Mutual Fraud Through the Use of the Bank as an Intermediary
PRESIDENCY OF THE HEAVY PENAL COURT TO THE PRESIDENCY OF THE HEAVY PENAL COURT
WILL BE SENT
…
THERE IS NO FILE.
SUSPECT-ACCUSED:
agent :
suspect :
CRIME : Mutual Fraud Using the Bank as an Intermediary
CRIMINAL HISTORY :
Daterres of Arrest :
SUBJECT : Regarding the continuation of the detention of our client, suspect AA ….. our appeal against the dated Heavy Penal Court decision.
Continuation of Detention
Our Objections to the Decision
1)
Our client AA has been under arrest for fraud by bank since 21.04.2005 and is currently under arrest in Muğla Closed Prison.
2)
According to the content of the indictment prepared by the Muğla Chief Public Prosecutor’s Office against our client and the accused’s friends, the referral article requested to be applied to all the defendants is Article 64/1 and articles of the Turkish Criminal Code No. 765. 504/3 of the same law-80,522,40 m.
3)
Our client, the suspect defendant AA, was decided to “continue his detention according to the nature and nature of the crime and the current state of evidence” in previous hearings and to continue his detention on the same grounds. his detention was held on 22.09.2005 and his trial was held on 27.10.2005.
4)
While our client expressed an opinion in favor of continuing the suspect’s detention as of the previous hearings, the prosecution office expressed an opinion in the last hearing in favor of “collecting evidence, releasing the defendants in accordance with the absence of evidence”. the defendants have the opportunity to influence the evidence, have a fixed residence and the time they spent in detention”.
5)
According to the new Criminal Procedure Law No. 5271, which entered into force on June 1, 2005, indefinite detention periods have expired. According to this law; If an arrest has been made for a crime that does not require a severe penalty, the maximum period of detention is 6 months, and the 6-month period can be extended for a maximum of 4 months in mandatory cases.
The regulation and practice that caused the period spent in detention to be longer than the period of conviction or to take the place of execution have been terminated, and the old practice has been terminated in accordance with the ““ principle. Fair Trial, which is one of the universal rules of Criminal Procedure. As it is known, it is clear that the new law, as in the past, puts an end to the regulations that led to Turkey’s conviction at the European Court of Human Rights.(Article 102 of the Code of Criminal Procedure)
In addition, Article 5 of the European Convention on Human Rights on the right to arrest and freedom of the person. its article contains the basic principle that “Everyone has the right to personal freedom and security, and no one can be deprived of his freedom except in certain cases and in certain circumstances”. In accordance with the law…”.
Unfortunately, according to today’s conditions, in which the case law of the European Court of Human Rights has been adopted within the framework of the norms of ”European Union Law” and has been internalized in our domestic law, we have to state our opinion below.
When the crime statistics published recently by the Ministry of Justice are examined, it is seen that although there is no need for arrest, this measure is used frequently, and 5/3 of those in prisons across the country are prisoners. October October June 1st (see the tables “Convicts and Detainees in Prisons as of June 1st” in Annex-1 and “Prison Population by Month” in Annex-2).
From this point of view, “Arrest as a measure in criminal proceedings is a measure that both helps to find the truth and aims to ensure the implementation of decisions. In this regard, there are three purposes of arrest: the first purpose is to ensure that the accused is present during the trial.
This purpose arises if an arrest is made in cases where there is strong evidence indicating that the accused is likely to flee (art. 100/2). The second aim is to ensure that the criminal procedure organs are able to reveal the facts related to the case and related facts in a healthy way. If the accused is arrested on suspicion of “falsifying evidence”, this purpose is taken into account (art. 100/2). The third purpose of the arrest is to ensure the execution of the sentence. If the decision remains on paper, there is no need to judge. In order to prevent this, the third goal is tried to be achieved while the accused is being arrested.
