Using Someone Else’s Credit Cards With Fake Identities By Using A Bank As An Intermediary
CRIMINAL COURT OF PEACE ON DUTY
………..
PREPARATION NO :
CLAIMANT : K.H.
SUSPECT : 1- K.Y.-
VEKILI :
CRIME : Using Credit Cards of Others with Fake Identities by Using the Bank as an Intermediary
DATE OF CRIME :
DATE OF ARREST :
SUBJECT : Our objections against the decision to arrest my client.
EXPLANATIONS
1)THE DEFENDANT K. Y. WAS BORN ON 16.04.1982, AND SINCE 5-6 YEARS AGO, HE HAS BEEN ENGAGED IN THE BUSINESS OF “BUYING, SELLING, REPAIRING AND ACCESSORIES OF ALL KINDS OF MOBILE PHONES” UNDER THE NAME OF “A. V. İLETİŞİŞİM” UNDER THE NAME OF ‘A. V. İLETİŞİM’, HE WORKED FOR HIS UNCLE AHMET WHO WAS ENGAGED IN THE BUSINESS OF ‘BUYING, SELLING, REPAIRING AND ACCESSORIES OF ALL KINDS OF MOBILE PHONES’, GAINED EXPERIENCE AND DEVELOPED HIS PROFESSION IN THIS DIRECTION AND BROUGHT HIMSELF TO A PROFESSIONAL LEVEL IN THE TELEPHONE TRADE MARKET TO UNDERSTAND THIS BUSINESS.
2)THE CLIENT HAS SOLD PHONES, BOUGHT SECOND-HAND PHONES, GUIDED CUSTOMERS, AND IN THIS SENSE, HE HAS CREATED A RELIABLE IDENTITY IN HIS SECTOR DUE TO HIS EXPERTISE IN THE SECTOR HE WORKS IN.
3)WITH THIS IN MIND, THE DEFENDANT HAS ONLY ACTED AS AN INTERMEDIARY IN GOOD FAITH UPON THE REQUEST OF THE SUSPECT Ö. S., WHO HAD PREVIOUSLY BOUGHT A PHONE FROM HIM, TO BUY A PHONE WITH HIS CREDIT CARD AND TO HELP HIM WITH THE TYPE AND QUALITY OF THE PHONES HE WOULD BUY. HE DID NOT HAVE ANY SUGGESTION OR DIRECTION REGARDING THE ACTIONS AND BEHAVIORS OF THE OTHER DEFENDANTS, NOR DID HE PROVIDE ANY BENEFIT.4)The documents in the file
a)In the upper letters dated 07.08.2005 summarizing the result of the investigation of the Directorate of Smuggling and Organized Crimes; no comments and evaluations were made about whether my client committed and participated in the crimes in question.
b) In the “body search report” dated 05.08.2005, no material evidence such as any document, criminal tool, document used in the crime was found on him, on the contrary, 20.00YTL, which can be considered far below the amount that a person would spend in daily life, was found on him.
c) Likewise, as can be understood from the content of the “house search report” made at my client’s house on 06.08.2005, no criminal elements were found.
d)In addition, immediately after the incident, according to the “seizure report” dated 05.08.2005 kept by the police officers, it was recorded that “nothing was found” on my client K.Y.’s person.
e)Again, in the “arrest report” dated 05.08.2005 kept by the security officers following the incident, in relation to the result of the search, it was stated that “no evidence of any crime was found on the person named K.Y. residing in Yeşilyurt, and it was found with him during the shopping made by the person”.
5) In the case under investigation, all the complainants who were heard say that the purchases were made by the other defendants. In all the purchases, my client did not act in a deceptive manner by creating deception and trickery, nor did he have any movement or behavior that directed or persuaded the complainants. He acted in a traditional way out of a sense of benevolence, in the form of creating an appreciation and making a suggestion in phone purchases upon M.T.’s request for help. As a result; he was contented with helping the other defendants in their phone purchases and making suggestions.
