Petition for Defense Against Theft Through Information Systems
FIRST INSTANCE COURT JUDGE
…………..
NO FILE
HEARING DATE :
DEFENDANT
ATTORNEY :
CRIME : Theft through the Use of Information Systems
SUBJECT: Our arguments on the merits.
Allegation
In the public case filed against my client ……….. to the Criminal Court of First Instance ………; A public case has been filed with the request that my client be punished in accordance with Article 142/2-e, 53 of the Turkish Criminal Code No. 5237 for the offense of Theft Through the Use of Information Systems.
Defendant …………. In summary in his defenses; He stated that he knew very little about using a computer, that he did not know the other defendant …………, that a woman with this name did not work for him, that he did not accept the crime attributed to him, that he did not accept the crime attributed to him. It is out of the question that he was involved in such an incident, that he knew very little about using the internet, that he did not have enough computer knowledge to commit the crime attributed to him.
Evaluation of the evidence for my client within the scope of my client’s defense and the material evidence that cannot be proved otherwise in the file ……….;
As your court is aware; In terms of the Criminal Procedure Code and Evidence Law, the evidence collected in the preparatory investigation is not considered as ready evidence, but the suspicion must be eliminated.
In this regard; Evidence is any kind of evidence that helps to clarify a crime that has occurred and to identify the accused of the crime. The information obtained as a result of the investigations carried out within the scope of the preliminary investigation and included in the file is not “ready” evidence, but is a reason for suspicion in terms of the trial. Delil is a term that is valid for the court in the final investigation.” (Organized Crimes Combat Secret and Covert Approaches, Aytekin Geleri/ Hakan İleri, Sh: 223, Seçkin Publishing House, Ankara, 2003)
Again, as your court will be aware, since the system of conscientious/free proof is valid, not the legal system, and while investigating the material facts, even if the defendant confesses, even if the defendant confesses, all evidence, including the confession, must be put forward and discussed. Within the framework of the provisions of the Code of Criminal Procedure on the procedure for the will and presentation of evidence and for a full conscientious opinion, witnesses should be heard at the hearing and all evidence should be evaluated by the court in this way. The indispensable rule of the Criminal Procedure Code is also supported by the case law of the 1st Criminal Chamber of the Court of Cassation dated 29.02.1973 and numbered E. 1972/948, K. 1973/581.
In this regard; Each evidence should not be considered separately in terms of the fact it represents and should not be subjected to the test of the strength of the evidence, but should be evaluated together with the other evidence and the facts it represents and a conscientious opinion should be reached as a whole. in terms of evidence, that is, a conclusion should be drawn from all the evidence. This is the established jurisprudence of the Court of Cassation, which states that a conclusion should be reached “if the evidence is evaluated as a whole”.
To reiterate; the basic principle accepted in the Universal Code of Criminal Procedure and our New Criminal Procedure Code is that at the end of the trial or during the trial, it should not be concluded beyond doubt that the person committed the act or did not commit the act. a conviction should not be given.
Furthermore, according to the Court of Cassation, “the purpose of criminal proceedings is to uncover the material truth beyond any doubt. In this research, that is, in reaching the truth, the path of logic must be followed. The truth must emerge from evidence that is rational and realistic, that represents all or part of the incident, or from the evaluation of the evidence as a whole. Otherwise, reaching a conclusion based on some assumptions is absolutely contrary to the purpose of criminal proceedings. In criminal proceedings, where there is doubt, there can be no conviction. This principle is universal.” (Grabenwarter. Christoph, & 24. Due Process Guarantees of the Right to a Fair Trial (Article 6 ECHR) Trans. Osman Can) Comparative Current Criminal Law Series – Fair Trial and Criminal Law, Ankara 2004 p. 242)
The Court of Cassation has also emphasized the above thoughts in many of its decisions and stated that “In the event that the guilt of the defendant remains doubtful and there is no definite and convincing evidence sufficient for his conviction, a conviction cannot be decided.” (E. 2003/207, K. 2003/423 dated 1st CD. 27.3.2003)
Based on these explanations, in conclusion, it should be accepted that there is no evidence to prove the incident and the claim should be considered doubtful. In this case, a verdict of conviction cannot be given, a verdict of acquittal must be given. (E.2001/37508, K.2003/9299 dated 2nd CD. 15.9.2003)
In the light of these explanations;
Within the scope of the referral letter filed against our client ……….. within the scope of the TCK requested to be applied against our client ……….. and the additional defense given to my client between the hearing; If the crime is fixed within the framework of our legal evaluations regarding the law regulated under the title of “Blocking the system, disruption of the system, destruction or alteration of data” in accordance with Article 244/1-4 of the TCK requested to be applied against our client; We submit the following opinions and thoughts to your Court.
