Burglary In A Dwelling Or Annex
Republic of Turkey COURT OF CASSATION
6th Criminal Chamber Case No. :2011/21386
Decision No.: 2014/14108 Decision Date: 08.07.2014
THE CRIME OF ROBBERY IN A RESIDENCE OR ITS ANNEXES – THE ACT
CONSTITUTES THE CRIME OF RESTRICTING FREEDOM
ERROR IN THE ASSESSMENT OF EVIDENCE AND THE NATURE OF THE CRIME
IN RENDERING THE JUDGMENT – REVERSAL OF THE JUDGMENT
SUMMARY: The defendant V. ….., together with the defendant S. …., who had no legal claim against the participant A. …., forced the participant to sign a promissory note for an amount exceeding the amount owed. and the crime of deprivation of liberty as stipulated in the same Law.
The judgment was rendered by error in the assessment of evidence and the characterization of the crime, which necessitates reversal.
(765 S. K. m. 499) (5237 S. K. m. 109, 149)
Case: The judgment rendered by the Local Court was appealed; the case file was reviewed based on the nature of the appeal, the type and duration of the sentence, and the date of the crime.
Decision: Based on the facts, 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 from the plaintiff, issued a 2.5 billion TL promissory note in return,
and, due to the defendant’s usury, borrowed 2.5 billion TL with a 7-month maturity for 1 billion, and when the maturity date, the participant paid 1 billion TL to defendant V., when the participant requested that the payment be written on the back of the promissory note, they refused the request, stating that it was not necessary because defendant S. …., who was with them, was their friend. A week later, while participant A. was sitting in a cafe, the defendants called them over on the pretext of talking, started walking down the street,
and suddenly forced them into defendant V.’s house, where defendant S. held a gun to the participant’s head and 3.5 billion TL and one blank promissory note at gunpoint and released them. Ten days later, when the participant encountered defendant S. on the street and said he had saved money and would pay the promissory note amount, the defendant said that the participant A., thinking the promissory note had been endorsed, went to the prosecutor’s office and
and that a week later, he learned that the promissory note he had been forced to sign had been pursued by a third party.
Defendant V. … stated in his defense during the proceedings that he had separated from his wife before the date of the incident,
that he had money because he had sold some of his household goods, that he had lent participant A. 17.5 billion TL and received a promissory note worth 20 billion TL, and that 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 … knew that defendant V. gave participant A. 1 billion , and witness S….., the brother of defendant S., stated that he knew that defendant V. gave his brother S. promissory notes worth 2.5 and 5 billion and asked him to collect them. Witness Kadri … stated that he gave the defendant V. a mold in exchange for the 20 billion lira promissory note related to the crime and submitted it to the court for enforcement. During a search of the defendant V.’s home, the weapon mentioned in the participant’s statements was found. The weapon was a blank-firing pistol. The police report dated 17.03.2004 police report dated 17.03.2004, it was determined that defendant V. … was not in a good financial situation and could not lend 20 billion to the participant, and that the promissory note forcibly taken from the participant may have been filled out for 20 billion.
In light of this;
Defendant V. …’s act of forcing participant A. … to sign a promissory note for an amount exceeding the amount owed, together with defendant S. …, who had no legal claim against the participant,
constitutes robbery as defined in Article 499/1 of the Turkish Penal Code No. 765; robbery as defined in Articles 149/1-a-c-d of the Turkish Penal Code No. 5237 and the crime of restricting liberty as stipulated in Article 109/2-3-(a-b) of the same Law was not taken into account, and the judgment was rendered in writing with an error in the assessment of the evidence and the nature of the crime.
Result: This necessitated reversal, and the appeals of the defendants V. … and S. … were found to be justified in this regard.
Therefore, the judgment is REVERSED for the stated reason, in accordance with Article 8/1 of Law No. 5320 pursuant to Article 8/1 of Law No. 5320 and Article 326/final of the Code of Criminal Procedure No. 1412, the defendants’ acquired rights are protected in terms of the duration, type, and amount of the sentence imposed,
it was decided unanimously on 08.07.2014.