Court Of Cassation Decision On Digiturk Subscription With Fake Identity
Judiciary Criminal General Assembly
2017/212 E.
2019/20 K.
Decision Issued by
Court of Cassation Chamber : 11th Criminal Chamber
Court :Criminal Court of First Instance
Number : 476-821
The judgment dated 21.02.2013 and numbered 68-128 rendered by the Eskişehir 3rd Criminal Court of First Instance regarding the punishment of the defendant … with 2 years and 1 month imprisonment pursuant to Articles 207/1, 43/1, 62, 53 and 58 of the Turkish Penal Code, deprivation of rights and execution of the sentence according to the execution regime specific to repeat offenders, was appealed by the defendant and the 11th Criminal Chamber of the Court of Cassation, which examined the file, dated 08.04.2015 and numbered 9255-25152;
“…In the 4th paragraph of Article 56 of the Electronic Communication Law No. 5809 amended by Articles 104 and 105 of the Law No. 6518, which was published in the Official Gazette dated 19.02.2014 and numbered 28918 and entered into force on the same day after the judgment, which was sanctioned by the 10th paragraph of Article 63 of the Electronic Communication Law No. 5809, which was amended by Articles 104 and 105 of the Law No. 6518 and entered into force on the same day after the judgment, in the 4th paragraph of Article 56, ‘Subscription establishment transactions or registration transactions of devices with electronic identification information cannot be made and made by the operator or its representative doing business on behalf of the person without the knowledge and consent of the person, for this purpose, false documents cannot be issued, documents cannot be amended and they cannot be used’ and in the 5th paragraph, ‘Subscriptions established without the knowledge and consent of the person cannot be used. In the face of the provision in paragraph 5: ‘Subscriptions that have been established without the knowledge and consent of the person by issuing or changing false documents cannot be used’; the regulation in Article 56 of the Electronic Communication Law No. 5809, which is a special provision, should also be taken into consideration and the legal status of the defendant should be determined according to the result”,
Daire Member M.R. Koparan;
“The decision of Eskişehir 3rd Criminal Court of First Instance dated 21.02.2013 and numbered 2012/68 Es, 2013/128 Kr. regarding the punishment of the defendant … with articles 207/1, 43, 62/1 of the TPC due to signing a Digitürk subscription contract on behalf of the victim … by using a fake identity card (which was not found) is in accordance with the procedure and the law.
Because the purpose of the Electronic Communication Law No. 5809 is ‘to establish effective competition in the electronic communication sector through regulation and supervision, to protect consumer rights, to expand services throughout the country, to use resources effectively and efficiently, to encourage technological development and new investments in the field of communication infrastructure, network and service and to determine the procedures and principles regarding these’.
The scope of the Law is ‘the execution of electronic communication services and the establishment and operation of electronic communication infrastructure and network, and the manufacture, import, sale, establishment, operation of all kinds of electronic communication devices and systems, the planning and allocation of scarce resources including frequency, and the regulation, authorization, supervision and settlement activities related to these issues’.
Therefore, Law No. 5809 regulates the activities of real and legal persons providing electronic communication services. The obligation in Article 56/4 of the same Law stating that ‘Subscription establishment or transaction or registration of devices with electronic identification information cannot be made or made by the operator or its representative acting on its behalf without the knowledge and consent of the person, and for this purpose, false documents cannot be issued, documents cannot be amended and they cannot be used’ binds the responsible, managers and employees of real and legal persons providing electronic communication services.
In this context, real persons who receive services within the scope of the Electronic Communication Law should be punished for forgery (according to the nature of the document used or issued) if they use or issue false documents while receiving this service.
For this reason, the decision of the local court in accordance with the procedure and the law should be approved”.
The Local Court, on the other hand, dated 01.10.2015 and numbered 476-821, resisted the reversal and decided to convict the defendant as the previous verdict.
