07 Apr SUPREME COURT DECISION ON DIGITURK SUBSCRIPTION WITH FAKE ID
General Assembly of the SUPREME COURT of Criminal
Base 2017/212
Decision 2019/20
Who Made The Decision
Office of the Supreme Court : 11. Criminal Department
The Court :Criminal
Number : 476-821
207/1, 43/1, 62, 53 and 58 of the TCC of the accused … for forgery in a private document. 3. Eskişehir regarding the punishment of 2 years and 1 month imprisonment in accordance with the articles, deprivation of rights and punishment according to the execution regime specific to the repeaters. The Court of Cassation, which examined the file on the appeal of the judgment No. 68-128 of 21.02.2013 issued by the Criminal Court of First Instance by the defendant, 11. By the Criminal Department dated 08.04.2015 and numbered 9255-25152;
“…104 and 105 of Law No. 6518, which entered into force on the same day after the provision was published in the Official Gazette No. 28918 dated 02.19.2014 and entered into force on the same day. 63 of the Electronic Communication Law No. 5809, amended by its articles. Article 10. 56, which is linked to the sanction by paragraph. article 4. in paragraph ‘Subscription facility operation or registration of devices with electronic identification information may not be performed and made by the operator or his representative doing business on behalf of the person without the person’s knowledge and consent, for this purpose untrue documents may not be edited, changes to the documents may not be made and they may not be used’ and 5. in accordance with the provision in paragraph ‘Subscriptions established without the information and consent of the person by editing or modifying untrue documents may not be used’; 56 of the Electronic Communication Law No. 5809, which is a special provision. the regulation in the article was also observed and, according to the result, it was decided by a majority of votes that the defendant’s legal status should be determined by the necessity of ”failure to be impaired,
Member of the Circle M.R. The Ripper;
“The defendant … used the fake ID card of the (non-seized) victim21.02.2013 day and 68.2012 of the Criminal Court of First Instance, 2013/128 Kr. his decision is in accordance with the procedure and the law.
Electronic Communications Act No. 5809, because the purpose of the ‘through the establishment of effective competition in the electronic communications sector supervision and regulation, consumer rights, expansion of services throughout the country, effective and efficient use of resources, communication infrastructure, network and service in the field of technological development and the encouragement of new investments, and is belirlenmesi of principles and procedures related to them.
The scope of the law ‘electronic communications services and electronic communications infrastructure and networks with the establishment and operation of the execution of any electronic communication devices and systems manufacture, importation, sale, installation and operation, frequency, including the planning and allocation of scarce resources on this matter with the regulation, authorization, auditing and settlement activities in the execution.
Therefore, Law No. 5809 regulates the activities of natural and legal persons providing electronic communication services. 56/4 in the article of the same law ‘without the knowledge and consent of the person or operator of a facility or operation, or by the representative on behalf of the subscription of doing business with the devices electronic identification information can be processed and can not be built for this purpose, false documents edited, altered, may not be in the papers and they are unavailable-shaped obligations that provide natural and legal persons responsible for electronic communications services, managers and employees is connecting.
In this context, natural persons receiving services within the scope of the Electronic Communication Law should be punished for forgery if they use and edit fake documents while receiving this service (according to the nature of the document used or edited).
For this reason, he voted against the opinion that the decision of the local court in accordance with the procedure and the law should be upheld”.
The Local Court, on the other hand, decided on the conviction of the accused as before by resisting the overturning by the number 476-821 dated 01.10.2015 and by the previous judgment.
Upon appeal of this provision by the defendant, the Public Prosecutor’s Office of the Supreme Court issued a notification dated 04.11.2015 and numbered 344203 on the willingness to “disrupt” and the Supreme Court issued a 11. The file received by the First President of the Supreme Court with the decision of the Criminal Chamber dated 19.11.2015 and numbered 8899-31047 was submitted by the Criminal General Assembly dated 07.12.2016 and numbered 1173-1011; Law No. 6763 No. 38. article 10 of the provisional Law added to the Law No. 5320. the Court of Cassation, whose decision was resisted in accordance with the article, was sent to the apartment and conducted an examination in accordance with the same article 11. The file returned to the First President of the Supreme Court by the Criminal Department dated 28.02.2017 and numbered 133-1415, after the decision to resist was not considered in place, was evaluated by the Criminal General Assembly and decided on the grounds described.
