A CONVICTION CANNOT BE ISSUED WITH A PICTURE TAKEN FROM FACEBOOK

T.C.

Supreme

6.Criminal Department

Mainly No:2017/3754

Decision No:2018/1312

20.Date:20.2.2018

COURT : Criminal Department

CRIMES : Looting, depriving a person of his freedom

PROVISION : Refusal of the application for appeal from the merits

The verdict given by the Gaziantep Regional Court of Justice is also appealed on a trial basis; the file was discussed according to the nature of the application, the type of punishment, and the date of the crime;

Defendants …, …, … and … according to the duration of sentences for qualified looting, defendants’ defense requests for a trial review of appeals, Law No. 5271 298 and 299. REFUSAL as required by the clauses,

About the defendants …, …, …, … and …, Adiyaman 1. 27/12/2016 day of the Assize Court, Decision No. ref 2016/420 2016/313 principles and with the victims … and …’for the actions, due to more than one person, by a person with a gun and looting become beyond recognition by putting it together for both victims of the crime of deprivation of liberty given to the provisions of conviction against the accused …, …, …, … and … savunman of CMK and the subsequent appeal in accordance with articles on applying the law of 272; 7 the Regional Justice Court in Gaziantep. The decision No. 15.02.2017 days, 2017/3018 and 2017/318 issued as a result of the review conducted by the Criminal Department on the file, and it was decided to reject the appeal application on the basis of the decision;

The decision was appealed by the defendants …, the defendant … by your defense on 03.03.2017, the defendants … and … by their defense on 09.03.2017;

The defendants’ defense lawyers stated in their petition that “… there is no sufficient, concrete and beyond any doubt evidence for a conviction, and that the acquittal of the defendants should be decided on the basis of the principle that the defendant benefits from doubt, and demanded that the conviction provisions be overturned.

Savunman of the defendants in accordance with the procedure and the Supreme Court chief prosecutor of the court of Appeal’s day and they open their case numbered 29.11.2017 2017/22367, [“file and on the content of the minutes of hearings, together with the favorable discussed in the decision by examining evidence, motive, and according to the discretion of the board of judges, the defendants …, …, … and … and procedures are established in accordance with the law outside provision about the review of the request for appeal on the grounds that absent a violation of law in the decision of denial of the defendants ‘ appeals of Appeals of the CPC savunman 302/1. in accordance with the article, the decision of the Gaziantep Regional Court of Justice on the substantive rejection of the appeal application sent in the annex to the communique containing an opinion on the merits [in the form of APPROVAL of the rejection provision of the appeal court on the merits] and the appeal case filed against this decision october 288 – 289 of the CMK. within the scope of the articles, re’sen was examined;

1-In the examination of appeals against the decision established on the defendant …;

43 of the Turkish Commercial Code without considering that the crime of depriving a person of his freedom is caused by the number of victims. since there is no counter-appeal, the reason for the violation has not been made.

The minutes of hearings on the content of the file and, together with the favorable decision discussed by examining the evidence, motive, and at the discretion of the board of Judges; the defendant are established procedures and regulations about the provision of a denial of the request for appeal on the grounds that the decision of the criticism, except for a violation of the law absent, the defendant appeals of Appeals of the CPC savunman 302/1. upon refusal in accordance with Article 7 of the Gaziantep Regional Court of Justice. 15.02.2017 day, 2017/3018 Decision No. 2017/318 of the Criminal Department on the APPROVAL of the rejection of the provision in violation of the communique,

2-As for the examination of appeals against the verdict established on the defendants …, … and …;

Other appeals were not considered on the spot.

But;

The main purpose of criminal procedure is to achieve material truth. This, in turn, will be in accordance with the principles provided for by the rules of procedure. Therefore, until the decision is finalized, the review

where it is possible to the evidence to be evaluated, in other words, for the full realization of justice; the study of legal documents which could shed light on the event and obtained all the evidence and all evidence, reason, logic, scientific data, physical rules, well-known in the concrete situation, the presumption of everyday life in determining whether the nature of the information obtained is appropriate in this matter and expression that makes one superior to another if you have to end the misconceptions and/or explain the evidence the outcome of the appeal and further legal justification should be written with a controllable merciince.

