Mutual Fraud By Using A Bank As An Intermediary
PRESIDENCY OF THE HEAVY CRIMINAL COURT
TO BE SHIPPED
PRESIDENCY OF THE HEAVY CRIMINAL COURT
...FILE NO.
SUSPECT-ACCUSED :
AGENT :
ACCUSED :
CRIME : Mutual Fraud by Using the Bank as an Intermediary
DATE OF CRIME :
DATE OF ARREST :
SUBJECT : Our objections against the decision of the …Assize Court dated ….. regarding the continuation of the detention of our client suspect A.A.
Decision on Continued Detention
Our Objections Against the Decision
1) Our client A.A. has been under arrest since 21.04.2005 for the crime of fraud by means of a bank and is currently imprisoned in Muğla Closed Prison.
2) According to the content of the indictment issued by the Muğla Chief Public Prosecutor’s Office against our client and his fellow defendants, the referral article requested to be applied to all defendants is Article 64/1 of the Turkish Penal Code No. 765 and articles 504/3-80,522,40 of the same law.
3) Our client, the suspect defendant A.A., in the previous hearings, it was decided to “continue his detention according to the nature and nature of the crime and the current state of evidence” and with the same justification, it was decided to continue the detention on 22.09.2005 and the hearing was scheduled for 27.10.2005.
4) As of the previous hearings, our client has been in favor of the continuation of the suspect’s detention, but in the last hearing, the prosecution has been in favor of “the release of the defendants according to the collection of evidence, the lack of opportunity of the defendants to influence the evidence, the fact that they have a fixed residence, and the time they have spent in detention”.
5) According to the new Criminal Procedure Law No. 5271, which entered into force on June 1, 2005, the periods of indefinite detention have come to an end. According to this law; if an arrest is made for an offense that does not require a heavy penalty, the maximum period of arrest can be 6 months and the 6-month period can be extended for a maximum of 4 months in mandatory cases. The regulation and practice that causes the time spent in detention to be longer than the period of conviction or that will almost replace the execution has been put an end to, and the old practice has been put an end to in accordance with the principle of “Fair Trial”, which is one of the universal rules of Criminal Procedure. As it is known, it is clear that the new law has put an end to the regulations that led to the conviction of Turkey before the European Court of Human Rights as in the past.(Article 102 of the Criminal Procedure Code)
Moreover, with regard to arrest and personal liberty, Article 5 of the European Convention on Human Rights includes the main principle that “everyone has the right to liberty and security of person…no one shall be deprived of his liberty except in specified circumstances and in accordance with the law….”.
Within the framework of the norms of “European Union Law”, according to today’s conditions in which the jurisprudence of the European Court of Human Rights has been adopted and internalized in our domestic law, unfortunately, we have to express the following opinion.
When the crime statistics recently published by the Ministry of Justice are examined, it is seen that although arrest is not necessary, this measure is frequently used, and that 5/3 of the people in prisons throughout the country consist of detainees. (See the tables titled “Convicts and Prisoners in Prison as of June 1” in Annex-1 and “Prison population by months” in Annex-2).
From this perspective, “Arrest, as a measure in criminal proceedings, is a measure that both helps to find the truth and aims to ensure the implementation of judgments. In this respect, arrest has three purposes: The first purpose is to ensure that the accused is available during the trial. This purpose comes to the fore when an arrest is made in cases where there are strong facts indicating that the accused is likely to flee (Art. 100/2). The second objective is to ensure that the criminal proceedings bodies are able to establish the facts of the case and related facts in a sound manner. When the accused is arrested due to suspicion of “tampering with evidence”, this purpose is taken into consideration (Art. 100/2). The third purpose of arrest is to ensure that the sentence is carried out. If the verdict remains on paper, there is no need for a trial. In order to prevent this, when the accused is arrested, the third objective is sought to be achieved.
