Supreme Court ruling on ATM theft
The 8th Criminal Chamber of the Court of Cassation has rejected an appeal by the Office of the Chief Public Prosecutor, which had sought to reclassify the act of withdrawing money from a bank card left in an ATM as a "cybercrime" carrying a heavier penalty, upholding the conviction for "theft" instead.
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In the Bafra district of Samsun, a woman left her bank card in an ATM after withdrawing money from her account and walked away.
The person waiting in line behind her noticed the card was still in the ATM, continued the transaction, and withdrew 480 lira from the account. When the cardholder returned a short while later to retrieve her card, she realized money had been withdrawn from her account and filed a complaint. A public lawsuit was filed against the individual, whose identity was determined after reviewing security camera footage.
The Bafra 2nd Criminal Court of First Instance, which heard the case, determined that the act fell under the crime of "theft" and sentenced the defendant for the crime of "misuse of bank or credit cards" as defined in Article 245 of the Turkish Penal Code (TCK), which carries a prison sentence of 3 to 6 years. The local court's decision was upheld by the 8th Criminal Chamber of the Court of Cassation.
APPEAL FOR "QUALIFIED THEFT" FROM THE CHIEF PUBLIC PROSECUTOR'S OFFICE
The Office of the Chief Public Prosecutor at the Court of Cassation appealed the conviction, arguing that the defendant committed the act by using information systems.
The appeal pointed out that theft committed using information systems is a "qualified form of the crime" and requires a heavier penalty, stating that the legal assessment of the crime in the conviction should have been made in this direction.
Article 142, paragraph 2, clause (e) of the TCK, which regulates the crime of "qualified theft by means of using information systems," stipulates a prison sentence of 5 to 10 years for those who commit the alleged crime.
APPEAL REJECTED
Following its review, the 8th Criminal Chamber of the Court of Cassation determined that the defendant's act constituted "misuse of bank or credit cards" under the scope of theft and rejected the appeal of the Office of the Chief Public Prosecutor by a majority vote.
In the ruling, it was noted that in the case at hand, the defendant withdrew money from the account using the bank card the victim had left in the ATM, and that the defendant did not seize the bank card nor possess it afterward; therefore, the act was stated to fall under the crime of theft as regulated in Article 141 of the TCK.
The ruling stated that since the defendant did not seize the card, this did not constitute the use of information systems, and the appeal was rejected for this reason.