The Action Constitutes The Crime Of Fraud As A Whole
T.C JUDGMENT
6th Criminal Chamber
Main: 2018/ 3052
Decision: 2018 / 7548
Decision Date: 04.12.2018
Case: Upon the application of the defendant … and his defense counsel to the legal remedy of Appeal pursuant to Article 272 and subsequent articles of the Code of Criminal Procedure, against the conviction of the Kayseri 1st Assize Court for the crime of plunder with the judgment dated 26.02.2018, 2017/825 Main and 2018/102 Decision numbered; 22. 06.06.2018, 2018/1464 Main and 2018/1087 Decision numbered “Rejection on the merits with correction except for criticism” decision, upon the appeal duly filed by the defense of the defendant, the issues claimed to be contrary to the law in the appeal petition and the issues that need to be examined ex officio were examined and discussed within the scope of Articles 288 and 289 of the Code of Criminal Procedure;
Other appeal objections are not deemed relevant.
However;
The act of a person who compels another person to deliver a property or not to resist the taking of a property by threatening or using force with the bet that he will carry out an attack on the life, body and sexual inviolability of himself or his relatives or that he will cause great damage to his property constitutes the crime of plunder. In other words, this crime occurs if the consent of the victim is obtained by force and threat of the perpetrator and/or perpetrators. The most prominent feature of the crime of plunder is the taking of property by force, violence or threat. In other words, it is necessary to take the property from the possessor’s hand or to compel him to silence against the seizure of the property by the perpetrator.
The threat must be in the dimension sought in the crime of plunder in terms of quality and quantity.
In the crime of fraud, on the other hand, it is to deceive a person by fraudulent behavior and to benefit the person himself or someone else with executive or negligent behavior to the detriment of him or someone else.
Fraud is not a crime committed only against property. It is a crime aimed at protecting the freedom of will and decision-making as well as property. In the crime of fraud, the victim is misled. In other words, the crime of fraud is a typical fraud crime. The will is misused by deception. Cunning actions to mislead the victim are fraud. Even if every deception is an immoral act, it must always mislead the addressee in the manner specified in the type of crime in order to be punishable fraud. The error is the incompatibility of the imagination and reality in the person, and the trick: will create a state of error in the victim. Strengthening the hesitation in the victim also causes him to make a mistake.
The deception must be of a nature to deceive. If the deception used is deceived by taking into account the situation of the victim and the relationship with the perpetrator, the action will be fraud on the basis of the incident.
Lie: It is the declaration of a deliberately untrue matter, a lie is the abuse of trust in society. The liar is the person who abuses the trust and goodwill of the interlocutor. Unless the perpetrator makes an action that will prevent the control of the lie he tells or force the detection of the lie, the mere lie is not accepted as fraud. If the declarant is under an obligation to tell the truth, the lie is a means of abuse of trust. If the lie is told to have an effect on the person, it can be considered as fraud. The lie must be put forward in an environment of trust that eliminates the victim’s ability to control, and the perpetrator must have lured the victim in the direction he wants. A mere lie does not constitute fraud, which is the characteristic element of fraud. Whether the deception is of a nature to deceive must be evaluated factually. The nature of the incident, the condition of the victim, his/her relationship with the perpetrator should be determined by looking at whether there is a possibility to control the form of the deception used.
Emotional or moral damage, as well as future earnings projections to be provided to the victim, cannot be the material element of this crime, nor does it constitute the objective element of this crime in cases where it is not objectively possible to examine and determine.
Every fraudulent act starts with deceptive acts planned by the perpetrator and this deceptive act fundamentally violates the rules of good faith and trust in the relations of persons with each other.
It is necessary to make deceptive acts that will make the victim fall into error and there must be a causal link between the error and the deceptive acts. The basic form of the offense of fraud is included in Article 157 of the TPC No. 5237. In the light of the legal norms regulated in relation to the crimes of plunder, threat and fraud,
As for the concrete case;
The participant … was called by an unidentified person who introduced himself as “Police chief …” from the fixed phone number … and cell phone number … and asked “whether he had money in the bank” and the participant said that he had “50. 000TL in the bank”, this time the unidentified person on the phone said, ‘He should immediately transfer the money to a safe account because money was transferred to his account by Fetö, that the police will make an arrest for him and an operation for the bank officers, that he should immediately withdraw his money and give it to the police who will come to him, otherwise he will be taken into custody and put in prison, and that the police officers who will come to his house will take all the goods and put him in prison’, the participant was worried and afraid of this situation that he could not control, and withdrew 50. 500TL from his account at … Bank Branch and went out of the bank, the defendant … who came to him said that he was a policeman, that he was sent by Mr. … to take the money, and the participant gave 50. 500TL money to this defendant, in this process, the person on the phone gave instructions not to turn off the phone, the participant understood the incident when he returned home, and the defendant was caught on the bus heading to … with the money he took from the participant; to establish a written judgment by making a mistake in the characterization of the crime without considering that the action of the defendant in order to reach the assets by crippling the will of the participant with a discourse that he could not control constituted the crime of fraud as a whole,
Since it required to be reversed and the objections of the defendant … defense were deemed appropriate in this respect, for the explained reason, it was unanimously decided on 04/12/2018 that the verdict of rejection on the merits dated 22.06.2018, numbered 2018/1464 Esas and 2018/1087 Decision, which was given by the 15th Criminal Chamber of the Ankara Regional Court of Justice as a result of the examination made through the file, be REJECTED contrary to the notification in accordance with Article 302/2 of the Code of Criminal Procedure numbered 5271.