Norms on detention have to maintain a balance in the face of the dichotomy between the person and the state. Criminal proceedings must also safeguard the interests of the individual while striving to restore order in society that has been disrupted by the commission of a crime. When the individual is sacrificed to the state and society, totalitarian regimes emerge. However, it should be considered that the individual constitutes the purpose of society. In a state of law, the balance between the person and the state must be well balanced.” (Source: Prof. Dr. Erdener Yurtcan, CPC Commentary, 4th Edition, November, 2005, Beta Publications, Sh. 244-245)
In the light of the above explanations, we would like to express that we attach great importance to the following assessment in paragraph 84 of the Tomasi judgment of the European Court of Human Rights dated 27.08.1992.
In this context, the relevant part of the said judgment is as follows “It is primarily the duty of the national judicial authorities to ensure that the detention of the accused in a given case does not exceed a reasonable period. To this end, the national judicial authorities must examine all the circumstances, both pro and con, in which there is a public interest justifying a departure from the rule of respect for personal liberty, with due regard for the presumption of innocence, and must indicate them in their decision on the request for release. In essence, he asks the Court to decide whether there has been a violation of Article 5 § 3 of the Convention on the grounds given in the judgment of the national Courts on the basis of the facts stated by the applicant in his application for release and in his appeal.” (Source: Jurisprudence of the European Court of Human Rights, Vol.1, Assoc. Dr. Osman Doğru, Beta Publications, October 2002, Istanbul)
The judgments of the European Court of Human Rights in W. v. Switzerland, 2.6.1993, paragraph 30, and Labita v. Italy, 06.04.2000, paragraph 151, and Cesky v. Czech Republic, 6.6.2000, reflect the same sentiments.
“… the ECtHR … emphasized that in deciding whether detention in a concrete case exceeded a reasonable period of time, the national judicial authorities, having regard to the presumption of innocence and to the public interest justifying an exception to the principle of respect for personal liberty, must investigate and examine all the circumstances justifying their acceptance or rejection of the request for the release of the person concerned and, in their decision to refuse to release him, must clearly state the grounds for the refusal. “
“ The persistence of reasonable suspicion that a detained person has committed an offense is a sine qua non condition for the validity of continued detention. However, it is no longer sufficient after a certain period of time has elapsed. The Court must therefore ascertain whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty. If these grounds are “relevant” and “sufficient”, the Court must also determine whether the competent national authorities exercised “special care” in the conduct of the proceedings…” (İsmail Malkoç / Mert Yüksektepe, Açıklamalar ve Yorumlarla, Yeni Ceza Muhakemesi Kanunu No. 5271, Malkoç Kitapevi, 2005, Ankara)
6) Based on this thought and opinion, the conditions of arrest, considering the regulatory provisions of the new Code of Criminal Procedure regarding arrest
A) There is a strong indication that the suspect is a perpetrator or a participant,
According to the established decisions of the European Court of Human Rights, which have entered our domestic legal life, although the existence of strong indications is one of the sine qua non conditions for the arrest measure, it cannot constitute a reason for arrest alone. The suspect must also have strong indications of guilt. Abstract suspicion is not sufficient to make an arrest decision, nor does it constitute a presumption for the continuation of detention. In other words, the suspect must create a strong suspicion and conviction in the Judge or the Court that the suspect will be convicted. For this reason, Article 100 of the new Code of Criminal Procedure stipulates that arrest may be ordered for the suspect or defendant if there are facts indicating the existence of a strong suspicion of guilt and a state of arrest.
B) In order for the reasons for arrest listed in Article 100 of the Criminal Procedure Code to exist;
1- There must be a suspicion of flight and hiding.
As can be understood from the title of the new Code of Criminal Procedure 100/2-a, which states “if there are concrete facts that raise the suspicion that the suspect or defendant will flee, hide or escape”, fleeing must include both fleeing abroad and going to a place where he cannot be found and hiding.
In this respect, it will automatically be understood that our client suspect does not fulfill these conditions and it is impossible for him to flee, hide or go abroad.
2- Suspicion of tampering with evidence; (CPC 100 (2) b/1 destruction, concealment or alteration of evidence)
According to the content of this subparagraph; it stipulates that a person with a strong suspicion of guilt can be arrested if there is a possibility of destroying, concealing or altering the evidence.