Upon the appeal of this verdict by the defendant, the file, which was brought to the First Presidency of the Court of Cassation by the notification of the Chief Public Prosecutor’s Office of the Court of Cassation dated 04.11.2015 and numbered 344203 with the request of “reversal” and the referral decision of the 11th Criminal Chamber of the Court of Cassation dated 19.11.2015 and numbered 8899-31047, was decided by the Criminal General Assembly on 07.12.2016 with the number 1173-1011; with Article 38 of the Law No. 6763. The file, which was sent to the department whose decision was resisted pursuant to the provisional article 10 added to the Law No. 5320 with the article no. 5320, and which was returned to the First Presidency of the Court of Cassation by the 11th Criminal Chamber of the Court of Cassation, which examined it in accordance with the same article, with the number 133-1415 dated 28.02.2017 and dated 28.02.2017, was evaluated by the Criminal General Assembly and decided for the reasons explained.
ON BEHALF OF THE TURKISH NATION
CRIMINAL GENERAL ASSEMBLY DECISION
The dispute between the majority of the Special Chamber and the Local Court, which must be resolved by the Criminal General Assembly, concerns the determination of whether the defendant’s act constitutes the crime of forgery of private documents or the crime of opposition to Law No. 5809.
From the scope of the file examined;
The investigation was initiated against the defendant …. upon the complaint of the victim …. due to the actions of the defendant …. to have the GSM line numbered 0539 547…. issued on behalf of the victim on 15.10.2009 and to have a Digitürk subscription established with the same identity card on 05.12.2009 by using the identity card with his own photograph but with the identity information of the victim,
In the expert report dated 08.08.2012 prepared by the Ankara Criminal Police Laboratory Department, in summary, it was stated that there were similarities between the writings “…” on the subscription contract for the GSM line number 0539 547…. dated 15.10.2009, the numbers “15.10.2009” at the top of the signature on behalf of the aforementioned name, and the signatures on behalf of … and the defendant’s comparative writings and signatures, and that it was concluded that the writings and signatures in question were the work of the defendant’s hand,
No expert examination was made on the Digiturk subscription agreement, one of the documents subject to the crime, which was brought into the file,
In the public case filed against the defendant for the crime of forgery of official documents due to the defendant renting a car by using a forged identity card, which the defendant presented while issuing the GSM line subject to the crime and establishing a Digiturk subscription, together with a forged driver’s license in another incident, the date of the crime was 12.02.2010 and the date of the indictment was 17.02.2010, and the verdict regarding the imprisonment sentence of 2 years and 6 months given to the defendant as a result of the trial was finalized on 26.11.2014 by being approved by the 11th Criminal Chamber of the Court of Cassation during the appellate review,
It is understood.
At the stages, the victim stated that they lived in the same neighborhood with the defendant, that he dropped his identity card photocopy a few years ago, that the defendant, who probably got hold of this document photocopy, made a fake identity card using this information and that with this fake identity card, he created a subscription record in Digiturk and Turkcell Companies on his behalf without his knowledge and consent.
In his prosecution statement dated 15.12.2011, the defendant stated that he issued a fake identity card in the name of the victim and that he established a Digiturk subscription using this document,
In his 08.05.2012 dated statement to the prosecutor’s office; the victim, who was a friend from the neighborhood, gave him a photocopy of his identity card, he issued a fake identity card containing the identity information of the victim with this identity card photocopy, but he did not remember that he bought a GSM line in the name of the victim with this document, he did not accept the imputed charge, he was tried and sentenced separately due to the said fake identity card,
In court, he stated that he had made the subscription registrations for the Turkcell GSM line and Digiturk subscription on behalf of the victim, and that the victim was aware of both subscription registrations,
Defended.
In order to reach a sound legal solution to the dispute, it is necessary to focus on the crimes of forgery of private documents and opposition to Law No. 5809.
Article 207 of the Turkish Penal Code, which is titled “Forgery of a Private Document”, reads as follows
“A person who forges a private document or changes and uses a real private document in a way to deceive others shall be sentenced to imprisonment from one year to three years.
The person who knowingly uses a forged private document shall also be punished according to the provision of the above paragraph”.
A private document is a writing that is not considered an official document, other than those issued by a public official due to his/her duty, that is not considered an official document, that is not issued due to an official transaction, but; it is a writing that directly creates a legal judgment, result, and serves to arise or prove a right. (Kubilay Taşdemir, Forgery Crimes in Documents, Ankara, 2013, p. 441) In other words, all writings that do not bear the characteristics of an official document can be qualified as private documents.
