Petition for Defense Against Robbery under Article 149 of the Turkish Penal Code

TO THE HONORABLE PRESIDENCY OF THE ISTANBUL 724TH HIGH CRIMINAL COURT

FILE NO: 2023/….. Main DEFENDANTS: 1) APPENDIX 2) MA

DEFENSE ATTORNEY: Attorney Aydanur NAS ADDRESS: [UETS Address]

SUBJECT: Submission of our detailed defenses regarding the merits of the case, in light of the evidence in the file, the inconsistencies in the complainant's statements, and relevant Supreme Court precedents, in response to the prosecution's opinion on the merits of the case, and a request for the acquittal of our clients.

EXPLANATIONS:

In the public prosecution case, the case number of which is stated above, currently before your esteemed court, it has been requested that the defendants, EK and MA, be punished for the crime of "Aggravated Robbery" under Article 149 of the Turkish Penal Code (TCK) No. 5237. However, when the evidence gathered from the investigation phase to the end of the prosecution phase, the witness/complainant statements taken, and the documents submitted to the file are evaluated as a whole, it is clearly seen that there is no conclusive and convincing evidence, free from all doubt, suitable for establishing a conviction against the defendants for the alleged crime.

Our arguments, which we will present below under separate headings, should be taken into consideration in order to uncover the material truth and establish justice.

I. THE PROBLEM OF THE RELIABILITY OF THE COMPLAINANT'S STATEMENTS AND THE IDENTIFICATION PROCESS

In criminal proceedings, especially in cases where there are no eyewitnesses or camera recordings, the victim's statement and identification process are the most important evidentiary tools determining the outcome of the case. However, for this evidence to be accepted as the basis for a judgment, it must be consistent, uncontradictory, and unambiguous.

Although the complainant TD stated in our case file that he identified our clients in the initial excitement and panic during the investigation phase, he retracted this statement and expressed his doubts in his sworn testimony before Your Honor during the trial.

The complainant, TD, stated in the hearing dated …/…/20… as follows: “I made an identification at the police station based on my state of mind at the time, but now, looking at the defendants present, I am not sure if these are the individuals who robbed me. A long time has passed since the incident, and I cannot associate these individuals with the people involved that day; I am not certain . Furthermore, the complainant explicitly stated that he was not a complainant and did not wish to participate in the case.

In a state governed by the rule of law, the principle of "the benefit of the doubt goes to the accused" (In Dubio Pro Reo) is a universal rule. It is legally impossible to convict defendants in a situation where the complainant themselves is not certain, has doubts, and states in court that "these things may not be true." The identification process is based on subjective perception, and the margin of error always exists. The complainant's doubt is a concrete manifestation of this margin of error.

According to the established jurisprudence of the Supreme Court's Criminal General Assembly and its relevant chambers, if there is a contradiction between the victim's statements during the investigation and prosecution phases, a conviction cannot be based solely on the victim's "hesitant" identification without resolving this contradiction.

The 6th Criminal Chamber of the Court of Cassation, in its ruling numbered 2016/4321 E., 2019/1254 K., stated: "...If the victim's identification during the preliminary investigation is shaken by statements such as 'I may have mistaken him, I'm not sure' during the confrontation in court, and if there is no other concrete circumstantial evidence (camera footage, fingerprints, DNA, etc.) that the defendant committed the crime, then, in accordance with the principle that the defendant benefits from the doubt, an acquittal should be granted..."

The situation is exactly the same for our clients. The complainant is not certain, there is no camera footage, no fingerprints. Restricting the freedom of two young people based solely on the suspicion of "were they the ones?" is unlawful.

II. THE BINDING EFFECT OF THE ACQUITTAL DECISION IN THE RELATED CASE (JUVENILE COURT DECISION)

The trial concerning the minor FK , who is alleged to have acted in concert with clients EK and MA and whose case was separated and tried in the Juvenile Court due to his young age, has concluded.

...In the case file numbered .../... E. and .../... K. of the Juvenile Court, "Acquittal Due to Insufficient Evidence" was given.

This is one of the cornerstones of our defense. Specifically, the indictment alleges that our clients and the convicted criminal FK acted "in concert," meaning they committed the crime jointly. The manner, time, location, and evidence of the incident are common to all three individuals. The pool of evidence is identical.

According to legal logic, if "insufficient evidence" is found against one of the individuals tried in the same case with the same evidence, this finding must also apply to the others. The proof of guilt cannot vary depending on the individual. The evidence deemed insufficient for FK (i.e., the complainant's hesitant statement) cannot be considered sufficient for clients EK and MA. A decision to the contrary would create contradictions between judicial decisions and undermine the sense of justice.

