Acquittal Decision Issued Without Considering That The Action Constitutes The Crime Of Restricting Freedom
THEFT IN A RESIDENCE OR ITS ANNEXES – THE ACT
CONSTITUTES A CRIME OF RESTRICTION OF LIBERTY WITHOUT CONSIDERATION
ERROR IN THE ASSESSMENT OF EVIDENCE AND THE NATURE OF THE CRIME
RULING – REVERSAL OF THE RULING
SUMMARY: The defendant V. ….. did not have a legal claim against the participant A. …. for an amount exceeding the debt, yet together with the defendant S. …., he forced the participant to sign a promissory note. The robbery described in Article 765 of the Turkish Penal Code
and the crime of robbery as defined in Articles 5237 of the same Code, as well as the crime of restricting liberty as defined in the same Article of the same Code, without considering that the judgment was rendered by erroneously assessing the evidence and the nature of the crime, necessitates the reversal of the judgment.
(Turkish Penal Code No. 765, Article 499) (Turkish Penal Code No. 5237, Articles 109, 149)
Case: The judgment rendered by the Local Court was appealed; the case file was reviewed in terms of the nature of the appeal, the type and duration of the sentence, and the date of the crime.
Decision: Based on the facts, the contents of the case file, the statements of the victim and witnesses, and the evasive defenses of the defendants,
it was determined that the participant A. …. borrowed 1 billion TL, issued a promissory note for 2.5 billion TL in return, and borrowed 2.5 billion TL with a 7-month maturity period due to the defendant’s usury activities. When the maturity date of the promissory note arrived, the participant paid 1 billion TL to the defendant V. When the participant requested that the payment be recorded on the back of the promissory note, Defendant S. …, who was present, refused the request, stating that it was unnecessary because they were friends. A week later, while the participant A. was sitting in a café, the defendants called him over under the pretext of talking. As they began walking, they suddenly forced him into Defendant V.’s house, where Defendant S. held a gun to his head and forced him to sign
3.5 billion TL and one blank promissory note at gunpoint and released him. Ten days later, when the participant encountered the defendant S. on the street and said he had saved money and would pay the promissory note amount, the defendant S. said, “The promissory note has been endorsed,” and the participant A., believing the promissory note had been endorsed, went to the prosecutor’s office to file a complaint. A week later, the participant learned that the promissory note he had been forced to sign had been pursued by a third party. In his defenses at various stages, the defendant V. … stated that he had separated from his wife before the incident
and that he had money because he had sold some of his household items. He stated that he had lent participant A. 17.5 billion TL and received a promissory note worth 20 billion TL, and he did not admit to the crime he was accused of. Defendant S.
did not admit to the crime he was accused of during the proceedings, and witness Cemal …. that he knew that defendant V. had given participant A. 1 billion lira in exchange for the promissory note, and defendant S.’s brother, witness S…., stated that he knew that defendant V. had given his brother S. promissory notes worth 2.5 and 5 billion
and asked him to collect them, and witness Kadri …. stated that he gave a mold to defendant V. and in return received the 20 billion lira promissory note in question and submitted it to enforcement, during the search conducted at defendant V.’s residence, the firearm mentioned in the participant’s statements was found, and it was determined that the firearm was a blank-firing pistol, In the police report dated March 17, 2004, it was noted that defendant V. … was in poor financial condition and could not lend the participant 20 billion,
and that the promissory note forcibly taken from the participant may have been filled out for 20 billion.
The defendant V. ….. did not have a legal claim against the participant A. …. for an amount exceeding the debt owed, and the act of forcing the participant to sign a promissory note, along with the defendant S. …., constitutes robbery as defined in Article 499/1 of the Turkish Penal Code No. 765.
and the crime of robbery as defined in Articles 149/1-a-c-d of the Turkish Penal Code No. 5237, as well as the crime of restricting freedom as defined in Articles 109/2-3-(a-b) of the same Law, without considering these provisions, and erroneously determining the evidence and the nature of the crime, the judgment was rendered in writing,
Result: The appeal is justified, and the defendants V. …. and S. ….. and their defense counsel’s appeals are therefore
are deemed valid, and the judgment is hereby REVERSED for the stated reason, in accordance with Article 8/1 of Law No. 5320 and Article 326/final of the Criminal Procedure Code No. 1412, while preserving the defendants’ acquired rights regarding the duration, type, and amount of the sentence imposed, on 08.07.2014
.