The norms related to detention should provide a balance in the face of the Decider between the person and the state. Criminal proceedings should protect the interests of the individual at the same time as trying to restore order in society that has been disrupted due to the commission of a crime. Totalitarian regimes emerge when the individual is sacrificed to the state and society. However, it should be taken into account that the individual constitutes the purpose of society. In a state governed by the rule of law, the person-state balance should be good.” (Source: Prof. Dr. Erdener Yurtcan, CPC Commentary, 4. Edition, November 2005, Beta Publications, Sh. 244-245)
In the light of the above explanations, the 84th European Court of Human Rights Tomasi decision dated 27.08.1992. we would like to express that we attach great importance to the following assessment contained in the paragraph.
In this context, the relevant part of the said decision is as follows: “It is primarily the duty of the national judicial authorities to ensure that the state of detention of the accused in a particular case does not exceed a reasonable period of time. To this end, the national judicial authorities should examine with due respect all the circumstances, both positive and negative, in which there is a public interest justifying a departure from the rule of respect for personal freedom, the presumption of innocence and state this. in their decision on the request for release.
Essentially, it requests the Court to decide whether there has been a violation of Article 5 § 3 of the Convention on the basis of the grounds set out in the decision of the national courts based on the events stated by the applicant in the application for release and in his appeal.” (Source: Case Law of the European Court of Human Rights, Vol.1, Assoc. Dr. Osman Doğru, Beta Publications, October 2002, Istanbul)
W of the European Court of Human Rights.The decisions /Switzerland, 2.6.1993, paragraph 30 and Labita v.Italy, 06.04.2000, paragraph 151 and Cesky v. Czech Republic, 6.6.2000 reflect the same thing. emotions.
“… The ECHR… stressed that when deciding whether detention exceeds a reasonable period of time in a concrete case, national judicial authorities take into account the presumption of innocence and the public interest justifying an exception to the principle of respect for human freedom. , should investigate and examine all the circumstances justifying the acceptance or rejection of the request for the release of the person concerned and clearly state the grounds for refusal in the decision to refuse release. “
“The continuation of reasonable suspicion that the detained person has committed a crime is a sine qua non condition for the continuation of detention. But after a certain period of time has passed, it is no longer enough. Therefore, the Court must determine whether the other grounds put forward by the judicial authorities continue to justify deprivation of liberty. If these reasons are “relevant” and “sufficient”, the Court should also determine whether the competent national authorities have shown “special attention” while conducting the trial …” (Ismail Malkoç / Mert Yüksektepe, With Explanations and Comments, New Criminal Procedure Code) No. 5271, Malkoç Bookstore, 2005, Ankara)
6)
Based on this thought and conviction, the conditions of arrest, taking into account the regulatory provisions of the new Criminal Procedure Law on arrest, are
A) Having strong evidence that the suspect is the perpetrator or an associate,
According to the established decisions of the European Court of Human Rights, which have entered our domestic legal life, although the presence of strong signs is one of the sine qua non, the absence of conditions for an arrest warrant alone cannot constitute a reason for arrest. The suspect must also have strong signs of guilt. Just as abstract suspicion is not sufficient for an arrest warrant to be issued, it does not constitute a presumption for the continuation of detention.
In other words, the suspect must create a strong suspicion and conviction before the judge or court that he will be convicted. For this reason, the 100th amendment of the new Criminal Procedure Code. in the article, it is arranged that an arrest warrant may be issued against a suspect or accused if there is evidence indicating the existence of a strong suspicion of a crime and the existence of an arrest situation.
B) For the existence of the reasons for arrest listed in Article 100 of the Code of Criminal Procedure;
1- There should be a suspicion of running and hiding.
As can be understood from the title 100/2-a of the new Criminal Procedure Code, escape should include both escape and escape “if there are concrete facts that give rise to the suspicion that the suspect or the accused will flee, hide or escape”. he’s going abroad, hiding somewhere where he can’t be found.
In this respect, it will be automatically understood that our client suspect has not fulfilled these conditions, it is not possible for him to flee, hide or go abroad.
2- Suspicion of tampering with evidence; (CPC 100 (2) b/1 destruction, concealment or alteration of evidence)
According to the content of this paragraph; It stipulates that a person with a strong suspicion of a crime may be arrested if there is a possibility of destroying, hiding or changing evidence.