When all the evidence obtained within the framework of the entire trial process that our case has undergone is evaluated, it is clear that after this stage, since it is understood that the incident has been clarified and the evidence has been secured, it is clear that our client, suspect A. A., cannot be mentioned about the danger of obscuring evidence and manipulating evidence.
Furthermore, in the context of the new Criminal Procedure Law (100/2, b/2 of the Criminal Procedure Code), it is also clear that since the statements of all witnesses, victims and interveners have been fully established by the court, it is also clear that after this process, there can be no mention of any attempt to make any suggestions or pressure on these people.
In addition to this, in deciding on detention or continuation of detention, it is necessary to consider whether the person will attempt to escape, hide, conceal or alter evidence, or put pressure on witnesses or victims. On the other hand, the importance of the offense committed and the decision on detention to be made should be evaluated and balanced with the period of detention in which the person is deprived of his/her liberty.
C) Decisions on the continuation of detention or arrest must be in compliance with the principle of proportionality.
As it is known and appreciated by your Court, there must be a proportion between the means and the end, the method and the target. Considering the importance of the act under investigation or the penalty or security measure that may be applied, if the decision to arrest or to continue detention would cause injustice as a result of the decision to arrest or to continue detention, or if the purpose of the trial can be achieved with other measures instead of detention in the context of the measures adopted by the new Criminal Procedure Code, for example through judicial control, the decision to arrest or to continue detention should not be made. For this reason, Article 100 of the new Criminal Procedure Code stipulates that arrest cannot be ordered “if it is not commensurate with the importance of the case, the punishment or security measure expected to be imposed”.
7) As in the previous interim decisions of the Court, in paragraph 2 of the interim decision dated 22.09.2005, it was decided to continue the detention of our client with the opinion that “…the nature and nature of the crime, according to the current state of evidence …”.
However, Article 141, paragraph 3 of the Constitution states that “…all decisions of all courts shall be reasoned”. According to some opinions in the doctrine, although it is argued that the requirement of reasoned decisions prolongs the trial, Article 34 of the new Criminal Procedure Code stipulates that all decisions of judges and courts, including dissenting votes, must be reasoned.
Reasoned arrest decisions ensure that the decisions are audited by the parties and the public, and when an appeal is filed, the justifications will be a guide to the correctness of the decision and will ensure that the judicial review is healthy.(Kunter/Yenisey, Criminal Procedure Law as a Branch of Procedural Law, Pg. 311) In the justifications of the arrest decisions, the reasons that lead the judge to make that decision should be clearly included, the reason for arrest should be in accordance with reason, law and the content of the file.(Sedat Bakıcı, Criminal Trial from Incident to Final Judgment and General Provisions of the Criminal Code, Pg. 1035) Thanks to the justification, it will be understood whether the decision is based on legal reasons or not, and it will be possible for the parties to obtain information about the reason for arrest and to make a defense and for the objection authority to control the decision. Justification means a rational, non-contradictory and convincing explanation of the decision.(Nur Centel, Arrest and Detention in Criminal Procedure Law, Pg. 74)
In the light of these explanations, the decision regarding the continuation of our client’s detention is far from objectivity, abstract and unjustified.
8) In the same way, the act in question was regulated as felony imprisonment in the law numbered 765, but in the new law, it has been converted to imprisonment, therefore, in the event that our client is sentenced at the lower limit with Article 51 of the law numbered 5237, it has even become possible to postpone the sentence to be imposed within the margin of discretion of the court.
9) As it can be understood from the document in the file, our client has been unable to fulfill its commitments due to its current business and has therefore suffered irreparable damages.
10) In the context of the evidence obtained during the trial process, our client’s defense, which has not been proven otherwise, and other evidence supporting it, we think that the nature and nature of the crime may most likely change.