ON BEHALF OF THE TURKISH NATION
THE DECISION OF THE CRIMINAL GENERAL ASSEMBLY
Formed between the private Apartments and the majority of the Local Court and disputes that need to be resolved by the General Assembly of punishment; the defendant of the crime of falsifying a private document’s action, or the Law No. 5809, creating the crime is related to the determination of the opposition.
From the scope of the examined file;
On 15.10.2009 on behalf of the victim on 0539 547 using the identity card of the accused …, which has his own photo on it, but has the identity information of the victim…. due to the actions of removing the numbered GSM line and installing a Digitürk subscription with the same ID card on 05.12.2009, an investigation was started against the defendant on the complaint of the victim …,
In summary, in the expert report dated 08.08.2012, organized by the Ankara Criminal Police Laboratory Department, dated 15.10.2009, 0539 547…. the ”…” letters on the subscription agreement for the numbered GSM line, the ”15.10.2009″ numbers at the top of the signature on the name name, and,
Expert examination has not been made on Digiturk subscription agreement from the documents subject to the crime brought into the file,
The defendant, the crime, the subject line is obtained while in the facility and when removing Digiturk subscription GSM, fake birth certificate fake driver’s license in another incident in conjunction with the defendant for the crime of falsifying official documents about using public car hire is due, in the case 12.02.2010 in the history of crime, the indictment is a result of the defendant as of the date of the judgment that 17.02.2010 about 2 years and 6 months imprisonment in relation to the provision during appellate review, the court of Appeals 11. Approved by the Criminal Court and finalized on 26.11.2014,
It is understood.
The victim stated that they lived in the same neighborhood as the defendant at the stages, dropped the photocopy of the ID card a few years ago, probably the defendant who received this photocopy of the document had a fake ID card using this information and created a subscription record in Digiturk and Turkcell Companies on his behalf without his knowledge and consent with this fake ID card.
In his statement dated 15.12.2011, the defendant stated that he had issued a fake ID card on behalf of the victim and had established a Digiturk subscription using this document,
in the prosecution statement dated 08.05.2012; the victim’s friend from the neighborhood gave him a photocopy of the ID card, this photocopy of the ID card contains the victim’s identification information fake ID card, but with this document the victim does not remember that he received a GSM line on behalf of, did not accept the breakthrough charge, was also tried and punished for the fake ID card,
In court, it is stated that he/she has made the subscription registration process for Turkcell GSM line and Digiturk subscription on behalf of the victim, and that the victim is aware of both subscription records,
Has defended.
In order to reach a healthy legal solution to the dispute, it is necessary to focus on forgery and crimes of opposition to Law No. 5809 in a special document.
207, which bears the title of “Forgery in a Private Document” of the TCK. the substance;
“A person who falsifies a private document or modifies and uses a real private document to deceive others is punished with a prison sentence of one to three years.
A person who knowingly uses this feature of a fake private document is also punished in accordance with the provision of the above paragraph”.
A private document is an article that is excluded from what they regulate due to the duty of a public official, is not considered an official document, is not regulated due to an official transaction, but directly creates a legal provision, conclusion, serves to create or prove a right. (Kublai Taşdemir, Crimes of Forgery in Documents, Ankara, 2013, p. 441) In other words, all articles that do not have the characteristics of an official document can be qualified as a special document.
Crimes of forgery in official and private documents are electoral crimes, and the legislator has considered it a crime to change a real document to deceive others, edit the document in violation of the truth, or use a fake document. Although the criminal issues are different, they are regulated in a similar way in terms of the elements of forgery crimes in the official and private document.
However, while the crime of forgery in an official document occurs by editing the document, the document must also be used in order for the crime of forgery to occur in a private document. The main purpose is to try to ensure that this forged document is taken into account in any legal relationship or in any legal process facility.
