The Account Statement Of The Credit Card Should Be Brought And It Should Be Determined Whether It Was Used On The Date Of The Incident And A Judgment Should Be Made According To The Result
T.C. JUDICIARY
8th Criminal Chamber
Main article: 2016/6199
Decision: 2016/8684
Date of Decision: 30.06.2016
THE OFFENSE OF MISUSE OF CREDIT CARDS – IT IS NECESSARY TO DETERMINE WHETHER THE CREDIT CARD WAS USED ON THE DATE OF THE INCIDENT BY OBTAINING THE ACCOUNT STATEMENT OF THE CREDIT CARD AND TO ESTABLISH A JUDGMENT ACCORDING TO THE RESULT – REVERSAL OF THE JUDGMENT
SUMMARY: Without considering that the account statement of the credit card should be brought, whether it was used on the date of the incident, whether it was used on the date of the incident, the type and number of use, and all the evidence should be evaluated together and the legal status of the defendant should be appreciated and determined according to the result, it required a reversal to establish a conviction with incomplete research. It is decided to revoke the verdict.
(5237 S. K. art. 53, 116, 142) (ANY. COURT. 08.10.2015 T 2014/140 E. 2015/85 K.)
Case and Decision: The requirements were discussed and considered:
I- It is understood that the appeal request of the defendant …, who appealed on 02.09.2014 after the one-week period specified in Article 310 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320, which was duly notified to the defendant on 15.05.2014, was rejected on 26.09.2014 and was notified to him on 09. 10.2014, the appeal request of the defendant, who appealed the additional decision on 15.12.2014 after the one-week legal period specified in Article 310 of the Code of Criminal Procedure, was unanimously (rejected) in accordance with Article 317 of the Code of Criminal Procedure, which should be applied in accordance with Article 8/1 of the Law No. 5320,
II- In the appellate examination of the convictions established against the defendant for the offenses of theft and damage to property;
Although Article 142/1-b of the Turkish Criminal Code was abrogated by the Law No. 6545, which entered into force after the date of the verdict, this issue was not made a reason for reversal, since the said crime was regulated in Article 142/2-h and this regulation was clearly against the defendant; The deprivation of rights in Article 53 of the Turkish Criminal Code No. 5237; It was deemed possible to evaluate the deprivation of rights in the execution phase by considering the annulment decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 main, 2015/85 decision, which entered into force after being published in the Official Gazette dated 24.11.2015 and numbered 29542.
According to the trial, the content of the file, the evidence collected and evaluated in the decision, the belief and appreciation of the court formed as a result of the investigation, the acceptance and application in accordance with the formation and nature of the crimes, and the justification explained in accordance with the law, legal and sufficient, the defendant’s defense counsel’s objections to the appeal that the crimes are not fixed are rejected and the judgments are unanimously (approved),
III- As for the appeals against the verdicts established against the defendant for the crimes of violation of residential inviolability and misuse of credit cards;
1- According to the facts and the entire file scope, in the absence of any evidence that the other defendant … entered the victim’s house together with the defendant …, the determination of an excessive sentence by increasing the basic sentence determined while sentencing the defendant for the crime of violating the inviolability of the dwelling in accordance with Article 119/1-c of the Turkish Penal Code,
2- In terms of the crime of misuse of credit cards, in the victim’s statement at the investigation stage, she stated that she learned that the defendants tried to use the credit card they took from her three times at the gas station; the witness working at the gas station … ‘s declaration that a person came to the gas station and tried to pay with a credit card but could not make a transaction because he entered an incorrect password, that the person came 15 minutes later while another friend was working and tried to make a transaction in the same way, and that the defendant stated that he paid the fuel money with the cash given by the victim, the account statement of the credit card was brought, whether it was used on the date of the incident, the method and number of use, and all the evidence was evaluated together and the legal status of the defendant should be appreciated and determined according to the result,
3- The deprivation of rights under Article 53 of the Turkish Criminal Code No. 5237 must be evaluated by considering the annulment decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 main, 2015/85 decision, which entered into force after being published in the Official Gazette dated 24.11.2015 and numbered 29542,
Conclusion: It was unanimously decided on 30.06.2016 to overturn the verdict in accordance with Article 321 of the Code of Criminal Procedure, which should be applied in accordance with Article 8/1 of the Law No. 5320 for these reasons, since it is contrary to the law and the appeals of the defendant’s defense counsel were deemed appropriate in this respect.
You can access our other article examples and petition examples by clicking here.