T.R. SUPREME COURT
- Criminal Chamber
Basis: 2015/11475
Decision: 2016/5775
Decision Date: 04.05.2016
CRIME OF QUALIFIED FRAUD – THE DEFENDANT HAS NOT ACTED TO GENERATE FRAUD – THE UNREASONABLE PAYMENT MADE BY THE INSTITUTION IS REFUNDED BY THE JURISDICTIONS TOGETHER WITH ITS INTEREST – THE CIRCUMSTANCES OF THE COMMITMENT ARE NOT ENTITLED
SUMMARY: If the identity register of the deceased is examined by the participating institution, it can be easily determined that he has lost the condition of receiving a pension due to death, that the payment to the defendants was due to the negligence of the institution, that the defendants did not act to create fraud, and that the unjustified payment made by the institution was repaid by the defendants together with the interest. As it was understood that the elements of the crime charged were not formed, there was no misrepresentation in the acquittal decision.
(5510 S. K. Art. 55, 96)
Case and Decision: The file was examined and the necessary thought was taken,
The defendants’ father, İ…. Despite the death of S… on 13.10.2009, they have committed the crime of qualified fraud by obtaining unfair advantage by withdrawing the old-age pension of 1.296.54 TL, which was deposited into Ziraat Bank account by the participating Social Security Institution, from the ATM on 19.10.2009 and 19.11.2009. in the alleged case;
55/last article of the Social Insurance and General Health Insurance Law No. 5510 and 73 et al. of the Social Insurance Polling Regulation. Articles 6 and 7 of the communiqué; “Attention proceedings are carried out in accordance with the procedures and principles set forth in the second paragraph of this article, in order to identify those who die while receiving income or pension or who have lost the necessary conditions in a timely manner, to stop the payments made on their behalf first, and then to cut the income/salary and to withdraw the undue payments, if any. For those who receive a death income or survivor’s pension, the insured’s; The issues that the widow is not married are determined by the polling procedures to be carried out by the Social Security Institution.
The Institution may make roll call to determine the income or pension recipients and their parents, guardians, trustees and proxies with the methods to be determined when and when it deems necessary, in order to determine the information included in article 6 of the communiqué. Attendance can also be made by income or monthly paying banks and PTT branches. In cases where it is deemed necessary by the Institution to determine whether the income/retirement conditions continue or not, duly issued documents may be requested from the relevant institutions, organizations, unions and chambers and tax offices that register or register in accordance with their own legislation. The Institutional Payments Register and the population registers of the General Directorate of Population and Citizenship Affairs are compared with certain periods, not exceeding 15 days each month, and the income/monthly payments of the insured and beneficiaries who are determined to have lost their right to receive income and pension due to gender change, death or marriage are stopped. .
In Article 96 of Law No. 5510; “All kinds of payments within the scope of this law, which are determined by the institution to be made in excess or inappropriately, to employers, insurance holders, optional insurance holders, those who receive income or pension, and their beneficiaries, general health insurance holders and their dependents; payments made within a maximum period of ten years backwards from the date of detection of the faulty transaction, if they were caused by their willful or faulty behavior, from the dates on which these payments were made; If it is caused by the erroneous transactions of the institution, interest-free for payments to be made within twenty-four months from the date of notification of the total of payments made within a maximum period of five years backwards from the date of detection of the faulty transaction, and for payments to be made after the expiry of the twenty-four-month period, the legal interest to be calculated from the end of this period. If there are any receivables from the institution, these receivables are deducted, and if there are no receivables, they are taken back according to the general provisions. is called.
According to these explanations; If the identity record of the deceased was examined by the participating institution, it can be easily determined that he lost the condition of receiving a pension due to death, that the payment to the defendants was due to the negligence of the institution, that the defendants did not act to create fraud, that the unjustified payment made by the institution was repaid by the defendants together with the interest, Since it was understood that the elements of the crime did not occur, there was no inaccuracy in the acquittal decision.
On 04.05.2016, it was unanimously decided to APPROVE the verdict, with the rejection of the objections of the attorney who participated in the trial, the evidence gathered at the place of decision, the opinion and discretion of the court in accordance with the results of the prosecution, and the scope of the file examined.