As it is known by your Court;
In order for the elements in paragraph 1 of the article to occur; first of all, there must be elements that prevent the functioning of the system and disrupt its functioning. Considering that the perpetrator who committed the act in both acts can commit the act with both intentions, even if the direct intent of the perpetrator who committed the acts in question cannot be determined, it seems inevitable that he foresaw that the functioning of the system would be intentional. disrupted and impaired as a result of physical attack. In this regard; it will be necessary to hold the perpetrator responsible with direct intent, and if the disruption or disruption does not seem inevitable and absolute, it will be necessary to hold him responsible with probable intent. (İsmail Malkoç Açıklamalı Yeni TCK Özel Hükümler, Sh.1580-1581, 2nd volume 2006)
Likewise;
In paragraph 4 of the Article, we see that it is limited with the phrase “if it does not constitute another crime”. “Naturally, it is known that fraud crimes that can be committed directly against real and intentional persons or theft crimes related to movable goods cannot be committed by system-related actions. However, it is possible to obtain goods and benefits through the diversion of data and services of the systems. Providing unjust benefit means the material and moral benefit provided to the person of the perpetrator or to another person by the acts in the previous paragraphs.” (İsmail Malkoç Açıklamalı Yeni TCK Özel Hükümler, Sh.1585, 2nd volume 2006)
As for the alleged act allegedly committed by my client and whose additional defense was received; As my client stated in his defenses that could not be proved otherwise, apart from the ordinary use of the internet, the use of other people’s websites (e-mail address, internet network, number) over the internet requires technical knowledge and experience. My client is certainly not a person with this technical equipment. As explained in the first paragraph of the article, although the definition of the law stipulates that the alleged crime must first be committed with direct intent, if this cannot be determined, the person will be held responsible for probable intent, and it is not possible for my client to commit the act in question with probable intent, let alone direct intent. First of all, he is not a person with this equipment.
According to the fourth paragraph, there must be “material or moral benefit provided to the perpetrator himself or to another person by the acts specified in the previous paragraphs”. The client, who lives in Karadeniz Ereğli, upon the allegation that ……… entered the account of ………; He gave the money to the bank and transferred the money to the account of the other suspect……. three times to be accepted first; First of all, the client must know the complainant or the other suspect and there must be a common interest between him and the other suspect. In the case in question, there is no personal or moral benefit to the client.
In addition, the other suspect does not know the defendant ………. He has no interest in benefiting …………, nor is he remotely close to …………. Therefore, it is automatically understood that the allegation that he benefited himself by using someone else’s account is contrary to the ordinary course of life within the framework of this explanation.
In addition, it is clearly understood that the other suspect defendant ……….. does not have any personal connection with my client and that the preparatory and Court statements of ………. contradict each other.
As it is known by your Court, both in television channels and in the news in the media, there have been various incidents in which the computer belonging to the person has been taken over by others (by remote access method), the existing records of the person have been seized, the person’s computer has been mastered and remote operations have been carried out. is constantly on the agenda.
In addition, it is seen that banks, as an institution of trust, have a responsibility to prevent such acts according to the principles of objective responsibility, and in this direction, as emphasized in the recently published case law of the Court of Cassation, our Court of Cassation, Appeal, emphasizes these issues in its various case law. Within the framework of this explanation, we submit the case law published below for your Court’s appreciation and evaluation.
“Banks operating as trust institutions are liable even for minor defects arising from the failure to fulfill the objective duty of care. Therefore, considering that the bank is liable even for the slight fault of the bank that does not take additional security measures to prevent the money in the bank customer’s account from being transferred to another account through hacking without the customer’s knowledge; it should be concluded that the bank should pay the customer’s damages. It should also be noted that in this case, where the bank is liable for slight negligence, the mutual fault of the customer cannot be mentioned” (11th Civil Chamber’s decision dated 22.06.2006 and numbered 2005/4748 Esas 2006/7341)
We also submit for your appreciation and consideration the case law of the 11th Civil Chamber of the Court of Cassation dated 22.06.2006 and numbered 2005/4748 Esas 2006/7341, which sets a precedent for our case.
