T.R. SUPREME COURT
- Criminal Chamber
Basis: 2016/6199
Decision: 2016/8684
Decision Date: 30.06.2016
CRIME OF USE OF CREDIT CARDS – ACCOUNT SUMMARY OF THE CREDIT CARD SHOULD BE BROUGHT AND DETERMINED WHETHER IT WAS USED ON THE EVENT AND A PROVISION SHOULD BE ESTABLISHED ACCORDING TO THE RESULTS
SUMMARY: By bringing the account statement of the credit card, determining whether it was used on the date of the incident, the type and number of use, and evaluating all the evidence together, the establishment of the conviction with incomplete research necessitated the annulment of the judgment and determination of the legal status of the accused according to the result. It was decided to overturn the judgment.
(5237 S. K. Art. 53, 116, 142) (ANY. MAH. 08.10.2015 T 2014/140 E. 2015/85 K.)
Case and Decision: It has been discussed and considered as necessary:
I- The provision that was duly notified to the accused on 15.05.2014, 8/1 of the Law No. 5320. It is understood that the appeal of the accused … who appealed on 02.09.2014, after the one-week period specified in Article 310 of CMUK numbered 1412, which should be implemented in accordance with the article, was rejected on 26.09.2014 and notified to him on 09.10.2014, the said additional decision. After the legal period of one week specified in Article 310 of the CMUK, on 15.12.2014, the appeal of the defendant, who appealed, was made in the 8/1 of the Law No. 5320. unanimously (rejection) pursuant to Article 317 of the CMUK, which should be applied in accordance with the article,
II- In the appeal examination against the provisions established for theft and damage to property;
Although Article 142/1-b of the TCK was repealed with the Law No. 6545, which came into force after the judgment date, the reason for reversing this matter was not made, since the aforementioned crime was regulated in Article 142/2-h and this was clearly against the accused; The deprivation of rights in Article 53 of the TCK numbered 5237; It has been deemed possible to evaluate the Constitutional Court during the execution phase by taking into account the annulment decision of the Constitutional Court, dated 08.10.2015 and numbered 2014/140 and decision numbered 2015/85, which was published in the Official Gazette dated 24.11.2015 and numbered 29542.
According to the trial, the content of the file, the evidence collected and evaluated at the place of decision, the formation and the belief and discretion of the court as a result of the investigation, the acceptance and application of the crimes in accordance with the formation and nature of the crimes, the justification explained as lawful, legal and sufficient, the defense counsel of the accused has stated that the crimes are not fixed. unanimously (confirmation) of the provisions with the rejection of the objections of appeal,
III- As for the appeals against the provisions established on the defendant’s violation of the immunity of the home and abuse of credit cards;
1- According to the whole file, in the absence of any evidence that the other accused … entered the victim’s house together with the accused …, the basic penalty determined when the defendant was sentenced for the crime of violating the immunity of the dwelling is Article 119/1-c of the TCK and Assignment of excess penalty by increasing it in accordance with the paragraph,
2- In terms of the crime of abuse of credit cards, in the statement of the victim at the investigation stage, he learned that the defendants tried to use the credit card they bought from him three times at the gas station; The witness working at the gas station stated that a person came to the petrol station and tried to pay with a credit card, but could not make a transaction because he entered an incorrect password, and that the person came 15 minutes later while another friend was working and tried to do the same. In case he states that he has paid with money, a statement of account of his credit card is brought, whether it was used on the date of the incident, the type and number of use, all evidences are evaluated together, and the conclusion is that a sentence of conviction is established in writing without considering the need for the appreciation and determination of the legal status of the accused,
3- The deprivation of rights in Article 53 of the TCK No. 5237; There is an obligation to evaluate the Constitutional Court’s annulment decision, dated 08.10.2015 and numbered 2014/140 and decision numbered 2015/85, which was published in the Official Gazette dated 24.11.2015 and numbered 29542,
Conclusion: Since the objections of the defendant’s defense counsel, which are against the law, have been deemed appropriate in this respect, the provisions of the 8/1 of the Law No. 5320 due to these reasons. It was unanimously decided on 30.06.2016 that it be overturned pursuant to Article 321 of the CMUK, which should be implemented pursuant to the Article.