When all the evidence obtained within the framework of the entire trial process of our case is evaluated, it is understood that the incident has been clarified and the evidence has been secured after this stage; Our suspect AA client, the danger of obscuring the evidence and manipulating the evidence cannot be mentioned.
Furthermore, in the context of the new Criminal Procedure Code (Criminal Procedure Code, 100/2, b/2), it is also clear that since the statements of all witnesses, victims and participants have been fully determined by the court, there can be no mention of any suggestions or attempts to pressure these people after this process.
In addition, when deciding on detention or the continuation of detention, it should also be taken into account whether the person will try to escape, hide, hide evidence, change it, or pressure witnesses or victims. On the other hand, the importance of the crime committed and the arrest decision to be made should be evaluated and balanced together with the period of detention during which the person is deprived of his freedom.
C) Decisions regarding the continuation of detention or arrest must comply with the principle of proportionality.
As your court also knows and appreciates, there must be a proportion between the means and the goal, the method and the goal. Dec. Given the importance of the act or the penalty or security measure that may be applied, if the decision to continue the arrest or detention will lead to injustice as a result of the decision to continue the arrest or detention, or the purpose of the arrest; Within the scope of the measures taken by the New Code of Criminal Procedure, for example, if the trial by judicial review can be achieved by other measures instead of arrest, the continuation of the arrest or detention should not be decided.
For this reason, Article 100 of the new Criminal Procedure Code states that an arrest warrant cannot be issued “if the importance of the case is not proportional to the punishment or security measure expected to be given”.
7)
As in the previous interim Decrees of the Court, the interim Decrees dated 22.09.2005 are 2. in the paragraph “…according to the nature and nature of the crime, it has been decided to continue the detention of our client. the current state of the evidence…”.
However, 141 of the Constitution. article 3. the provision “… that all decisions to be made by all courts will be justified” is included in the paragraph. According to some opinions in the doctrine, although it is claimed that the necessity of a reasoned decision prolongs the trial, 34 of the new Criminal Procedure Code. its article stipulates that all decisions to be made by judges and courts, including dissenting votes, must be reasoned.
Reasoned arrest decisions will ensure that the decisions are controlled by the parties and the public, and when an appeal is filed, the reasons will guide the accuracy of the decision and ensure that judicial supervision is healthy.(Kunter/Yenisei, Criminal Procedure Law as a Branch of Procedural Law, P. 311) The reasons that prompted the judge to make this decision should be clearly included in the justifications of the arrest decisions, and the reason for the arrest should be in accordance with reason, law and jurisprudence.
The contents of the file.(Sedat Bakici, Criminal Proceedings from the Event to the Final Decision and the General Provisions of the Criminal Code, P. 1035) Thanks to the justification, it will be understood whether the decision is based on legal reasons and it will be possible for the parties to receive information about the reason for the arrest and to make a defense and for the appeal authority to control the decision. Justification means a rational, non-contradictory and convincing explanation of the decision.(Nur Centel, Arrest and Detention in Criminal Procedure Law, P. 74)
In the light of these explanations, the decision regarding the continuation of our client’s detention is far from objectivity, abstract and unfair.
8)
In the same way, while the act in question was regulated as a heavy prison sentence in law No. 765, it was converted into a prison sentence in the new law, so if our client receives a punishment from the lower limit; 51 of Law No. 5237. with this article, it has even been made possible to postpone the sentence to be given within the discretion of the court.
9)
As can be understood from the document in the file, our client was unable to fulfill his obligations due to his current job and therefore suffered irreparable losses.
10)
We think that the nature and nature of the crime may change in the context of the evidence obtained during the trial, our client’s defense, which cannot be proven otherwise, and other evidence supporting it.
