…TO THE CRIMINAL COURT OF PEACE ON DUTY
………..
PREPARATION NO :
CLAIMANT : K.H.
SUSPECT : 1- K.Y.-
VEKILI :
CRIME : Using Credit Cards of Others with Fake Identities by Using Bank as an Intermediary
DATE OF OFFENCE :
DATE OF ARREST :
SUBJECT : Our objections against the decision to arrest my client.
EXPLANATIONS
1)THE CLIENT K. Y. WAS BORN ON 16.04.1982, AND SINCE 5-6 YEARS AGO, AT THE ADDRESS OF BASMANE / IZMIR, UNDER THE NAME “A. V. İLETİŞİM” UNDER THE NAME OF “A. V. İLETİŞİM”, HE WORKED FOR HIS UNCLE AHMET, WHO WAS ENGAGED IN THE BUSINESS OF “ALL KINDS OF MOBILE PHONE PURCHASE, SALE, REPAIR AND ACCESSORIES”, GAINED EXPERIENCE AND DEVELOPED HIS PROFESSION IN THIS DIRECTION AND BROUGHT HIMSELF TO A PROFESSIONAL LEVEL IN THE TELEPHONE TRADE MARKET TO UNDERSTAND THESE WORKS.
2)THE CLIENT HAS SOLD TELEPHONES, BOUGHT SECOND HAND TELEPHONES, GUIDED CUSTOMERS, AND IN THIS SENSE, HE HAS CREATED A RELIABLE IDENTITY IN HIS SECTOR.
3)WITH THIS IN MIND, THE CLIENT HAS ONLY ACTED AS AN INTERMEDIARY IN GOOD FAITH UPON THE REQUEST OF THE SUSPECT Ö. S., WHO HAD PREVIOUSLY BOUGHT A PHONE FROM HIM, TO BUY A PHONE WITH HIS CREDIT CARD AND TO HELP HIM WITH THE TYPE AND QUALITY OF THE PHONES HE WOULD BUY. HE DID NOT HAVE ANY SUGGESTION OR DIRECTION REGARDING THE ACTIONS AND BEHAVIOURS OF THE OTHER DEFENDANTS, NOR DID HE PROVIDE ANY BENEFIT.
4) The documents in the file
a) In the upper letters summarising the result of the investigation of the Directorate of Smuggling and Organised Crimes dated 07.08.2005, no comments or evaluations were made about whether my client committed and participated in the crimes in question.
b) In the “body search report” dated 05.08.2005 regarding our client, no material evidence such as any document, criminal tool, document used in the offence was found on him, on the contrary, 20.00YTL, which can be considered far below the amount that a person would spend in daily life, was found on him.
c) Likewise, as can be understood from the content of the “house search report” made in my client’s house on 06.08.2005, no criminal offence was found.
d)In addition, immediately after the incident, according to the “seizure report” dated 05.08.2005 kept by the police officers, it was recorded that “nothing was found” on my client K.Y.
e) Again, in the “arrest report” dated 05.08.2005 kept by the police officers following the incident, it was stated that “no evidence of any offence was found on the person named K.Y. residing in Yeşilyurt, and that he was found with him during the shopping made by the person”.
5) In the case under investigation, all the complainants who were heard said that the purchases were made by the other defendants. In all the purchases, my client neither acted deceptively by creating fraud and deceit, nor did he act or behave in a way to direct or persuade the complainants. His behaviour was based on his traditional sense of benevolence in the form of creating an appreciation and making a suggestion in the phone purchases upon M.T.’s request for help. As a result; he was contented with helping and suggesting other defendants in their phone purchases.
6) As my client has no knowledge about how the identities that the other defendants issued fake identities and made them intermediaries in shopping with credit cards were issued and by whom they were issued, there is no material and definite evidence that is sufficient, beyond doubt, material and conclusive evidence that he “participated” in these actions.
