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REPUBLIC OF TÜRKİYE
ANTALYA REGIONAL COURT OF JUSTICE
4TH CRIMINAL CHAMBER
Merits No: 2019/627
Decision No: 2019/2281
Date of Decision: 04/07/2019
ACTION: Following the trial conducted by our Chamber regarding the defendant whose full identity is stated above, the following judgment was rendered:
By the indictment of the Manavgat Chief Public Prosecutor's Office dated 29/01/2014, Merits No. 2014/383; it was submitted that:
"...In the complaint petition sent to law enforcement via email, the complainant declared that she met the suspect approximately 3.5 years ago when she came to Manavgat for a vacation with her family and they became romantic partners; that upon returning to Switzerland at the end of the vacation, she stayed in continuous contact with the suspect via the internet; that upon learning the suspect was cheating on her, she wanted to break up, but during video calls over the internet, the suspect asked her to undress and she did, thereby allowing the suspect to acquire video recordings; that the suspect threatened her by stating he would publish these videos if she broke up with him; furthermore, the suspect created a profile on the website named Facebook in her name, published her nude photographs on this profile, and added all her friends to this Facebook address, leaving her with no friends left; that as a result of the suspect's persistent threats, she was forced to come to Türkiye without her family's knowledge; that upon informing her family of this situation, her father suffered a heart attack and her mother sent her to London; that the suspect again demanded she come to Türkiye, which she did not want and was terrified, thereby filing a complaint against the suspect;
In the statement taken from the suspect as a result of the investigation conducted by our Chief Public Prosecutor's Office, he summarized that: he met the complainant when she came to Türkiye for a vacation with her family and they became friends; that when she came for vacations with her family several times thereafter, they toured with her family's consent; that he never had sexual intercourse with the complainant and did not threaten her; that he did not possess video recordings as stated by the complainant; that because he worked in the tourism sector, he had girlfriends from many countries, and the complainant might have filed a complaint out of jealousy for this reason; that he was still in contact with the complainant; that they held shared Facebook accounts, that the complainant possessed the password to this profile page, and that photographs taken together were present on it; thereby denying the allegations;
It was initially decided by our Chief Public Prosecutor's Office to render a decision of non-prosecution due to abstract allegations regarding the subject of the investigation; however, this decision was set aside by the Alanya High Criminal Court and returned to our Chief Public Prosecutor's Office for a public prosecution to be initiated for the offense of threat;
Upon re-examination of the file, it was determined that printouts of Facebook correspondence between the complainant and the suspect—which were not present in the file during the initial investigation—were added to the file by the complainant's counsel; upon examination of the said Facebook printouts, it was observed that during conversations between the suspect and the complainant over Facebook, the suspect continuously addressed the complainant with phrases containing insults and threats, threatened to publish nude pictures of the complainant on a Facebook address he would open, and indeed certain nude and obscene pictures sent by the complainant to the suspect trusting him due to their romantic relationship were later published on this Facebook page; while these images were being published by the suspect, he accused the complainant by referring to her as a 'whore', and in these emails, the suspect frequently insulted the complainant using expressions such as 'do whatever the fck you want, I will fck you, get the fck out you piece of sht, dumbass, fck you, I will fck the mother and sister of what you do';
Furthermore, in these emails, the suspect continuously threatened the complainant by implying he would publish the nude pictures of the complainant in his possession and sending her the specific pictures he would share, stating: 'just so you know, I will post these first, if you have anything to say, send an email or call, you have 15 minutes, I swear I will do everything in my power to make you regret the milk you sucked from your mother, you cannot even imagine what I can do to you, tomorrow is my day off, I will open hundreds and thousands of pages in your name until evening, I will even set up a website, Ms. Tuğba, I am the one who puts the final period, not you, now go on doing whatever the f*ck you are doing, but remember I will make you beg tomorrow, crying like crazy, I am off today, hopefully you won't write to me, look, I am offering you only 24 hours, do whatever you want to do if you can handle what I can do, now send me your phone number, MSN address, and Facebook, everything where I can reach you at all times, otherwise those Facebook pages will become unimaginable, find a plane ticket to TR as soon as possible if you want nothing to happen, otherwise if I go crazy you know what will happen, I don't want you to be happy anymore, I don't care how much you get hurt, I am telling you, either you do what I say or I do what I say, I sent a friend request to your mother, the pictures are ready on Facebook now, now you can send an SMS or email to make me close it, you can look at your new profile picture, now it's time to speak all the truths';
As understood from the Facebook page printouts attached to the file, a Facebook page was subsequently opened by the suspect using obscene photographs of the complainant and these photographs were exhibited there;
When the investigation file is evaluated within this scope, the suspect rendered life unendurable for the complainant by continuously sending messages containing threats and insults, continued these ugly attacks recklessly and daringly, and published online the private photographs sent by the complainant trusting him; thereby committing the offenses of 'successive insult, successive threat, and violation of the privacy of private life'..."
