T.R. JUDICIARY

15. Criminal Chamber

Basis: 2016/ 3044

Decision: 2018 / 7677

Decision Date: 06.11.2018

COURT: Assize Court

CRIME: qualified fraud

PROVISION: Conviction pursuant to articles 158/1-e-son, 43, 62, 52 and 53 of the TCK

The judgment regarding the conviction of the accused for the crime of qualified fraud was appealed by the defendant’s lawyer and the attorney who participated, and the file was examined and the necessary consideration was taken,

Despite Nazife’s death in October 1993, the defendant received a power of attorney from the notary public on 21/12/1992 in order to withdraw the salary of his mother-in-law, Nazife, who lived with him and received a pension from the participating institution. the pension continued to be deposited into the bank account due to the failure to notify, the defendant did not report this death until the date of the crime, he took a total of 75,911.57 TL of his pension, the defendant obtained unfair advantage by fraudulent actions in this way, the defense of the defendant containing a confession, the statements of the witnesses, the conquest of the grave. As it is understood from the report of the Forensic Medicine Institute and the scope of the entire file, there was no misconduct in the conviction of the accused for the crime of qualified fraud.

According to the trial held, the evidence gathered and shown at the place of decision, the opinion and discretion of the court in accordance with the results of the prosecution, and the scope of the examined file; the rejection of the other appeals of the defendant’s counsel and the participating attorney, but;

In cases listed in sub-paragraphs (e), (f) (i) and (k) of paragraph 1 of Article 158 of the TCK No. 5237, the basic day to be determined for the determination of the judicial fine is minimum, not less than twice the unfair advantage obtained from the crime, and In accordance with the 52nd article of the same law, after the increase and reductions are made over the number of days to be determined by increasing the amount, the resultant number of days is multiplied by the amount to be appreciated between 20-100 TL, regardless of whether the resulting judicial fine should be determined. penalty determination,

Since the objections of the defendant’s defense counsel and the participating attorney were deemed appropriate in this respect, the verdict was therefore VOID pursuant to Article 321 of the Criminal Code No. 1412, which is still in effect pursuant to Article 8 of the Law No. Since it is possible to rectify in accordance with the article, the terms “5,000 Days”, “7.500 Days”, “6.250 Days” and “125.000 TL” related to the judicial fine, respectively, were completely removed from the sentence clause and replaced with “7.591 Days”, “11.386 Days”, “9.488 Days”, respectively. It was unanimously decided on 06/11/2018 to CORRECT and APPROVE the provision, whose other aspects were found to be in accordance with the procedure and the law, by adding the phrases “Day” and “189.760 TL”.

Timeshare is defined as a vacation system established with a contract that includes the transfer of one or more immovables in return for the price of usage, for a period of at least three years and for a certain or to be determined period of the year and not less than one week during this period.

The timeshare contract grants the consumer a right of receivable on the immovable that is the subject of the holiday, for the use of time-divided. This right is a personal right. The consumer is not the owner of any real right, such as the right of ownership, on the real estate subject to the contract.

T.R.
SUPREME COURT

3. HD
   2011/3430 E. 2011/6636 K. 18.4.2011 T.

In the petition, it was requested to collect the compensation of 2500 liras, together with interest and expenses, from the defendant. The court dismissed the case, and the judgment was appealed by the plaintiff’s attorney.

After it was understood that the appeal request was within the deadline, all the papers in the file were read and the necessary considerations were taken.

The case concerns the claim for compensation due to the defendants’ child starting a fire. From the explanations in the petition, it is understood that the responsibility of the defendants as the head of the family is requested.

The legal basis for the responsibility of the head of the family is found in Article 369 of the MK. In Article 4 of the Law No. 4787 on the Establishment of Family Courts, it is stated that the cases and affairs arising from the 2nd book of the MK will be resolved in the Family Court. In the concrete case, since compensation is requested based on Article 369 of the MK, such a case should be examined and concluded in the Family Court. The fact that the merits of the work was examined by the court, regardless of the direction of duty, is the reason for reversal.

In this respect, it was unanimously decided on 18.04.2011 that the written verdict was inaccurate, and the appeal objections were valid for these reasons, regardless of the principles explained above, and that the judgment be OVERFINED pursuant to Article 428 of the HUMK and that the appeal fee in advance be returned to the appellant upon request.

The objection period to the administrative fine is generally 15 days according to the 27th article of the Misdemeanor Law No. 5326. The objection period starts from the notification of the administrative fine to the person concerned.

Termination of floor servitude:

Article 49 – The owner or co-owners of the land that is the subject of the construction servitude can always end this easement by deleting the registration record of the construction servitude with a written statement to the land registry officer.

The construction servitude ends automatically when the land subject to this is completely destroyed or it becomes impossible to build on it or it is expropriated.

III- Reporting assignment and deletion of the record:

Article 48 – In the event that all or a part of the main real estate or main structure is destroyed, the situation is directed by the manager to the title deed administration of the place where that real estate is located and all floor owners; if there is no manager, it is immediately reported to the land registry administration by the floor owner whose independent section is in ruins; The flat owner, whose independent part is devastated, is responsible for one-fifth of the damage, and the Treasury is not responsible for the damages that may arise due to failure to notify this.