7) As it is known; the offence of fraud is a crime that can be committed intentionally, therefore the perpetrator must act with the consciousness of providing an unfair benefit to himself or someone else, in other words, the perpetrator must know and want the result stipulated in the law.
As explained in an old decision of the Court of Cassation; “…it is necessary to have a special intention to provide unfair advantage and the perpetrator of the offence must use this intention to commit tricks and sanias”. (Criminal General Assembly dated 04.11.1980, esas 1980/242, decision 1980/343, Y.K. No. : 3 March 1981, page 353)
Another section of the same jurisprudence states that “…the defendant must deceive the complainants by means of pre-prepared, fraudulent and suspicious means and obtain unfair advantage for himself or someone else.”
Based on this opinion of the Court of Cassation, in the context of the legal interpretation of Articles 503-504 of the old TPC numbered 765 and Article 158 of the new TPC numbered 5237 regulating the offences of “qualified fraud”, in order for this offence to occur for my client
a) “The perpetrator must use fraud and deceit. A number of actions must be taken to neutralise the victim’s tendency to examine. For example, the perpetrator must conceal the material findings, eliminate the existing findings or prevent the emergence of these findings and hide them.
b) The fraud and deceit must be capable of deceiving a person. Whether the fraud and deception is deceptive or not should be evaluated on a case-by-case basis, and the characteristics of the incident, the status of the perpetrator, his/her relationship with the victim, the form of the fraud used, the concealed or altered documents and the qualities of the documents that are shown as real should be taken into consideration separately.
c) An unfair benefit must be provided in favour of himself or someone else to the detriment of the victim or someone else. The perpetrator must knowingly and willingly commit fraud and deceit in order to benefit himself or someone else, and there must be an appropriate causal link between the damage caused and the defendant’s action.”(Criminal General Assembly of the Court of Cassation, Main 2001/6 -106, Decision 2001/111, Date 29.05.2001)
In the light of these explanations of our Court of Cassation; when the action of my client is evaluated, it is understood that my client does not have an intention, a will to commit the crimes in question, an action that can be associated with the events that led to his arrest.
8) Even if my client’s action is found to be fixed at the end of the trial process, provided that he does not accept the crime, it is possible to reduce half (1/2) of the sentence to be imposed, since his action may fall under Article 39 of the New Turkish Penal Code regulated under the “aiding” title of the law numbered 5237.
In this respect; due to the fact that the qualified fraud offence is foreseen as “from 2 years to 7 years” as a sanction for all subparagraphs in Article 158 of the new Turkish Penal Code, the duration of the penalty that my client will receive in case of application of the said reduction automatically emerges. We believe that even this period can be “postponed” within the discretionary powers of the courts in the context of Article 51 of the new TPC, due to the fact that my client has no criminal record.
9) Considering the regulatory provisions regarding the limitation of arrest in Article 100 of the new Criminal Procedure Code, trial without arrest has now become the rule.
10) When considered from a modern Criminal Law and humanist point of view, the new Turkish Criminal Code is oriented towards the acceptance of the existence of sanctions directed towards the rehabilitation of the offender as well as the protection of the society in which we live, and the view of “the application of measures appropriate to the personality of the offender” has been included in the new law, in addition to the “concept of punishment”, which is traditionally and traditionally accepted by the world humanity.
As a result
a- Duration of imprisonment,
b- Having a fixed residence
c- No possibility of tampering with evidence,
d- No possibility of escape,
e- All the evidence has been collected,
f- The fact that detention is a precautionary measure and that these conditions have completely disappeared,
g- By taking into consideration the issues in Articles 100 and following of the Code of Criminal Procedure,
Considering the current legal regulations and the regulatory provisions of the new Turkish Penal Code and the new Criminal Procedure Code and the discretionary provisions brought by the new Criminal Procedure Code, I request that my client be released with a bail to be deemed appropriate by your Court or unconditionally.
Yours sincerely…
Suspected arrested defendant
Deputy
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