As we stated in the previous hearing during the trial, the relationship between our client and the participant is primarily a relationship based on a private debt-credit relationship. If it is considered for a moment that this relationship is not a private law relationship but an act that requires punishment, according to the content of the referral article in the indictment, a criminal case has been filed against our client for the crime of qualified fraud, and since the bank, which is accepted as an element of the crime of qualified fraud, is a private bank (Ak bank), we are of the opinion that Article 503, which is one of the favorable provisions of the Turkish Penal Code No. 765, should be applied to our client in case the crime is proven.
As stated in the case law of the 11th Criminal Chamber of the Court of Cassation dated 15.06.2004 and numbered 13656/5301, “…due to the remittances sent through a private bank, which is not considered a public institution, the public bank was not used as a means, and without considering that the action constitutes the crime stipulated in Article 503/1 of the TPC, it is contrary to the law to establish a conviction with Article 504/3 of the same law on the grounds that a remittance was issued through the bank by using the public institution and organization as a means …”.
11) As it is known by your court, to reiterate; the new Criminal Procedure Code stipulates that arrest can be made in the event that the suspect or defendant flees, hides or there are concrete facts that raise the suspicion that he/she will flee, darkens the evidence or attempts are made to put pressure on witnesses, victims or others, again, the person can be arrested only if the crime committed by the suspect or defendant requires a sentence of more than 7 years, likewise, the reasons for arrest are arranged in a list in the third title of Article 100 of the Criminal Procedure Code. According to the list, arrest can be made in serious crimes such as genocide and crimes against humanity, intentional killing, torture, sexual assault, sexual assault, sexual abuse of children, manufacture and trafficking of drugs or stimulants, the crime of establishing an organization for the purpose of committing crimes, crimes against the security of the state, crimes against the constitutional order and the functioning of this order, as well as crimes against the constitutional order. In this respect, taking into account the regulatory provisions regarding the limitation of arrest in Article 100 of the new Code of Criminal Procedure, it should be considered by your Court that trial without arrest has become the rule, and the detention status of our client should be evaluated based on this reality.
Considering our Constitution and the new regulations in domestic law, the main principle of Article 19 of the Constitution states that “everyone has the right to personal liberty and security”. However, exceptionally, paragraph 4 states that “persons with strong indications of guilt may be arrested only with a judge’s decision in order to prevent their escape, destruction or alteration of evidence, or in other cases such as these, which make arrest compulsory and are specified in the law. Arrest without a judge’s decision may only be made in case of an offense or in cases where delay is inconvenient, and the law specifies the conditions for this.” According to our Constitution, the purpose of arrest is to ensure that persons with strong indications of guilt, 1) Their escape, 2) To prevent the destruction or alteration of evidence, 3) Or it is clear that it mentions this obligation in other cases such as these, which make arrest compulsory and are shown in the law.
12) As it is known, Article 109 of the New Criminal Procedure Code under the title of Judicial Control is regulated as follows.
Judicial Control
ARTICLE-109- (1) In the presence of the grounds for arrest set forth in Article 100, in an investigation conducted for an offense punishable with an upper limit of imprisonment of three years or less, it may be decided to place the suspect under judicial control instead of arrest.
In the light of this article, it is necessary to explain: “Arrest alone is a measure which obliges the judge either to deprive the suspect or the accused of his liberty completely or to release him completely. They shall either be confined in a place of confinement or be released completely. The law regulates the institution of judicial control between arrest and release. The institution does not deprive the person concerned of his/her liberty, but subjects him/her to measures enabling observation and supervision, thus reducing the risk of the person escaping and eliminating the harms of total deprivation of liberty. After this provision, detention becomes exceptional. Although the provision does not deprive the suspect of liberty, judicial control will be necessary in cases where the same results can be achieved. Judicial control is the subjection of the suspect to one or more obligations specified in the law instead of his arrest during the investigation phase.” (Source: İsmail Malkoç / Mert Yüksektepe, Explanations and Commentaries, New Criminal Procedure Law No. 5271, Sh. 299, Malkoç Kitabevi, 2005, Ankara)
As can be understood from the relevant article of the Criminal Procedure Code regulating the application of “Judicial Control”, it is clear that if these conditions are present and it is possible to decide on one of these measures, the arrest decision can be lifted and the application of Judicial Control can be decided.
