The Injustice Of Deciding To Convict The Defendant Without Considering That The Defendant’s Action Falls Within The Scope Of Useless Forgery And The Legal Elements Of The Assigned Offense Are Not Formed
T.C. JUDICIARY
21st Criminal Chamber
Main: 2015/5637
Decision: 2016/1463
Decision Date: 18.02.2016
CRIME OF FORGERY – INAPPROPRIATENESS OF THE DECISION TO CONVICT THE DEFENDANT WITHOUT CONSIDERING THAT THE DEFENDANT’S ACT FALLS WITHIN THE SCOPE OF USELESS FORGERY AND THAT THE CRIME COMMITTED DOES NOT CONSIST OF LEGAL ELEMENTS
SUMMARY: It is contrary to the law to convict the defendant instead of acquitting him, considering that the defendant’s action falls within the scope of “useless forgery” and the legal elements of the imputed offense have not been established.
(403 S. K. art. 29)
Case and Decision: Since it is understood that ………………, which is not directly harmed by the crime, has no right to appeal, the appeal request of the attorney on behalf of the complainant against the verdict established due to the aforementioned crime was rejected as requested in accordance with Article 317 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320, and in the examination made on the appeal of the defendant’s defense counsel;
In the case where it is accepted that the defendant, who acquired Turkish Citizenship by birth and later acquired German Citizenship by obtaining a renunciation permit from the Ministry of Interior, committed the crime of false statement in the issuance of an official document by submitting to the Trade Registry Directorate while establishing a company, the identity card sample obtained from the …..Province …………..Mukhtarlığı; Article 29 of the Turkish Citizenship Law No. 403 in force on the date of the incident: “Persons who lose Turkish citizenship in accordance with this Law are subject to foreign treatment starting from the date of loss.
However, those who are Turkish citizens by birth and who have received permission from the Ministry of Interior to renounce citizenship and their minor children registered in the certificate of renunciation of citizenship; Without prejudice to the provisions relating to the national security and public order of the Republic of Turkey, they shall continue to benefit from the rights granted to Turkish citizens, except for the obligation to perform military service and the rights to elect and be elected, to enter public office and to import vehicles or household goods exemptly, without prejudice to their acquired rights regarding social security and subject to the provisions of the relevant laws in the exercise of these rights.”
In accordance with the provision, it is not obligatory to issue the document subject to the crime in order for the defendant to establish a company, Since it is understood that the defendant can also establish a company with the document on the use of reserved rights given to him by the Ministry of Interior, the defendant’s action falls within the scope of “useless forgery” and the charged crime has not occurred in terms of its legal elements,
Since it is contrary to the law and the appeals of the defendant’s defense counsel are deemed appropriate in this respect, it was decided unanimously on 18.02.2016 that the verdict be reversed 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 for this reason.
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