As we stated in the previous hearing during the trial, the relationship between our client and the participant is primarily a relationship based on a private debt-receivable relationship. Dec. Considering for a moment that this relationship is not a private law relationship but an act requiring punishment, according to the content of the referral letter in the indictment, a criminal case has been opened against our client for qualified fraud. 503, which is one of the positive provisions of the Turkish Criminal Code No. 503, due to the fact that the bank considered as an element of the qualified fraud crime is a private bank (Akbank). we believe that the article will also be evaluated in this context. .765, if the crime is proven, our client should be contacted.
Supreme Court 11. As stated in the case law of the Criminal Chamber dated 15.06.2004 and numbered 13656/5301, “…it is unlawful not to use a public bank as a vehicle due to remittances sent through a private bank that is not considered a public institution, and to establish a conviction under Article 504/3 of the same law on the grounds that it was sent, regardless of the fact that the act constitutes the crime provided for in Article 503/1 of the Turkish Penal Code. it was issued through the bank using the public institution and organization as a vehicle …”.
11)
To repeat, as is known to your court, the new Criminal Procedure Code regulates that arrests can be made if concrete events are found that arouse suspicion that the suspect or defendant will flee, hide or flee, obscure evidence or attempt to pressure witnesses. , the victim or others, again, the person can only be arrested if the crime committed by the suspect or the accused requires a sentence of more than 7 years, in the same way, the reasons for arrest are arranged in a list in the third heading of article 100. The Code of Criminal Procedure. According to the list, arrests can be made for serious crimes such as genocide and crimes against humanity, intentional killing, torture, sexual assault, sexual assault, sexual abuse of children, production and trafficking of drugs or stimulants, organization establishment.
For the purpose of committing crimes, crimes against the security of the state, crimes against the constitutional order and the functioning of this order, as well as crimes against the constitutional order. In this respect, the 100th of the new Criminal Procedure Code. taking into account the regulatory provisions regarding the limitation of arrest in the article, it is necessary that the trial without arrest has become the rule and the detention status of our client should be evaluated by your Court. this should be evaluated according to reality.
Taking into account our Constitution and the new regulations in domestic law, the 19th Amendment of the Constitution. the basic principle of the article is “Everyone has the right to freedom and security of person”. But exceptionally 4. the paragraph states: “Persons with strong signs of guilt may be arrested only by a judge’s decision in order to prevent their escape, destruction or alteration of evidence, or in other cases that make arrest mandatory and require arrest.
It is specified in the law. An arrest without a judge’s decision can only be made in cases where it is inconvenient to commit a crime or delay it, and the conditions for this are specified in the law.” According to our Constitution, it is clear that the purpose of arrest refers to this obligation of persons with strong criminal signs, 1) To ensure their escape, 2) To prevent the destruction or alteration of evidence, 3) or in other cases. Such as these are the ones that make arrest mandatory and are shown in the laws.
12)
As it is known, 109 of the New Criminal Procedure Code under the heading of Judicial Supervision. the article is arranged as follows.
Judicial Control
ARTICLE-109- (1) In the event of the existence of the reasons for arrest specified in Article 100, a decision may be made to arrest a suspect in an investigation conducted for a crime whose upper limit requires a prison sentence of three years or less. Judicial control instead of arrest.
In the light of this article, it is necessary to explain: “Arrest alone is a measure that imposes an obligation on the judge to completely deprive the suspect or the accused of his freedom or to release him completely. They will either be locked up in a detention center or released completely. The law Decrees the institution of judicial control between arrest and release. The institution does not deprive the person concerned of his freedom, but by subjecting him to measures that will allow observation and supervision, it reduces the risk of escape of the person and eliminates the harms of complete deprivation of freedom. After this sentence, detention becomes exceptional.
Although the verdict does not deprive the suspect of his freedom, judicial review will be necessary if the same results can be achieved. Judicial control means that the suspect is subjected to one or more of the obligations specified in the law instead of being arrested during the investigation phase.” (Source: Ismail Malkoç/Mert Yüksektektepe, Explanations and Annotations, New Criminal Procedure Code No. 5271, Sh. 299, Malkoç Bookstore, 2005, Ankara)
As can be understood from the relevant article of the Code of Criminal Procedure regulating the application of “Judicial Control”, if these conditions exist and it is possible to decide on one of these measures, the arrest warrant may be lifted and the application of Judicial Control may be decided.
