Critique of the Indictment Regarding the Fund Fraud

Last week, I explained the ponzi scheme to you and detailed the fraud incident involving the defendant S.E. and the promise of a high-yield fund. In that article, I addressed the naming of the imaginary fund as the 'Fatih Terim Fund' based on the indictment, stating that the claim that “the name Fatih Terim does not appear in the indictment” was incorrect. I pointed out that the name Fatih Terim appears in many places in the indictment, but that Fatih Terim is simply not listed as a defendant, complainant, or witness. This week, I will examine the main aspects of the indictment and argue that it is not actually an indictment but rather a confession, meaning it lacks many requirements under Article 170 of the Criminal Procedure Code (CMK). 

According to Article 170 of the CMK, “The duty to file a public lawsuit belongs to the public prosecutor.” If the evidence collected at the end of the investigation phase creates sufficient suspicion that a crime has been committed, the public prosecutor is obliged to prepare an indictment. Most importantly, the events constituting the charged crime must be explained in the indictment by linking them to the available evidence.

One of the most important principles in criminal law is the investigation of material truth. For this reason, the principle of ex officio investigation applies to the public prosecutor. This means that, regardless of the complainant or suspects, the prosecutor can investigate all kinds of evidence within the scope of the investigation file ex officio and determine the material truth regarding the crimes charged against the suspects fully and completely. If this obtained evidence creates sufficient suspicion, they are obliged to file a public lawsuit. 

In Turkey, the average time to write an indictment in an investigation is over a year. Even in defamation cases with a single defendant and a single complainant, preparing an indictment can take a very long time. However, in the examination of the fund fraud indictment, we see that the investigation, which began upon a bank complaint on June 7, 2023, was conducted very rapidly for 18 complainants and 7 defendants, and the indictment was prepared in a much shorter time than usual, specifically within 6 months, on October 19, 2023. As we will explain shortly, it is clear that the indictment was prepared before the evidence collection processes required for these crimes were fully completed. 

Looking at the indictment, it is seen that it was prepared by the Bureau of Investigation for Terror and Organized Crimes. When the narrative part of the indictment is evaluated, it clearly states that the suspects came together within the framework of a decision to commit a crime, and that there were hierarchical relationships and more than three people involved. First of all, although the investigation file was in the Organized Crimes Bureau, it is incomprehensible to us why the final paragraph of Article 158 of the Turkish Penal Code (TCK) regarding organized crime was not cited in the indictment. This is because the final paragraph of the fraud crime regulated in Article 158 of the TCK clearly states that if the crime of fraud is committed by 3 or more people together, the sentence is increased by half; if it is committed within the framework of an organization established to commit crimes, the sentence to be given is increased by one fold. 

In the final part of the indictment, it is mentioned that separate investigations are being conducted for crimes such as the Law No. 5549 on the Prevention of Laundering Proceeds of Crime, usury, and deprivation of liberty, and that an indictment will be prepared for the court with a request for consolidation following the collection of evidence. It is for this very reason that the indictment is still being debated in the public eye, and because the material truth has not been revealed, these debates have not ended.  

If an indictment had been prepared after all material truth had been revealed by making an effort to fully clarify the material truth, which is one of the main principles of criminal law, I believe this indictment would not have been such a subject of public debate. This is because the debated part of the indictment actually relates to material truths that are not included in the indictment. Since there is no information about the secret investigations stated to be conducted on this matter, many people are left under suspicion due to fruitless debates, and both the public lawsuit and the realization of justice are practically hindered by the audio and video recordings leaked to the public every day. 

Because an indictment is a roadmap. This map should clearly show what evidence was collected during the investigation, what procedures were performed, and who committed which crimes through which actions. Since the evidence was not fully collected for one reason or another, and the material truth of the events was not revealed in all its aspects, unfortunately, the debates will continue. 

There are also allegations in the file regarding bank executives. It is a major deficiency that in such an investigation, the relevant bank executives were not called to testify to provide information regarding the actions taken by their own managers.

Another significant deficiency in the indictment appears to be the lack of reports regarding such economic crimes. There is no report in the file other than a report from the BRSA (BDDK) and the Bank's Internal Audit Report. Since the bank is a direct complainant and the BRSA is in some way a party regarding the bank, it was essential to obtain a report through an independent expert witness consisting of retired bankers and inspectors who are experts in the elements of the crime in this matter.

Because this report was not obtained, it is unknown to the public whose loss is how much and what the amount subject to fraud is. Preparing an indictment without obtaining such an independent report is a significant deficiency in itself. For this reason, monetary amounts are flying around in the written and visual media, and no one can determine an accurate amount. Within the scope of the file, it is unclear how much loss each of the victims has individually and what the amount of money subject to fraud taken by the suspects is. 

In my opinion, the issues I mentioned above are actually grounds for the return of the indictment by the High Criminal Court under Article 174 of the CMK. It was a mistake for such an incomplete indictment to be accepted by the High Criminal Court and for the trial to begin, and this has caused the debates to continue. 

According to the indictment and its annexes, although there are 29 victims in the investigation file, an indictment was prepared against 18 people. According to the BRSA report, there are 49 victims. This shows us that the indictment was prepared prematurely and the investigation was conducted incompletely.

Law is a branch of science. It is conducted with certain principles and certain laws. The reason for the existence of legal rules is to reach justice. The issues I mentioned above have not helped to reveal the material truth at this stage; on the contrary, they have caused suspicions to increase even more. The prosecution activity to be carried out as a result of the indictment being well-prepared and including all elements of Article 170 of the CMK will only be successful, and thus justice will be reached. I say with regret that it will not be possible to reach justice with such an incomplete indictment; unfortunately, the judiciary will be criticized more over this file, and justice will once again be wounded.