T.R.
Supreme Court
6th Criminal Chamber
Docket No:2017/3754
Decision No:2018/1312
20.Date:20.2.2018
COURT: Criminal Chamber
CRIMES: Plunder, deprivation of liberty
JUDGMENT: Rejection of the appeal application on merits.
The verdict given by the Gaziantep Regional Court of Justice is also appealed with a hearing; The file was discussed according to the nature of the application, type of punishment, and date of crime;
REJECTED, in accordance with Articles 298 and 299 of Law No. 5271, the appeal review requests of the defendants’ defense with a hearing, according to the duration of the sentences given for the defendants …, …, … and … for the crime of aggravated plunder,
Defendants …, …, …, … and …, with the decision of Adıyaman 1st High Criminal Court, dated 27/12/2016, numbered 2016/313 and Decision numbered 2016/420, against the convictions given for the crimes of plundering by more than one person, with a weapon and by making the person unrecognizable, and deprivation of liberty for both victims, due to their actions against the victims … and …, Upon the defense of the defendants …, …, …, … and … applying for appeal in accordance with Article 272 and subsequent articles of the Criminal Procedure Code; With the decision dated 15.02.2017, dated 15.02.2017, numbered 2017/301 Principles and 2017/318 Decision, given by the Gaziantep Regional Court of Justice 7th Criminal Chamber, it was decided to reject the appeal application on the merits;
The decision was appealed by the defendants …, the defendant … defense on 03.03.2017, and by the defendants … and … defense on 09.03.2017;
In their petition, the defendants’ defense briefly stated that “… there is no sufficient, concrete and beyond all doubt evidence for conviction, and that the defendants should be acquitted in accordance with the principle that the defendant benefits from doubt… and requested that the convictions be overturned.”
The defendants’ defense officers duly filed their appeal cases and the Supreme Court of Appeals Chief Public Prosecutor’s Office dated 29.11.2017 and numbered 2017/22367, [“According to the content of the file and hearing minutes, the available evidence collected and examined and discussed at the place of decision, the justification and the discretion of the Board of Judges; Since there was no unlawfulness in the decision to reject the appeal on the merits, on the grounds that the verdict made against the defendants …, …, … and … was in accordance with the procedure and the law, apart from criticism, the appeal objections of the defendants’ defense were based on Article 302/1 of the CMK. The decision of the Gaziantep Regional Court of Justice regarding the rejection of the appeal application on the merits, which was sent as an attachment to the notification containing the opinion on the merits, and the appeal case filed against this decision, were examined ex officio within the scope of Articles 288 – 289 of the CMK;
1-In examining the appeal objections against the decision made against the defendant…
The application of Article 43 of the Turkish Penal Code against the defendant, without considering that the crime of depriving the person of liberty was caused by the number of victims, was not made a reason for reversal since there was no counter-appeal.
According to the content of the file and hearing minutes, the appropriate evidence collected and examined at the decision-making site, the justification and the discretion of the Board of Judges; Since there was no unlawfulness, apart from criticism, in the decision to reject the appeal request on the merits, on the grounds that the verdict made against the defendant was in accordance with the procedure and legislation, the appeal objections of the defendant’s defense are based on Article 302/1 of the CMK. With the rejection in accordance with the article, the decision of the 7th Criminal Chamber of the Gaziantep Regional Court of Justice, dated 15.02.2017, numbered 2017/301 and Decision numbered 2017/318, is APPROVED as contrary to the notification,
2-As for the examination of the appeal objections against the verdict established against the defendants …, … and …;
Other appeal objections were not deemed appropriate.
However;
The main purpose of criminal procedure is to reach the material truth. This will be in line with the principles stipulated by the procedural rules. For this reason, there will be no review until the verdict is finalized.
Considering and evaluating possible evidence, in other words, for the full realization of justice; All legal evidence and documents that may shed light on the incident must be investigated, it must be determined whether all the evidence obtained is in accordance with reason, logic, scientific data, physical rules, the concrete situation known to everyone, and the presumptive information obtained in daily life. If there are any misconceptions on this subject, it must be terminated, the narrative and/or evidence that makes one superior to the other must be explained, and the legal conclusion must be written with a justification that can be audited by the appeal authority.
