF THE DEFENDANT AFTER CONCILIATION PROCEDURES ARE PERFORMED
SUMMARY: In view of the fact that the crime of threat has been included in the scope of conciliation (uzlaşma) by the legislative amendment that entered into force after the judgment, the legal status of the defendant must be re-evaluated according to the results after the conciliation procedures are carried out.
(Turkish Penal Code [TPC] Art. 2, 7, 106) (Criminal Procedure Code [CPC] Art. 231, 253, 254)
J U D G M E N T
Upon the appeal against the judgment rendered by the Local Court, the file was examined according to the duration of the appeal and the nature of the decision:
1- Regarding the Suspension of the Pronouncement of the Judgment (HAGB): Although a sentence was added to Article 231/8 of the CPC via Law No. 6545 stating that “During the probation period, a decision on the suspension of the pronouncement of the judgment cannot be rendered again for the person due to an intentional crime,” it was determined that the prior HAGB decisions in the defendant’s criminal record did not constitute an obstacle as of the date of the crime. Therefore, deciding against the “Suspension of the Pronouncement of the Judgment” for the defendant—whose behavior during the trial was found positive and whose prison sentence was suspended (ertelenen)—based on the non-legal ground of “having a prior suspension of the pronouncement of the judgment for another crime” was improper.
2- Regarding the Scope of Conciliation: Pursuant to Article 253 of the CPC, as amended by Law No. 6763 (published in the Official Gazette on 02/12/2016), the conciliation provisions were reorganized. It is understood that the crime of threat under Article 106/1 of the TPC, which is attributed to the defendant, is now within the scope of conciliation. Considering Articles 2 and 7 of the TPC (Principle of Legality and Implementation of Favorable Laws), it is a mandatory requirement to perform the conciliation procedure and re-determine the legal status of the defendant accordingly.
REASON FOR REVERSAL: For the reasons mentioned above, the defendant’s appeal objections were found justified. It was UNANIMOUSLY DECIDED on 27.11.2017 to REVERSE (BOZULMASINA) the judgment pursuant to Article 321 of Law No. 1412 (CMUK) and to send the file to the court of first instance for the proceedings to be resumed from the pre-reversal stage.