Upon this indictment, a public prosecution was initiated before the Manavgat 2nd Criminal Court of First Instance seeking punishment pursuant to TPC Articles 125/2, 43/1, 53/1; TPC Articles 134/2-1st sentence, 53/1; and TPC Articles 106/1-1st sentence, 43/1, 53/1.
At the conclusion of the trial conducted by the Manavgat 2nd Criminal Court of First Instance in file dated 27/09/2018, Merits No. 2014/137 and Decision No. 2018/362; it was decided to drop the public prosecutions initiated for the offenses of insult and violation of the privacy of private life due to the victim's waiver of complaint, and granting the right to additional defense on the grounds that the threat offense attributed to the defendant constituted the crime of extortion, the defendant was sentenced to 2 years 6 months imprisonment and a judicial fine of 50,000.00 TL pursuant to TPC Articles 107/1, 43, 62; upon defense counsel filing an appeal against this decision, the file was transmitted to our Chamber.
In the defense of Defendant L... taken before the court of first instance: "...Complainant T... and I had a 4-year relationship; later, because I determined she was seeing other men, I ended the relationship; I do not know why she filed a complaint against me; she threatened me from time to time stating 'I will ruin your school life'; my guess is that she filed a complaint against me so that I would not tell other men about what I experienced with her; we used to communicate because we had a shared account with the complainant on the internet; she could also enter this account, she had the password, she knew this password; therefore, she may have had the messages and images specified in the complainant counsel's petition sent to herself; I definitely did not send these messages and images; furthermore, because the complainant had relationships with other men as well, those persons may have sent these messages and images on my behalf; it is very easy to access someone else's computer and internet addresses in the virtual environment; the incident may have occurred in this manner as well; I request my acquittal; if this is not possible, I request a decision for the suspension of the pronouncement of the judgment (HAGB); I repeat my previous defense made before your court. Furthermore, complainant T... sent me a friend request on Facebook again in 2016. Following the incidents with the complainant, I had no communication in 2012. Primarily, I request my acquittal; otherwise, the application of all provisions in my favor..." he declared.
In the defense of the Defendant taken before our Chamber: "I do not accept the accusations; I repeat my defenses made at various stages. Prior to the date of the incident, T. Y. and I had a unity and a romantic relationship. After breaking up, I may have sent some messages, but I wrote these messages without any expectation of benefit or interest. I have no criminal intent; I am currently a Gendarmerie Petty Officer candidate student, and it is clear that a penalty I receive will affect my status. For this reason, I request an acquittal decision regarding myself," he declared.
Defendant's defenses detailed above,
Victim's statements taken at various stages,
Social media printouts containing messages allegedly sent by the defendant to the victim,
File of the Karaman 1st Criminal Court of First Instance, Merits No. 2013/344 and Decision No. 2014/470 (a copy of which is present in our file), and the file of the same court following the Court of Cassation reversal, Merits No. 2018/361 and Decision No. 2018/541,
File copy of the Karaman 2nd Criminal Court of First Instance, Merits No. 2015/63 and Decision No. 2018/452, wherein Defendant L... was tried for offenses of insult and threat against victim T. Y., resulting in dismissal due to the victim's waiver of complaint,
Population and criminal records belonging to the defendant,
Trial proceedings conducted in Manavgat 2nd Criminal Court of First Instance File Merits No. 2014/137 and the entire scope of the file.