In the decision numbered 2011/3456 E. of the 1st Criminal Chamber of the Court of Cassation: "...In crimes alleged to have been committed jointly, if one of the defendants is acquitted due to insufficient evidence and this decision becomes final, then the other defendants who have the same evidentiary situation should also be acquitted, taking into account the contagious effect..."

III. LACK OF MATERIAL EVIDENCE AND PRESUMPTION OF INNOCENCE

Upon examination of the file;

1. There is no camera footage showing the scene or the perpetrators .

2. No fingerprints, DNA, or biological evidence belonging to the clients was found at the scene

3. The items alleged to have been looted were not found on the clients or in their residences.

4. Apart from the complainant, there is no impartial eyewitness .

All that remains is the complainant's statement that they "initially identified the suspect but were later unsure." The aim of criminal proceedings is to ascertain the material truth; judgments cannot be based on assumptions or probabilities. No evidence that lacks absolute certainty is sufficient for punishment.

The clients have consistently denied the charges from the very beginning of the investigation. There is nothing that contradicts their statements. On the contrary, the contradiction lies in the complainant's statements. Therefore, the presumption of innocence, guaranteed by Article 38 of the Constitution and Article 6 of the ECHR, should be interpreted in favor of the clients.

IV. OUR REQUEST FOR THE APPLICATION OF FAVORABLE PROVISIONS (Turkish Penal Code Article 168/3 – EFFECTIVE REPENTANCE)

If your esteemed court, disregarding the grounds for acquittal explained above, concludes that the evidence in the case file is sufficient for conviction, then we are obligated to request the application of legal provisions favorable to our clients.

Although the clients did not commit the alleged crime, their families made a payment to compensate the complainant for the damage and to ensure social peace. The complainant also stated that she had been compensated and was no longer pressing charges.

Article 168 of the Turkish Penal Code regulates the institution of "Effective Repentance." According to the third paragraph of this article; "In cases of robbery, if the offender personally demonstrates remorse and compensates the victim for the damage after the commencement of prosecution but before a verdict is given, the sentence shall be reduced by up to half."

Without implying that the clients have admitted guilt, the fact that the complainant's damages have been fully compensated serves the purpose of "remedying the victim." In Supreme Court precedents, it is accepted that even if the defendant denies the accusation, the provisions of effective repentance, which are favorable to the defendant, should be applied if the damages have been remedied.

The 6th Criminal Chamber of the Court of Cassation, in its decision numbered 2018/1234 E., 2020/567 K., stated: “…Even if the defendant does not accept the accusation, if he has compensated the victim for the damage, this behavior should be evaluated within the scope of effective repentance according to the principle of 'restorative justice' and Article 168 of the Turkish Penal Code should be applied. Because the legislator's aim is to encourage the compensation of the victim's damage…”

Therefore, if your Court is to impose a sentence, we request that the sentence be reduced by half in accordance with Article 168/3 of the Turkish Penal Code, and that Article 62 (Discretionary Reduction) of the Turkish Penal Code be applied, taking into consideration our clients' respectful demeanor during the hearings and their clean criminal records

V. OUR REQUEST FOR EVICTION

My clients have been in custody for a long time. Considering the evidence in the case (the complainant's hesitation, the acquittal of the juvenile offender), the possibility of the charge being reclassified in their favor or their acquittal is extremely high. Detention is a precautionary measure, but at this stage, it has turned into a form of punishment. Given that my clients have fixed residences, there is no suspicion of them fleeing, and the evidence has been collected (there is no evidence left to be tampered with), it would be in accordance with the law and fairness for the trial to continue without their detention.

CONCLUSION AND REQUEST:

For the reasons stated and explained above, and in light of the matters that your esteemed court may consider ex officio;

1. Firstly, considering that there is no conclusive and convincing evidence beyond reasonable doubt that the defendants committed the alleged crime, that they could not be clearly identified by the complainant, and that the other defendant in the same incident was acquitted, we request the ACQUITTAL.

2. Considering the time the clients have spent in custody and the possibility of their acquittal, we request their RELEASE WITHOUT FAIL.

3. If your court is of the opposite opinion, considering that the complainants' damages have been compensated and that they have not filed a complaint, a reduction in sentence should be applied in accordance with Article 168/3 of the Turkish Penal Code (Effective Repentance)

4. Considering the clients' backgrounds and good conduct during the trial, Article 62 of the Turkish Penal Code shall be applied.

5. All other legal provisions in favor of the defendant (suspension of the announcement of the verdict, postponement, conversion to a fine, etc.) shall be applied

I respectfully request and demand that a decision be made on behalf of my client.

Defendant's Counsel Attorney Aydanur NAS (e-signed)