11 Feb THE FACT THAT THE ACT CONSTITUTES THE CRIME OF FRAUD IN ITS ENTIRETY – THE DECISION OF THE SUPREME COURT
T.C THE DECISION OF THE SUPREME COURT
6.Criminal Department
Base: 2018/ 3052
Decision: 2018 / 7548
Date of Decision: 04.12.2018
Case: Kayseri 1. On 26.02.2018 day, 2017/825 Basis and 2018/102 Decision of the Heavy Criminal Court and against the conviction for looting, the defendant … and his defense, in accordance with Articles 272 of the CMK and subsequent articles, appealed to the Appeal law; Ankara Regional Court of Justice 15. The results of the Examination given by the Bureau of criminal file on 22.06.2018 day, except from principles principles and criticism of Decision 2018/1464 corrected 2018/1087 red” against the decision, in accordance savunmaninc opened on the appeal of the defendant, alleged to be in violation of law in the appellate petition regarding issues that need to be examined ex officio CMK 288 and 289. examined and discussed within the scope of the articles;
Other appeals were not considered out of place.
But;
The act of a person who obliges someone else not to resist the delivery or receipt of a good by threatening a bet or using algebra because he or she will commit an attack on his or her life, body and sexual immunity or cause great damage to his or her assets constitutes a crime of looting. In other words, this crime occurs if the consent of the victim is provided by the algebra and threat of the perpetrator and/or the perpetrators. The most important feature of the crime of looting is the receipt of goods by algebra, violence or threat. In other words, the owner must take the property from his hands or force him to act against the seizure of the property by the perpetrator.
The threat must be of the size sought in the crime of looting in terms of quality and quantity.
In the crime of fraud, it is the benefit of the person to himself or someone else through executive or negligent behavior by deceiving someone with fraudulent behavior and causing harm to him or someone else.
Fraud is not a crime committed solely against assets. It is a crime aimed at protecting property, as well as freedom of will and decision-making. In the crime of fraud, the victim is misled. So the crime of fraud is a typical crime of cheating. The will is corrupted by deception. Cunning actions that will lead the victim to a mistake are tricks. Even if every trick is an immoral act, it is always necessary to mislead the interlocutor in the manner indicated in the type of crime in order for it to be a fraud that is punishable. The mistake is that the person’s vision and the truth do not match each other, and the trick is: it will create a state of error in the victim. Strengthening the hesitation of the victim also leads him to a mistake.
The trick must be of a deceptive nature. If the cheat used is taken into account the victim’s situation and the relationship with the perpetrator has been deceived, the action on the basis of the incident will be fraud.
A lie is a deliberate statement of an untruth, a lie is an abuse of trust in society. It is he who abuses the trust and goodwill of the interlocutor who is lying. A lie is not considered a cheat unless the perpetrator makes a move that will prevent the control of the lie he has told or force the detection of the lie. If the declarant is under an obligation to tell the truth, then the lie is a means of abusing trust. If a lie is told to have an effect on a person, it can be treated as a trick. The lie must be revealed in an atmosphere of trust that eliminates the possibility of controlling the victim, the perpetrator must have pulled the victim in the direction he wants. A strong lie does not create a cheat, which is a characteristic element of fraud. It should be assessed whether the trick is deceptive or not. The nature of the incident, the condition of the victim, his relationship with the perpetrator, the form of the trick used should also be determined by looking at whether the lie has the ability to control.
The jul-ture of future benefits to be provided to the victim, such as emotional or moral harm, cannot be the material element of this crime, nor does it constitute the objective element of this crime in cases where it is objectively impossible to examine and determine.
Each act of fraud begins with deceptive acts planned by the perpetrator, and this deceptive act fundamentally violates the rules of goodwill and trust in the relationships of people with each other.
It is also necessary to make deceptive actions that will lead the victim to a mistake, and there must also be a causal link between the deducted error and decoy actions. The basic form of the crime of fraud is 157 of the TCC No. 5237. it is included in the article. In the light of the norms of the law, which are regulated in relation to crimes of looting, threats and fraud,
As for the concrete case;
Participating …’s the number of fixed and mobile phone number … “chief of police” as identified by an unknown person search for “money in the bank whether it is” asking the attendee’s “in the Bank of $ 50,000, a benefit that is to say,” this time an unidentified person on the phone“, because the cash is immediately transferred to the account you want to transfer money to a secure account by FETO if you detention for itself by the relevant officers, Bank Officers will be made of the operation for the money to come out and to give to the police of emergency, otherwise it will be taken into custody and put in prison, home next all the goods that they would take himself and the cop would put you in jail,” he said, worry and fear from this situation without the ability to check the attendee at the branch of the bank account the money away from the bank, from TL 50.500 out from his side …the defendant’s “you were a cop,… Bey was sent to get the money by saying,” the attendee with the money given to the defendant TL 50.500 in this process in person, on the phone, the phone is not switched off, the instructions given on the attendee’s he figured it out when I get home, considering that the accused was caught on a bus traveling to … with the money he received from the participant; the defendant’s actions taken to achieve his assets by crippling his will with a discourse that the participant could not control about the incident constituted a crime of fraud as a whole, without considering that the definition of the crime is misleading and establishing a sentence in writing,
Since the appeals of the defendant’s defense have been considered on the spot in this regard, for the reason described, the Ankara Regional Court of Justice 15.22.06.2018 day, which was given as a result of the review conducted by the Criminal Department on the file, 302/2 of the CMK No. 5271 of the rejection of the provision of the Basis of the 2018/1464 and the basis of the 2018/1087 Decision No. 5271. in accordance with the article and its paragraph, it was decided unanimously on 04/12/2018 that it would be CORRUPTED in violation of the communiqué.
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