6) As my client has no knowledge about how the identities that the other defendants issued false identities and made them intermediaries in shopping with credit cards were issued and by whom they were issued, there is no material and definite evidence that is sufficient, beyond doubt, material and conclusive evidence that he participated in these actions.
7) As it is known; the crime of fraud is a crime that can be committed intentionally, therefore the perpetrator must act with the consciousness of providing an unfair benefit to himself or someone else, in other words, the perpetrator must know and want the result stipulated in the law.
As explained in an old decision of the Court of Cassation; “…it is necessary to have a special intention to provide unfair advantage and the perpetrator of the offense must make tricks and sanias with this intention.” (Criminal General Assembly dated 04.11.1980, esas 1980/242, decision 1980/343, Y.K. No. : March 3, 1981, page 353)
Another section of the same jurisprudence states that “…the defendant must deceive the complainants with the tricks and schemes prepared by the defendant in advance and obtain unfair benefits for himself or someone else.”
Based on this opinion of the Court of Cassation, in the context of the legal interpretation of Articles 503-504 of the old Turkish Penal Code No. 765 and Article 158 of the new Turkish Penal Code No. 5237, which regulates “qualified fraud” crimes, in order for this crime to occur for my client;
a) “The perpetrator must use trickery and deception. Some actions must be taken to neutralize the victim’s tendency to examine. For example, the perpetrator must conceal the material findings, eliminate the existing findings or prevent the emergence of these findings and hide them.
b) The fraud and deception must be capable of deceiving a person. Whether the fraud and deception is deceptive or not should be evaluated factually, the characteristics of the event, the status of the perpetrator, his/her relationship with the victim, the form of the fraud used, the documents concealed or altered and the qualities of the documents shown as real should be taken into consideration separately.
c) An unfair benefit must be provided in favor of himself or someone else to the detriment of the victim or someone else. The perpetrator must knowingly and willfully commit fraud and deception in order to benefit himself or someone else, and there must be a proper causal link between the damage caused and the defendant’s action.”(Criminal General Assembly of the Court of Cassation, Main 2001/6 -106, Decision 2001/111, Date 29.05.2001)
In the light of these statements of our Court of Cassation; when my client’s action is evaluated, it is understood that my client does not have an intention, a will to commit the crimes in question, an action that can be associated with the events that led to his arrest.
8) Even if my client’s action is found to be fixed at the end of the trial process, provided that he does not accept the crime, it is possible to reduce half (1/2) of the sentence to be imposed, since his action may fall under Article 39 of the New Turkish Penal Code regulated under the “aiding” title of the law numbered 5237.
In this respect; due to the fact that the qualified fraud crime is foreseen as “from 2 years to 7 years” as a sanction for all subparagraphs in Article 158 of the new Turkish Penal Code, the duration of the sentence that my client will receive in the event of the application of the reduction in question emerges automatically. We believe that even this period can be “postponed” within the discretionary powers of the courts in the context of Article 51 of the new TPC, due to the fact that my client has no criminal record.
9) Considering the regulatory provisions of Article 100 of the new Criminal Procedure Code regarding the limitation of arrest, trial without arrest has now become the rule.
10) When considered from a modern Criminal Law and humanist perspective, the new Turkish Criminal Code is oriented towards the acceptance of the existence of sanctions directed towards the rehabilitation of the offender as well as the protection of the society in which we live, and in addition to the classical and traditional “concept of punishment”, which is gradually accepted by the world humanity, the view of “the application of measures appropriate to the personality of the offender” has also been included in the new law.
As a result
a- Duration of imprisonment,
b- Having a fixed residence
c- No possibility of tampering with evidence,
d- No possibility of escape,
e- All the evidence has been collected,
f- The fact that detention is a precautionary measure and that these conditions have completely disappeared,
g- By taking into consideration the issues in Articles 100 et seq. of the Code of Criminal Procedure,
Considering the current legal regulations and the regulatory provisions of the new Turkish Penal Code and the new Criminal Procedure Code and the discretionary provisions brought by the new Criminal Procedure Code, I request that my client be released with a bail to be deemed appropriate by your Court or unconditionally.
Sincerely yours…
Suspected arrested defendantDeputy
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