THE CASE OF THE COMMISSION OF A CRIME FALLING WITHIN THE SCOPE OF SETTLEMENT WITH ANOTHER CRIME NOT COVERED BY THE SETTLEMENT
According to the Code of Criminal Procedure 253/3 “Settlement provisions shall not apply if a crime falling within the scope of the settlement has been committed against the same victim together with another crime not covered” By virtue of the provision, there will be no reconciliation in respect of both offences if both a crime subject to settlement and a non-consensual crime are committed together against the same victim.
Again according to CMK 253/3''In the case of crimes against sexual immunity, even if its investigation and prosecution depend on the complaint, the path of reconciliation cannot be taken.” The way of conciliation is closed even for the part of the crimes of sexual immunity that are subject to complaint by the provision. In this regard, in a judgment of the Supreme Court of Justice below, it is held that even if crimes subject to sexual immunity are committed together with sexual immunity, a settlement cannot be made for the crime subject to reconciliation. Before we proceed to this decision, which we believe is correct, we would like to state once again: In the case of both a crime committed against the same victim that falls within the scope of the settlement and the commission of a crime that is not subject to settlement, even the crime that is subject to reconciliation will come out of the scope of the settlement.
For example; If the crime of theft committed at night is also committed for the crime of causing damage to property caused by breaking the victim's door, the crime of damaging property subject to settlement will also be excluded from the scope of the settlement, since the crime of theft at night is not subject to settlement.
What crimes are subject to reconciliation
Settlement 5271 is regulated between Articles 253 and 255 of the CMK and, as a rule, all offenses that are subject to a complaint in accordance with Article 253 of the CMK are subject to the settlement.
In the case of crimes whose investigation and prosecution are not linked to the complaint, the settlement provisions will apply if it is expressly provided for in the law. Crimes committed against state and public institutions and organizations are not included in the scope of the settlement.
In addition, crimes subject to prepayment, crimes against sexual immunity, and crimes with effective remorse provisions were excluded from the scope of the settlement.
The settlement provisions shall not apply if a crime falling within the scope of the settlement was committed against the same victim together with another crime not covered by this scope.
With regard to children who are caught in crime, reconciliation will also be taken in respect of offenses, the upper limit of which does not exceed three years of imprisonment or a judicial fine.
Crimes covered by the settlement;
· Investigation and prosecution of crimes linked to the complaint.
· Whether linked to the complaint or not, which is contained in the Turkish Criminal Code;
· Intentional injury (article 86/1-2, clause 88)
· Injury by taxidermy (article 89)
· Threat (article 106/1)
· Violation of housing immunity (article 116)
· Violation of freedom of work (article 117/1, article 119/1-c)
· Crime of disturbing the peace and tranquility of persons (article 123)
· Offense of defamation (article 125, except paragraph a)
· Insult to the memory of the person (article 130/1-2)
· Crime of violation of the confidentiality of communications (article 132/1-2-3)
· Crime of listening and recording conversations between persons (article 133/1-2-3)
· Crime of violation of privacy of private life (article 134/1-2)
· Theft (Article 141)
· Theft of property owned by a stakeholder or co-owner or for the purpose of collecting receivables based on a legal relationship (Article 144/1-a, b)
· Theft of use (article 146/1)
· Crime of damage to property (article 151/1-2)
· The crime of rape in a place without rights (article 154/1)
· Abuse of trust (article 155)
· Crime of using promissory notes (article 156/1)
· Fraud (article 157),
· Saving crime on lost or mishandled goods (article 160/1)
· Acquisition or acceptance of criminal goods (article 165,)
Abduction and detention of a child (Article 234),
· Disclosure of information or documents of a trade secret, banking secret or customer secret nature (with the exception of the fourth paragraph, clause 239)
· Abuse of the disclosed signature (article 209/1)
· The crime of violation of the obligation arising from family law (article 233/1)
· Crimes subject to settlement in the Enforcement and Bankruptcy Code
· Crimes subject to conciliation contained in the Law on Cooperatives
· Crimes subject to reconciliation contained in the Law on Intellectual and Artistic Works
· Crimes subject to settlement in the Czech Law
· Crimes subject to settlement in the Turkish Commercial Code
· In order to be able to reach a settlement in relation to crimes covered by other laws, the investigation and prosecution of which are subject to a complaint must be made, there must be a clear provision in the law.
