ISTANBUL REGIONAL COURT OF JUSTICE

TO THE RELEVANT DEPARTMENT

To be presented

TO THE 834TH ISTANBUL HIGH CRIMINAL COURT

DEFENSE ATTORNEY: Attorney Yağmur YUMLU                            

SUBJECT OF THE REQUEST: The decision of the Istanbul 834th High Criminal Court, case number …….., decision number ……., dated ……..

DATE OF NOTIFICATION:

SUMMARY OF THE DECISION: The honorable court has sentenced the defendant for the crime of fraud using information systems and a bank as a means.

REASONS AND JUSTIFICATION FOR APPLICATION:

1. The elements of typicality and "fraudulent conduct" have not been established. The local court accepted the crime of fraud using information systems and a bank/credit institution as a tool (Turkish Penal Code Article 158/1-f); however, it failed to present evidence linking the perpetrator to concrete fraudulent actions capable of deceiving the victim , demonstrating causality and the perpetrator's intention to gain benefit . Yet, for Article 158/1-f to be applicable, both the typical act of fraud (deception-defraud-harm/benefit) and the use of information systems/banks as tools must occur simultaneously. The text of the law and legal doctrine clearly emphasize that the aggravating circumstance is an instrumental element and cannot be considered separately from the fundamental framework of typicality
   
2. Providing a bank account/IBAN for use alone does not prove intent to commit qualified fraud.
   According to the Supreme Court's current jurisprudence, the mere fact of allowing others to use a bank account—unless there is other concrete evidence that the defendant obtained a benefit or knowingly participated in the fraud scheme —is not sufficient for conviction. This approach with concrete evidence and does not automatically equate the "account holder" with the perpetrator/instigator.
3. The doubt regarding intent has not been dispelled (in dubio pro reo). It has not been established through technical evidence such as prior contact with the fake profile/organization , commission negotiations , redirecting communication traffic , IP/HTS/CIK records, camera footage, or logs that the defendant was aware of the fraudulent scheme and knowingly and willingly committed the act . According to Article 217 of the Code of Criminal Procedure, the judgment must be based solely on legally admissible evidence discussed in court ; in case of doubt, acquittal should be considered pursuant to Article 223/2-e of the Code of Criminal Procedure
   
4. Incomplete investigation/erroneous characterization regarding the elements of aggravating circumstances.
   The court reached a verdict without substantiating, through technical examination (digital image, IP matching, log correlation, OSINT), the allegations that the "information system" a means of deception and that the victim was misled by exploiting the banking institution's a trustworthy entity . The penal framework and rationale of Article 158/1-f of the Turkish Penal Code are clear in this respect, and the element of means must be linked to the typical act of fraud.
5. Attempt – failure to achieve the result/return of compensation.
   If the amount subject to the crime blocked or returned , or if the victim's damage has been fully compensated, attempt (Turkish Penal Code Article 35) or effective repentance (Turkish Penal Code Article 168) should be discussed instead of the completed crime; rendering a judgment without considering these issues constitutes grounds for reversal. The Supreme Court's practice deems it necessary to determine the timing and scope of compensation and whether Article 168 of the Turkish Penal Code applies .
6. The applicability of effective repentance (Turkish Penal Code Article 168) was disregarded. The provisions on effective repentance also apply to aggravated fraud (Article 158). If the damage is fully remedied before the commencement of prosecution, a reduction of up to 2/3 of the sentence should be applied ; if remedied before the verdict, a reduction of up to 1/2 should be applied. The local court either failed to make this assessment or provided insufficient reasoning.
   
7. Lack of justification in determining favorable provisions and penalties. In any case, the justification for deviating from the lower limit when determining the basic penalty must be explained through a review of the concreteness and proportionality of the increase-decrease rates (CMK art. 230). The penalty range for aggravated circumstances (at least 4 years ; judicial fine cannot be less than twice the benefit ) should be recalled, and the prohibition against arbitrary deviations from this strict framework should be observed.
   
8. Conviction without discussing the distinction between aiding and abetting/negligent conduct. If the scope of the act is at most aiding and abetting (Turkish Penal Code Article 39), then a narrowing of the typicality in terms of complicity provisions and a proportionate reduction in punishment are necessary. It is unlawful to directly accept the defendant as the perpetrator (or aggravated perpetrator) when there is no concrete evidence of their role as a planner/organizer.
   
9. Lack of justification/contradictory justification. While a judgment should be based on the individual and collective consideration of evidence, responses to defense arguments , and a conclusion consistent with the case file and the rules of logic and experience (Article 230 of the Code of Criminal Procedure), it is based on generalizations and an acceptance inconsistent with case law. This weakens the reviewability of the judgment and violates the right to a fair trial
   

CONCLUSION and REQUEST:

For the reasons explained above;

1. We request that our appeal be ACCEPTED , the local court's judgment be OVERTURNED in accordance with Article 280/1-a of the Code of Criminal Procedure , and that the defendant be ACQUITTED in accordance with Article 223/2-e of the Code of Criminal Procedure.
2. If the opposite opinion is reached, it is decided that a full trace of IP/HTS/camera/log and money transactions (swift/IBAN chain) and digital evidence examinations be carried out to remedy the incomplete investigation, and that acquittal or at least the provisions of attempted crime (Turkish Penal Code Article 35) and/or effective repentance (Turkish Penal Code Article 168) be applied in favor of the accused after the reversal .
3. Regarding complicity, a distinction should be made between the perpetrator and the accomplice, and a proportionate reduction in punishment should be applied within the scope of Article 39 of the Turkish Penal Code ; the unjustifiable deviation from the basic punishment should be abolished; and the discretionary reduction grounds under Article 62 of the Turkish Penal Code should be applied with clear justification .
4. The court costs and attorney fees shall be borne by the Treasury.

We respectfully request and demand that a decision be made.

APPELLANT

DEFENSE ATTORNEY FOR THE ACCUSED

Attorney Yağmur Yumlu