On the other hand, there are usually no witnesses to looting incidents, so the victim’s statement and diagnosis are important. If the victim’s statement, which is the interlocutor of the one-on-one incident, is consistent and stable, it is in the lead and superior quality. If there is a pause in this regard, it should be considered that there is a suspicion that must be defeated. All means of attribution are evidence. In the abstract, the proofs are equivalent. Therefore, if the evidence has not been sufficiently investigated or the investigation is incomplete, these issues should be resolved. The court must collect evidence that has not been collected during the investigation phase. The judge must reach a conclusion free from doubt by investigating the evidence in favor of and against the defendant and evaluating it freely with full faith. Doubts must be defeated. In other words, there should be no suspicious considerations based on assumption in the judgment. The material fact must be revealed from the evidence representing a whole or part of the event. It is absolutely contrary to the purpose of criminal procedure to make a decision based on a number of assumptions. Doubt and contradiction cannot be decided without defeat. If there is a crime, it is possible to identify the perpetrator only by interpreting the evidence. A criminal conviction should not be based on a possibility, but on a definite and clear proof, and this proof should not give rise to any doubts and any other possibility of occurrence. With a high probability, a punishment cannot be imposed without sufficient collection of evidence. In order to determine whether the act or actions are a crime, it is first necessary to determine whether the act in question has been committed or not. This, in turn, will be answered by the interpretation of the evidence. The judge must show how he interprets which evidence, how he reaches an opinion by interpretation, on the grounds of his decision.

The means by which the judge will reach the material truth are the evidences.

Evidence: Personal statements, witness statements, statements of persons other than the accused and witnesses, special written statements, video and/or audio recording statements and symptoms may be subject to distinction in the form of. All means of attribution are evidence. In the abstract, the proofs are equivalent. At all events, there are both pros and cons of lunatics. Evidence is valuable when it is obtained in accordance with the law, realistic, rational, reflecting the event and useful for proving it.

After the evidence of this nature has been freely considered, it will constitute the conscientious evidence. When forming a conscientious opinion, there is no obligation to give credence to any of the collected evidence.

The defendant’s confession is also an evidence.

Confession is the acceptance of the accused who confirms an incident that has legal consequences against him.

Confession alone cannot be considered conclusive proof. Because it is possible for someone to confess for various reasons. In order for even a confession made before a judge to be binding, it must be confirmed by other side evidence. A conviction can never be decided based on the previous abstract confession of the defendant who has withdrawn his confession.

A confession is valuable when it is made in front of a judge and is not withdrawn and supported by circumstantial evidence. In other words, confession, which is confirmed by evidence, is valuable. Abstract confession alone cannot be enough.

No evidence, including confession, alone binds the judge.

The only and main task of the court of first instance is to reveal the truth. For this and all the evidence against you in favor of the defendant until the case is concluded balls, individually and/or by following a logical path and take the pieces as a whole and evaluate complementary conscience (subject to the provision) is.

No judgment can be made based on the assumption and/or suspicion. If there are statements whose validity is disputed and/or not proven, it can be said that there is a dark spot in the middle. The evidence must necessarily reach a point that conclusively proves that the accused has committed a crime. If it cannot be reached, this should not be interpreted against the defendant. The evaluation will be carried out according to the rule ”in dubia pro reo”, which is the biggest principle of criminal proceedings, the accused benefits from the doubt.

As for the concrete case in the light of these explanations;

Those who complained … and … said, ” on the day of the incident, around 20:00, …. karagöl position on the side of the road after parking the vehicle with plate No. increasingly, across to the chat that began after about five minutes into the back seat, startled by the shot of the rear window of the vehicle they are breaking with a hard object, and in that moment, their faces by the party who opened the doors of the vehicle closed with five male scarves, and a person in the front passenger seat of the driver’s seat, they were two people sitting next to them, shotgun in the hands of one of their residents, the other in the hands of a knife, the person in the driver’s seat, moving from the path of the tool, it was long in the area about 200 yards across a field, and the knife in his hand in the other person’s victim …’s sticking a knife in the stomach, who are trying to get rid of the victim that he had cut off his finger, opened in the struggle of a portion of the face of the same person, and both of them saw him, shouting all the defendants don’t yell at you to get away on the water, we will kill you just saying threatened the victim’s asthma after a while …’S who you had a seizure and he couldn’t breathe suspects, victims …’s wallet iPhone 6 brand mobile phone with your weapon of his own, forcing him to them and got out of the car

they fled, and the victim’s girlfriend … went to Park Hospital in a car belonging to Osman, after the tire malfunction sign was lit on the car indicator, when they looked, they realized that the right rear tire of the car had been blown by the defendants … they filed a complaint by contacting the police officers on duty at the hospital,

