27 Aug Supreme Court Decision On Digitürk Subscription With False Identity
Criminal General Assembly of the Supreme Court
2017/212 E.
2019/20 K.
The Decision Maker
Supreme Court Office: 11. Criminal Department
Court: Sentencing Of First Instance
Count: 476-821
Accused of forgery in private document … ‘ s TCK 207/1, 43/1, 62, 53 and 58. Eskisehir 3 regarding the punishment of 2 years and 1 month imprisonment in accordance with the articles, deprivation of rights and punishment of the penalty according to the execution regime specific to the duplicators. The court of Cassation which examined the file on the appeal of the sentence 68-128 dated 21.02.2013 issued by the Criminal Court of first instance by the defendant 11. With the number 9255-25152 dated 08.04.2015 by the Penal Department;
“…After the provision of the law No. 6518 which was published in the Official Gazette No. 28918 dated 19.02.2014 and entered into force on the same day 104 and 105. Article 63 of the Electronic Communication Law No. 5809, amended with the provisions of the Article 10. sanctioned by paragraph 56. Article 4. clause ‘ subscription facility operation or electronic identity information by the operator or the representative doing business on behalf of the person without the information and consent of the person or the registration process of the devices can not be made and can not be done, for this purpose false documents can not be arranged, documents can not be changed and these can not be used’ and 5. Article 56 of the Electronic Communications Law No. 5809, which is a special provision, against the provision of’ subscriptions which have been established outside the information and consent of the person by editing or changing documents contrary to reality’. the regulation in the article is also taken into consideration, according to the conclusion that the legal status of the accused must be determined by the majority of votes” ,
Circle Member M.R. Kopan;
“The defendant …’s (not seized) signature of Digitürk subscription agreement on behalf of the victim … using a fake identity card, TCK’un 207/1, 43, 62/1 on the punishment of the articles Eskisehir 3.21.02.2013 days of the Criminal Court of First Instance and 2012/68 Es, 2013/128 Kr. the numbered decision is in accordance with procedure and law.
Because the purpose of the Electronic Communications Law No. 5809 ‘electronic communications regulation and supervision in the sector through the establishment of effective competition, consumer rights, the dissemination 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 ‘the execution of electronic communications services and electronic communications infrastructure and networks the establishment and operation of any electronic communication devices and systems manufacture, importation, sale, installation and operation, including frequency, planning and allocation of scarce resources on this matter with the regulation, authorization, auditing and execution of settlement activities.
Therefore, Law No. 5809 regulates the activities of natural and legal persons providing electronic communication services. Article 56/4 of the same law ‘subscription facility or operation or electronic identity information by the operator or the representative who does business on behalf of the person without the information and consent of the registration process can not be made and can not be made, for this purpose can not be edited documents contrary to the truth, documents can not be changed and these can not be used’ in the
In this context, real persons who receive services under the Electronic Communications Act must be punished for forgery if they use and edit forged documents (according to the nature of the document used or edited) while receiving this service.
He therefore voted against the view that the Local Court decision in accordance with procedure and law should be upheld.”
The Local Court, on 01.10.2015 and number 476-821, ruled on the conviction of the defendant, as did the previous sentence by resisting overturning.
Upon the appeal of this provision by the defendant, the court of Cassation of the Chief Prosecutor’s Office of the Republic of Turkey issued the communiqué No. 344203 dated 04.11.2015 with the intention of “overturning” and the Court of Cassation 11. The file which came to the first president of the Court of Cassation with the decision of sentencing Office dated 19.11.2015 and numbered 8899-31047, with the number 1173-1011 dated 07.12.2016 by the General Assembly of punishment; 38 of the Law No. 6763. provisional article 10 added to the law No. 5320. sent to the chamber, which resisted its decision in accordance with Article 11 of the Supreme Court, which conducted a review under the same article. The file which was returned to the first president of the Supreme Court after the decision to resist was not seen in place by the penal department dated 28.02.2017 and numbered 133-1415, was evaluated by the Penal General Assembly and decided on the reasons explained.
ON BEHALF OF THE TURKISH NATION
GENERAL ASSEMBLY DECISION ON PUNISHMENT
The dispute between the majority of the Special Chamber and The Local Court, which must be resolved by the General Assembly of punishment, is related to the determination of whether the defendant’s action constitutes a crime of forgery in a private document or a crime of opposition to law No. 5809.