“, “A Simple Trojan Horse Example”, “Safe Internet Usage”, “Virus that hijacks bank accounts”, “Fraud Tactics”, “Virtual Espionage Sector is Growing”, “Internet fraud has come of age”, “Interactive Fraud”, and we submit these documents to your Court’s appreciation as we find them supportive of our explanations above.
Within the legal framework provided by the Code of Criminal Procedure within the scope of the collection of material evidence and evidence; As the representative of our client, we have applied to the Chamber of Electrical Engineers of the Union of Chambers of Turkish Engineers and Architects (TMMOB) on 24.09.2009. We applied to the Union of Chambers of Turkish Engineers and Architects (TMMOB) Chamber of Electrical Engineers on 24.09.2015 in order to find out whether the alleged act was committed by others by entering the records over the internet (by remote access method).
2009 and Assoc. Prof. Dr. ……….. As stated in the conclusion part of the 6th page of the examination made by the expert in his letter dated 28.10.2009 regarding the examination made by the expert; “The relevant incident is a crime in an organized structure, although the available precise information shows that it was made from the line connected to the defendant ………… internet account, in the absence of any relationship between the defendants, when we did this study, we formed an opinion and opinion that the incident was organized by more conscious people.” We are of the opinion that your court will also evaluate his opinion and conviction.
It is seen that the case law of the relevant criminal department of the Court of Cassation, which we present below for your Court’s appreciation, fully and completely supports the above-mentioned comments and opinions of the expert.
“A total of 329 connections were made to the plaintiff’s internet line by foreigners between 18.06.2000 and 05.12.2000, of which only 48 were made from the defendant’s home phone registered in the name of his father ………… between 18.06.2000 and 30.09.2000 and the defendants………. between 29.07.2000 and 16.12.2000, the defendant ………… was in the military between December 1999 and April 2001 and came to his father’s house once every 3 weeks or once a week on weekends.
While both defendants were not at home, a connection was made to the complainant’s internet line with the phone registered to their father and in the report dated 12.03.03.2003, “I connected the phone as a different number”; It is against the procedure and the law to decide on their conviction in writing, without taking into account that there is no legally positive, sufficient, conclusive and convincing evidence that the defendants committed the crime charged” (6 CD. dated 16.03.2006 5464 E) – 2574 K.)
Undoubtedly, in the context of the Courts forming an opinion, we think that the moral rejection of the person will also constitute an important factor in the context of whether the person has committed the act in question, whether it supports the conscientious conviction, his/her past, personality and social life.
In this context, as we have presented in the annex to our petition, my client is a person who is loved and respected in his environment, has a taxpayer’s record, and as can be understood from the title deed records presented in the annex, his material and social life; he owns many real estates, in this respect, considering his age, life experience, social and social life personality, it is unthinkable for him to stoop and respect the alleged amount, which has no value in his material life. we think it is contrary to the ordinary flow of life.
Based on the universal criminal law rule of “interpretation of suspicion in favor of the accused”, we think and believe that the existence of “suspicion” will also be evaluated by your Court.
As it is known, the aim of criminal justice is to investigate the material reality. In this regard; taking into account the material evidence obtained during the trial process, taking into account the defenses of our client, which have not contradicted each other since the beginning of the incident and whose contrary cannot be proven; we think that my client should be acquitted since there is no material, precise, consistent, consistent, consistent, non-contradictory evidence that will form a conscientious opinion about my client.
As it is well known by your Honorable Court, even if it is said that there is doubt for a moment; When the perpetrator is reached based on material evidence, all evidence must be conclusive and convincing enough to form a conscience. In addition, if the intention of the perpetrator cannot be determined beyond doubt, the universal rule of ‘the accused benefits from doubt’ should be applied.
To reiterate the issue of suspicion once again, it is necessary to emphasize the following point;
One of the fundamental principles of the Criminal Procedure Code is the principle of the benefit of the doubt. According to this principle, which is accepted in every state of law and is closely related to the presumption of innocence, an acquittal verdict will be given if it is not 100% certain that the act was committed by the accused at the end of the criminal execution. transactions. Famous Criminal Lawyer Faruk Erem’s statement “If only one innocent person is punished in a country, everyone in that country is guilty”. The principle underlying this statement is the “presumption of innocence”.
