Qualified Fraud – Determination Of Penalty
T.C JUDGMENT
15th Criminal Chamber
Main: 2016/ 3044
Decision: 2018 / 7677
Decision Date: 06.11.2018
COURT :High Criminal Court
CRIME : Qualified fraud
JUDGMENT : Conviction according to articles 158/1-e-last, 43, 62, 52 and 53 of the TPC
The judgment regarding the conviction of the defendant for the crime of qualified fraud was appealed by the defendant’s defense counsel and the participant’s attorney, and the file was examined and the necessity was considered,
The defendant obtained a power of attorney from a notary public on 21/12/1992 in order to withdraw the pension of his mother-in-law Nazife, who lived with him and received a pension from the participating institution, and although Nazife died in October 1993, her pension continued to be deposited in her bank account due to the fact that this death was not reported to the Population Directorate and other official authorities, and the defendant did not report this death until the date of the crime and withdrew a total of 75. 911,57 TL pension, and that the defendant obtained unfair advantage by fraudulent actions in this way, since it is understood from the defendant’s defense including the defendant’s confession, witness statements, the report of the conquest of the grave, the Forensic Medicine Institute report and the entire file, there is no inconsistency in the conviction of the defendant for the crime of qualified fraud.
According to the trial, the evidence collected 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; the other appellate objections of the defendant’s defense counsel and the participant’s attorney are rejected, however;
In the cases listed in subparagraphs (e), (f) (i) and (k) of paragraph 1, paragraph 1 of Article 158 of the Turkish Criminal Code No. 5237, the basic day to be determined in the determination of the judicial fine is the minimum day to be determined in a way that is not less than twice the unfair benefit obtained from the crime, and after the increases and decreases are made over the number of days to be determined by increasing to this amount, the resulting number of days and the amount to be appreciated between 20-100 TL in accordance with Article 52 of the same law for one day should be multiplied. In accordance with Article 52 of the same law, determination of an incomplete judicial fine for the defendant, without considering that the resultant judicial fine should be determined as a result of multiplying the amount to be appreciated between 20-100 TL,
Since the appeals of the defendant’s defense counsel and the participant’s attorney have been deemed appropriate in this respect, the verdict should therefore be DISMISSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is still in force pursuant to Article 8 of the Law No. 5320, but since it is possible to correct this issue, which does not require a retrial, in accordance with Article 322 of the same law, the terms “5. 000 Days”, ‘7,500 Days’, ‘7,500 Days’, ‘6,250 Days’ and ‘125,000 TL’, respectively, from the paragraph of judicial fine, and by adding the phrases ‘7,591 Days’, ‘11,386 Days’, ‘9,488 Days’ and ‘189,760 TL’, respectively, the verdict, which is in compliance with the procedure and the law in other aspects, was approved by unanimous vote on 06/11/2018.