From the scope of the file under review;
The defendant … used the identity card with his own photograph on it but with the identity information of the victim on 15.10.2009 on 0539 547 on behalf of the victim…. number of GSM line çıkartırması and establish the same identity card on 05.12.2009 Digitürk subscription due to the actions of the victim … ‘ s complaint about the defendant started to investigate,
Ankara Criminal Police Laboratory Department organized by the expert report dated 08.08.2012 in summary, dated 15.10.2009 0539 547…. the letters “…” on the subscription contract issued for the GSM number line, the numbers “15.10.2009” at the top of the signature on behalf of the name and … similarities between the signatures on behalf of the accused and the letters and signatures of the accused are seen, and the information given that the written and signatures in question are the product of the,
The documents subject to the crime brought into the file have not been made expert examination on the Digiturk subscription agreement,
In the public case filed against the accused for falsifying the official document on the accused for using the fake ID card that the accused presented while removing the GSM line subject to crime and establishing Digiturk subscription, in another case with a fake driver’s license, the date of the crime is 12.02.2010, the date of the indictment is 17.02.2010, Confirmed by the Penal Office on 26.11.2014,
It was understood.
The victim stated that they lived in the same neighborhood as the defendant, dropped a copy of the identity card a few years ago, and that the defendant, who had probably obtained a copy of this document, had made a fake identity card using this information and created a subscription record in Digiturk and Turkcell companies on behalf of him with this fake identity card
The defendant, the prosecution statement dated 15.12.2011; in the name of the victim issued a fake ID card, using this document to establish a Digiturk subscription,
The prosecutor’s Office statement dated 08.05.2012 stated that the victim, who is a friend from the neighborhood, gave him a copy of the identity card, this identity card includes the identity information of the victim with a photocopy of the fake identity card issued, but this document on behalf of the victim does not remember the GSM line, does not accept the discarded charge,,
In court; Turkcell GSM line and Digiturk subscription for the subscription registration process on behalf of the victim had done on behalf of the victim, both subscription registration is aware of the victim,
Defended.
In order to reach a healthy legal solution to the dispute, the special document should focus on forgery and The Crimes of opposition to law No. 5809.
207, which carries the title “forgery in private document” of tck. substance;
“The person who fakes a private document or changes and uses a real private document in a way that deceives others shall be punished with imprisonment of one to three years.
The person who knowingly uses a false private document shall be punished according to the provisions of the above paragraph.”
A private document is a written document which is not counted as an official document, which is not regulated due to an official procedure, but which is a direct legal provision, a result, or a right to be born or proved. (Kublai Taşdemir, falsification crimes in documents, Ankara, 2013, p. 441) in other words, all writings that do not have the characteristics of an official document can be considered private documents.
Forgery offences on official and private documents are selective moving offences, and the legislator has deemed the tampering of a real Document in a way that deceives others, the editing of the document contrary to the truth or the use of a false document as a crime. While the criminal matters are different, the official and private document are similarly arranged in terms of the elements of forgery offences.
However, while the crime of forgery in an official document occurs by editing the document, it is also necessary to use the document in order for the crime of forgery to occur in a private document. Without using it, the 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 document to be a forgery offence, the document subject to the forgery must also have the ability to deceive.
Tck’s 207. in the second paragraph of the article, it is stated that the person who uses a private document arranged by others as a forgery, knowing that it is a forgery, will be punished for the crime of forgery in the private document.
On the other hand, in force on the date of the crime, 27050 dated 10.11.2008 and numbered (repeated) published in the official gazette, the Electronic Communications Law No. 5809 of “Scope” in the first paragraph of the second article entitled;
“The execution of electronic communications services and electronic communications infrastructure and networks the establishment and operation of any electronic communication devices and systems manufacture, importation, sale, installation and operation, including frequency, 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.”the scope of the law No. 5809 is clearly determined by the text of the article.
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 with an operator for the provision of electronic communication services,
B) subscription contract: the contract concluded between the operator and the subscriber in which the operator undertakes to perform a service or supply goods periodically or continuously for a price, or both.,
…
h)Electronic Communications: any sign that can be converted to electrical 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: the transmission of images and/or sound over terrestrial, cable, satellite and other media, which is done for the purpose of encrypted or unencrypted Mass Communication and which does not cover individual communication services,
The definitions of the concepts contained in the Law No. 5809 have been made in the form of “Express”.