The defendants, in their unchanged defense at the stages of …, … and …, declare that they do not accept the breakthrough charge and do not recognize the complainants;

The verdict of conviction established against him, Gaziantep Regional Court of Justice 7. According to the decision of the Criminal Department dated 15.02.2017, 2017/3018 and 2017/318, the other defendant, in his statement received by law enforcement on 19.04.2016, stated that he committed the criminal act together with the defendants …, …, … and … and made detailed statements in parallel with the victims’ statements;

During the interrogation of the aforementioned defendant at the Adiyaman Public Prosecutor’s Office and the Magistrate’s Office on Dec.04/19/2016, in summary; “he suffered from panic attacks and therefore lied, in his statement in law enforcement, he said what he heard from his environment and the press after the incident, he did not know the victims, so there was no animosity between them; in the defense before the court, “he had nothing to do in the event interest and other villagers and friends of the defendants is under duress to accept the statement of the gendarme station that gave the testimony and not by the gendarmerie everything prepared and signed the first is not a lawyer, but then he came and he had any conversation with a lawyer for the statement, the first two coming from the commander, in spite of this, the event does not accept, then, that four, five, and your other friends come, they told me to take the blame commander, He returned from his previous statement by declaring that he had signed in the face of some unsubstantiated records on Facebook showing him that they had committed a crime, even grabbing him by the collar and showing him where the defendant was, stating that he had accepted the charges;

The commander of a gendarmerie outpost dated 18.02.2016 central Adiyaman organized by the staff of “open source research and determination in the report; “the research and study of intelligence as a result of the event has been learned that one of the suspects named person that performs concludes that, “his other friends and unknown other intelligence based on information obtained before, involved in such crimes, looting and harassing people they learnt they also blackmailed to force it has been taking photographs of them. It has been determined that no complaints or applications have been made to our command regarding similar incidents in which the person has been involved before. after being told, it was stated that the pictures shared by … from the public Facebook account page were identified and taken down;

In the “Photo Diagnosis minutes“ held on the same date, it was stated that both victims, whose photos were obtained from an open source, were shown to them, declared that they were the person whose face was opened during the incident, and they identified the defendant without hesitation.

The defendant …’s statement dated 19.04.2016, which was received by law enforcement agencies as a suspect, saying that he signed it under duress “during an interrogation before a judge,”although it can be considered against him as such, the defendants …, and … will be legally binding on the defendants, but it is a crime and cannot be binding on the defendants mentioned.

Therefore, the statement of the accused … dated 19.04.2016 cannot be interpreted against the aforementioned defendants with the acceptance that it is an abstract crime that is not confirmed by side evidence;

Considering that the complainants declare that they have not seen the perpetrators other than the accused and therefore lack the opportunity to identify the accused …, … and …;

The defendants …, … and …’S in a direction they did not commit the crime, the defense is loaded, unlike the victims of the crime he is accused of plunder against the real perpetrators … and …in the direction of their convictions can be based on precise, without uncertainty, without considering that convincing evidence could not be obtained, based on the assumption remote to give a definitive opinion, the missing reasons with the result of the inspection in writing, and not enough conviction in the provision of establishment,

Since the appeals of the defendants and their defense have been considered on the spot as of this date, the Gaziantep Regional Court of Justice 7. 15.02.2017 day, 2017/3018 Decision No. 2017/318 of the Criminal Department on the rejection of the appeal application on the basis of the decision No. 302/2 of the CMK No. 5271, which is contrary to the procedure and law on the rejection of the appeal on the basis of the CMK No. 302. in accordance with the article and its paragraph, it was unanimously decided on 20/02/2018 that it would be CORRUPTED in violation of the communiqué.