Seizure At The Wrong Address Due To Name Similarity – Seized Items Returned The Next Day And Address Provided By The Client – Supreme Court Decision
Republic of Turkey
Supreme Court of Appeals
5th Criminal Chamber
Case No: 2013/13743
Decision No: 2015/16274
Date: 16.11.2015
The judgment rendered by the local court was appealed, and the case file was reviewed and considered:
The defendant, a lawyer registered with the Ankara Bar Association, acting as the creditor’s representative in proceedings against the debtors, had an enforcement order served at the address where S.. S.., the guarantor of the debt, resided. However, despite this, S.. S.., who was merely the guarantor of the enforcement, had no connection whatsoever with the debt or the debtor, but only as the guarantor of the enforcement, to another address where the participant, who had a similar name and surname, resided, on 12/11/2009, and had the door opened by a locksmith while he was not at home, seized his belongings, and placed them in custody, thereby causing him harm and committing the crime of abuse of office; According to the case file, the creditor obtained the participant’s address and reported it to the defendant, and pursuant to Articles 80 and 88 of the Enforcement and Bankruptcy Law No. 2004, the duty of seizure and taking movable property into custody belongs to the enforcement office, and these procedures can be carried out in the absence of the creditor’s representative. the defendant’s request for seizure at this address was accepted by the enforcement office and the seizure and preservation procedure was carried out by the Enforcement Officer in the defendant’s absence, and one day after these procedures, the participant declared to the Enforcement Office that he had no connection with the debt, whereupon the defendant requested the return of the seized property to the participant, Considering that there is insufficient evidence that the defendant acted contrary to the requirements of his duty or negligently, he should have been acquitted of the alleged crime, but he was erroneously convicted as stated in the written decision.
Furthermore,
it was ruled under Article 257/2 of the same Law without considering that the proven act constituted the crime of abuse of authority through executive conduct under Article 257/1 of the Turkish Penal Code No. 5237,
Although it was accepted that the crime was committed by abuse of rights and authority under Article 53/1-e of Law No. 5237, Article 53/5 of the same Law was not applied to the defendant,
is contrary to the law, and the defendant’s appeal is therefore deemed valid. The ruling is hereby REVERSED in accordance with Articles 321 and 326/final of the Code of Criminal Procedure, taking into account Article 8/1 of Law No. 5320. This decision was made unanimously on 16/11/2015.