56 of the same act, entitled “security of subscriber and device credentials”. the second paragraph of the article is;
” Untrue documents and information regarding subscription information may not be provided to the operator or his / her representative during subscription registration.”
Article 63 of the same law aims to prevent the provision of false documents or information to the operator or its representative who is doing business on behalf of the operator during a subscription transaction which is covered by the law no.5809. it is shown in the tenth paragraph of the article..
Law No. 5809, which was in force at the time of the crime, is entitled “criminal provisions” 63. tenth paragraph of Article;
“Article 56 of this law, those who act contrary to the provisions of the first paragraph of Article Five Thousand than a thousand days until the day of; the second who violates the provisions of paragraph one hundred twenty days until the day; who violates the provisions of the third paragraph until a hundred days from the day fined five hundred. arranged in ” format.
Accordingly, in case of providing false documents and information about the subscriber information during subscription registration, in case of establishing a subscription without the person’s information and consent, the problem of fraud in the private document and the opposition to law no.5809 arises between the crimes of association.
In case of violation of multiple criminal norms with a single verb, the interrelationship between these norms remains either within the scope of “different intellectual interrelationship” or “ostensibly interrelationship”.
The idea of different neviden içtima TCK’s 44. in the article,” the person who causes the occurrence of more than one different crime with one act committed shall be punished for the crime which requires the most severe punishment”, and in order to apply this provision, more than one different crime must occur with one act committed. Legislator, a committed different crimes with the perpetrator who committed more than one verb, because it is one of the verbs seen enough to be punished with the most severe punishment, “ ” non BIS in IDEM in this way” more than one penalising a person for an act in accordance with the rule, intended to prevent “melting”system, adopting the most severe of these crimes for the criminal offence provision preferred to settle with the criminal.
Ostensibly the incantation is that although various norms seem to relate to the same verb, in fact only one of them can be applied. (Kayıhan Içel, Şesların Içtimai, Istanbul, 1972, p. 167) it is not apparently regulated in the law of incitement, but since it is possible to conclude that only one of the various norms seen in relation to the same act can be applied in relation to the relation of the Penal norms with each other and their interpretation, the legislator is not required to place in the forms of incitement apparently. (Mahmut Koca-Ilhan Üzmez, Turkish Criminal Law General Provisions, Seçkin Publishing House, Ankara September 2015, 8. The head s.519).
The common characteristic of the intellectual inference and apparently infanticide is that the verb is one and the same. However, in order for the intellectual settlement provision to be implemented, one of the ostensibly non-binding provisions must exist. Therefore, only verb-related crime is primarily a relationship relationship seemingly seemingly muster muster between types is required, determining whether the idea of Assembly constitutes an obstacle to the implementation of the provision. The most important difference of intellectual drinking is that in case of intellectual drinking, only one of the norms can be applied, whereas in case of intellectual drinking all the norms related to the types of crime caused can be applied. In other words, only one norm is actually being violated in the case of ostensibly concoction, and the violation of other norms is only in appearance. Because all of the norms related to crime types cover the unfair content of the act with all of them, the norm that will be applied in reality consumes the other norms as regards the unjust content, and all norms completely overlap in terms of the unfair relationship. Thus, only one of the norms has the ability to actually be applied. (Neslihan Göktürk, Fikri Içtima, Justice Publishing House, Ankara 2013, p. 73-74)
Apparently, which law should be applied in cases of incitement is determined according to principles such as “the relation between consuming and consuming norm”, “the finality of the auxiliary norm” and “the priority of the special norm”.
If a penalty norm has taken one or more other penalty norms into its structure, the “consuming-consumed norm relationship” is mentioned. In this case, the Penal norm, which takes the norms into its structure, consumes the other norms. In this case, only the consuming norm can be applied to the verb. Tck’s 42. 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, theft and algebra/threat within the structure of the crime, in other words consume those crimes.
Auxiliary (secondary) norms are also norms that protect legal benefits similar to substantive norms. Such norms are regulations introduced to prevent gaps in the law in cases where the principal norms cannot be applied. In the case of the primary-auxiliary norm relation, the primary norm will be applied to the verb, not the auxiliary norm. Apart from the fact that a norm is a norm that is applied where the primary norm cannot be applied, it is also determined according to whether statements such as “if the Act does not constitute another crime requiring a heavier penalty”, “except in cases defined as a crime in the law” and “if the Act does not constitute another crime” are included in the regulation.