In order for the crime of forgery to occur in the document, the document subject to forgery must also have the ability to deceive.
Article 207 of the Turkish Commercial Code. in the second paragraph of the article, it is stipulated that a person who uses a private document that has been issued as a fake by others knowing that it is a fake will also be punished for forgery of a private document.
On the other hand, in force on the date of the crime, numbered, dated 10.11.2008 27050 (repeated) published in the official gazette, of the Electronic Communications Law No. 5809 “Scope” in the first paragraph of the second article entitled;
“The execution of electronic communications services and electronic communications infrastructure and networks with the establishment and operation of any electronic communications devices and systems manufacture, importation, sale, installation and operation, frequency, including the planning and allocation of scarce resources on this matter with the regulation, authorization, auditing and settlement activities are subject to the execution of this law. it is organized as “” and the scope of Law No. 5809 is clearly defined by the text of the article.
The first paragraph of the third article of the same Law entitled “Definitions and abbreviations”;
“a) Subscriber: a natural or legal person who is a party to a contract concluded with an operator for the provision of electronic communication service,
b) Subscription agreement: A contract concluded between the operator and the subscriber in which the operator undertakes to perform a service dec provide goods periodically or continuously for a fee, or both,
…
h)electronic communications: Electricity can be converted to sign, any sign, symbol, sound, image and data cable, radio, optical, electrical, magnetic, electromagnetic, electrochemical, electromechanical, and other transmission systems through the transmission, the sending and receiving,
…
ii) Radio and television broadcasting: image and/or audio transmission over terrestrial, cable, satellite and other media, made for the purpose of mass communication in encrypted or unencrypted form and not covering individual communication services,
…Expresses” format and definitions of the concepts contained in Law No. 5809 have been made.
56 of the same Law entitled “Security of subscriber and device credentials”. the second paragraph of the article is;
“Unreal documents and information about subscription information may not be provided to the operator or its representative doing business on behalf of subscription registration”.
Article 5809 With the text of the article, it is aimed to prevent the provision of untrue documents or information to the operator or his representative doing business on behalf of the operator during the subscription process covered by the Law, and the sanction of the conduct contrary to this provision is also the 63rd of the same Law. it is shown in the tenth paragraph of the article..
63 of the Law No. 5809 in force on the date of the crime entitled “Criminal Provisions”. the tenth paragraph of the article;
“Article 56 of this law, those who act contrary to the provisions of the first paragraph of Article till the day than a thousand days of five thousand; hundred twenty days until the day who violates the provisions of the second paragraph; the third who violates the provisions of paragraph fined five hundred a hundred days until the day. it is arranged in the format ” “.
Accordingly, the subscriber during the subscription registration information on the provision of false documents with the provision of the regulation unreal documents and information, without the person’s knowledge and consent in the case of falsifying documents and the establishment subscription Crimes Law No. 5809 special problem arises between the opposition in the assembly.
In case of violation of the norms of a single verb in more than one crime, the relationship between these norms Assembly or “the idea of the different kind muster” or “muster apparently within the scope of” Remain.
44 Of the different kinds of intellectual property TCC. in the article; ”The person who causes the occurrence of more than one different crime with an act he has committed is punished for the crime that requires the most severe punishment from them” is regulated as follows and in order for this provision to be applied, more than one different crime must occur with an act committed. Legislator, who committed different crimes committed with a verb of more than one perpetrator, because it is one of the verbs seen enough to be punished with the most severe punishment, “in this manner of non bis in IDEM” in accordance with the rule intended to prevent penalising more than one person for an act, “the melting system”, adopting the most severe of these crimes criminal criminal offence preferred to settle with for the provision.
It would seem that although various norms seem to be related to the same verb, in fact only one of them can be applied. (Kayihan Içel, Içtimai of Crimes, Istanbul, 1972, p. 167) It would seem that ijtima is not regulated in the law, but since it is possible to conclude from the relationship of the criminal norms to each other and their interpretation that only one of the various norms that are considered relevant to the same act can be applied, the legislator does not need to include the forms of ijtima in appearance. (Mahmut Koca-Ilhan Üzülmez, General Provisions of Turkish Criminal Law, Distinguished Publishing House, Ankara September 2015, 8. Basi, p.519).
