Requesting A Retrial Based On A Report Obtained From A Private Expert Witness
CASSATION COURT 5th Criminal Chamber
Case No.: 2014/6241
Decision No.: 2014/8962
The defendant C… was convicted of the crimes of being a member of a criminal organization established for the purpose of obtaining benefits through a chain of embezzlement, and was sentenced to 10 months imprisonment and 5 years 2 months 15 days imprisonment under Articles 250/1, 43, 220/2, and 62 of the Turkish Penal Code No. 5237, to 10 months’ imprisonment and 5 years, 2 months, and 15 days’ imprisonment, as confirmed by the decision of the Edirne 1st Heavy Criminal Court dated 24/05/2006 and numbered 2006/111 Case No. and 2006/198 Decision No., was upheld by the Supreme Court of Appeals 5th Criminal Chamber’s decision dated 26/12/2006, Case No. 2006/9880, Decision No. 2006/10661, and the defendant’s counsel’s request for a retrial was rejected by the same Court’s decision dated 15/01/ 2014, Case No. 2006/111, Decision No. 2006/198, regarding the request for retrial made by the defendant’s counsel, and the decision of the Edirne 2nd High Criminal Court dated 07/02/2014, Case No. 2014/109, regarding the rejection of the defendant’s counsel’s objection to the aforementioned decision;
Based on the case file, the defendant’s counsel’s request for a retrial, made in a petition dated 09/01/2014, is based on different evidence and, considering the results of the forensic video expert opinion dated 25/02/ 2013, which concluded that the person in the images on the CDs, which were previously presented as evidence and used as grounds for the defendant’s conviction, is highly unlikely to be the defendant, it was deemed inappropriate to reject the request for a retrial in writing without evaluating the merits of the request and without clearly stating which evidence was sufficient for the defendant’s conviction, and to reject the appeal against this decision without providing a legal justification. Therefore, it was decided to overturn the decision in accordance with Article 309 of the Criminal Procedure Code No. 5271. pursuant to Article 309 of the Criminal Procedure Code No. 5271. -105-22-3525-2014-8856/30082, the Supreme Court Prosecutor’s Office notified the Chamber of the decision and submitted the case files, and the following was considered:
Although a request was made to retry the case based on a report prepared by the National Criminal Bureau stating that the person in the camera footage used as evidence and deemed to constitute a crime was most likely not the convicted person C…, when these images were shown to the defendant during the hearing on April 18, 2006, he denied committing the acts deemed to be crimes but admitted that the person in the images was himself, Furthermore, when the National Criminal Bureau prepared its reports dated February 25, 2013, and June 6, 2013, it was not reliably determined when and by whom the photographs used for comparison were prepared, whether they belonged to the person in question, and whether they were suitable for comparison with the defendant’s appearance at the time of the crime, and their authenticity was not established. the individual’s appearance may change or be altered over time or due to physical intervention, and under these circumstances, the reports obtained and deemed lacking in credibility cannot be considered grounds for retrial. Therefore, there is no violation of the law in rejecting the defendant’s counsel’s request regarding this matter, and for the reasons explained, the request for reversal in the interest of the law is deemed unfounded. The request for reversal in the public interest regarding the decision of the Edirne 2nd Heavy Penal Court dated 07/02/2014 and numbered 2014/109 was REJECTED, and the file was REFERRED to the Supreme Court Chief Prosecutor’s Office for referral to the local court. The decision was made unanimously on 24/09/2014.