As a matter of fact, according to the last paragraph added to Article 104 of the Code of Criminal Procedure by Law No. 3842, an arrest decision cannot be made if the arrest leads to injustice, taking into account the importance of the act subject to investigation or the punishment or security measure that may be imposed. if it is applied or if the purpose can be achieved by another judicial measure instead of arrest. Accordingly, an arrest warrant cannot be issued if the importance of the matter is not proportional to the expected punishment or security measure.
As can be seen, the norm is mandatory. Let us state once again and with importance that there is no obligation to arrest in our Criminal Procedure Law. Article 100/1 of the Code of Criminal Procedure explains this issue as “arrestable”. When there is a real need, the judge should decide to arrest by taking into account the principles of criminal procedure, especially proportionality. (Prof. Dr. Bahri Öztürk / Assoc. Dr. Mustafa Ruhan Erdem, The Applied Criminal Procedure Law has been Renewed According to the New Criminal Procedure Law, 9. Pressure, Sh. 518-519, Distinguished Publishing House, Ankara, 2006)
The Wemhoff v. Germany decision dated 27.06.1968, which has become a domestic rule of law of the European Court of Human Rights, is also in the same direction.
In line with these explanations, due to the change in the nature of my client’s action, it has also become possible to decide to place him under judicial control instead of continuing his detention. (CPC 109/1.)
In this matter, as your court knows and Decrees, there must be a proportion between the means and the purpose, between the method and the purpose. Considering the importance of the act or the penalty or security measure that may be applied, the subject of the investigation, the decision to continue the arrest or detention, if it will lead to injustice as a result of the decision to continue the arrest or detention, or the purpose of the arrest; If trial can be ensured by other measures instead of detention, it should not be decided to continue arrest or detention, for example, through judicial control, within the scope of the measures taken by the new Criminal Procedure Code.
For this reason, Article 100 of the new Criminal Procedure Code stipulates that an arrest warrant cannot be issued “if the importance of the case is not proportional to the punishment or security measure expected to be given”.
13)
The motto ”No state treasury can pay the price for depriving a person of his freedom for more than necessary“ and ”Dig up the criminal, get a person out of gold” have formed the basic philosophy of the state. new legal regulations.
The important thing is the freedom of the person. Nothing can compensate for the excessive restriction of a person’s freedom. For this reason, Article 5 of the European Convention on Human Rights. the provision of the article on the ‘protection of the human rights of the individual’ is of great importance in restricting the freedom of the individual.
“Personal freedom, in general, is a fundamental condition that everyone should benefit from. Deprivation of personal liberty is a situation that can directly and negatively affect the exercise of many other rights and freedoms, such as the right to family and private life, freedom of assembly, freedom of association, freedom of expression and freedom of travel. In addition, deprivation of any freedom will put the person in question in an extremely vulnerable situation and put them at risk of being subjected to ……treatment. Judges should always keep in mind that in order for the securing of freedom to be meaningful, the deprivation of any freedom must be exceptional, objectively justified and not last longer than necessary.” (ECHR, decisions)
In its interim Decrees dated 28.03.2006, the court decided to continue my client’s detention by evaluating the status of my client’s detention “according to the evidence status and the date of arrest”.
In accordance with Article 101 and its continuation. According to the Code of Criminal Procedure, since arrest decisions and decisions regarding the continuation of detention are severe measures applied to a person, the legal and actual reasons for these decisions must be explained and justified.
Likewise, Article 141 of the Constitution. the third paragraph of the article also contains the provision “All decisions to be made by all courts are justified”. Although it is claimed that the necessity of a reasoned decision prolongs the trial, 34 of the Code of Criminal Procedure. in its article, it is stated that all decisions to be made by judges and courts, including dissenting votes, must be justified. The justification must be in accordance with the general logic of the law, without contradictions and convincing.
