Deprivation Of Liberty Decision Of The Court Of Cassation
8th Criminal Chamber 2020/14611 E. , 2021/16168 K.
“Case Law Text”
COURT :Criminal Court of First Instance
CRIME : Deprivation of liberty
ANSWER : Acquittal
Necessary matters have been discussed and considered:
In the appellate examination made by deciding that the Ministry of Family, Labour and Social Policies, which has been damaged by the crime in such a way that it can take the title of participant and has a request to participate in the public case, has the right and authority to appeal the judgements, and it is understood that the will to participate is revealed in the petition submitted, in accordance with Article 237/2 of the Code of Criminal Procedure No. 5271, it is decided that the Ministry of Family and Social Policies will participate in the case as the participant and its representative will participate in the case as the representative of the participating Ministry;
I-In the examination made in terms of the appeal of the Public Prosecutor;
As stated in the Decision of the Criminal General Assembly dated 06.11.2007, 2007/3-167 Esas, 2007/222 numbered, the period of appeal of the Public Prosecutor for the decisions of the criminal court of first instance in the jurisdictional circle; Article 310/3 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320. According to Article 310/3 of the Code of Criminal Procedure No. 1412, which should be applied by analogy pursuant to Article 8/1 of the Law No. 5320, the appeal request of the Public Prosecutor, who appealed the judgements given on 12.12.2013 on 13.01.2014 after the legal period, is rejected in accordance with Article 317 of the Code of Criminal Procedure,
II-In the examination made in terms of the appeal of the representative of the participant Ministry of Family, Labour and Social Services;
According to the occurrence and the entire file scope; the defendant, who worked as a janitor at the school where the victim … was studying on the date of the crime, established a friendship with the victim through the social networking site Facebook under the user name “Cenk Yıldırım” and agreed with the victim to meet on the date of the incident with the bet that he would give him the photos of the victim through messaging on the same site [Although the defendant defends that the Facebook user named “Cenk Yıldırım” is not him, this situation, according to the content of the Facebook message transcripts included in the file, the defendant sent to the victim “…. Look, I have been working at the school for 3 years…”
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S/2
It is fixed that the mobile phone number, which he reported to the investigation and prosecution authorities as his number, was reported to the victim as his own number in Facebook correspondence, and also from his statement in the prosecutor’s statement that “…I also have an open Facebook address with the name Cenk Yıldırım…” although he made statements to deny it later. The victim went to the workplace where the defendant was working, the defendant did not come, the victim started to walk towards his house, the defendant followed the victim and caught up with the victim, they started to walk together towards the hospital, then the defendant invited the victim to the garden of an unused ruined house by stating that there was a crowd around, the victim accepted and they entered the garden together, the victim left the garden after the defendant said that he did not have the photographs in his hands, the defendant went after him and went to the victim again and forcibly took his mobile phone from him and they returned to the garden where they first left, the defendant stated that he would give the victim his phone provided that the victim entered the house in the garden, upon the victim’s refusal, the defendant forcibly forced the victim into the house by twisting the victim’s wrist, tried to hug the victim who he held by the wrists with his hands and leaned against the wall with expressions such as I love you, I care about you very much, but when the victim got rid of the defendant’s hand and shouted out of the open window, the defendant panicked and let the victim go, and the victim ran away, the conclusion part of the series of events in the form of witnesses whose residences were at the scene … and …’s statements taken in the heat of the investigation. Although the allegation that the defendant was at the house of his friend … at the time of the incident is confirmed by the statements of … and his wife … who were referred to as witnesses, the statements of the witness Memet, who came to the courthouse and wanted to testify even though he was not invited as a witness, do not show compatibility with the HTS records. As a result, in the face of the content of Facebook messages, the victim’s statements showing stability in accordance with the occurrence and all these issues expressed, instead of punishing the defendant for the crime of deprivation of liberty by force and for sexual purposes against the child and for the crime of sexual abuse at the level of molestation within the scope of the second sentence of Article 103/1 of the Turkish Penal Code, taking into account the action that touches the body in the form of holding the victim’s hands and trying to hug her, acquittal decisions were made with written justification without evaluating the evidence thoroughly,
Since the appellate objections of the representative of the Ministry of Family, Labour and Social Services were deemed appropriate in this respect, it was unanimously decided on 16.06.2021 to VACATE the judgments in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320 for this reason.
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