Petition For The Defense Of Theft Through The Use Of Information Systems
JUDGE OF THE COURT OF FIRST INSTANCE
..............FILE NO:
DAY OF HEARING :
DEFENDANT :
ATTORNEY :
CRIME : Theft through the Use of Information Systems
SUBJECT : Our defenses on the merits.
Allegation- In the public case filed against my client ........... to the Criminal Court of First Instance .........; A public case has been filed with the request that my client be punished in accordance with Article 142/2-e, 53 of the Turkish Criminal Code No. 5237 for the offense of Theft Through the Use of Information Systems.Defendant …………. In summary in his defenses; He stated that he barely knows how to use the computer, that he does not know the other defendant …………, that a woman with this name does not work for him, that he does not accept the crime attributed to him, that there is no question of his involvement in such an incident, that he knows very little about using the internet, that he does not have enough computer knowledge to commit the crime attributed to him.
In the context of my client’s defense and material evidence in the file, which has not been proven otherwise, the evaluation of the evidence in terms of my client ……….;
As it is known by your court; In terms of the Criminal Procedure Law and the Law of Evidence, the evidence collected in the preparatory investigation is not considered as ready evidence, but the doubt must be eliminated.
In this respect; Evidence is any means of proof that helps to clarify a crime that has occurred and to identify the accused of the crime. The information obtained as a result of the investigations carried out in the preliminary investigation and included in the file is not “ready” evidence, but is a reason for doubt in terms of the trial. Delil is a term that is valid for the court in the final investigation.” (Organized Crimes Combat Secret and Covert Approaches, Aytekin Geleri/ Hakan İleri, Sh: 223, Seçkin Publishing House, Ankara, 2003)
Again, as it will be known by your court; since the conscientious / free proof system is valid, not the legal system, and when the material truth is investigated, even if the defendant confesses, even if the defendant confesses, all evidence, including the confession, must be put forward and discussed within the framework of the provisions of the provisions of the Criminal Procedure Code showing the procedure for the will and submission of evidence, and for a full conscientious opinion, eyewitnesses must be heard at the hearing and all evidence must be evaluated by the court in this way (This indispensable rule of the Criminal Procedure Law is also supported by the case law of the 1st Chamber of the Court of Cassation. Criminal Chamber of the Court of Cassation dated 29.02.1973, E. 1972/948, K. 1973/581).
In this respect; each evidence should not be considered individually in terms of the fact it represents and subjected to the test of the strength of proof, but should be evaluated together with other evidence and the facts they represent, and a conscientious opinion should be reached as a whole in terms of proof, that is, a conclusion should be drawn from all of the evidence. In many jurisprudence of the Court of Cassation, the established jurisprudence of the Court of Cassation, which states that the conclusion should be reached “if the evidence is evaluated as a whole”, is in this direction.
To reiterate; the main principle accepted by the Universal Criminal Procedure Law and our New Criminal Procedure Law is that if it is not concluded beyond a shadow of a doubt that the person committed or did not commit the act at the end of the trial process or during the trial, a conviction decision should not be given.
Furthermore, according to the Court of Cassation, “the aim of criminal proceedings is to uncover the material truth without any doubt. In this research, i.e. in reaching the truth, the path of logic must be followed. The truth must be revealed from evidence that is rational and realistic, that represents the whole or a part of the event, or from the evaluation of the evidence as a whole. Otherwise, reaching a conclusion based on some assumptions is absolutely contrary to the purpose of criminal proceedings. In criminal proceedings, where there is doubt, there can be no conviction. This principle is universal.” (Grabenwarter. Christoph, & 24. Guarantees of Due Process Right to a Fair Trial (Art. 6 ECHR)) Trans. Osman Can) Comparative Current Criminal Law Series – Fair Trial and Criminal Law, Ankara 2004 sh. 242)
The Supreme Court of Cassation has emphasized the above thoughts in many of its decisions and stated that “In cases where the guilt of the accused remains doubtful and there is no definite and convincing evidence sufficient for his conviction, a conviction cannot be decided.” (1st CD. 27.3.2003 dated E. 2003/207, K. 2003/423)
Based on these explanations, in conclusion; it should be accepted that there is no evidence to prove the incident and the claim should be considered doubtful. In this case, a verdict of conviction cannot be rendered, a verdict of acquittal must be rendered. (2.CD. 15.9.2003 dated E.2001/37508, K.2003/9299)
In the light of these explanations;
In the context of the referral article opened within the scope of the TPC that is requested to be applied against our client ……….., as well as the additional defense given to my client between the hearing; Within the framework of our legal evaluations regarding the act regulated under the title of “Blocking, disrupting the system, destroying or changing the data” in accordance with Article 244/1-4 of the TPC, which is requested to be applied against my client if his crime is fixed; We submit the following opinions and thoughts to your Court.