Forgery crimes in official and private documents are optional offenses and the legislator has criminalized the alteration of a real document in a way to deceive others, the issuance of a document contrary to the truth or the use of a forged document. Although the subjects of the crimes are different, forgery crimes in official and private documents are regulated similarly in terms of their elements.
However, while the crime of forgery of an official document occurs with the issuance of the document, the use of the document is also required for the crime of forgery of a private document to occur. The purpose of use is to try to ensure that this forged document is taken into account in any legal relationship or in the establishment of any legal transaction.
In order for the crime of forgery to occur, the forged document must also have the ability to deceive.
In the second paragraph of Article 207 of the TPC; it is stipulated that the person who uses a private document that has been forged by others, knowing that it is forged, will also be punished for the crime of forgery of private documents.
On the other hand, the first paragraph of the second article titled “Scope” of the Electronic Communication Law No. 5809, which was in force on the date of the crime and entered into force after being published in the Official Gazette dated 10.11.2008 and numbered 27050 (repeated)
“The execution of electronic communication services and the establishment and operation of electronic communication infrastructure and network and the manufacture, import, sale, establishment, operation of all kinds of electronic communication devices and systems, the planning and allocation of scarce resources including frequency, and the regulation, authorization, supervision and settlement activities related to these issues are subject to this Law.” and the scope of the Law No. 5809 is clearly defined with the text of the article.
The first paragraph of the third article of the same Law titled “Definitions and abbreviations” reads as follows
“a) Subscriber: A natural or legal person who is a party to a contract concluded with an operator for the provision of electronic communication services,
b) Subscription agreement: The contract concluded between the operator and the subscriber, whereby the operator undertakes to perform a service or supply goods periodically or continuously in return for a fee, or both,
…
h) Electronic communication: Transmission, sending and receiving of all kinds of signs, symbols, sounds, images and data that can be converted into electrical signals by means of cable, radio, optical, electrical, magnetic, electromagnetic, electrochemical, electromechanical and other transmission systems,
…
ii) Radio and television broadcasting: Image and/or sound transmission over terrestrial, cable, satellite and other media, encrypted or unencrypted, for the purpose of mass communication and not covering individual communication services,
…refers to”, defining the concepts in Law No. 5809.
The second paragraph of Article 56 of the same Law, which is titled “Security of subscriber and device identification information”, reads as follows
“Untrue documents and information regarding subscription information cannot be provided to the operator or its representative doing business on its behalf during subscription registration.”
With the text of the article, it is aimed to prevent the provision of false documents or information to the operator or its representative acting on behalf of the operator during a subscription transaction within the scope of Law No. 5809, and the sanction for the violation of the said provision is shown in the tenth paragraph of Article 63 of the same Law.
The tenth paragraph of Article 63 titled “Criminal Provisions” of Law No. 5809 in force on the date of the offense is as follows
“Those who violate the provisions of the first paragraph of Article 56 of this Law shall be punished with a judicial fine from one thousand days to five thousand days; those who violate the provisions of the second paragraph from twenty days to one hundred days; those who violate the provisions of the third paragraph from one hundred days to five hundred days.”
Accordingly, in the event that forgery of private documents and opposition to Law No. 5809 are committed by providing untrue documents and information about subscriber information during subscription registration, and in the event that a subscription is established without the knowledge and consent of the person, the problem of aggregation between the crimes of forgery of private documents and opposition to Law No. 5809 arises.
In the event that more than one criminal norm is violated with a single act, the aggregation relationship between these norms is either within the scope of “intellectual aggregation of different kinds” or “apparent aggregation”.
Intellectual aggregation of different kinds is regulated in Article 44 of the TPC as follows: “A person who causes more than one different crime to occur with an act he commits shall be punished for the crime that requires the most severe punishment” and in order for this provision to be applied, more than one different crime must occur with an act committed. The legislator has deemed it sufficient to punish the perpetrator, who commits more than one different offense with one act, with the heaviest penalty due to the fact that his act is a single act, and in this way, in accordance with the “non bis in idem” rule, it aimed to prevent the person from being punished more than once for one act, and by adopting the “melting system”, it preferred to be satisfied with the punishment for the crime that requires the heaviest punishment from these crimes.
