REPUBLIC ATTORNEY GENERAL’S OFFICE
INVESTIGATION NO :
SUSPECT :
GUARDIAN :
CRIME : Causing loss to the bank and bank customers by showing gross negligence in the performance of his duty,
SUBJECT : Our Defences
Within the scope of the report prepared by the Inspection Board of the institution where my client …….. (…….) works, the Legal Counsellor’s Office ……. According to the contents of the criminal complaints made to the Chief Public Prosecutor’s Office, “As a result of the investigations carried out by the Chief Inspector of our Bank ……. in our …… Branch, an investigation report numbered …….. was prepared and it was determined that irregularities were made in the transactions subject to the investigation as stated in detail in the report.
Due to the fact that some of the acts specified in the aforementioned report constitute a crime, with the decision numbered …….. taken by the Presidency of the Disciplinary Board of our Bank and the approval numbered ……. taken from the General Management Authority, an investigation was carried out in accordance with the attached report in the form of a crime report “in order to clarify whether the relevant personnel participated and/or cooperated in the crime” (provided that it is returned when it is completed),
We would like to submit the following statements regarding the accusation attributed to my client ……… (……..), which is being made by your C. Prosecutor’s Office with the request of “opening a public case against the guilty / guilty by conducting the necessary prosecution against the defendants by your authority”, to the appreciation and evaluation of your authority.
In this context;
EXPLANATIONS
As it is known by your authority, the accusation attributed to my client due to the criminal complaint made by the institution to which he is affiliated is as stated in Article 257 of the Turkish Penal Code;
“Misconduct in office
Article 257- (1) A public official who, by acting contrary to the requirements of his/her duty, causes grievance or public damage to persons or provides an unfair gain to persons, except for the cases separately defined as a crime in the law, shall be sentenced to imprisonment from one year to three years. (Penalty of First Instance)
(2) Except in cases defined as a separate offence in the law, a public official who, by negligence or delay in performing the requirements of his duty, causes victimisation of persons or damage to the public or provides an unfair gain to persons, shall be sentenced to imprisonment from six months to two years. (Peace penalty)
(3) If it does not constitute the offence of extortion, a public official who provides benefits to himself or another person in order to act in accordance with the requirements of his duty or for this reason shall be punished according to the provision of the first paragraph.”
In the light of this explanation, a criminal complaint has been filed to your authority without due diligence, although my client is in no way associated with the acts regulated in the referral article in question about the incident subject to the investigation.
As it is known by your authority, the purpose of criminal justice is to investigate the material reality. This principle is a constant in both disciplinary and criminal investigations.
However, the investigator, without any need for research and without adequately examining the existence of the answers given by our client and the documents related to the bank transactions that support his defence within this framework, has determined a penalty based solely on the abstract statements made as the subject of the investigation, without conducting any research on the allegations.
In the light of these explanations, as stated in my client’s defence to the Inspection Board, which is sincere and not proven otherwise, during the execution of the transactions within the events subject to the allegation in question; The client, within the discipline of a prudent officer, in accordance with the bank’s legislation ………. and ……… in accordance with the Bank’s legislation in the discipline of a prudent officer and in accordance with the Bank’s legislation, the client saw the phrase “the follow-up account has been closed by collecting” in the research made through the “Credit Registration Bureau Refaranship system” about the said persons before the loan was granted, and they proved that the loans subject to follow-up of the said debtors were closed with the letters they brought in writing from the relevant lawyers and banks, and upon this, the credit committee granted the loan. The transactions carried out were entirely in accordance with the bank’s legislation.
At this stage, my client only reflected the information and documents reflected to him to the credit committee for the utilisation of the loan, and did not have any guidance or even any suggestion regarding the utilisation of the loan. Nor does he have any authorisation to do so.
Both persons to whom the loan was extended are civil servants and work in the …….. organisation. In the loan belonging to ………, a guarantor named ………… was first taken as guarantor, and then a person named ………. was taken as an additional guarantor in order to strengthen the collateral received.
In addition, in the loan extended to ……., in the same way, the loan extended to the person named …….. already had another guarantor, in this respect, since the borrower and the guarantors are all civil servants and their salaries are sufficient to cover the monthly instalments of themselves and the persons they are guarantors for, their guarantees have been accepted by the credit committee on the condition that they are not guarantors for more than …… persons.
The documents completed within this framework were examined by the branch director …….. Silistre, the branch director, gave instructions for the loan to be extended to my client. My client did not have approval authority due to his position at the relevant bank branch.
After compiling and obtaining the necessary documents and completing the loan entry in the system, the client submitted the documents to the approval authority approving the loan transactions and acted in accordance with the instructions given to him and after the loan was approved.