As it is known by your Court;
In order for the elements of paragraph 1 of the Article to be formed; first of all, the elements of preventing the functioning of the system and disrupting the functioning must be present. Considering that the perpetrator who committed the act in both acts can be committed with both intentions, even if the direct intent of the perpetrator who committed the acts in question cannot be determined, it seems inevitable that he foresaw that the operation of the system would be disrupted and disrupted as a result of the physical attack. In this respect; it will be necessary to hold the perpetrator responsible with direct intent, and if the disruption or disruption does not seem inevitable and absolute, it will be necessary to hold him responsible with probable intent. (İsmail Malkoç Açıklamalı Yeni TCK Özel Hükümler, Sh.1580-1581, 2nd vol. 2006)
Likewise;
As for paragraph 4 of the Article, we see that it is limited by the phrase “if it does not constitute any other offense. “Naturally, it is known that fraud crimes that can be committed directly against real and willful people, or theft crimes involving movable property, cannot be committed by system-related actions. However, it is possible to achieve goods and interests through the diversion of the data and services of the systems. Providing unfair advantage means the material and moral benefits provided to the person of the perpetrator or to another person by the acts in the previous paragraphs.” (İsmail Malkoç Açıklamalı Yeni TCK Özel Hükümler, Sh.1585, 2nd vol. 2006)
As for the alleged act allegedly committed by my client and for which his additional defense was received; As my client has stated in his defenses, which have not been proven otherwise, apart from the banality of the use of the internet, the transfer of money to another third party’s account by accessing other people’s websites (e-mail address, internet network, number) via the internet requires a technical knowledge and experience in use. My client is certainly not a person with this technical equipment. As explained in the first paragraph of the article, although it is foreseen that the alleged offense must first be committed with direct intent according to the definition of the law, and if this cannot be determined, the person will be held responsible with probable intent, it is not possible for my client to commit the act in question with probable intent, let alone with direct intent. First of all, he is not a person who has this equipment.
According to the fourth paragraph, “material or moral benefit provided to the perpetrator’s person or to another person by the acts in the previous paragraphs” must be in question. In order for the allegation that the client ………, who lives in Karadeniz Ereğli, entered the account of ………. Bank and transferred money to the account of the other suspect ……. three times to be accepted first of all; first of all, the client must know the complainant or the other suspect and there must be a partnership of interest between him and the other suspect. In the action in question, the client did not gain any personal or moral benefit for himself. In addition, the other suspect does not know the defendant ………. He has no interest in providing benefit to …………, nor is he remotely close to …………. For this reason, it is automatically understood that the allegation that he benefited himself by using someone else’s account is contrary to the ordinary course of life within the framework of this explanation.
Moreover, it is clearly understood that the other suspect defendant ……….. does not have any connection that can be associated with my client in a personal sense, and that ……….’s preparatory and Court statements contradict each other.
As it is well known by your Court, various incidents in both television channels and media news about the computer belonging to the person by others (by remote access method) by obtaining the existing records of the person by dominating the person’s computer and making remote transactions are constantly on the agenda.
In addition to this; it is seen that banks, as an institution of trust, have a responsibility according to the principles of objective responsibility in order to prevent such actions, and in this respect, as emphasized in the recently published jurisprudence of the Court of Cassation, our Court of Cassation emphasizes these issues with its various jurisprudence. Within the framework of this explanation, we present the case law published below for your Court’s appreciation and evaluation.
“Banks operating as a trust institution are liable even for slight defects arising from the failure to fulfill the objective duty of care. Therefore, considering that the bank is liable even for the slight fault of the bank that does not take additional security measures to prevent the transfer of the money in the bank customer’s account to another account through hacking without the customer’s knowledge; it should be concluded that the bank must pay the customer’s damages. It should also be noted that in this case, where the bank is liable for slight negligence, the customer’s mutual fault cannot be mentioned” (11th Civil Chamber’s decision dated 22.06.2006 and numbered 2005/4748 esas 2006/7341)
We also submit for your appreciation and consideration the case law of the 11th Civil Chamber of the Court of Cassation dated 22.06.2006 with the decision number 2005/4748 Esas 2006/7341, which sets a precedent for our case.