At the conclusion of the trial conducted by the Manavgat 2nd Criminal Court of First Instance in file dated 27/09/2018, Merits No. 2014/137 and Decision No. 2018/362:
"...It is understood that the defendant and victim previously communicated as romantic partners; that because the victim lived abroad, they communicated in the virtual environment via text or email; that the defendant sent messages via the email address as...m42@hotmail.com; that the defendant initially began complaining that the victim responded late and sent few emails; that while corresponding with the victim on this matter, upon the victim stating she could not continue the relationship, the defendant began threatening the victim by implying her obscene images sent to him, stating he would open hundreds and thousands of pages in the victim's name and disclose these photos to everyone; in the continuation of the threats, he intermittently asked the victim to respond to him and correspond with him; that the victim wrote to the defendant 'don't do this to me, you know we cannot be together after this, we both suffered enough. I'm sure it's hard for you. You think you can only get me by threatening, but no(...)'; that the defendant sent the implied photos to the victim via email, where it was observed that the photos contained private images of the victim without underwear; that the defendant wrote in his message 'now I am sending the pictures in the last file I sent you to those relatives of yours, you answered none of my questions and I reloaded the picture and I will load them all Tuba, since you weren't with me you won't be with anyone else either, I also know that Facebook doesn't belong to your father, everyone will know you as you are, now I will click forward on that mail I sent you with a single button, I will send it to everyone on the list I provided below, then whether you love E. or play the w*ore to him I don't care, got it?'; in another message he wrote 'look I offer you 24 hours, do whatever you want to do in front of you if you can handle what I can do, now send me your phone number, MSN address, and Facebook where I can reach you, everything, otherwise the Facebook pages will become unimaginable, find a plane ticket to TR as soon as possible if you want nothing to happen, otherwise if I go crazy you know what will happen, I don't want you to be happy anymore, I don't care how much you get hurt, I am telling you, either you do what I say or I do what I say, I sent a friend request to your mother, the pictures are ready on Facebook now(...)'; that these and similar messages were sent many times on different dates and hours; upon receiving no response to his demands, it was observed from screenshots that he opened Facebook accounts in the victim's name and posted photos of the victim's breasts with and without a bra on the profile.
Although a lawsuit was initiated seeking punishment of the defendant for the crime of threat, when email correspondence in the concrete case is read as a whole, the defendant made demands from the victim such as providing all her contact information, coming to Türkiye to be with him, severing contact with the person named E. she was seeing, and not breaking up with him; and threatened to share her obscene images sent during their relationship on social media to enforce these demands, and upon failure to meet demands, shared the said images on social media; the offense fitting this act constitutes the crime of extortion (şantaj), and it is fixed with definitive and doubt-free evidence that the defendant committed this crime..."
On these grounds, it was understood that it was decided to punish Defendant L... pursuant to TPC Articles 107/1, 43, 62 with 2 years 6 months imprisonment and a judicial fine of 50,000.00 TL.
Defense counsel for the defendant filed an appeal requesting the setting aside of the judgment, contending that the local court decision was contrary to procedure and the law.
In his opinion on the merits delivered during the session dated 04/07/2019 during the trial before our Chamber, the Public Prosecutor stated:
"A romantic relationship existed between the defendant and the victim for a period; because the victim lived abroad, they continued to communicate in the virtual environment, corresponding with each other over social media or via email;
The defendant sent messages to the victim via the email address ...@hotmail.com, complaining on the grounds that the victim responded late and sent few emails; upon the victim stating she could not continue the relationship, the defendant threatened the victim by stating he would expose her obscene images sent to him to everyone by opening hundreds and thousands of pages in the victim's name; intermittently asking the victim to respond to him and correspond with him; despite the victim ending the relationship by saying 'don't do this to me, you know we cannot be together after this, we both suffered enough. I'm sure it's hard for you. You think you can only get me by threatening, but no(...)', the defendant sent naked photos belonging to the victim to the victim's email address, sending a message stating 'now I am sending the pictures in the last file I sent you to those relatives of yours, you answered none of my questions and I reloaded the picture and I will load them all Tuba, since you weren't with me you won't be with anyone else either, I also know that Facebook doesn't belong to your father, everyone will know you as you are, now I will click forward on that mail I sent you with a single button, I will send it to everyone on the list I provided below, then whether you love E. or play the w*ore to him I don't care, got it?';