The non-payment of the loans is not a matter that can be associated with the client himself. Upon the non-payment of the payments, the necessary actions have already been taken by the bank, and as can be understood from the information and documents in the file, the bank’s receivable arising from the loan of …….., to whom the loan was extended, was collected through the lawyer. In the same way, the transactions regarding the unpaid loans of the other …….., to which loans were extended, were started on ………., a large amount of the loan has been collected and the remaining amount is being collected, and there is no disruption in the collection procedures.
As can be understood from the explanations we have tried to summarise briefly above, the client is not an approval authority for the loan utilisation and is not the sole determinant of the loan utilisation. He only collects the information and documents upon the loan application and after making certain entries in the system, he submits all the information and documents to the loan committee with all the information and documents regarding whether the person will use the loan or not. The approval is entirely in the hands of this authority.
As for the person named ……., the Bank is not in a position to know whether this person has received money from other persons under the name of interest or commission. Moreover, upon receipt of this rumour by the bank, the person was not even granted a loan.
In the light of the foregoing, there is no action or behaviour of our client which can be attributed to him and which could cause the bank to incur losses.
In addition to all these explanations, only the defence of my client was taken during the disciplinary investigation and in the evaluation report submitted by the investigator to the board, my client was excluded and no disciplinary punishment was even proposed. In addition to this statement, we also agree with the “dissenting opinion” against the decision of the Disciplinary Board dated …….. and numbered ……, which is included in the file and issued against some of the suspects, and the opinions of ………. on the evaluation of the actions of other suspects within the framework of the bank legislation on the pages …… and …….. of the reasoned statement of ………. included in the file. As explained by ………., who is a member of the Disciplinary Board and has a dissenting opinion;
“…7-The description of the offence subject to the report can only be possible if the Bank personnel directed such customers to ………. (or/someone in a similar situation), a former (retired) member of our Bank. However, there is no such allegation and/or determination.
8-Suppose that the branch personnel are aware that the aforementioned person frequently performs such transactions and that they think that such transactions cannot be performed without benefit. This is a situation that can only be considered after the number of transactions reaches a certain stage, and what can be done in this case? Can the customer (lender) be prevented from withdrawing money from his/her account? No, the Banking Law does not allow this, it is even a crime, nevertheless, the branch where the personnel whose defence was taken from the title reduction defence worked, somehow prevented such transactions of the said person after a certain date, as a matter of fact, the said person continued such transactions through other various branches in …….. after November ………, therefore, since new loans were opened in the branches where the transactions were made, it did nothing but reduce the credits of the branch that prevented this,
9-Do the lending transactions to credit customers in the report constitute usury, which is considered a criminal offence by law, and is the Bank’s personnel obliged to file a criminal complaint? It is not easy/impossible to say yes to this question in terms of personnel. Because, in all our transactions, most of the credits (especially commercial credits in the form of debtor current account) are closed in this way. In other words, they are closed with the money obtained from someone for 1-2 days to be returned with the new loan to be utilised. It is not possible for the personnel to analyse the records and documents for days/months like an inspector and determine/know the number of these transactions/parties. So, has any complaint been made to the personnel ………… that they have benefited from these transactions? There is no such finding in the report. As a matter of fact, most of the customers who were found to have borrowed money refrained from informing the inspectorate, and even the persons interviewed by the inspectorate (except for a few persons) did not provide any information in this direction (although the inspectorate made maximum effort to interview such persons and to identify/expose the benefit provided). As such, it is considered that it would not be appropriate to blame the personnel for not reporting. The relevant personnel did their part by warning the person after the number and frequency of the transactions exceeded a certain extent and preventing the transactions and practices in a certain way.
Therefore, it is considered that it is not correct to impose a disciplinary penalty on the said personnel under these circumstances.” It is not possible to disagree with the assessment of the dissenting vote, who is an expert on the subject, that even the transactions carried out by other suspects other than my client, who has already been excluded from the evaluation, are in accordance with the bank’s legislation.
Conclusion;
In addition to the clear and clear statement that the transactions carried out are in full compliance with the bank legislation and that the persons other than my client, who are alleged to have committed disciplinary offences against them, have no defects and actions to be attributed to them, there is not even a comment that can be associated with the transactions made by other suspects and my client in accordance with the bank legislation.
As it is known by your authority; the purpose of criminal justice is to investigate the material reality. In this respect, considering my client’s defences, which have not contradicted each other since the beginning of the incident and which have not been proven otherwise; we wish that a decision be made that there is no prosecution against my client since there is no material, definite, consistent, consistent, non-contradictory evidence to form a conscience opinion about my client.
I would like to request this.
Sincerely yours,
Attorney for the Complainant
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