Indeed, according to the last paragraph added to Article 104 of the Code of Criminal Procedure with the Law No. 3842, arrest cannot be decided if arrest would cause injustice considering the importance of the act under investigation or the penalty or security measure that may be applied, or if the purpose can be achieved with another judicial measure instead of arrest. Accordingly, arrest cannot be ordered if it is not proportionate to the importance of the matter, the expected penalty or security measure. As can be seen, the norm is mandatory. Let us state once again and with importance that there is no obligation to arrest in our Criminal Procedure Law. Article 100/1 of the Criminal Procedure Code explains this point by saying “may be arrested”. When there is a real need, the judge should decide to arrest, taking into account the principles governing criminal procedure, especially proportionality. (Prof. Dr. Bahri Öztürk / Assoc. Dr. Mustafa Ruhan Erdem, Applied Criminal Procedure Law, Renewed According to the New Criminal Procedure Code, 9th Edition, Sh. 518-519, Seçkin Publishing House, Ankara, 2006)
The decision of the European Court of Human Rights (Wemhoff v. Germany, dated 27.06.1968), which has become a rule of domestic law, is in the same direction.
In line with these explanations, due to the change in the nature of my client’s action, it has also become possible to decide to place him under judicial control instead of the continuation of his detention. (CPC 109/1.)
In this respect; as it is known and appreciated by your Court, there must be a proportion between the means and the purpose, the method and the goal. Considering the importance of the act under investigation or the penalty or security measure that may be applied, if the decision to arrest or to continue detention would cause injustice as a result of the decision to arrest or to continue detention, or if the purpose of the trial can be achieved with other measures instead of detention, in the context of the measures adopted by the new Criminal Procedure Code, for example through judicial control, the decision to arrest or to continue detention should not be made. For this reason, Article 100 of the new Criminal Procedure Code stipulates that arrest cannot be ordered “if it is not proportionate to the importance of the case, the punishment or security measure expected to be imposed”.
13) “No state treasury can pay the cost of depriving a person of his/her liberty for longer than necessary” as well as the maxim “Scrape the criminal and a human being will come out from underneath” have formed the basic philosophy of the new legal regulations.
The main thing is the freedom of the person. Nothing can compensate for the restriction of a person’s freedom more than necessary. For this reason, the provision of Article 5 of the European Convention on Human Rights on the ‘protection of the human rights of the individual’ is of great importance in the restriction of personal freedom.
“ Personal liberty is a fundamental condition which everyone should enjoy in general. Deprivation of personal liberty is something that can directly and adversely affect the enjoyment of many other rights and freedoms, such as the right to family and private life, freedom of assembly, freedom of association, freedom of expression and freedom of movement. Moreover, any deprivation of liberty would place the person in question in an extremely vulnerable position, putting them at risk of being subjected to …… treatment. Judges must always bear in mind that, for the guarantee of liberty to be meaningful, any deprivation of liberty must be exceptional, objectively justified and not necessarily for longer than necessary.” (ECtHR, judgments)
In the interim decision of the court dated 28.03.2006, the court decided to continue my client’s detention by evaluating the detention status of my client “according to the state of evidence and the date of arrest”.
Pursuant to Articles 101 et seq. of the Code of Criminal Procedure, since arrest decisions and decisions on the continuation of detention are severe measures imposed on a person, the legal and factual reasons for such decisions must be explained and justified.
Likewise, the third paragraph of Article 141 of the Constitution stipulates that “All decisions of all courts shall be reasoned”. Although it is argued that the requirement of reasoned decisions prolongs the proceedings, Article 34 of the Code of Criminal Procedure stipulates that all decisions of judges and courts, including dissenting votes, must be reasoned. The justification must be in accordance with the general logic of the law, without contradiction and convincing.