SUPREME COURT DECISION
T.C.
SUPREME COURT
1. PENAL DEPARTMENT
ORIGINAL NUMBER: 2017/1234
DECISION NO: 2017/2256
DECISION DATE: 12.6.2017
SUMMARY: In the case of crimes against sexual immunity, the provisions of reconciliation are not applicable, even if other crimes committed in conjunction with the sexual offense are within the scope of the settlement, as well as other crimes committed in conjunction with the sexual offense... “In the event that a crime covered by a settlement has been committed in conjunction with another crime that does not fall within the scope of the settlement, the provisions of the settlement do not apply.” The defendant's threat received under the scope of the settlement and the crime of depriving the non-claimant of his liberty with the crime of sexual harassment is not covered by the crime of sexual harassment”
Accused of forced abduction and imprisonment, threats and lewdness... ' Basis 2000/221 of the Burdur Heavy Criminal Court dated 07/06/2001 and Article 2000/221 of the Burdur Criminal Code No. 765 (twice), 421/2, 429/1, 430/1, 81/1, 81/2 (three times), Article 71 and 74 of the Turkish Penal Code No. 765 Following the adoption of the decision by the 5th Criminal Chamber of the Supreme Court of Justice, as amended by the proclamation of Decision No. 2002/4828, 2002/4824, dated 20/06/2002, as a result of the adaptation trial for the entry into force of the Turkish Criminal Code No. 5237 on 01/06/2005 that there is no reconviction for threatening crimes, the execution of the previous provision in respect of these crimes is punishable by 6 years, 3 years and 9 months imprisonment in accordance with Articles 105/1, 109/1 (twice) and 109/5. (twice) of Law No. 5237, which is found guilty of crimes of forced detention and promiscuity. Some of the Criminal Procedure Law No. 6763, which was published in the Official Gazette on 02/12/2016, following the Additional Decision of the Burdur Heavy Criminal Court dated 08/06/2005 and pursuant to the Additional Decision No. 2000/221, 2001/89, issued in the Official Gazette on 02/12/2016. Pursuant to the provisions of the Law on Amendments to the Laws, the decision referred to in the decision of the Burdur Heavy Penal Court on the continuation of the execution by reassessing the legal status of the convict, rejecting the request for a decision on whether or not to stop the execution and acceptance of the appeal against the Additional Decision of the Burdur Heavy Penal Court dated 12/12/2016 and No. 2000/221esas, 2001/89 with regard to the decision of the 2nd Isparta Heavy Criminal Court dated 04/01/2017 and 2017/12 on its abolition;
According to the scope of the file, which is contained in Article 253/3 of Law No. 5271, “Even if its investigation and prosecution depend on the complaint, (...) (1) in the case of crimes against sexual immunity, reconciliation cannot be pursued. (Additional sentence:26/6/2009 - 5918/8 d.). In the event that a crime falling within the scope of the settlement has been committed in conjunction with another crime not covered, the provisions of reconciliation shall not apply. In the context of the arrangement of (1)” the defendant's threat received under the scope of the settlement and, again, the crime of depriving the non-claimant of his liberty with the crime of sexual harassment, is not applied. It is necessary to overturn the decision referred to in accordance with Article 309 of the Code of Criminal Procedure No. 5271, since there was no success in deciding on the acceptance of the appeal rather than the rejection of the appeal, without prejudice to its absence. It was considered necessary to send notification and case documents to our Office with notification of the General Directorate of Criminal Affairs of the Supreme Ministry of Justice dated 09/04/2017 and 94660652-105-15-1283-2017-kyb from the secretary to the General Prosecutor's Office of the Supreme Court with notification and examination;
CONCLUSION: Pursuant to article 309 of CMK No. 5271 of Isparta 2nd Criminal Court Decision dated 04/01/2017 and 2017/12, since the request to overturn in the notification issued by the Prosecutor General's Office issued by the Supreme Court of the Republic on the basis of a request to overturn it in the interest of the law is considered in place according to the scope of the file under review. PERVERSION TO THE BENEFIT OF THE LAWIt was decided unanimously on 12/06/2017 to forward the file to the Public Prosecutor's Office of the Supreme Court to be sent to the court so that other actions can be carried out.