“, A Simple Example of a Trojan Horse”, “Safe Internet Usage”, “Virus that covets bank accounts”, “Fraud Tactics”, “Virtual Espionage Industry is Growing”, “Internet fraud has come of age”, “Interactive Fraud”, we also submit these documents to your Court’s appreciation as we find them to support our explanations above.
Within the legal framework provided by the Code of Criminal Procedure in the context of the collection of material evidence and evidence; as the attorney of our client, we have made an application to the Chamber of Electrical Engineers of the Union of Chambers of Turkish Engineers and Architects (TMMOB), which is in the most competent position in this regard, on 24.09.2009, in order to find out whether the alleged act can be committed by entering the records by others via the internet (by remote access method), and we have made an application to the Chamber of Electrical Engineers of the Union of Chambers of Turkish Engineers and Architects on 24.09.2009, and we have made an application to Assoc. Prof. Dr. ……….., who is a competent Electrical and Electronics Engineer Assist. As stated in the conclusion part of the 6th page of the examination made by the expert in his letter dated 28.10.2009 in relation to the examination made by the expert; “the relevant incident is a crime in an organized structure, although the available precise information shows that it was made from the line connected to the internet account of the defendant …………, in the event that there is no relationship between the defendants to do this work, we have formed an opinion and opinion that the incident was organized by more conscious people.” We are of the opinion that your Court will also evaluate his opinion and opinion.
It is seen that the case law of the relevant criminal chamber of the Court of Cassation, which we present below for your Court’s appreciation, fully and completely supports the comments and opinions of the expert explained above.
“A total of 329 connections were made to the internet line belonging to the complainant between 18.06.2000 and 05.12.2000 by outsiders, only 48 of them were made from the home phone registered in the name of the defendants’ father ………… between 18.06.2000 and 30.09.2000, and the defendants………. was abroad between 29.07.2000 and 16.12.2000, the defendant ………… was in the military between December 1999 and April 2001 and came to his father’s house on weekends every 3 weeks or once a week, it was understood that on the days when both defendants were not at home, the connection was made to the internet line of the complainant with the phone registered to their father and in the report dated 12. 03.03.2003 dated report, it was stated that “it is possible to show the connected phone as a different number”; without considering that there is no legally favorable, sufficient, conclusive and convincing evidence that the defendants committed the charged crime, it is contrary to the procedure and the law to decide for their conviction as written” (6th CD. 16.03.2006 dated 5464 E- 2574 K.)
Undoubtedly, in the context of forming the opinion of the Courts, we think that the moral rejection of the person will also constitute an important factor in the context of whether the person committed the act in question, whether it supports the conscientious opinion or not, his past, personality and social life.
In this context, as we have presented in the annex of our petition, my client is a well-liked and respected person in his environment, has a taxpayer record, and as can be seen from the title deed records presented in the annex in terms of his material and social life; he owns a large number of real estates, in this respect, it is unthinkable for him to deign and respect the alleged amount, which has no value in his material life, considering his age, life experience, personality in social and social life, and we think that it is contrary to the ordinary flow of life.
Based on the universal criminal law rule of “interpretation of doubt in favor of the accused”, we believe and think that the existence of “doubt” will also be evaluated by your Court.
As is known, the purpose of criminal justice is to investigate the material reality. In this respect; considering the material evidence obtained during the trial process, the defenses of our client, which have not contradicted each other since the beginning of the incident and have not been proven otherwise; we think that my client should be acquitted since there is no material, definite, consistent, consistent, non-contradictory evidence that would form a conscience opinion about my client.
As it is well known by your Honorable Court, even if it is mentioned that there is a suspicion for a moment; when the perpetrator is reached based on material evidence, all evidence must be conclusive and convincing enough to form a conscience. In addition, if the intent of the perpetrator cannot be established beyond any doubt, the universal rule of ‘the accused benefits from the doubt’ must be applied.
To reiterate on the issue of doubt, it is necessary to emphasize the following point;
One of the basic principles of the Criminal Procedure Law is the principle of the benefit of the doubt. According to this principle, which is accepted in every state of law and is closely related to the presumption of innocence, an acquittal decision will be given if it is not 100% certain that the act was committed by the accused at the end of the criminal proceedings. “If only one innocent person is punished in a country, everyone in that country is guilty” is a quote by the famous Criminal Lawyer Faruk Erem. The principle underlying this statement is the “presumption of innocence”.
