8. Criminal Chamber
2020/14611 Main ,
2021/16168 Decision
“Justice Text”
COURT: Criminal Court of First Instance
CRIME: Deprivation of liberty
JURISDICTION: Acquittal
It has been discussed and considered:
When the deputy of the Ministry of Family, Labor and Social Policies appealed against the provisions of the complainant, who was damaged in such a way as to take the title of “participant” and demanded to participate in the public trial, it was determined that the complainant institution had the right and authority to appeal the provisions, and it was understood that the will to participate in the submitted petition was revealed. law of reason
237/2. Pursuant to the article of the Ministry of Family and Social Policies, it was decided that the participant and the representative of the Ministry of Family and Social Policies would not participate in the case as the deputy of the participating Ministry;
I- In the examination made in terms of the appeal of the Public Prosecutor;
As stated in the Decision of the General Board of Penalty dated 06.11.2007, numbered 2007/3-167, No. 2007/222, the appeal period of the Public Prosecutor against the decisions of the criminal court of first instance in the jurisdiction; 8/1 of the Law No. 5320. Criminal Procedure Law No. 1412, which should be applied in accordance with Article 310/3, which is applied by analogy. According to the article 317 of the Criminal Procedure Code, the appeal request of the Public Prosecutor, who appealed the judgment of the Public Prosecutor on 12.12.2013 after the legal deadline, on 13.01.2014 is one month from the date of the declaration,
II- In the examination made in terms of the appeal of the deputy of the participating Ministry of Family, Labor and Social Services;
According to the occurrence and the scope of the entire file; The accused, who worked as a janitor at the school where the victim … was educated on the date of the crime, made friends with the victim via the social networking site called Facebook with the username “Cenk Yıldırım” and agreed with the victim to meet on the date of the incident, on the basis that he would send the photos of the victim to him via messaging on the same site. Although as many defendants argue that the Facebook user named “Cenk Yıldırım” is not himself, this situation is based on the content of the Facebook message transcripts included in the file, from the defendant’s message to the victim, “…look, I’ve been working at school for 3 years…” and his own
./..
S/2
It is fixed from the fact that he reported his mobile phone number, which he reported to the investigation and prosecution authorities as his number to the investigation and prosecution authorities, to the victim as his own number in Facebook correspondence, and from the statement of the prosecutor’s office that “…I also have an open Facebook address under the name of Cenk Yıldırım…”, although he later made statements about denial.] He went in front of his workplace, started walking towards his house after the accused did not come, the accused came after him and caught up with the victim, they started walking towards the hospital together, then the accused invited the victim to the garden of an unused ruined house, stating that the surrounding was crowded, the victim accepted and entered the garden together. , after the accused said that he did not have the photographs in his hand, the victim left the garden, the accused went out from behind, went back to the victim, forcibly took his mobile phone from him and returned to the garden where they first went out, the accused let the victim go to the garden He stated that he would give his phone on the condition that he enters the house in the house in the house, the defendant did not accept it, the accused forced him into the house by twisting his wrist, inside, he grabbed his wrists with his hands and leaned against the wall, trying to hug the victim, but the victim yelled from the open window by getting rid of the accused. The conclusion part of the chain of events that the accused panicked and left the victim and the victim ran away is also fixed by the investigative statements of … and … by the witnesses residing at the crime scene. Although the allegation that the accused was at his friend’s house at the time of the incident is confirmed by the statements of … and his wife …, whose statements were taken as a witness, the statements of witness Memet, who wanted to come to the courthouse to testify even though he was not invited as a witness, do not comply with the HTS records. As a result, considering the content of Facebook messages, the victim’s statements that are consistent with the situation and all these issues, considering the defendant’s crime of deprivation of liberty with sexual intent against the child and the act of touching the body by holding the victim’s hands, the Turkish penal code 103 /one. Instead of being punished for sexual abuse at the level of molestation within the scope of the second sentence of the article, acquittal decisions are made with a written justification without evaluating the evidence in detail,
Since the appeal objections of the deputy of the Ministry of Family, Labor and Social Services, who participated in the law, were deemed appropriate in this respect, the provisions of the Law No. 5320 8/1. It was unanimously decided on 16.06.2021 that it should be overturned pursuant to article 321 of the Criminal Procedure Code numbered 1412, which should be applied in accordance with the article.
