EN SUPREME COURT
Criminal Department
Originally: 2016/6617
The Verdict: 2016/8693
Decision Date: 30.06.2016
THE CRIME OF USING BANK OR CREDIT CARDS – THE LEGAL SITUATION IS INVESTIGATED BY SHOWING THE ACCUSED CD IMAGES AND ASKING IF HE IS THE PERSON IN THE IMAGE AND EVALUATING ALL THE EVIDENCE.
Dec Jul: By bringing in the criminal dated account statement and debit card belonging to the complainant, ATM camera images belonging to the time period related to determining which ATM the money was withdrawn from on the date of the crime should be obtained from the relevant bank, confrontation should be made between the accused and the complainant … and the witness … if possible, if the accused is not present, identification should be made by showing diagnostic photos of the accused to the complainant and the witness; All the evidence should be collected and evaluated together by showing the CD images to the accused and asking if the person in the images is himself, and according to the result, the legal status of the accused should be determined and evaluated.
(5237 SK md. 53, 58, 245) (5271 SK md. 226) (ANY. MAH. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case and Decision: It was discussed and deemed necessary:
1- Bringing the account statement of the complainant’s bank card on the date of the crime, requesting ATM camera images from the relevant bank for the time period related to determining which ATM the money was withdrawn from on the date of the crime, confronting the accused and the complainant … and, if possible, the witness … to perform the identification process by showing diagnostic photos of the accused to the complainant and the witness if the accused is not present; Collecting and evaluating all the evidence together by showing the CD images to the defendant and asking if the person in the images is himself, determining and evaluating the defendant’s legal situation according to the result, and making a written judgment in case of incomplete research,
2- According to the acceptance and application;
a) 245/1 of the TCK. failure to pay attention to the fact that a judicial fine should be imposed in addition to the basic prison sentence in accordance with October 2019,
b) 58 of the Turkish Penal Code No. 5237, which is not shown in the indictment and the decision of dismissal, about the defendant whose statement was taken during the arrest and whose criminal record was not read. in accordance with the article, the restriction of the right of defense by deciding to apply the execution regime specific to repetitions,
c) Pursuant to the annulment decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 and the decision numbered 2015/85 dated 24.11.2015 and published in the Official Gazette numbered 29542, the 53rd amendment of the TCK. there is an obligation to re-evaluate the article,
Conclusion: Since the defendant’s appeals are considered on the spot in this regard, for these reasons, the application of the provision 8/1 of Law No. 5320 is unlawful. 321 and 326 of the CMUK No. 1412, which must be applied according to the article. it was decided unanimously on 30.06.2016 to TERMINATE the rights gained in terms of the amount of punishment in accordance with the articles.