When the condominium is terminated, the pages in the condominium register are closed and the registration of the real estate is registered in the general register in accordance with the principles of common ownership in proportion to the land shares, by showing the parts remaining intact from the main structure and by linking with the general register before the establishment of the condominium register. In this case, the provisions of common ownership also apply to the insurance costs and the wreckage.

If the owner or co-owners want to build a new building on the basis of condominium ownership on the land of the main building, which has all been destroyed, the provisions regarding the establishment of floor servitude and floor ownership are applied.

Nafaka artırımı davası, nafakanın değişen ekonomik şartlar ve ihtiyaçlar sebebiyle nafaka alacaklısı bakımından artık gerekli masrafları karşılayamaması halinde lehine nafaka alacaklısı tarafından nafaka borçlusuna açılan davayı ifade etmektedir.

            Mahkemece hükmedilen nafaka kararları kesin hüküm niteliğinde değildir. Bu sebeple nafaka miktarı, koşullar uygun olup talep edildiğinde yine mahkeme tarafından artırılabilmektedir. Zaman içinde değişen ekonomik şartlar ve enflasyon kaybı gibi sebeplerle nafaka miktarının yetersiz kalması olağandır. Mahkemeye haklı sebeple artırım talebinde bulunan taraf, nafaka artırım davası açarak nafaka artırabilecektir.

Events

the applicant; He was sentenced to prison for being a member of a terrorist organization before the date of the incident, which is the subject of the application.

The Office of the Chief Public Prosecutor determined that the applicant participated in the meeting and demonstration march organized to commemorate the members of the terrorist organization on the anniversary of their death and upon the call of the terrorist organization, and distributed some of the pennants with the picture of the leader of the terrorist organization to the attendees; started an investigation against the applicant on the grounds that his behavior in question constituted the crime of committing a crime on behalf of the terrorist organization, even though he was not a member of the terrorist organization. The applicant was referred to the Criminal Judgeship of Peace with the request of being arrested for the same crime, but the Criminal Judgeship of Peace rejected the arrest request and ordered a judicial control measure against the applicant. Upon the public prosecutor’s objection to this decision, the same criminal judgeship of peace decided on 23/1/2015 to annul its previous decision and to issue an arrest warrant for the applicant’s detention.

In the public case opened, the high criminal court sentenced the applicant to 1 year and 8 months for making propaganda for a terrorist organization, and to 5 years for committing a crime on behalf of a terrorist organization without being a member of a terrorist organization. Upon the applicant’s appeal against this decision, the Court of Cassation quashed the convictions due to the restriction of the applicant’s right to defense.

In the trial held after the reversal, the applicant was sentenced to 6 years and 3 months in prison for the crime of being a member of a terrorist organization and the continuation of his detention was ruled. Upon appeal, the Court of Cassation corrected the penalty amount for the applicant as 5 years and upheld the judgment of the first instance court. The Court of Cassation stated that it is possible for the applicant to be sentenced for the crime of making propaganda for a terrorist organization within the statute of limitations, but the applicant did not submit any information or documents to the Constitutional Court regarding the crime of making propaganda for the terrorist organization – after this stage.

allegations

The applicant alleges that the presumption of innocence was violated because a crime committed in the previous date and the sentence of which was executed was taken as a basis for the evaluation of a conviction for another crime committed later.

Court’s Evaluation

In the concrete case, the court of first instance evaluated that the actions of the applicant in the meeting attended before the Supreme Court decision of reversal constituted the crime of committing a crime on behalf of the terrorist organization although he was not a member of it, and did not mention his previous conviction in its decision. On the other hand, both in the judgment of reversal of the Court of Cassation and in the decision of the first-instance court after the judgment of reversal, it was seen that the applicant had committed the act subject to the application after he was conditionally released from the penitentiary institution where he was previously convicted for the crime of being a member of a terrorist organization.

As a matter of fact, after the Supreme Court’s decision of reversal, which emphasized that the applicant had contacted with the armed terrorist organization again after his conditional release, the first instance court decided that the applicant was a member of a terrorist organization, this time on the grounds of the Supreme Court’s annulment decision. Thus, the court of first instance considered as evidence not only that the applicant attended a meeting that was deemed to have turned into illegality, but also that the applicant had previously been convicted of being a member of a terrorist organization. In short, the courts of instance reached the conclusion that the necessary elements were formed for the applicant to be punished for being a member of a terrorist organization, based on the previous conviction.

With the said practice of the court of first instance, the burden of proof did not remain with the prosecution; transferred to the applicant. The approach of the court will result in the conviction of people who have been sentenced for the crime of being a member of a terrorist organization before, regardless of whether it constitutes a crime or not, and that any new action will be evaluated together with their previous actions and will be punished again and automatically for the crime of being a member of a terrorist organization.

It is incompatible with the presumption of innocence that the action subject to the application was committed by the court of instance after the applicant was sentenced to be a member of a terrorist organization after his conditional release from the penitentiary institution, and that the applicant had re-established contact with the terrorist organization and was punished for being a member of a terrorist organization for this reason.

The Constitutional Court decided that the presumption of innocence had been violated for the reasons explained.