In this sense; as stated in the decisions of the European Court of Human Rights,
“… According to the case-law of the ECtHR, the reasonable duration of detention is not measured by an abstract assessment. The reasonable duration of an accused person’s detention must be assessed on the individual facts of each case.” (W v. Switzerland judgment of January 26, 1993) The ECtHR first notes that in the event of an arrest, the judicial authorities are responsible for ensuring that the period of detention does not exceed the prescribed reasonable period. On the basis of the reasoning of these judgments and the facts stated by the applicants in their applications, the ECtHR must determine whether there has been a violation of Article 5 § 3 of the ECHR. (Assenov and Others v. Bulgaria judgment of 28 October 1998)
… However, on the facts of the present case file it appears that the Court, when deciding on the applicant’s continued detention, often used the same grounds (in view of the state of the evidence and the nature of the offense charged…) and sometimes did not give reasons for always giving the same grounds. It is a sine qua non condition of the detention rules that there are grounds to suspect that the person arrested has committed a crime. Moreover, this condition also loses its validity after some time. In this case, the ECtHR has to determine whether the other grounds cited by the judicial authorities justify the restriction of liberty… it has to investigate whether the competent authorities exercised ‘particular diligence’ during the proceedings…” (Ilijkov v. Bulgaria judgment of 26 July 2001)
In the light of the above-mentioned case law of the European Court of Human Rights, we believe that the following principle should be at the forefront of the issues to be considered by the judicial bodies. In this respect; “it is within the duties of the judicial bodies to ensure that the period of detention does not exceed a reasonable period of time. Even if the condition of reasonable suspicion required for arrest is present, if a certain period of time has passed, the detention should be terminated. “
In line with the approach of the Criminal Procedure Code No. 5271 regarding detention and the established decisions of the European Court of Human Rights, it can be concluded that Today, within the framework of the libertarian understanding of many countries that emphasizes the individual, pre-trial detention has become the exception, while trial without detention has become the rule.
In this respect; according to the new Criminal Procedure Law No. 5271, which entered into force on June 1, 2005; the unpredictable detention periods have ended, the old practice has ended with the new regulations introduced by the Criminal Procedure Law, and the old practice has ended in accordance with the principle of “Fair Trial”, which is one of the Universal Criminal Procedure rules.
Moreover, with regard to arrest and personal liberty, Article 5 of the European Convention on Human Rights includes the main principle that “everyone has the right to liberty and security of person… no one shall be deprived of his liberty except in specified circumstances and in accordance with the law…”.
14) When the available evidence in the file is evaluated, it is clear that since all the evidence reflected in the file of my client A.A. after this stage has been secured, it is clear that there is no longer any danger of tampering with the evidence or manipulating the evidence.
As we have explained above, as we have stated both in our defenses and in the light of the jurisprudence of the Criminal General Assembly; Likewise, we think that the nature and nature of the crime may change with a great probability in the face of the Court’s granting additional defense, taking into account the possibility that the nature of my client’s action may change.
CONCLUSION AND REQUEST :
Considering the sincere and convincing defense of my client, which has not been proved otherwise, the possibility that the nature of the crime may change, the fact that the evidence has been collected to a great extent, therefore, after this stage of the trial, the possibility of influencing the evidence, obscuring the evidence, directing the trial in another direction has disappeared, and the detention is ultimately a measure, as well as the fact that these conditions have completely disappeared,
My client A.A.
a- Duration of incarceration,
b- Having a fixed residence
c- The possibility of tampering with evidence is eliminated,
d- No possibility of escape,
d- All the evidence has been collected,
e- The fact that detention is a precautionary measure and that these conditions have completely disappeared,
f- By taking into consideration the issues in Articles 100 and following of the Code of Criminal Procedure No. 5271,
Considering the current legal regulations and the regulatory provisions of the new Turkish Penal Code and the new Criminal Procedure Code, as well as the humanitarian provisions and discretionary measures regarding detention; I request that the decision regarding the continuation of the detention of my client, the suspect defendant A.A., in accordance with CMK 267, be lifted and the decision to release him unconditionally or with a bail to be deemed appropriate by your Court.
Sincerely yours …
Counsel for the Accused
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