Unlawful Use of Services Offense (Turkish Criminal Code Article 163/3) – Reversal Decision

The court decisions published in this section were obtained in cases in which Attorney Mert Sönmez personally acted as counsel and defense counsel.

REPUBLIC OF TÜRKİYE

*** COURT

CASE NO: ***

DECISION NO: ***

REASONING

For offenses of unlawful use of services committed after Law No. 6352 entered into force on 05/07/2012, Articles 163/3 and 168/5 of the Turkish Criminal Code No. 5237 require the Chief Public Prosecutor's Office, during the investigation stage, to have an expert calculate the participating institution's actual loss inclusive of tax and exclusive of penalties, to inform the accused of the amount, to grant an appropriate period, and to notify the accused that "no public prosecution will be brought if the actual loss of the institution, inclusive of tax and exclusive of penalties, as calculated by the expert, is fully compensated before the investigation is completed." If the institution's actual loss is fully compensated within the period granted following notification and before the investigation is completed, a public prosecution cannot be brought under Article 168/5 of the Turkish Criminal Code because this is a condition of prosecution. If such notice was not given during the investigation but the accused fully compensates the participating institution's loss during the prosecution stage, that payment must be treated as if made during the investigation, and the case against the accused must be dismissed under Article 223/8 of the Code of Criminal Procedure because the condition of prosecution has not been met.

In the present case, in light of these explanations, no expert report was obtained during the investigation to calculate the actual loss inclusive of tax and exclusive of penalties arising from the report dated 06/05/2014 concerning illegal and irregular water use and sealing, and the accused was not notified that no public prosecution would be brought if that loss was fully compensated before completion of the investigation. Since no such payment notice was given, the institution's actual loss inclusive of tax and exclusive of penalties should have been calculated by an expert during the prosecution stage, the expert report should have been served on the accused at the hearing, and the accused should have been warned that the case would be dismissed if the amount of loss specified in the expert report were paid. After obtaining the expert report and completing the warning and service procedures, the legal position of the accused had to be assessed in light of the outcome. Rendering judgment as written on the basis of an incomplete examination and erroneous reasoning, without observing this requirement, necessitated reversal.

Article 280/1-e of the Code of Criminal Procedure No. 5271 provides that where the first-instance court's decision contains a ground of unlawfulness specified in Article 289, the judgment shall be reversed.

Since the decision was unlawful and the grounds of appeal advanced by defense counsel for the accused were found well-founded, THE JUDGMENT SHALL BE REVERSED pursuant to Articles 289/1-i and 280/1-e of the Code of Criminal Procedure No. 5271, and the file shall be sent to the first-instance court whose judgment was reversed for re-examination and judgment. The decision was rendered unanimously on 11/12/2024 and is FINAL pursuant to Article 286/2-a of the Code of Criminal Procedure No. 5271.

JUDGMENT

Since the decision was unlawful and the grounds of appeal advanced by defense counsel for the accused were found well-founded, THE JUDGMENT SHALL BE REVERSED pursuant to Articles 289/1-i and 280/1-e of the Code of Criminal Procedure No. 5271, and the file shall be sent to the first-instance court whose judgment was reversed for re-examination and judgment. The decision was rendered unanimously on 11/12/2024 and is FINAL pursuant to Article 286/2-a of the Code of Criminal Procedure No. 5271.