The defendant sent another message to the victim, repeating his threat by stating 'look I offer you 24 hours, do whatever you want to do in front of you if you can handle what I can do, now send me your phone number, MSN address, and Facebook where I can reach you, everything, otherwise the Facebook pages will become unimaginable, find a plane ticket to TR as soon as possible if you want nothing to happen, otherwise if I go crazy you know what will happen, I don't want you to be happy anymore, I don't care how much you get hurt, I am telling you. Either you do what I say or I do what I say, I sent a friend request to your mother, the pictures are ready on Facebook now(...)';
Regarding these acts against victim T. Y., a public prosecution was initiated against the defendant by the indictment of the Karaman Chief Public Prosecutor's Office dated 28/04/2013, No. 2013/1114 for acts prior to and including 21/02/2013; as a result of the trial following the public prosecution, by decision of the Karaman 1st Criminal Court of First Instance dated 23/10/2018, Merits No. 2018/361 and Decision No. 2018/541, it was decided to drop the public prosecution opened seeking punishment for the attributed crimes of threat and insult due to reconciliation (uzlaşma); prior to the reversal, an acquittal decision was rendered for the crime of extortion, and the judgments became final;
Despite this, regarding the same parties, a public prosecution was initiated by indictment of the Manavgat Chief Public Prosecutor's Office dated 29/01/2014, Investigation No. 2013/12000, Merits No. 2014/383, Decision No. 2014/170 seeking punishment of Defendant L... for offenses of insult, violation of the privacy of private life, and threat committed on 25/10/2012 pursuant to TPC Articles 125/2, 43/1, 53/1; TPC Articles 134/2-1st sentence, 53/1; and TPC Articles 106/1-1st sentence, 43/1, 53/1;
Because it is understood from the entire file scope that parties of the file subject to final judgment and this lawsuit are identical, the cause of action is identical, and pursuant to Article 223/7 of the Code of Criminal Procedure (CMK), if a prior judgment was rendered or a lawsuit was initiated for the same defendant regarding the same act, the lawsuit must be rejected;
It is requested and opined on behalf of the public that a decision be rendered for the REJECTION of the public prosecution initiated against Defendant L... due to final judgment (kesin hüküm) pursuant to CMK Article 223/7."
According to all the evidence stated above, the trial conducted, and the scope of the file;
According to the unrefuted defense of Defendant L..., he met victim T. Y., who lives in Switzerland, over the internet in 2009 and maintained their friendship for a while in this manner; during the period when the victim came to Manavgat district, Ilıca Kum Köy, Hane Hotel for a vacation with her family in 2010, the defendant and victim advanced their friendship; they continued to communicate over the internet after the victim's vacation ended; during the period when the victim and her family came to Manavgat for vacation again in 2011, the friendship between the defendant and victim progressed further, during which period the victim sent obscene images to the defendant; upon her wanting to break up with the defendant after a while, the defendant sent messages to the victim on various dates via the email address a...42@hotmail.com, complaining that the victim responded late and sent few emails; upon the victim stating she could not continue the relationship, the defendant threatened the victim by stating he would expose her obscene images sent to him to everyone by opening hundreds and thousands of pages in the victim's name; intermittently asking the victim to respond to him and correspond with him; despite the victim ending the relationship by stating 'don't do this to me, you know we cannot be together after this, we both suffered enough. I'm sure it's hard for you. You think you can only get me by threatening, but no(...)', the defendant sent naked photos belonging to the victim to her email address, sending messages stating 'now I am sending the pictures in the last file I sent you to those relatives of yours, you answered none of my questions and I reloaded the picture and I will load them all Tuba, since you weren't with me you won't be with anyone else either, I also know that Facebook doesn't belong to your father, everyone will know you as you are, now I will click forward on that mail I sent you with a single button, I will send it to everyone on the list I provided below, then whether you love E. or play the w*ore to him I don't care, got it?......look I offer you 24 hours, do whatever you want to do in front of you if you can handle what I can do, now send me your phone number, MSN address, and Facebook where I can reach you, everything, otherwise the Facebook pages will become unimaginable, find a plane ticket to TR as soon as possible if you want nothing to happen, otherwise if I go crazy you know what will happen, I don't want you to be happy anymore, I don't care how much you get hurt, I am telling you. Either you do what I say or I do what I say, I sent a friend request to your mother, the pictures are ready on Facebook now';
