Definition
The crime of misuse of an open signature is regulated under Article 209 of the Turkish Penal Code, in the fourth section titled “Crimes Against Public Safety”. An open signature (also referred to as a blank signature) refers to signing a blank paper or document, deed, or certificate.
“Although a signature is a constitutive element of a document, it is possible for the signature to be placed before the text of the document. In this case, it is referred to as a blank (open) signature.” (Court of Cassation 13th Civil Chamber, 2016/28448 E., 2019/8367 K.)
It is a crime to fill in or misuse the open signature contrary to the terms of the agreement.
Article 209
(1) A person who fills out a signed and partially or entirely blank paper that was delivered to them in a specific manner for use, in a way that differs from the intended purpose, shall be sentenced to imprisonment from three months to one year, upon complaint.
(2) A person who unlawfully takes possession of or holds a signed and partially or entirely blank paper and fills it out in a manner that leads to legal consequences shall be punished according to the provisions on forgery of documents.
Is the Crime of Misuse of an Open Signature Subject to Complaint?
This crime is subject to complaint, and the victim must file a complaint within 6 months.
Reconciliation
The crime of misuse of an open signature is among the crimes subject to reconciliation.
Simple Form of the Crime
A person who fills out a signed and partially or fully blank paper, which has been delivered to them to be filled and used in a specific manner, in a way different from the reason for its delivery, shall be punished with imprisonment for a term of three months to one year, upon complaint (Turkish Penal Code, Article 209/1).
A person who unlawfully obtains or possesses a signed and partially or fully blank paper and fills it out in a way that produces legal consequences shall be punished according to the provisions on document forgery (Turkish Penal Code, Article 209/2).
Referral Provision
According to the second paragraph of Article 209 of the Turkish Penal Code, which regulates the crime of misuse of an open signature, “A person who unlawfully obtains or possesses a signed and partially or fully blank paper and fills it out in a way that produces legal consequences shall be punished according to the provisions on document forgery.” Article 207 of the Turkish Penal Code, titled “Forgery of Private Documents,” is as follows:
“A person who forges a private document or alters a genuine private document in a way that deceives others and uses it shall be punished with imprisonment for a term of one to three years.
A person who knowingly uses a forged private document shall also be punished according to the provisions of the above paragraph.”
Article 204, titled “Forgery of Official Documents,” is as follows:
“A person who forges an official document, alters a genuine official document in a way that deceives others, or uses a forged official document shall be punished with imprisonment for a term of two to five years.
A public official who, in the course of their duties, forges an official document, alters a genuine document in a way that deceives others, prepares a document contrary to the truth, or uses a forged official document shall be punished with imprisonment for a term of three to eight years.
If the official document is considered valid until its falsity is proven according to the provisions of the law, the penalty to be imposed shall be increased by half.”
Factors Affecting the Crime
There are no circumstances that would require a lesser or greater penalty for the relevant crime.
Effective Remorse
Effective remorse, according to the law, refers to the reduction or removal of a penalty based on a personal reason for certain crimes. Therefore, it is not applicable to all crimes. In the case of the crime of misuse of an open signature, the provisions of effective remorse do not apply.
Burden of Proof
In civil procedure law, due to the prohibition of proof by witness against a document, the victim cannot prove their claim through a witness. Indeed, Article 201 of the Civil Procedure Code (HMK) is as follows:
“Legal actions that are asserted against any claim related to a document and that would nullify or diminish the legal effect and power of the document, even if they involve an amount less than two thousand five hundred Turkish Liras, cannot be proven by witness testimony.”
However, third parties who are not a party to the document may prove their claims through witness testimony.
The Execution Regime for the Offense of Misuse of an Open Signature
As stated in Article 209 of the Turkish Penal Code (TCK), in the case of the commission of the offense of misusing an open signature, a prison sentence is imposed upon complaint. The offense of misusing an open signature may be converted into a judicial fine due to the amount of the penalty.
According to Article 231 of the Code of Criminal Procedure, “If the penalty imposed as a result of the trial for the crime charged against the defendant is a prison sentence of two years or less or a judicial fine, the court may decide to defer the announcement of the judgment. Provisions related to reconciliation remain reserved. The deferral of the announcement of the judgment means that the judgment does not have any legal consequences for the defendant.”
In order to decide on the deferral of the announcement of the judgment:
a) The defendant must not have been previously convicted of an intentional crime.
b) The court must be convinced, considering the defendant’s personality traits and behavior during the trial, that the defendant will not commit further crimes.
c) The harm caused to the victim or the public by the commission of the crime must be fully remedied through restitution, restoration to the previous state, or compensation.
d) The defendant must accept the deferral of the announcement of the judgment.
Since the crime of misuse of an open signature is subject to a short-term prison sentence, the deferral of the announcement of the judgment (HAGB) may be applied if the other conditions are met. However, with the Constitutional Court’s decision dated 01/08/2023, the regulation of HAGB has been annulled, and this regulation will be applicable starting from 01/08/2024. Until the effective date, HAGB provisions may be applied if the conditions are met, but after the effective date (01/08/2024), HAGB will no longer be applicable.
During the trial, if a person is sentenced to a prison term of two years or less for the crime committed, their sentence may be deferred (TCK. Art. 51). The upper limit for this period is three years for individuals who were under eighteen or over sixty-five years old at the time the offense was committed.
