T.C. JUDICIARY
23rd Criminal Chamber
Main: 2015/11475
Decision: 2016/5775
Decision Date: 04.05.2016
THE CRIME OF QUALIFIED FRAUD – THE DEFENDANTS DID NOT COMMIT ANY FRAUDULENT ACT – THE DEFENDANTS REPAID THE IMPROPER PAYMENT MADE BY THE INSTITUTION WITH INTEREST – THE ELEMENTS OF THE CHARGED CRIME DID NOT OCCUR – UPHOLDING THE VERDICT
SUMMARY: In the event that the deceased’s population record was examined by the participating institution, it could easily be determined that he lost the condition of receiving a pension due to death, the payment to the defendants was due to the negligence of the institution, the defendants did not have an action that would constitute fraud, in addition, the improper payment made by the institution was repaid by the defendants with interest, therefore, since it was understood that the elements of the charged crime did not occur, there was no error in the acquittal decision.
(5510 S. K. Art. 55, 96)
Case and Decision: The file was examined and considered,
Defendants’ father İ…. S….’s death on 13.10.2009, the defendants allegedly committed the crime of qualified fraud by obtaining unfair advantage by withdrawing a total of 1.296,54 TL old age pension deposited by the participating Social Security Institution to the Ziraat Bank account on 19.10.2009 and 19.11.2009 from the ATM;
Article 55/last article of the Social Insurance and General Health Insurance Law No. 5510 and Article 73 et seq. of the Social Insurance Attendance Regulation and Articles 6 and 7 of the relevant communiqué; “Attendance procedures are carried out within the procedures and principles specified in the second paragraph of this article in order to determine those who die or lose the necessary conditions while receiving income or pension in a timely manner, first of all, to stop the payments made on their behalf, and then to cut the income / pension and recover the unwarranted payments, if any. For those who receive death income or death pension, the fact that the widow/widower of the insured is not married is determined by the Social Security Institution through survey procedures to be carried out by the Social Security Institution.
The Institution may conduct a survey to determine the information specified in Article 6 of the Communiqué for the income or pension recipients and their parents, guardians, trustees and agents by the methods to be determined by the Institution when and where it deems necessary. The survey may also be carried out by banks and PTT branches that pay income or pension. In cases deemed necessary by the Institution for the purpose of determining whether the conditions for receiving income/pension continue or not, duly issued documents may be requested from the relevant institutions, organizations, unions and chambers and tax offices that register or register according to their legislation. The Agency’s Payments Register and the population registers of the General Directorate of Population and Citizenship Affairs are compared periodically for a period not exceeding 15 days each month, and the income / pension payments of the insured and their beneficiaries who are determined to have lost the right to receive income and pension due to gender change, death or marriage are suspended.”
Article 96 of the Law No. 5510 Article 96 of Law No. 5510 states that “all kinds of payments within the scope of this law, which are determined to have been made excessively or improperly by the institution to employers, insured persons, voluntary insured persons, those who receive income or pension and their beneficiaries, general health insured persons and their dependents; If the payments made within a maximum period of ten years from the date of determination of the erroneous transaction, if they arose from intentional or faulty behavior, from the dates of these payments; If the payments made within a maximum period of five years from the date of determination of the erroneous transaction, the total of the payments made within a maximum period of five years from the date of determination of the erroneous transaction without interest in the payments to be made within twenty-four months from the date of notification to the relevant person, and in the payments to be made after the expiration of the twenty-four-month period, the payments to be made after the expiration of the twenty-four-month period, together with the legal interest to be calculated from the end of this period, if the relevant persons have receivables from the institution, these receivables shall be deducted from these receivables, and if they do not have receivables, they shall be taken back according to general provisions. ” is stated.
According to these explanations; if the deceased’s population record is examined by the participating institution, it can be easily determined that the deceased has lost the condition of receiving a pension due to death, the payment to the defendants is due to the negligence of the institution, the defendants do not have an action that would constitute fraud, in addition, the improper payment made by the institution was repaid by the defendants with interest, therefore, since it is understood that the elements of the charged crime did not occur, there was no error in the acquittal decision.
According to the trial, the evidence gathered and shown in the decision, the court’s opinion and discretion formed in accordance with the results of the prosecution, and the scope of the file examined, it was unanimously decided on 04.05.2016 to APPROVE the verdict by rejecting the objections of the participant’s attorney, which were not deemed appropriate.
You can access our other article examples and petition examples by clicking here.