T.R. SUPREME COURT
- Criminal Chamber
Basis: 2016/6617
Decision: 2016/8693
Decision Date: 30.06.2016
CRIME OF USE OF DEBIT OR CREDIT CARDS – LEGAL SITUATION IS RESEARCHED BY EVALUATION OF ALL EVIDENCE BY SHOWING CD IMAGES TO THE DEFENDANT AND ASKING IF THE PERSON IN THE IMAGES IS HIM.
SUMMARY: By bringing the bank card of the complainant with the account statement of the crime date, the ATM camera footage of the time period related to the determination of which ATM the money withdrawal was made on the date of the crime from the relevant bank, when possible, confrontation between the accused and the complainant … and the witness …, if the defendant is not present, the identification process is carried out by showing the photographs of the accused that are suitable for identification to the complainant and the witness; By showing the CD images to the accused and asking whether the person in the images is himself, all the evidence should be collected and evaluated together, and the legal status of the accused should be determined and evaluated according to the result.
(5237 S. K. art. 53, 58, 245) (5271 S. K. art. 226) (ANY. MAH. 08.10.2015 T. 2014/140 E. 2015/85 K.)
Case and Decision: It has been discussed and considered as necessary:
1- By bringing the account statement of the complainant’s bank card of the crime date, and requesting the ATM camera footage of the time period related to the determination of which ATM the money withdrawal was made on the date of the crime, from the relevant bank, confronting the accused and the complainant … and the witness … when possible, if the defendant is not present, the identification process is carried out by showing the photographs of the accused that are suitable for identification to the complainant and the witness; By showing the CD images to the accused and asking whether the person in the images is himself, all the evidences are collected and evaluated together, while the legal status of the accused should be determined and appreciated according to the result, while incomplete research is required in writing. establishing provisions,
2- According to the acceptance and application;
a) Article 245/1 of the TCK. Failure to observe that a judicial fine should also be imposed in addition to the basic prison sentence in accordance with the article and paragraph,
b) Restricting the right of defense by deciding to apply the execution regime specific to recidivists, according to Article 58 of the TCK numbered 5237, which is not shown in the indictment and the decision of non-jurisdiction, without being given the right of additional defense pursuant to Article 226 of the Criminal Code, for the accused whose statement was taken during the arrest and whose criminal record was not read,
c) Pursuant to 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, there is an obligation to make a re-evaluation in Article 53 of the TCK,
Conclusion: It is against the law, since the defendant’s appeals were 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 the rights acquired in terms of the amount of penalty in accordance with Articles 321 and 326 of the CMUK numbered 1412, which should be applied in accordance with the article, be TERMINATED.