On the other hand, there are generally no witnesses in looting incidents, so the victim’s statement and identification are important. If the statement of the victim, who is the addressee of the same incident, is consistent and stable, it is prominent and superior. If there is any hesitation on this issue, it should be considered that there is a doubt that needs to be overcome. All means of imputation are evidence. Abstractly, the evidence is equivalent. Therefore, if the evidence has not been adequately investigated or the investigation is incomplete, these issues must be resolved. The court must collect evidence that was not collected during the investigation phase. The judge investigates the evidence in favor and against the defendant; It is necessary to reach a conclusion free of doubt by evaluating it freely with full belief. Doubts must be overcome. In other words, there should be no doubtful issues in the judgment based on assumption. The material fact must be revealed from evidence representing a whole or part of the event. Making a decision based on a number of assumptions is absolutely contrary to the purpose of criminal procedure. Decisions cannot be made without overcoming doubt and contradiction. If there is a crime, determining the perpetrator is only possible by interpreting the evidence. Criminal conviction should not be based on probability, but on clear and definitive proof, and this proof should not allow any doubt or other possibility. There is a high probability that a penalty cannot be imposed without sufficient evidence being collected. In order to determine whether the action or actions are a crime, it must first be determined whether the action in question has been committed. This too will be answered by interpretation of the evidence. The judge must indicate in the justification of his decision how he interpreted the evidence and what conclusion he reached through the interpretation.
The tools that will help the judge reach the material truth are evidence.
Evidence: It can be divided into personal statements, witness statements, statements of people other than the defendant and witnesses, private written statements, images and/or audio recorded statements and indications. All means of imputation are evidence. In the abstract, the evidence is equivalent. In every case, there are arguments for and against. Evidence; They are valuable when they are realistic, rational, reflective of the event, useful for proof, and obtained in accordance with the law.
Evidence of this nature will constitute a conscientious opinion after being evaluated freely. When forming a conscientious opinion, there is no obligation to rely on any of the evidence collected.
The defendant’s confession is also evidence.
Confession; It is the defendant’s admission that confirms an event that has adverse legal consequences.
Confession alone cannot be accepted as conclusive evidence. Because it is possible for a person to confess for various reasons. Even a confession made before a judge must be confirmed by other circumstantial evidence in order to be binding. A conviction can never be made based on the previous abstract confession of the defendant who retracts his confession.
The confession is valuable when it is made in front of the judge, not taken back, and supported by collateral evidence. In other words, a confession confirmed by evidence is valuable. Abstract acknowledgment alone cannot be sufficient.
No evidence alone, including a confession, is binding on the judge.
The sole and primary duty of the first instance court is to reveal the truth. For this purpose, it collects all the evidence in favor and against the defendant until the case is concluded, evaluates them individually and/or as a whole, considers the complementary parts and follows a logical path to reach a conscientious conclusion (subject to judgment).
No judgment can be made based on assumption and/or suspicion. If there are statements whose validity is questionable and/or unproven, it can be said that there is a dark point. The evidence must reach a point that conclusively proves that the defendant committed a crime. If it cannot be reached, this should not be interpreted against the defendant. The evaluation will be made according to the principle of “in dubia pro reo”, which is the most important principle of criminal justice.
Coming to the concrete incident in the light of these explanations;
The complainants stated that “on the day of the incident, around 20:00, they went to Karagöl location with the vehicle with plate number …., parked it on the side of the road, went to the back seats and started chatting, about five minutes later, they were startled when the rear window of the vehicle was hit and broken with a hard object, and at that moment, the doors of the vehicle were opened by five male persons whose faces were covered with scarves. One person sat in the driver’s seat, two of them sat in the front passenger seat, and two people sat next to them. One of the occupants had a shotgun in his hand and the other had a knife in his hand, the person in the driver’s seat moved the vehicle and drove approximately 200 meters from the path to a nearby field, the person with the knife in his hand put the knife to the victim’s stomach, the victim’s index finger was cut off while he was trying to escape, part of the face of the same person was opened during the struggle and both of them saw him, when all the defendants shouted to get away, they threatened him by saying shut up, don’t shout, we will kill you, and after a while, the person suffering from asthma Seeing that the victim … was having a seizure and could not breathe, the defendants forcibly took the victim …’s iPhone 6 mobile phone and Şilan’s wallet and got out of the vehicle.
