Republic of Turkey
SUPREME COURT OF APPEALS
15th Criminal Chamber
Case No: 2013/27999
Decision No: 2016/3085
Decision Date: 06.04.2016
FRAUD CRIME – THE DEFENDANT’S DEPRIVATION OF RIGHTS OVER HIS OWN DESCENDANTS
WILL NOT BE APPLIED FROM THE DATE OF CONDITIONAL RELEASE – SECURITY MEASURES WERE APPLIED TO PERSONS OTHER THAN THE DEFENDANT’S DESCENDANTS
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THE JUDGMENT IS CORRECTED AND AFFIRMED
SUMMARY: Of the rights stipulated in Article 53, paragraph 1, subparagraph (c) of the Turkish Penal Code, only the right to be deprived of the right to exercise custody, guardianship, and trusteeship over one’s own descendants is prohibited.
Without considering that the deprivation of rights will not be applied from the date of conditional release according to the 3rd paragraph of the same article,
the decision to apply security measures in accordance with Article 53/1-c, including persons other than the descendants,
necessitated the correction and affirmation of the judgment. (Law No. 5237, Articles 53, 158)
Case and Decision: The judgment regarding the conviction of the defendant for the crime of fraud was appealed by the defendant and the Public Prosecutor, and the file was examined and the necessary considerations were made:
Since no decision was made regarding the alleged fraud crime committed by the defendant against ….. in the combined case file numbered 2011/330, it was deemed possible to make a decision within the statute of limitations.
The defendant called the complainant, introduced himself as a police officer, and said that the information about his account at …. bank had been obtained by other individuals, that they were trying to withdraw the money from his account, …. The court found no error in accepting that the defendant committed the crime of fraud in the incident where the defendant told the complainant to go to the bank, withdraw the money, deposit it into the account number he would provide, withdraw the money back as double the amount the next day, and that the individuals who stole the account information could be caught in this way, and the complainant, believing these words, transferred 10,956 TL to the account specified by the defendant. Based on the trial conducted, the evidence gathered and presented in the decision, the court’s opinion and discretion formed in accordance with the results of the prosecution, and the scope of the examined file, the appeals of the defendant and the public prosecutor are rejected, however; The fact that the deprivation of rights, as stipulated in Article 53, paragraph 1, subparagraph c of the Turkish Penal Code No. 5237, which only applies to the right to be deprived of the right to perform a service related to custody, guardianship, and trusteeship over one’s own descendants, was not considered to be applicable from the date of conditional release according to paragraph 3 of the same article, and the decision to impose security measures pursuant to Article 53/1-c, including persons other than one’s descendants,
Result: This necessitates reversal, and the appeals of the defendant and the public prosecutor are deemed justified for these reasons,
therefore, the judgment is REVERSED pursuant to Article 321 of the Code of Criminal Procedure, which should be applied in accordance with Article 8 of Law No. 5320; However, since this discrepancy can be corrected without a retrial in accordance with Article 322 of the same Law,
the part of the judgment regarding the application of Article 53 of Law No. 5237 is completely removed and replaced with the following: “In accordance with Article 53, paragraph 3 of the Turkish Penal Code No. 5237, the defendant shall be deprived of the rights of custody, guardianship and trusteeship over his/her descendants, as stated in subparagraph c of paragraph 1, until the date of conditional release, and of the other rights written in paragraph 1 until the completion of the execution of the sentence.”
The decision was made unanimously on 06.04.2016.