8th Criminal Chamber 2020/14611 E., 2021/16168 K.
“Text of Justice”
COURT: First Instance Criminal Court
CRIME: Deprivation of liberty
JURISDICTION: Acquittal
The following matters were discussed and evaluated:
It was understood that the Undersecretary of the Ministry of Family, Labor, and Social Policies, who suffered damage in a manner that would qualify him as an “accomplice to the crime” and requested to participate in the public prosecution, had the right and authority to object to the provisions of the Criminal Procedure Code No. 5271, and that the request to participate in the petition was also accepted. Pursuant to Article 237/2, in the appeal review, it was decided that the person who was an accomplice to the crime and the representative of the Ministry of Family and Social Policies should not participate in the case in their capacity as the Undersecretary of the Ministry who was an accomplice to the crime.
I- Upon review of the appeal filed by the Public Prosecutor;
As stated in the decision of the Criminal General Assembly dated 06.11.2007, numbered 2007/3-167, 2007/222, the prosecutor’s period of objection against the decisions of the first instance criminal court with competent jurisdiction shall be applied in accordance with Article 8/1 of Law No. 5320 and Article 310/3 of Law No. 1412. shall be applied in accordance with Article 8/1 of Law No. 5320 and Article 310/3 of the Code of Criminal Procedure No. 1412. Pursuant to Article 317 of the Criminal Code, the appeal filed on January 13, 2014, after the legal deadline had expired against the prosecutor’s decision dated December 12, 2013, must be made within one month from the date of the decision.
II- Upon review of the appeal filed by the relevant official of the Ministry of Family, Labor, and Social Services;
Taking into account the entire scope of the file and the manner in which the incident occurred; On the day of the incident, the defendant, who worked as a janitor at the school where the victim was studying, became friends with the victim on the social networking site Facebook under the username “Cenk Yıldırım” and agreed to meet with the victim on the day of the incident, messaging the victim on the same site and requesting that the victim send him her photos.
Although many defendants claimed that the Facebook user named “Cenk Yıldırım” was not them, this is based on the content of the Facebook message transcripts in the file; in the message sent by the defendant to the victim, “…look, I’ve been working at the school for 3 years…” and this is clearly seen in his own message.
It is understood from the fact that he reported his mobile phone number to the investigation and prosecution authorities as his own number, that he reported it to the victim as his own number in Facebook messages, and from the prosecutor’s statement that “…I also have a Facebook address open in the name of Cenk Yıldırım…” (which he later denied). He went to the front of the workplace, and when the defendant did not come, he started walking towards his home. The defendant followed him and caught up with the victim. They started walking towards the hospital together.
Then, the defendant, saying that the area was crowded, invited the victim to the garden of an unused, dilapidated house. The victim accepted, and they entered the garden together. After the defendant said he did not have the photos, the victim left the garden, followed the defendant, the defendant turned back to the victim, forcibly took his cell phone, and they returned to the garden they had first left. The defendant said he would give the phone back on condition that the victim go into the house.
The victim refused, so the defendant forced him into the house by twisting his wrist, held him by the wrists inside, pushed him against the wall, and tried to hug the victim, but the victim escaped from the defendant by shouting from the open window. Th e final part of the chain of events, in which the defendant panicked and left the victim, and the victim escaped, is also confirmed by the statements of witnesses … and … who were present at the scene. The defendant’s claim that he was at his friend’s house at the time of the incident is corroborated by the statements of … and his wife, who testified as witnesses. However, the statements of Memet, a witness who wanted to testify in court despite not being summoned as a witness, do not match the HTS records.
Consequently, considering the content of the Facebook messages, the victim’s consistent statements, and all these circumstances, it was decided to try the defendant for the crime of forcibly depriving the child of his liberty with sexual intent and for the crime of touching the victim’s body by holding his hands and trying to hug him. Instead of being punished for the crime of sexual abuse under the second paragraph of the article, an acquittal decision was issued with a written justification without a detailed evaluation of the evidence.
In this context, the objections of the representative of the Ministry of Family, Labor, and Social Services participating in the case were deemed appropriate, and the provisions of Law No. 5320 8/1 were applied. On 16.06.2021, it was unanimously decided that the case should be assessed as FRINGED in accordance with Article 321 of the Criminal Procedure Code No. 1412 and that this article should be applied.