that they ran away, … and his girlfriend, the victim …, went to Park Hospital Hospital with a vehicle belonging to Osman, and when they looked at the tire fault sign on the vehicle display, they realized that the right rear tire of the car had been punctured by the defendants… They filed a complaint by applying to the police officers on duty at the hospital, with a statement,
The defendants, …, … and …, in their defense, which did not change at any stage, stated that they did not accept the accusation and that they did not know the complainants;
The other defendant, whose conviction was finalized with the decision numbered 2017/301 and 2017/318 of the 7th Criminal Chamber of the Gaziantep Regional Court of Justice, dated 15.02.2017, stated in his statement taken by the law enforcement on 19.04.2016 that they committed the crime together with the defendants …, …, … and … and made detailed statements in parallel with the statements of the victims;
In summary, during the interrogation of the said defendant at the Adıyaman Chief Public Prosecutor’s Office and the Criminal Court of Peace on 19.04.2016; “He suffered from panic attacks and that is why he lied; in his statement to the law enforcement officer, he said what he heard from his surroundings and the press after the incident; that he did not know the victims; therefore, there was no hostility between them; In his defense before the court, he stated that “he had no interest or involvement in the incident, that the other defendants were his villagers and friends, that he gave the statement under pressure at the Gendarmerie station, that he did not accept that statement, that he signed everything prepared and told by the Gendarmerie, that he was not a lawyer at first, but that he came later and that he did not have any meeting with his lawyer, that two commanders came first for his statement, but he did not accept the incident, that four or five more commanders came later and told him that his other friends accepted the accusation, that some unfounded recordings on Facebook showed him.” He recanted his previous statement by declaring that he had signed… when they showed him that they had committed a crime and even held him by the collar and showed him where he was and stated that he had accepted the accusations;
In the “Open Source Research and Detection Report” dated 18.02.2016 prepared by Adıyaman Central Gendarmerie Station Command personnel; “As a result of the intelligence research and study, it was learned that one of the suspects who carried out the incident was a person named …, and “according to other intelligence information obtained, it was learned that … and his other unidentified friends were involved in such crimes before, harassed people by force, took their photographs, blackmailed them, and also plundered them. It has been determined that no complaints or applications have been made to our command regarding similar incidents in which the person was previously involved. After saying that, it was stated that the pictures shared by … on his public Facebook account page were detected and included below;
In the “Photo Identification Reports” prepared on the same date, it was stated that “both victims, who were shown photos obtained from open sources, identified the defendant without hesitation, declaring that the person whose face was revealed during the incident was…”
Although the defendant’s statement dated 19.04.2016, which was taken by the law enforcement as a suspect and taken back during the interrogation before the judge, claiming that he signed it under pressure, can be considered against him as such, it cannot be legally binding on the defendants …, … and …, but remains legally incriminating in terms of the defendants …, … and ….
For this reason, the statement of the defendant dated 19.04.2016 cannot be interpreted against the mentioned defendants, accepting that it is an abstract accusation that is not confirmed by collateral evidence;
Considering that the complainants stated that they did not see the perpetrators other than the defendant … and therefore, they lacked the opportunity to identify the defendants …, … and …;
Contrary to the defense of the defendants …, … and … that they did not commit the charged crime, the defendants were the real perpetrators of the crime of plunder against the victims … and …, and a written conviction was made based on an assumption that was far from giving a definitive opinion, based on an assumption that was far from giving a definitive opinion, without considering that the defendants were the real perpetrators of the crime of plunder against the victims … and …, and with insufficient and appropriate justification, as a result of incomplete examination, without taking into account the fact that no doubt-free, convincing evidence could be obtained that could be the basis for their conviction,
Since it required reversal and the appeal objections of the defendants …, … and … defense were deemed appropriate in this respect, the decision of the 7th Criminal Chamber of the Gaziantep Regional Court of Justice, dated 15.02.2017, regarding the rejection of the appeal application numbered 2017/301 and Decision numbered 2017/318, which was found to be contrary to the procedure and law, is based on the article 302/2 of the CMK numbered 5271. In accordance with the article and its paragraph, it was decided unanimously on 20/02/2018 that it was REVERSED as contrary to the notification.