In order for a deferral decision to be made, the person must:
- The person must not have been sentenced to more than three months of imprisonment for an intentional crime in the past.
- Additionally, the court must form an opinion during the trial process that the person will not commit another crime due to the remorse shown after committing the offense.
The provisions for the suspension of the sentence can be applied in the crime of misuse of an open signature.
Relevant Court of Cassation Rulings
“The complainant … and the defendant … are biological mother and son, respectively. The complainant’s spouse has passed away, and a dispute arose among the children during the division of assets. Defendant … filled one of the three signed promissory notes taken from the complainant, with the amount of 250,000 TL, dated 20/06/2007 for the issuance and 20/06/2010 as the due date, and became a creditor by giving it to the defendant … with whom he lived. The latter, in turn, filed an execution proceeding against the complainant in Ankara 19th Execution Directorate, case number 2012/7846, on 18/06/2012, in favor of their common child, Melis Cansu Suveren, under guardianship. The payment order was served on the debtor complainant on 25/06/2012. The complainant, through his attorney, filed a complaint on 12/12/2012, claiming that he had been made to sign blank promissory notes, which were later filled with creditor and debtor names, with the amount of 250,000 TL, and submitted to execution. He argued that the blank signature had been abused. The defendants denied the allegations. In this case, the defendants are alleged to have committed the crime of abusing a blank signature and attempted fraud via a public institution. According to the 24.04.1989 decision of the Supreme Court of Appeals’ General Assembly of Civil Chambers, ruling 1/2, it is stated that the abuse of a blank signature cannot be proven with witness testimony, but it can be proven with written evidence. Since the complainant could not prove the abuse of the blank signature with written evidence, the promissory note submitted to execution was legally valid, and no sufficient evidence was found to convict the defendants of abusing the blank signature and attempting to defraud the complainant with a legally invalid promissory note. Therefore, no error was found in the acquittal decisions.”
“Based on the trial conducted, the evidence presented and shown at the decision-making stage, the opinion and discretion formed in accordance with the results of the court proceedings, and the scope of the case file examined, it was unanimously decided on 13/09/2018 to reject the appeal objections of the complainant’s attorney and to UPHOLD the judgments. (Court of Cassation 15th Criminal Chamber 2015/10312 E., 2018/5552 K.)”
“In the incident where it is claimed that a promissory note worth 2,000 TL, signed by the complainants in the capacity of debtor and provided by them to their son …, was filled out as 50,000 TL and placed under execution by the defendant, who is not legally related to the complainants and was written as the creditor, it is stated that the defendant, while researching online to purchase a summer house, learned that a person named … was selling a summer house for 75,000 TL, went to …, met this person, liked the summer house shown, agreed on a price of 65,000 TL, did not make a contract, paid 50,000 TL in advance, and requested time for the remaining 15,000 TL, then returned to Ankara. While trying to raise the remaining 15,000 TL, he called … and was told that he had not reached an agreement with the owner. Therefore, he asked for his 50,000 TL back, which … sent the promissory note related to the crime by bus. It is stated by the complainants that their son … filed a criminal complaint against … with the … Public Prosecutor’s Office, and the investigation is ongoing. It is also mentioned that there is a contradiction in the complainants’ statements regarding whether the amount was written on the promissory note when it was signed. In a petition for intervention sent to the court after the judgment date, … stated that upon reviewing the promissory note, he realized that it was not the promissory note worth 2,000 TL, which was signed by his parents, but rather a different note that was falsified, with all the sections, including the creditor, written by himself. In the investigation and prosecution stages, the statements of … and … have not been recorded. Furthermore, no expert examination was conducted regarding the writing, numbers, and signatures on the promissory note. Therefore, in order to determine the truth, the criminal intent, and the nature of the crime beyond any doubt; the detailed statements of … and … related to the incident should be identified, and the nature and outcome of the investigation conducted by the … Public Prosecutor’s Office should be researched, with a summary recorded in the trial minutes and certified copies of relevant documents transmitted. An expert examination should be conducted to determine the affiliation of the writing, numbers, and signatures on the promissory note with the complainants, defendant, …, and …, and whether there is any alteration on the note. It should also be determined whether there is any document related to the 50,000 TL given by the defendant in exchange for the summer house purchase from …, and why the defendant’s name appears as the creditor on the note. Furthermore, if the promissory note was accepted as being signed in blank, even in the case where the defendant acted in concert with …, acquiring the unsigned paper entrusted to him by the person with the blank signature and placing it under execution, it should be considered whether this action constitutes the offense of “Forgery of Official Documents” under Article 204/1 of the Turkish Penal Code, by referring to Article 209/2 of the same Code. In light of all the collected evidence, the defendant’s legal status should be determined and assessed, and a judgment should be made accordingly, rather than reaching a decision with an incomplete examination.”
“The appeal objections of the complainants, which are contrary to the law, have been deemed justified. Therefore, for these reasons, the judgment has been overturned pursuant to Article 321 of the Criminal Procedure Code No. 1412, in accordance with Article 8/1 of Law No. 5320, and it was unanimously decided on 23.11.2016.” (Court of Cassation 11th Criminal Chamber 2015/4008 E., 2016/7744 K.)
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