If you want to pay by credit card
REPUBLIC OF TÜRKİYE
COURT OF CASSATION
12TH CRIMINAL CHAMBER
Merits No: 2014/19526
Decision No: 2015/3184
Date of Decision: 23.02.2015
ACTION: Upon appeal by the participating victim (katılan) against the judgment regarding the acquittal of the defendant for the crime of unlawfully disclosing or acquiring personal data, the file was examined and deliberated:
The other grounds of appeal of the participating victim are rejected; however:
According to the scope of the file; Defendant ... and Participating Victim ... knew each other due to having worked together for a period at the workplace of the same cargo company. During the period after the defendant left the workplace, following two messages dated 16.09.2013 sent to the victim's Facebook account from a Facebook account named ...—which utilized a photograph of the defendant as its profile picture—stating "Hello Ms. ..., how are you?" and "When a person is this beautiful, she doesn't answer, and you are right too," the victim requested witness ..., the owner of the workplace, to call the defendant by phone and learn whether he had any connection to the incident.
In accordance with the victim's request, witness ..., who called the defendant by phone on 17.09.2013 at around 10:00, conveyed the matter to the defendant, and the defendant stated that he had no connection to the Facebook account named ... . However, approximately 2 hours after this phone call, the profile picture belonging to the defendant on the Facebook account named ... was removed and a landscape picture was set on the profile. On the same day at around 13:00, the defendant went to the victim's workplace and argued with her. In an incident where the defendant—with the motive of proving to the victim that he was not the owner of the Facebook account named ... and that fake accounts could easily be opened on the social networking site Facebook using photographs belonging to others—opened a new Facebook account under the name "..." by using the photograph on the victim's Facebook profile;
Considering that the victim primarily requested witness ..., the workplace owner, to call the defendant by phone regarding the Facebook account named ... where the defendant's picture was used to learn whether he had any connection to the incident, primacy should have been accorded to the sincere statements of the victim—who was a Facebook user, knew that fake Facebook accounts could be opened using publicly accessible profile pictures, and whose statements did not essentially change across stages—and to her statements indicating that after the argument at the workplace, the defendant told her, "I will open 10 separate Facebook accounts with your picture, you will see."
In the concrete case, where no ground of legality (hukuka uygunluk nedeni) that could be accepted by any branch of law or any matter to be taken into account within this scope existed, the defendant exposed the victim's photograph—which holds the status of personal data—to the view of others through the Facebook account named "..." without her consent. For this proven act of the defendant, a conviction should have been rendered for the crime of unlawfully disclosing or acquiring personal data under Article 136/1 of the Turkish Penal Code (TPC).
Instead, the court relied on the defendant's defenses aimed at evading punishment and failed to consider that motive is irrelevant in a crime committed with general intent (genel kast), thereby rendering an acquittal decision for the defendant pursuant to Article 223/2-c of the Code of Criminal Procedure (CMK) based on written grounds inconsistent with the scope of the file;
Because this constitutes a violation of law and the participating victim's grounds of appeal are deemed well-founded in this respect, it was decided unanimously on 23.02.2015 that the judgment be REVERSED (BOZULMASINA) in accordance with the opinion, pursuant to Article 321 of Code No. 1412 (CMUK), which remains currently applicable by virtue of Article 8 of Law No. 5320.
Share This|
|
