15th Criminal Chamber
Case No.: 2012/18721
Decision No.: 2014/11459
“Judicial Ruling”
COURT: High Criminal Court
CRIME: Aggravated fraud
JURISDICTION: Conviction
The case file was reviewed and the requirements assessed;
for fraud to occur, the perpetrator must deceive a person through deceptive acts and secure a benefit for themselves or another to the detriment of the victim or another. This constitutes a fraudulent deception. The perpetrator’s fraudulent conduct must be serious, intense, and to a certain degree skillful, and must include actions that eliminate the victim’s ability to scrutinize the situation. The victim must be deceived by the fraudulent conduct employed, and as a result of this deception, an unjust advantage must be provided to the defendant or another party by the victim who believes the falsehoods.
,Whether the fraud is deceptive must be assessed separately based on the nature of the incident, its connection to the act, the victim’s circumstances, and the characteristics of the concealed or altered document used.
To ensure the reliability of individuals engaged in commercial activities as a profession, the commission of this offense during the course of commercial activities by merchants (individuals engaged in trade personally) or by company executives or persons acting on behalf of a company is recognized as a qualified offense under Article 158/1-h of the Turkish Commercial Code. These concepts will be determined in accordance with the relevant provisions of the Turkish Commercial Code.
Article 14 of the Turkish Commercial Code states:
A person who operates a commercial enterprise without obtaining the necessary permission or approval, despite the requirement of a law or judicial decision, or despite the need for permission from another person or an official authority, due to their personal circumstances or the nature of their business, and in accordance with their profession and duties, is also referred to as a merchant. Article 124 of the same law defines commercial companies as consisting of general partnerships, limited liability companies, joint-stock companies, and cooperatives.
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Under this law, general partnerships and limited liability companies are classified as capital companies, while joint-stock companies and limited liability companies are considered capital companies. The perpetrator of this offense may be a merchant, a company manager, a person acting on behalf of the company, or a cooperative manager.
… The defendant, an authorized representative of İnşaat Mobilya Limited Company, undertook the construction of Parcel No. 3 in Block 2E12 of the Eryaman Housing Complex pursuant to a sales contract executed at the Ankara 13th Notary Office on March 31, 2005.
Altho ugh he sold the same unit to … on January 8, 2007, pursuant to the sales contract dated January 8, 2007, he sold the apartment numbered … in Block 6, located in the same area, a second time and received the payment in cash on February 9, 2005. Although he sold the same independent unit a second time to … on May 30, 2007, pursuant to the sales contract, he sold Apartment No. 4H on the 7th floor of Block 13, located at the same address, in cash at the 13th Notary Office in Ankara on July 21, 2005, and received the payment in return.
Although he sold the same independent unit to … who was a party to a commitment agreement, it was transferred to … who was a party to the second sales agreement on March 15, 2008. He received the payment in advance through the sale; in the event that it is alleged that the construction of the apartments subject to these sales was not completed, the money collected from the participants was not refunded, and the defendant, as a company manager, committed the crime of aggravated fraud within the scope of his commercial activities;
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In the review of the appeals filed against the convictions regarding the defendants’ actions against … and …;
Based on the facts of the case, the defendant’s defense, witness statements, sales contracts, sales promise contracts, and the entire case file; it has been established that the defendant, as a company executive, obtained an unjust advantage by selling the apartments he had promised to sell to the participants within the scope of his commercial activities.
There is no error in the findings.
The trial, based on the evidence gathered and presented at the hearing, the court’s opinion and discretion, and the scope of the reviewed case file, the rejection of the Prosecutor’s and defense counsel’s other objections, which are unfounded;
While the prison sentences for the fraud offense were determined at the lower limit, the fines were set without sufficient and legal justification; similarly, the number of full days was determined by deviating from the minimum limit for the same reason, and an additional penalty was imposed on the defendant;
for these reasons, since the objections of the prosecutor and the defense attorney are deemed valid, the provisions of Article 321 of the Code of Criminal Procedure, which must be applied pursuant to Article 8 of Law No. 5320, must be applied.
was DISMISSED; however, this constitutes a violation of the same Law without a retrial.
Since it is possible to correct this under Article 322; Pursuant to Articles 158/1.h and 52/2 of the Turkish Penal Code No. 5237, the defendant has been sentenced to a total of 20,000 TL in criminal fines, calculated at 20.00 TL per day, in lieu of the 1,000-day criminal fine imposed under Article 52 of the same law. Instead of the statements, pursuant to Article 158/1.h of the Turkish Penal Code No. 5237, he was sentenced to a 5-day fine, and pursuant to Article 52/2 of the same Code, he was sentenced to a total fine of 100.00 TL, calculated at 20.00 TL per day, in lieu of the 5-day fine imposed under Article 52/2. “For the purpose of imposing the penalty,” to AMEND and APPROVE the decision in writing,
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Regarding the review of appeals filed against the acquittal rulings issued for the defendants’ actions against …, …, and …;
The defendant’s actions—promising to sell the apartments in question to the participants through sales contracts with …, …, and …, then failing to complete the construction of the apartments and engaging in fraudulent acts by selling the same apartments to other individuals, thereby deceiving the participants and obtaining an unjust advantage—constitute the crime of aggravated fraud, as these actions are deemed to have been proven fraudulent.
The issuance of a written acquittal decision regarding the defendant without considering that a conviction should have been imposed due to errors in the evaluation and assessment of the evidence,
required the reversal of the decision; and since the public prosecutor’s objections were deemed valid in this regard, it was unanimously decided to apply the provisions of Article 8/1 of Law No. 5320. It was stated that the decision dated June 9, 2014, must be annulled pursuant to Article 321 of the Code of Criminal Procedure No. 1412 and applied in accordance with that provision.