The reason for recognizing such a principle is that the impunity of a guilty person is preferable to the conviction of an innocent person; in other words, the presumption of innocence.
As a result;
considering the contradictory and non-contradictory defenses of my client from the beginning of the incident, we think that my client should be acquitted since there is no material, definite, consistent, non-contradictory evidence that would form a conscientious opinion about my client.
In addition to this; if your court is of the opposite opinion; we would like the legal regulation on the Postponement of the Announcement of the Verdict regulated in Article 231 of the Code of Criminal Procedure to be evaluated in favor of the client, considering the past situation and current registry records submitted by my client to the file.
In this context
As it is known by your court, in accordance with the provisions of Law No. 5728 (OGT, 08.02.2008-26781) adopted on 23.01.2008, according to the provision of “postponement of the announcement of the verdict” adopted on 23.01.2008, the provision of “more than 2 years of imprisonment is requested for those who are tried for these crimes” was adopted and in the provisional article 1. In paragraph 2 of the provisional article 1 of the same law; “For the convictions finalized and executed before the effective date of this Law, the favorable legal provisions shall be determined by the court that issued the decision, taking into account Articles 98 to 101 of the Law on the Execution of Criminal and Security Measures.
By examining the file dated 13.12.2004 and numbered 5275; However, if the subject of the judgment requires examination, research, discussion of evidence and the exercise of the right of discretion, an examination can be made by opening a hearing.” In the face of the open provision; we wish that the sentence imposed on my client be decided to “defer the announcement of the verdict”.
Also; Again, as your Court knows;
From a modern Criminal Law and humanist perspective; the New Turkish Criminal Code, in addition to the traditional and traditionally accepted concept of “punishment”, has tended towards the acceptance of the existence of sanctions for the rehabilitation of the offender as well as the protection of the society we live in. The new law, accepted by the humanity of the world, has also included the view of “the application of measures appropriate to the personality of the offender”.
In this context, the case law of the 1st Criminal Chamber of the Court of Cassation No. 2005/1589-609 of 2006 is instructive. “…In the context of the application of the favorable provisions of the Turkish Criminal Code, the ‘favorable law’ is undoubtedly the law that requires less restriction of personal freedom. While the judge determines the favorable law by applying the general principles of criminal law to the concrete case and by looking at the penalties stipulated in the laws, in cases where it is not sufficient to consider the penalties alone, the application of auxiliary measures such as the elements of the crime, the conditions for postponement, accumulation and repetition provisions.”
In this respect, it is the expectation of the new criminal law that the sentence to be imposed on my client should be individualized in terms of humanitarian criminal law, taking into account my client’s past, criminal record, defense, proof to the contrary and his respectful care and attitude towards the hearings.
As stated in the general justification of the Law “…There are 6 articles on security measures and it is shown in which cases the judge will rule on these measures and in which cases the sentences will be converted into security measures. In addition, instead of short-term binding prison sentences, ‘working in a job beneficial to the public’ has been added to the measures to be taken, thus increasing the possibilities of individualization of sentences.” A brand new regulation and different provisions regarding postponement issues. In this respect, we believe that the sanction against the client should be individualized.
In this respect, postponement, which is an institution of “individualization of penalties” (individualization), aims to eliminate the drawbacks of short-term binding sentences, and it is envisaged that the penalties are adapted to the offender, not the act. Who did this by putting the offender first instead of the crime? In addition, it is necessary to distinguish between those who make the crime a habit (ihtiyat) and those who commit crimes coincidentally. (Ali Parlar / Muzaffer Hatipoğlu, Haklı, Açıklamalı, Adli Suçlar according to the Turkish Criminal Code No. 5237, page 359, Kazancı Publications – Istanbul 2005)
CONCLUSION AND REQUEST;
For the reasons explained, since it is not certain that my client ………… has committed the crime attributed to him, in case your court is of the opposite opinion, I request that my client be BERAATİNE, taking into account his respectful attitude and behavior. Applying all discretionary and statutory discount provisions in Article 62 of the TPC during the hearings and deciding to defer the announcement of the sentence to be imposed in accordance with Article 51 of the TPC within the framework of your court’s discretion and evaluation, or Article 231 of the Code of Criminal Procedure, taking into account the existence of the conditions.
Defendant Lawyer
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