The apparent aggregation is the fact that although various norms appear to be related to the same act, in fact only one of them can be applied. (Kayıhan İçel, Suçların İçtimaı, İstanbul, 1972, p. 167) The apparent aggregation is not regulated in the law, but since it is possible to conclude from the relationship between the criminal norms and their interpretation that only one of the various norms related to the same act can be applied, it is not necessary for the legislator to include the apparent aggregation forms. (Mahmut Koca-İlhan Üzülmez, Türk Ceza Hukuku Genel Hükümler, Seçkin Yayınevi, Ankara September 2015, 8th Edition, p.519).
The common feature of intellectual aggregation and ostensible aggregation is that the act is one and the same. However, in order for the intellectual cumulation provision to be applied, one of the apparent cumulation conditions must not be present. Therefore, it is necessary to first determine whether there is an apparent cumulative relationship between the types of crimes related to a single act, and the existence of an apparent cumulative relationship constitutes an obstacle to the application of the intellectual cumulative provision. The most important difference between intellectual cumulativity and ostensible cumulativity is that in intellectual cumulativity, all of the norms related to the types of offenses caused can be applied, whereas in ostensible cumulativity, only one of the norms can be applied. In other words, in the case of ostensible aggregation, only one norm is actually violated and the violation of other norms is only apparent. Because, although all of the norms related to the types of crimes cover the unjust content of the act completely, the norm to be applied in reality consumes the other norms in terms of the unjust content, and all norms completely overlap in terms of the unjust relationship. Therefore, only one of the norms has the ability to be applied in reality. (Neslihan Göktürk, Fikri İçtima, Adalet Yayınevi, Ankara 2013, pp. 73-74)
In cases of ostensible cumulation, which law should be applied is determined according to the principles such as “consuming-consumed norm relationship”, “secondary norm’s subordination” and “priority of the special norm”.
If a criminal norm incorporates one or more other criminal norms, a “consuming-consumed norm relationship” is mentioned. In this case, the criminal norm that incorporates norms consumes other norms. In this case, only the consuming norm can be applied to the act. The “compound crime” defined in Article 42 of the TPC is one of the typical manifestations of the consuming-consumed norm relationship. For example; the crime of looting includes the crimes of theft and force/threat, in other words, it consumes those crimes.
Auxiliary (secondary) norms are norms that protect similar legal interests as the primary norms. Such norms are regulations introduced to prevent a gap in the law in cases where the primary norms cannot be applied. In cases where there is a primary-auxiliary norm relationship, the primary norm will be applied to the act, not the auxiliary norm. Whether a norm is an auxiliary norm or a primary norm is determined not only by the fact that it is a norm that is applied where the primary norm cannot be applied, but also by whether the regulation contains expressions such as “unless the act constitutes another crime that requires a heavier penalty”, “except for the cases defined as a separate crime in the law” and “if the act does not constitute another crime”, and norms containing such expressions are accepted as auxiliary norms.
A special norm, which protects the same legal interest as the general norm, has all the elements of the general norm, but also contains some special elements that are not included in the general norm. In such a case, in accordance with the principle of “primacy of the special norm”, the special norm shall apply to the case, not the general norm. The relationship between the basic and qualified forms of the crime, the relationship between the specific crime and the general crime, and the relationship between the general and the special law are evaluated within the special-general norm relationship.
Bası, 2015, pp. 612-613; Berrin Akbulut, Ceza Hukuku Genel Hükümler, 3rd Bası, Adalet Yayınevi, Ankara, 2016, pp. 685-686; Mahmut Koca-İlhan Üzülmez, Türk Ceza Hukuku Genel Hükümler, Adalet Yayınevi, 8th Bası, Ankara, 2015, p.520 ). For example, since the provision of Article 247 regulating the crime of embezzlement in the Law No. 5237 is a general norm, while the crime of embezzlement regulated in Article 160 of the Banking Law No. 5411 is a special norm, in case a bank official within the scope of the Banking Law commits the crime of embezzlement, the relevant provision of the Banking Law should be applied, not Article 247 of the TPC No. 5237, in accordance with the principle of the priority of the special norm.