It is fixed by the scope of the file that upon the victim's complaint petition sent via email, a public prosecution was initiated against the defendant by indictment of the Manavgat Chief Public Prosecutor's Office dated 29/01/2014 as stated above for offenses of insult, disclosure of images and sounds relating to private life, and successive threat; while the trial court decided to drop public prosecutions opened for insult and violation of privacy due to waiver of complaint, the defendant's act of extortion was found proven and he was sentenced to 2 years 6 months imprisonment and a judicial fine of 50,000 TL pursuant to TPC Articles 107/1, 43, 62, 52/2-4;
However, during the appellate examination conducted by our Chamber, it was established from the scope of the file that upon the complaint made by the victim via email for the same reasons, a public prosecution was initiated against the defendant by indictment of the Karaman Chief Public Prosecutor's Office dated 26/04/2013, Investigation No. 2013/2194 on the grounds that the defendant sent messages containing insult, threat, and extortion to the victim pursuant to TPC Articles 107/2, 43/1, 53/1-2, 125/1, 43, 53, 106/1-2nd sentence, 53; at the conclusion of the trial in Karaman 1st Criminal Court of First Instance Merits No. 2013/344, by judgment dated 22/05/2014, Defendant L... was acquitted of the crime of extortion pursuant to CMK Article 223/2-e, and this decision became final on 16/09/2014 as no extraordinary/ordinary legal remedies were sought against it;
The conviction judgment of the said court regarding the punishment of the defendant for offenses of insult and simple threat was reversed by the 18th Criminal Chamber of the Court of Cassation via decree dated 10/05/2018, Merits No. 2016/3523 and Decision No. 2018/7245 and remanded to the local court; following the reversal, due to reconciliation of the parties, it was decided by judgment dated 23/10/2018, Merits No. 2018/361 and Decision No. 2018/541 to drop the public prosecutions opened against the defendant for insult and threat due to reconciliation, and this decision became final on 13/03/2019 as no legal remedies were sought;
In the face of this situation, because Defendant L... was tried for the crimes of extortion, threat, and insult upon the same allegations in file Merits No. 2013/344 and Decision No. 2014/470 of the Karaman 1st Criminal Court of First Instance and file Merits No. 2018/361 and Decision No. 2018/541 of the same court following Court of Cassation reversal, resulting in a final judgment (kesin hüküm), it became necessary to decide on the rejection of the duplicate public prosecution initiated against the defendant in file Merits No. 2014/137 of the Manavgat 2nd Criminal Court of First Instance pursuant to Article 223/7 of the Code of Criminal Procedure (CMK), and the following judgment was established.
Accepting the appeal request of Defendant L...; the conviction judgment of the Manavgat 2nd Criminal Court of First Instance dated 27/09/2018, Merits No. 2014/137 and Decision No. 2018/362 regarding the sentencing of Defendant L... to 2 years 6 months imprisonment and a judicial fine of 50,000.00 TL pursuant to TPC Articles 107/1, 43, 62, 52/2-4 is SET ASIDE (KALDIRILMASINA) pursuant to the 2nd sentence of CMK Article 280/2;
Because a trial was previously conducted and a final judgment established regarding Defendant L... upon the same allegations for offenses of extortion, threat, and insult in file Merits No. 2013/344, Decision No. 2014/470 of the Karaman 1st Criminal Court of First Instance and file Merits No. 2018/361, Decision No. 2018/541 of the same court following Court of Cassation reversal, the duplicate public prosecution opened against the defendant is REJECTED (REDDİNE) pursuant to CMK Article 223/7;
Court expenses to be borne by the Treasury;
Rendered in the presence of Defendant L... and his defense counsel ..., in the presence of Public Prosecutor ..., in accordance with the opinion, subject to APPEAL (temyiz) before the relevant Criminal Chamber of the Court of Cassation pursuant to CMK Article 286/1 within 15 days from the date of pronouncement by submitting a petition to our Chamber, making a declaration to the court clerk to be recorded in a minute, submitting a petition to the Prison Administration, or making a declaration to the Prison Administration to be recorded in a minute to be transmitted to our Chamber, or sending a petition through another Criminal Court of First Instance or Regional Court of Justice Criminal Chamber; unanimously read and explained. 04/07/2019
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