The common feature of fikri içtima and içtima in appearance is that the verb is one and the same. However, in order for the provision of intellectual property to be applied, there must be no apparent state of property property. Therefore, it is necessary to determine whether there is a decriminalization relationship in appearance first of all between the types of crimes related to a single act, and the presence of an apparent incriminalization relationship is an obstacle to the application of the intellectual property provision. The most important difference between intellectual drinking and ostensible drinking is that only one of the norms of intellectual drinking can be applied, as opposed to the fact that all the norms related to the types of crimes caused in the case of intellectual drinking can be applied. In other words, in the case of internal conflict in appearance, in reality only one norm is being violated, and the violation of other norms is only in appearance. Because all the norms related to the types of crimes cover the unfair content of the act in its entirety, but the norm that will actually be applied consumes other norms in terms of the unfair content, and all the norms completely coincide in terms of the unfair relationship. Therefore, only one of the norms has the ability to be implemented in reality. (Neslihan Göktürk, Fikri Içtima, Justice Publishing House, Ankara 2013, p. 73-74)
Apparently, which law should be applied in cases of ijtima is determined according to such principles as “the relationship between the consuming and the consumed norm”, “the priority of the auxiliary (secondary) norm” and “the priority of the special norm”.
If a criminal norm has incorporated one or more other criminal norms, the “consuming-consumed norm relationship” is mentioned. In this case, the criminal norm, which includes the norms, exhausts other norms. In this case, only the consuming norm can be applied to the verb. 42 of the TCK. the “compound crime” defined in the article is one of the typical views of the consuming-consumed norm relationship. For example, the crime of looting includes theft and algebra / threat crimes, in other words, it consumes these crimes.
Auxiliary (secondary) norms are also norms that protect similar legal benefits as the main ones. Such norms are regulations introduced in order to prevent the formation of gaps in the law in cases where the main norms cannot be applied. In the case of a principal-auxiliary norm relationship, the actual norm, not the auxiliary norm, will be applied to the verb. Norm a norm is the norm of truth, you help the fact that the norm is not applicable in places where the norm is understood to be an arrangement that is referenced in the “more severe criminal of the verb does not constitute another crime if” the law“, which is defined as a crime in that, except,” and “another crime in the case of the action” is determined according to whether or not take the place of expressions such as like this is the norm it is accepted that the expression of the norms of the help.
The special norm, which protects the same legal benefit as the general norm, carries all the elements of the general norm, but also contains some special elements that are not included in the general norm. In such a situation, in accordance with the principle of “priority of a special norm”, a special norm, not a general norm, will be applied to the event. The relationship between the basic and qualified decriminalization, the relationship between specific decriminalization and general decriminalization, and the relationship between general and special law are evaluated in the special-general norm relationship. (M. Emin Artuk-A. G.A. Gokcen- A. Caner Yenidünya, General Provisions of Criminal Law, 8. Basi, Justice Publishing House, Ankara, 2014, p. 636; Veli Özer Özbek, Mehmet Nihat Kanbur, Koray Doğan, Pınar Legsız, Ilker Tepe, General Provisions of Turkish Criminal Law, Seçkin Publishing House, 6. Basi, 2015, p. 612-613; Berrin Akbulut, General Provisions of Criminal Law, 3. Basi, Justice Publishing House, Ankara, 2016, p. 685-686; Mahmut Koca-Ilhan Üzülmez, General Provisions of Turkish Criminal Law, Justice Publishing House, 8. Basi, Ankara, 2015, p.520). For example, in Law No. 5237, 247, which regulates the crime of embezzlement. article 160 of the Banking Code No. 5411, while the provision of the article is the general norm. since the embezzlement offense regulated in the article is a special norm, in the event that a bank employee commits an embezzlement offense in accordance with the Banking Code, in accordance with the principle of priority of a special norm, Article 247 of the TCC No. 5237. the relevant provision of the Banking Code, not the article, should be applied.