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 case, the special norm will be applied to the event, not the general norm, in accordance with the principle of” priority of the special norm”. The relationship between the basic and qualified States of crime, the relationship between the specific crime and the general crime, and the relationship between the general and special law are evaluated within the relationship between the special-general norm. (M. Emin Artuk-A. Gökçen-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 Bağsız, Ilker Tepe, Turkish Criminal Law General Provisions, 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 Üzmez, Turkish Criminal Law General Provisions, Justice Publishing House, 8. Basi, Ankara, 2015, p.520). For example, Law No. 5237 regulating the crime of embezzlement 247. while the provision of the article is the general norm, the Banking Law No. 5411 is the 160th. as the crime of embezzlement regulated in Article 247 of the TCK No. 5237 in accordance with the priority principle of the special norm in the case of a bank official committing an embezzlement offence under the banking law, since the crime of embezzlement is the nature of the special norm. the relevant provision of the banking law should be applied, not the article.
In the light of these explanations, when the subject of dispute is considered;
The defendant, active Sun on 15.10.2009. Imp. Ihr. Tic. and San. A.P. he signed the subscription agreement dated 15.10.2009 and provided it to be arranged on behalf of the victim by using the fake ID card which has his own photo on it but which has the identity information of the victim and which leads to his trial for falsification in the official document due to another incident and 0539 547…. in the event that the GSM number has been removed and Digiturk subscription registration has been established by signing the Digiturk subscription agreement which it has provided to be arranged on behalf of the victims in the same way on 05.12.2009,
The act of the defendant by the Local Court, the 207 of the TCK. in the first paragraph of the second article titled “scope” of the Electronic Communication Law No. 5809, which was published in the Official Gazette No. 27050 (duplicate) dated 10.11.2008 before the date of the crime, the “execution of electronic communication services and the establishment and operation of electronic communication infrastructure and network, as well as the production, importation, sale, establishment, operation, the planning and allocation of scarce resources, including frequency, and the conduct of regulation, authorization, supervision and reconciliation activities related to these issues are subject to this law.“in the form of the regulation and the first paragraph of the third article of the same law, in paragraph (a)” subscriber is a real or legal person who is a party to a contract with an operator for the provision of electronic communication service”, in Paragraph (b); ” subscription agreement; Concluded between the subscriber and the operator by the operator for a price, periodic or continuous contract covering the supply of goods to fulfill a service or undertake one or both” (H) regulation; Electronic communication; the Electrical that can be converted to any sign, mark, symbol, sound, image and data wire, radio, optical, electrical, magnetic, electromagnetic, electrochemical, electromechanical, and other transmission systems through the transmission, the sending and receiving”, in paragraph (II) in sub-paragraph “radio and television broadcasting; ” Transmission of images and/or sound over terrestrial, cable, satellite and other media, whether encrypted or unencrypted, for the purpose of Mass Communication and not covering individual communication services ” means the provisions of the same law 63. in the tenth paragraph of 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.”sanctioned by regulation 56. in the second paragraph of the article “the operator or the representative who does business on behalf of the subscription registration during the subscription information regarding the untrue documents and information can not be given” is evaluated together, the action of the defendant in TCK 207. article 56 of the law No. 5809, which is a special norm according to the crime of forgery in the special document contained in the article. Article 63 of the same law, where the sanction of the action in the said paragraph remains within the scope of the second paragraph. according to the tenth paragraph of the article, it should be considered that it is only a criminal fine and therefore it is against the law and procedure to be convicted of forgery in a private document without considering that the provision should be established according to the result by offering prepayment to the defendant.
In this respect, it should be decided to overturn the provision subject to the Local Court’s decision to resist, which was not found to be accurate.
RESULT:
Reasons described;
1-Eskişehir 3. The decision of the Criminal Court of first instance dated 01.10.2015 and numbered 476-821 to resist is the subject of the provision, the action of the defendant, of TCK 207. article 56 of the law No. 5809, which is a special norm according to the crime of forgery in the special document contained in the article. Article 63 of the same law, where the sanction of the action in the said paragraph remains within the scope of the second paragraph. in accordance with the tenth paragraph of the article there is only a judicial fine and therefore a provision should be established according to the result by offering prepayment to the accused without taking into consideration that the provision should be established in written form.,
2-it was decided unanimously in the negotiation held on 17.01.2019 that the file should be submitted to the Chief Public Prosecutor of the Court of Cassation for return to its location.
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