The reason for the acceptance of such a principle is that the impunity of a guilty person is preferable to the conviction of an innocent person; in other words, the presumption of innocence.
As a result; considering my client’s non-contradictory and non-contradictory defenses since the beginning of the incident, we think that my client should be acquitted since there is no material, definite, consistent, non-contradictory evidence that would form a conscience opinion about my client.
In addition to this; if your Court is of the opposite opinion; we wish that the legal regulation regarding the Postponement of the Announcement of the Verdict regulated in Article 231 of the Code of Criminal Procedure be evaluated in favor of my client, with the idea that my client’s past status and current registry records submitted to the file will allow the issue we will request.
In this context;
As it is known by your court, pursuant to the provisions of Law No. 5728 adopted on 23.01.2008 (OGT, 08.02.2008- 26781), which was adopted on 23.01.2008, “postponement of the announcement of the verdict unless a sentence of more than 2 years is requested for those who are tried for such crimes” has been accepted and in the provisional article 1, paragraph 2 of the same law; “For the convictions finalized and executed before the effective date of this law, the provisions of the favorable law shall be determined by the Court that issued the verdict by taking into account Articles 98 to 101 of the Law on the Execution of Criminal and Security Measures dated 13.12.2004 and numbered 5275 and by examining the file. However, if the subject matter of the judgment requires any examination, research, discussion of evidence and the use of the right of discretion, the examination can be made by opening a hearing.” In the face of the clear provision; we wish that the sentence imposed on my client be decided to “postpone the announcement of the verdict”.
Also; Again, as it is known by your Court;
When considered from a modern Criminal Law and humanist perspective; the new Turkish Criminal Code has tended towards the acceptance of the existence of sanctions directed towards the rehabilitation of the offender as well as the protection of the society we live in, and in addition to the “concept of punishment”, which is traditionally and traditionally accepted by the world humanity, the new law has also included the view of “the application of measures appropriate to the personality of the offender”.
In this context, the case law of the 1st Criminal Chamber of the Court of Cassation No. 2005/1589- 609 of 2006 is instructive. “…In the context of the application of the favorable provisions of the Turkish Penal Code, there is no doubt that the ‘favorable law’ is the law that requires less restriction of the liberty of the person. While the judge determines the favorable law by applying the general principles of criminal law to the concrete case and by looking at the penalties stipulated in the laws, in cases where it is not sufficient to take into account the penalties alone, it may be necessary to apply auxiliary measures, for example, the elements of the crime, the conditions of postponement, the provisions of cumulation and repetition.”
In this respect, it is the expectation of the new criminal law that the sentence to be imposed on my client should be individualized in terms of humanitarian criminal law, taking into account my client’s background, his criminal record, his defense, which has not been proven otherwise, and his respectful care and attitude towards the hearings. As stated in the general justification of the law “…There are 6 articles on security measures and it is shown in which cases the judge will rule on these measures and in which cases the sentences will be converted into security measures. In addition, instead of short-term binding sentences of imprisonment, ’employment in a job beneficial to the public’ has been added among the measures to be imposed, thus increasing the possibilities for individualization of sentences.”, it is clear that it introduces a brand new regulation and different provisions on postponement issues. In light of this, we believe that the sanction against the client should be individualized.
In this respect, the postponement, which is an institution of “individualization of punishments” (individualization), aims to eliminate the drawbacks of short-term binding sentences, and it is foreseen to adapt the punishments not to the act, but to the perpetrator who committed it, by putting the criminal in the first place instead of the crime. Moreover, it is necessary to distinguish between those who have made the crime a habit (ihtiyat) and those who commit crimes coincidentally. (Ali Parlar / Muzaffer Hatipoğlu, Justified, Explained, Jurisprudential Crimes According to the Turkish Criminal Code Law No. 5237, page 359, Kazancı Publications – Istanbul 2005)
CONCLUSION AND REQUEST;
For the reasons explained, I request that my client ………… be decided to be BERAATİNE since it is not fixed that he committed the crime attributed to him, and if your court is of the opposite opinion, considering my client’s respectful attitude and behavior in the hearings, the application of all discretionary and legal discount provisions with Article 62 of the TPC and the decision to defer the announcement of the sentence to be imposed in accordance with Article 51 of the TPC within the framework of your court’s discretion and evaluation or Article 231 of the Criminal Procedure Code, considering that the conditions exist.
Defendant’s Attorney
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