In the light of these explanations, the subject of the dispute is evaluated;
The accused was found to be Active on 15.10.2009 Sun. Imp. Ihr. Tic. and San. A.Sh. named his own picture on it by contacting the company, however, due to possessing the credentials of the victim, and another event, led to the prosecution on charges of falsifying official documents is also provided by the organization by using a forged birth certificate signed on behalf of the victim and the subscription agreement dated 15.10.2009 0539 547…. in the event that he removed the numbered GSM line and signed the Digiturk subscription agreement, which he arranged in the same way on behalf of the victim on 05.12.2009, Digiturk subscription registration was established,
According to Article 207 of the TCC, the defendant’s action by the Local Court. accepted document that creates a special item which is included in the crime of falsifying also, if dated before the date of the crime 10.11.2008 27050 numbered (and repeated) published in the official gazette, of the Electronic Communications Law No. 5809 “Scope” in the first paragraph of the second article entitled “The execution of electronic communications services and electronic communications infrastructure and networks with the establishment and operation of any electronic communications devices and systems manufacture, importation, sale, installation and operation, the planning and allocation of scarce resources, including frequency, as well as the regulation, authorization, supervision and reconciliation activities related to these issues are subject to this Law.”the regulation contained in the format and the first paragraph of the third article of the same Law, in (a) “Subscriber; a natural or legal person who is a party to a contract concluded with an operator for the provision of an electronic communication service“, in (b); in (b) “Subscription agreement; Concluded between the operator and the subscriber by the operator for a price of, one or both undertake periodic or continuous covering the supply of goods or to fulfill a service contract” (H) regulation; Electronic Communication; Electrical that can be converted to any mark, sign, symbol, sound, image and data cable, radio, optical, electrical, magnetic, electromagnetic, electrochemical, electromechanical, and other transmission systems through the transmission, the sending and receiving”, (ii) paragraph in the “radio and television broadcasting; 63 of the same Law with the provisions that it refers to ”the transmission of images and/or audio made for the purpose of mass communication over terrestrial, cable, satellite and other media, encrypted or unencrypted, and not covering individual communication services”. in the tenth paragraph of the article “Those who act contrary to the provisions of the first paragraph of Article 56 of this Law from one thousand days to five thousand days; those who act contrary to the provisions of the second paragraph from twenty days to one hundred days; those who act contrary to the provisions of the third paragraph shall be punished with a judicial fine from one hundred days to five hundred days.” 56, which is sanctioned by its regulation. when the provision in the second paragraph of the article “Unreal documents and information about subscription information cannot be provided to the operator or his representative doing business on behalf of the operator during subscription registration” is considered together, the defendant’s action is considered to be in accordance with Article 207 of the Turkish Commercial Code. according to the crime of forgery in the special document contained in Article 56 of the Law No. 5809, which is the special norm. 63 of the same Law, in which the sanction of the action in the said paragraph remains within the scope of the second paragraph of the article. according to the tenth paragraph of the article, it should be accepted that there is only a judicial fine and therefore it is against the procedure and the law to establish a verdict for forgery in a private document without considering that the defendant should be sentenced according to the result by offering prepayment.
In this regard, it should be decided that the provision on resisting the decision of the Local Court, which was not found to be correct, should be overturned.
result:
For the reasons described;
1- Eskisehir 3. The provision on the subject of the decision of the Criminal Court of First Instance to resist dated 01.10.2015 and numbered 476-821 states that the defendant’s action is in accordance with Article 207 of the TCC. according to the crime of forgery in the special document contained in Article 56 of the Law No. 5809, which is the special norm. 63 of the same Law, in which the sanction of the action in the said paragraph remains within the scope of the second paragraph of the article. according to the tenth paragraph of the article, there is only a judicial fine, and therefore the defendant should be offered a prepayment according to the conclusion that the provision should be established in writing, regardless of whether the provision is broken for lack of accuracy,
2- The file was transferred to the Prosecutor General’s Office of the Supreme Court of Cassation for extradition to the scene, it was unanimously decided at the negotiation held on 17.01.2019.
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