When the subject of dispute is evaluated in the light of these explanations;
The defendant, on 15.10.2009, was a member of Aktif Paz. Import. İhr. Tic. and San. A.Ş. on 15.10.2009 and signed the subscription agreement dated 15.10.2009, which he ensured to be issued on behalf of the victim by using a fake identity card with his own photograph on it, but which has the identity information of the victim and caused him to be tried separately for the crime of forgery in official documents due to another incident, and had the GSM line numbered 0539 547…. issued, and on 05.12.2009, he signed the Digiturk subscription agreement, which he ensured to be issued on behalf of the victim in the same way, and established a Digiturk subscription registration,
Although the Local Court accepted that the defendant’s act constituted the crime of forgery of a private document under Article 207 of the TCC, before the date of the offense, in the first paragraph of the second article titled “Scope” of the Electronic Communication Law No. 5809, which was published in the Official Gazette dated 10.11. In the first paragraph of the second article titled “Scope” of the Electronic Communications Law No. 5809, which entered into force after being published in the Official Gazette dated 2008 and numbered 27050 (repeated), “The execution of electronic communication services and the establishment and operation of electronic communication infrastructure and network, and the manufacture, import, sale, establishment, operation of all kinds of electronic communication devices and systems, the planning and allocation of scarce resources including frequency, and the regulation, authorization, supervision and settlement activities related to these issues are subject to this Law. “ and in the first paragraph of the third article of the same Law, in subparagraph (a); “Subscriber; a natural or legal person who is a party to a contract concluded with an operator for the provision of electronic communication services”, in subparagraph (b); “Subscription contract; a contract concluded between the operator and the subscriber, in which the operator undertakes to perform a service or supply goods periodically or continuously, or both, for a fee”, in subparagraph (h); “Electronic communication; “Radio and television broadcasting refers to the transmission, sending and receiving of all kinds of signs, symbols, sounds, images and data that can be converted into electrical signals by means of cable, radio, optical, electrical, magnetic, electromagnetic, electrochemical, electromechanical and other transmission systems”, and in subparagraph (ii), ‘Radio and television broadcasting refers to the transmission of images and/or sounds over terrestrial, cable, satellite and other media, with or without encryption, for the purpose of mass communication and does not include individual communication services’, and the provisions of Article 63 of the same Law. “Those who act contrary to the provisions of the first paragraph of Article 56 of this Law shall be punished with a judicial fine from one thousand days to five thousand days; those who act contrary to the provisions of the second paragraph shall be punished with a judicial fine from twenty days to one hundred days; those who act contrary to the provisions of the third paragraph shall be punished with a judicial fine from one hundred days to five hundred days.” When the provision in the second paragraph of Article 56, which is sanctioned by the regulation ‘Unreal documents and information regarding subscription information cannot be given to the operator or his representative doing business on his behalf during subscription registration’ is evaluated together, the defendant’s action is considered together with the provision in Article 207 of the TPC. It should be accepted that it is against the procedure and the law to establish a verdict for the crime of forgery in a private document without considering that it is within the scope of the second paragraph of Article 56 of the Law No. 5809, which is a special norm according to the crime of forgery in the private document in Article 207 of the TPC, that the sanction of the action in the said paragraph is only a judicial fine according to the tenth paragraph of Article 63 of the same Law, and therefore, the defendant should be sentenced according to the result by making a prepayment proposal to the defendant.
In this respect, it should be decided to overturn the judgment subject to the Local Court’s decision of resistance, which is not found to be correct.
CONCLUSION:
For the reasons explained
1- The provision of the Eskişehir 3rd Criminal Court of First Instance dated 01.10.2015 and numbered 476-821 subject to the decision of resistance, the defendant’s action falls within the scope of the second paragraph of Article 56 of the Law No. 5809, which is a special norm according to the crime of forgery of private documents in Article 207 of the TPC. Article 56 of the Law No. 5809, which is a special norm according to the crime of forgery of a private document in Article 207 of the TPC, the sanction of the action in the aforementioned paragraph is only a judicial fine according to the tenth paragraph of Article 63 of the same Law, and for this reason, the defendant should be sentenced according to the result by making a prepayment proposal to the defendant,
2- It was unanimously decided at the meeting held on 17.01.2019 to refer the file to the Chief Public Prosecutor’s Office of the Court of Cassation for its return to its place.