Unauthorized Use of a Service (TCK Article 163/3) – Decision Announcing the Previously Deferred Verdict

The court decisions published in this section were obtained in cases in which Attorney Mert Sönmez personally acted as counsel and defense counsel.

REPUBLIC OF TÜRKİYE

*** COURT

CASE NO: ***

DECISION NO: ***

REASONING

REASONING:

Upon assessment of the entire case file together with the available documents, statements and defenses, it was first observed that by this Court’s judgment dated 06/10/2016 and numbered *** and ***, defendant *** was sentenced to three months and ten days’ imprisonment; that the announcement of this sentence was deferred; that the decision became final on 03/12/2016; that during the five-year supervision period beginning after that decision became final, the defendant committed a new intentional offense on 03/07/2019; that the defendant was punished for that offense by the judgment of the Istanbul Anatolian *** Criminal Court of First Instance dated 12/01/2021 and numbered *** and ***, which became final on 20/06/2022; and that notice was sent to this Court for announcement of the deferred verdict. Under these circumstances, the statutory conditions for announcing the previous verdict had arisen.

According to the summons containing the required explanations and annotations for announcement of the verdict and the statements and defenses obtained, the defendant stated that he/she accepted the allegation; that the premises had a prepaid meter; that the water was cut off one weekend; that, because the premises were a workplace, partner *** made a direct connection and they used water; that they subsequently installed a prepaid meter and used water through the meter; that they would pay the water charge; and that the defendant was remorseful. This account was in the nature of a sincere confession. In view of the incident report dated 06/05/2014, witness *** who prepared that report, and in particular the finding in the report that the defendant used water in a manner preventing determination of the actual consumption, it was concluded that the defendant committed the offense of unauthorized use of a service.

However, taking into account the provisions on effective remorse fulfilled during the prosecution stage in favor of complainant ***, it was decided to apply Article 168/5 to defendant ***; and, since the statutory conditions had arisen, to announce the previous verdict against defendant *** as set out below.

JUDGMENT

JUDGMENT: For the reasons set forth above:

1–The decision of this Court dated 06/10/2016 and numbered *** and ***, deferring the announcement of the verdict against defendant ***, is vacated and THE PREVIOUS VERDICT IS ANNOUNCED WITHOUT ALTERATION.

As it is understood from the case file that the defendant committed the charged offense of unauthorized use of a service, the defendant is sentenced to one year’s imprisonment pursuant to TCK Article 163/3, taking into account the manner in which the offense was committed, the importance and value of its subject matter, the defendant’s purpose and motive, and the intensity of the defendant’s intent.

As it is understood that the defendant remedied the loss suffered by complainant *** during the prosecution stage, the special provision in Article 168/5 is applied and the sentence is reduced by two thirds to four months’ imprisonment.

Considering the effect of the sentence on the defendant’s future, the defendant’s background and social relations, and the defendant’s conduct after the act and during the trial, the sentence is reduced by one sixth pursuant to TCK Article 62, and the defendant is ultimately SENTENCED TO 3 MONTHS AND 10 DAYS’ IMPRISONMENT.

As a statutory consequence of the defendant’s conviction and imprisonment for an intentional offense, the defendant shall be deprived of the rights set out in subparagraphs (a), (d) and (e) of TCK Article 53(1) until execution of the prison sentence is completed pursuant to Article 53/2; and, with respect to the rights set out in subparagraph (c) of Article 53(1), shall be deprived, as regards custody, guardianship and trusteeship authority over the defendant’s own descendants, until the date of conditional release pursuant to Article 53/3, and as regards other persons until execution of the prison sentence is completed pursuant to Article 53/2 of TCK no. 5237.

As regards the deprivation of rights under subparagraph (b) of TCK Article 53(1), the Constitutional Court’s annulment decision dated 08.10.2015 and numbered *** and ***, published in the Official Gazette dated 24.11.2015, and the latest version of TCK Article 53 as amended by Article 10 of Law no. 7242 shall be taken into account in applying TCK Article 53 and during execution.

Since the present ruling merely announces, upon notice, a previously deferred verdict against defendant ***, the conditions for applying CMK Article 231/5 and TCK Articles 50 and 51 to defendant *** have not arisen.

2–The trial costs of TRY 88, consisting of TRY 42 for one service made for the purpose of announcing the deferred verdict and TRY 46 incurred in the first judgment, shall be collected from the defendant pursuant to CMK Article 325 and recorded as revenue to the Treasury.

The interested parties are informed that they may appeal to the Istanbul Regional Court of Appeal within seven days from pronouncement for those in whose presence the decision was rendered, or within seven days from service of the reasoned decision for those in whose absence it was rendered, by submitting a petition to this Court or another court, or by making a statement to the court clerk provided that the statement is entered in the record.

(Convicted or detained persons held in a penal institution may do so by submitting a petition to the prison governor or by having an oral statement recorded by the prison administration and transmitted to this Court with a cover letter.)

For the reasons stated, the decision, consistent with the opinion of the prosecution, was rendered in the presence of Public Prosecutor *** (***) and in the absence of the defendant, read aloud in open and public proceedings, and duly explained.

Pursuant to Articles 35/1 and 231/1 of CMK no. 5271, the operative part of the judgment was entered in the record in accordance with Article 232/6. The reasons were explained in outline and the judgment was announced. The interested parties were informed that they could obtain a copy of the decision. 08/06/2023