In this sense; as stated in the decisions of the European Court of Human Rights,
“… According to the ECHR case law, the reasonable period of detention is not measured by an abstract assessment. The reasonable period of detention of the accused should be evaluated taking into account the specific features of each case.” (W/Switzerland decision of 26 January 1993) The ECHR first of all states that in the event of an arrest, the judicial authorities are responsible for ensuring that the period of detention does not exceed the prescribed reasonable period. Based on the reasons for these decisions and the facts stated by the applicants in their applications, the ECHR needs to decide whether Article 5 § 3 of the ECHR has been violated. (Assenov and Others v. Bulgaria decision of October 28, 1998)
… However, considering the events in the current case file, the Court often uses the same grounds when deciding on the continuation of the applicant’s detention (given the state of the evidence and the nature of the charged crime…) and sometimes it seems that he uses the same grounds. he did not specify the reasons why he always showed the same reasons. The presence of reasons to suspect that the arrested person has committed a crime is a sine qua non condition of the rules of detention. Moreover, this condition also loses its validity after a while. In this case, the ECHR has to determine whether other grounds put forward by the judicial authorities justify the restriction of freedom… it has to investigate whether the competent authorities showed ‘special care’ during the trial…” (Ilijkov v. Bulgaria decision, decision No. 26, July 2001)
In the light of the above-mentioned case law of the European Court of Human Rights, we believe that the following principle should come at the beginning of the issues that should be taken into account by judicial bodies. On this issue; “It is the duty of judicial organs to ensure that the period of detention does not exceed a reasonable period. Even if there is a reasonable suspicion condition necessary for the arrest, if a certain period of time has elapsed, the detention must be terminated. “
In line with the approach of the Criminal Procedure Code No. 5271 on arrest and the established decisions of the European Court of Human Rights, within the framework of the libertarian understanding of many countries today that puts the individual at the forefront, – Remand trial has become the exception, trial without remand has become the rule.
This regard; According to the new Criminal Procedure Law No. 5271, which entered into force on June 1, 2005; unpredictable periods of detention have ended, the old practice has ended with the new regulations introduced by the Criminal Procedure Law, the old practice has ended in accordance with the principle of “Fair Trial”, one of the Universal Rules of Criminal Procedure.
In addition, Article 5 of the European Convention on Human Rights on the right to arrest and freedom of the person. the article says, “Everyone has the right to personal freedom and security… it contains the basic principle that “no one can be deprived of his liberty except in certain circumstances and special circumstances”. In accordance with the law…”.
14)
When the existing evidence in the file is evaluated, it is clear that since all the evidence reflected in my client AA’s file has been secured after this stage, there is no longer any danger of tampering with the evidence. or manipulating the evidence.
As we explained above, both in our defenses and in the light of the case law of the General Assembly of Prisons, as we stated; In the same way, taking into account the possibility that the nature of my client’s action may change, we think that the nature and nature of the crime may most likely change in the face of the Court Oct.
RESULT AND DEMAND:
My client’s sincere and convincing defense, which cannot be proven otherwise, the possibility of changing the nature of the crime, taking into account the fact that the evidence has been largely collected, after this stage of the trial, the possibility of influencing the evidence, obscuring the evidence, diverting the trial disappears, detention is ultimately a precaution, and these conditions completely disappear,
My Client AA
a- Duration of detention,
b- Having a fixed residence
c- The possibility of falsification of evidence disappears,
d- There is no possibility of escape,
d- Where all the evidence is collected,
e- Detention is a precautionary measure and these conditions have completely disappeared,
taking into account the issues contained in Articles 100 and its continuation of the Criminal Procedure Code numbered f- 5271,
Considering the current legal regulations and the regulatory provisions of the new Turkish Criminal Code and the new Criminal Procedure Code, as well as the humanitarian provisions and discretionary measures related to arrest, I request that the decision to continue the detention of my client, the suspect defendant AA, in accordance with CMK 267, be lifted and that the decision to release him unconditionally or on bail be considered appropriate by your court.
Kindest regards …
The Accused’s Lawyer
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