The Offense Of Obtaining Benefit Through Unauthorized Use Of A Debit Or Credit Card – Necessity To Make A Discount For The Defendant Who Made A Partial Payment At The Investigation Stage – Contradiction By Accepting That The Damage Was Eliminated At The Prosecution Stage
T.C. JUDICIARY
8th Criminal Chamber
Main: 2016/6624
Decision: 2016/8690
Date of Decision: 30.06.2016
THE CRIME OF PROVIDING BENEFIT THROUGH UNAUTHORIZED USE OF A DEBIT OR CREDIT CARD – THE NECESSITY OF A REDUCTION FOR THE DEFENDANT WHO MADE A PARTIAL PAYMENT DURING THE INVESTIGATION PHASE – THERE IS A CONTRADICTION BY ACCEPTING THAT HE COMPENSATED THE DAMAGE DURING THE PROSECUTION PHASE – REVERSAL OF THE VERDICT
SUMMARY: While a discount should be made for the defendant who made a partial payment during the investigation phase in accordance with Article 168/1 of the Turkish Penal Code No. 5237, causing a contradiction in the judgment by accepting that the defendant eliminated the damage during the prosecution phase and showing the application article as Article 168/1 of the Turkish Penal Code and making a discount of 1/2 required the reversal of the judgment.
(5271 S. K. art. 231) (5320 S. K. art. 8) (5237 S. K. art. 53, 168) (ANY. COURT. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case and Decision: The requirements were discussed and considered:
Since the decision to defer the announcement of the verdict previously given to the defendant, who has no finalized conviction as of the date of the crime, will not constitute an obstacle to the application of Article 231/5 of the Code of Criminal Procedure; According to the scope of the file, the defendant did not fully compensate the victim’s damages, therefore, according to Article 231/6-c of the Code of Criminal Procedure. Therefore, since it is understood that it is not possible to apply the deferment of the announcement of the verdict against the defendant in accordance with Article 231/6-c of the Code of Criminal Procedure; since the decision to decide not to defer the announcement of the verdict on the grounds that “the defendant previously had a decision to defer the announcement of the verdict for an intentional crime” was not deemed effective, the reversal opinion number 2 in the notification was not joined and was not made a reason for reversal.
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 crime, the reasoning explained in accordance with the law, legal and sufficient, the defendant’s other objections of appeal are rejected, but;
1- It is understood that the defendant made a partial payment during the investigation and prosecution phase, the victim gave up his complaint during the investigation phase due to the partial payment and declared that he consented to the application of the effective remorse provisions; While a discount should be made for the defendant who made a partial payment during the investigation phase in accordance with Article 168/1 of the Turkish Penal Code No. 5237, it is accepted that he eliminated the damage during the prosecution phase and the application article is shown as Article 168/1 of the Turkish Penal Code and a discount of 1/2 is made, causing a contradiction in the judgment,
2- The necessity of re-evaluation of Article 53 of the TPC in accordance with 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: Since it is contrary to the law and the defendant’s appeal objections have been deemed appropriate in this respect, it was unanimously decided on 30.06.2016 to VACATE the judgment 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 these reasons.