SUPREME COURT PROSECUTOR
TO BE SENT TO
…… PRISON SENTENCE COURT PRESIDENCY
File number:
DECISION CORRECTION
REQUESTED BY
DEFENDANT:
DEFENSE ATTORNEY:
PARTIES:
CRIME:
DATE OF CRIME: ../../…….
SUBJECT: The Supreme Court ….. Criminal Chamber ………….. Headquarters, ……….. Decision, has the right to request that objections that could affect the decision in the numbered file be left unanswered and that the decision issued by the Supreme Court be revoked through correction due to its being erroneous.
INSTRUCTIONS:
1-) Despite the request of your client and the Supreme Court Prosecutor’s Office numbered ………..; the approval of the ………. High Criminal Court …………. Principles and Decision numbered ………. is contrary to the law and procedure. There are contradictory provisions in the decision of the 11th Criminal Chamber of the High Court. Similarly, the trial of the crimes attributed to our client is ongoing as of January 23, 2008, and Article 562 of Law No. 5728 has been amended, introducing the institution of “postponement of the pronouncement of the judgment” in accordance with the relevant article.
Although it is mandatory to ask whether the defendant requested the application of a ruling in his favor during the trial and for the Court to assess whether this should be applied, these issues were not assessed in relation to Article 231. This issue, which was cited as the reason for the violation by the other defendants, was not considered a sufficient reason for the violation of the ruling from the client’s perspective and was concluded against him.
2-) Another issue cited among the grounds for appeal by the Supreme Court Prosecutor’s Office and dismissed by the Supreme Court as contrary to procedure is the fact of incomplete and insufficient investigation. In a concrete case, an investigation must be conducted into whether the material elements of the crime are lacking; however, this was left unresolved in terms of the grounds for appeal.
This is because, despite an objection regarding the nature of the registration document, the fact that the document was prepared by the relevant institutions was deemed sufficient for the act to constitute a crime. Furthermore, if there was forgery in the document, it was the content and nature of the document that should have been investigated, not the institution. There are legally valid documents in the alleged forgery …………….. transactions. There is no arrangement made by the customer.
3-)
Furthermore, according to the principle of personal criminal responsibility and Article 38/6 of the Constitution, no one can be tried for the actions of another person. This situation will be seen with the examination of the case file and as stated in the reasoned decision; the suspects “……………” and “…………..” were therefore convicted of forgery of a qualified official document.
However, the initiation of the investigation… there is no hypothetical claim… this is a complaint by the aforementioned person regarding the issuance of counterfeit securities. Furthermore, if an incomplete and inadequate prosecution had not been conducted, a connection would have been established with the actions that were evaluated against him but constituted forgery in another official document, and it would have been clarified that the client was a suspect in the crime; this is actually evidence in his favor and cannot be a reason for objection against him, so it can be accepted as a reason for violation. Furthermore, within the scope of the investigation, the signature is the product of the client’s handwriting and is the article that regulates the articles of association, and… it will be revealed that it was prepared by someone who uses or has used the name ………….
4-) Due to the absence of the person named …….., the forged securities escaped the attention of the court of first instance, which conducted an incomplete and inadequate investigation. This issue, which was considered an element against the defendant by the high court but which should have been examined for the validity of the trial, was not examined by the court for a decision.
Our opinion is that if this issue, which appears to be against the client but which, after examination, would eliminate the forgery charges in a way that leaves no room for doubt in other official documents, had been evaluated, the acquittal decision would have been made in favor of the client, not against him, as it could have been used as a means of proving his innocence. If doubts about the client’s innocence persist, the case must be overturned in accordance with the principle of “benefit of the doubt,” one of the fundamental principles of law.
5-)
From the perspective of the relevant section of the High Court, the client “has made two separate false statements, which are valid until proven otherwise, in official documents; this was done because there was no clean angle; in the indictment against the crime of forgery, it may be argued that some actions could be seen as the reason for the destruction. The failure of the main court to assess whether the crime of forgery was committed in multiple official documents, accepting this as a reason for violation, and not overturning the case is contrary to the law.”
6-) The Supreme Court determined that the decision of the criminal division contained contradictory provisions and constituted a violation of morality due to judicial discrepancies between defendants in the same legal situation.
The Supreme Court stated that the allegation that the co-defendant and other defendants acted together, which was cited as grounds for the violation against the client, was contrary to law as grounds for overturning the Supreme Court’s decision, and that the presence of contradictory paragraphs in the decision was accepted as grounds for correcting the decision in accordance with established case law. Therefore, it has become necessary for us to file an appeal for correction of the decision due to the erroneous nature of the decision to correct and approve the decision rendered against the client.
7-)
The client faces charges of forgery in official documents in favor of extradition, and the client has been convicted of forgery in official documents by the client or an authorized official, which is classified as a separate crime under the law and regulated in a single article of Law No. 765, distinct from simple forgery.
Furthermore, the subject matter of the case in which the client is being tried has been converted into a crime. Considering that the client was not informed of this situation by the Court, this indicates that the client was not given sufficient time to defend himself because he was not granted the right to additional defense. According to general principles of law and our legislation, a defendant tried for a crime requiring additional defense must be granted the right to additional defense; since this right was not granted, the defendant ………… was convicted in the absence of his defense. Your client is the ECHR. 6. According to our Criminal Justice System, the right to a fair trial has been violated and the right to defense has been restricted.
😎 When evaluating the decision of the court of first instance from the client’s perspective, it is seen that an erroneous decision was made when determining and evaluating which crime the alleged act could constitute. When evaluated in terms of legal and jurisprudential unity, it will be seen that there is no qualified version of the crime of forgery of official documents.
Furthermore, it has not been taken into account that the act constituting the criminal charge against the client, as stated in the petition, was not committed by the client and, if committed, could constitute a simple version of the crime of forgery of official documents. In the assessment of the act subject to trial, there is no record or official registration procedure in the form of any actual arrangement. The only evidence against the client is a photocopy of the identity card alleged to be forged. As the honorable judge will appreciate, it is not possible for a forensic medical institution to examine a photocopy of a document.
9-)
A search was conducted at the client’s home, but no fake ID or official document was found. The document in question cannot constitute the material element of the crime of forgery of an official document. Similarly, the Supreme Court’s case law is also in this direction.
10) The clients argue that a statement given to the court under pressure from other defendants must be interpreted in accordance with the nature of life and the principles of logic, as follows: Considering that there is no evidence against the client, a conviction should be handed down in cases where the law requires an acquittal. Therefore, while it was necessary to investigate whether there was a legally valid document prepared in accordance with the statement, a conviction was handed down by failing to evaluate Article 206 of the Turkish Penal Code, which requires a lesser penalty, and by misjudging the nature and structure of the crime.
11-) Furthermore, it is also inappropriate for the relevant chamber of the High Court to approve the decision by overturning it instead of correcting it. Similarly, in order to decide on deprivation of rights under Article 53/f.1 b of the Turkish Penal Code, it is necessary to examine the merits of the case. Only the High Criminal Court conducting the trial can carry out this examination. Therefore, the decision should be corrected and overturned.
12-) For the reasons explained above, it has become necessary for us to request that the decision be corrected and overturned.
CONCLUSION AND REQUEST:
For the reasons explained above, the High Court has accepted our request for the correction of the Prosecutor’s decision. For the annulment and reversal of the Criminal Chamber’s decision in question, the High Court of Appeal requests that the case be sent to the Criminal Chamber, along with our request for the postponement of the execution of the sentence. …./…./….
Defense of the Defendant