Qualified Fraud – Supreme Court Decision
11th Criminal Chamber 2007/6709 Main, 2007/6012 Decision.
At the end of the trial of the accused Cesur for forgery of official documents and qualified fraud: Since the Supreme Court of Appeals has been requested by the defendant and his defense counsel for the review of the judgment dated 13.02.2007 and numbered 2006/221 Main, 2007/51 Decision given by BAKIRKÖY 1st High Criminal Court on his conviction, the case documents were sent to the department with the notification of the Chief Public Prosecutor’s Office dated 03.07.2007 requesting approval and reversal by correction, and the necessity was examined and discussed:
Since it was deemed possible to decide within the statute of limitations in relation to the public case filed against the defendant for the crime of “using a forged driver’s license” issued in the name of Şükrü with the indictment, and since there was no inconsistency in the application regarding Article 53 of the Turkish Criminal Code No. 5237, the opinion in this direction in the notification was not joined.
1-In the appeal of the defendant and his defense counsel against the conviction verdict established for the crime of “forgery of official documents”; Since the collected evidence has been examined on the verdict, the conviction of the defendant’s crime has been accepted, its qualification has been determined in accordance with the occurrence and investigation results, the nature of the reason reducing the punishment has been appreciated, and there has been no inconsistency in the verdict given according to the examined file, the objections of the defendant and his defense counsel regarding the lack of criminal intent, and that Articles 28 and 38 of the Turkish Criminal Code No. 5237 should be applied, and the appeal objections of the defendant and his defense counsel regarding the lack of criminal intent and the application of Articles 28 and 38 of the Turkish Criminal Code No. 5237, which are not deemed appropriate, are rejected and the verdict regarding the water crime is APPROVED. The objections of the appellants, which are not deemed appropriate and which relate to the application of the articles of the Code of Criminal Procedure, are rejected and the verdict regarding the offense is upheld,
2- As for the appeal of the verdict related to the offenses of fraud,
A) The deception, which is an element of the crime of fraud, must be directed to a real person and this person must be misled and an unfair benefit must be provided to the perpetrator or another person to the detriment of him or someone else,
In the concrete case; the actions of the defendant consisting of sending the existing data (information) in the money accounts of the victims in the banks to the accounts opened by the victims with fake identities via the internet and again wanting to withdraw these money with fake identities; Since there is no fraud directed to real persons until the transfer of the money to the accounts opened by the defendant, and the actions are carried out entirely within the information system, it constitutes a crime committed against each victim separately in accordance with Article 244/4 of the Turkish Criminal Code No. 5237, and the crime will be completed with the transfer of the money to the accounts opened by the defendant, without considering that the crime will be completed with the transfer of the money to the accounts opened by the defendant, establishing a conviction sentence for the crime of attempted qualified fraud by making a mistake in the qualification of the crime,
B) According to the practice;
According to the Turkish Penal Code No. 5237, instead of determining the judicial fine by multiplying the number of full days to be determined by multiplying the amount appreciated as the equivalent of one day, it was ruled as double the unfair benefit provided,
Since it is contrary to the law and the appeal objections of the defendant and his defense counsel are therefore appropriate, it was unanimously decided on 27.09.2007 that the verdict be DISMISSED as requested in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320, and that the acquired right in terms of punishment be reserved.