Definition
The crime of using another person’s identity information is regulated under Article 268 of the Turkish Penal Code (TCK), within the Chapter on Crimes Against the Judiciary, as follows:
“A person who uses another’s identity or identity information in order to prevent an investigation or prosecution against himself due to a crime he has committed shall be punished according to the provisions related to the crime of false accusation.”
For this crime to be constituted, the perpetrator must have the intention of preventing an investigation or prosecution against himself due to a crime he has committed. Therefore, if the perpetrator commits this act with the motive of preventing an investigation or prosecution against another person, the elements of the crime would not be fulfilled, and as a result, no crime would be deemed to have occurred, and the perpetrator would not face any sanctions. If this crime is committed, the penalty will be imposed according to Article 267 of the Turkish Penal Code, pursuant to the provision of Article 268.
The provision of Article 267 of the Turkish Penal Code (TCK) is as follows:
“A person who, by informing or filing a complaint with the competent authorities, or through the press and media, attributes an unlawful act to someone else — despite knowing that the person did not commit the act — in order to initiate an investigation or prosecution against them or to impose an administrative sanction, shall be punished with imprisonment from one to four years.”
Is the Crime of Using Another Person’s Identity Information Subject to a Complaint?
The relevant crime is not subject to a complaint; therefore, there is no statute of limitations for filing a complaint.
Mediation
The crime of using another person’s identity information is not among the offenses subject to mediation.
Aggravating Circumstances Requiring a Heavier Penalty
According to the legal provision, the crime of “using another person’s identity information” is subject to the provisions governing the crime of “false accusation.” The circumstances that require a heavier penalty for the crime of false accusation are as follows:
- If false accusations are made by fabricating material evidence and proof of the act, the sentence shall be increased by half.
- If, in favor of the accused — who has been acquitted or for whom a decision of non-prosecution has been rendered because they did not commit the alleged act — a protective measure other than detention or arrest has been applied due to the false accusation, the sentence to be given shall also be increased by half according to the above paragraphs.
- If the victim, who has been acquitted or for whom a decision of non-prosecution has been rendered because they did not commit the alleged act, is detained or arrested because of the false accusation, the person making the false accusation shall additionally be held liable as an indirect perpetrator under the provisions concerning the offense of deprivation of liberty.
- If the victim is sentenced to aggravated life imprisonment or life imprisonment due to the false accusation, a prison sentence ranging from twenty to thirty years shall be imposed.
- If the execution of the prison sentence imposed on the victim has already started, the sentence determined according to the fifth paragraph shall be increased by half.
Mitigating Circumstances Requiring a Lesser Penalty
According to the legal provision, the crime of “using another person’s identity information” is subject to the provisions governing the crime of “false accusation.” The circumstances that require a lesser penalty for the crime of false accusation are as follows:
- If the person making the false accusation retracts their accusation before a judicial or administrative investigation is initiated against the victim, four-fifths of the sentence to be imposed for the crime of false accusation shall be reduced.
- If the retraction occurs before the prosecution is initiated against the victim, three-fourths of the sentence to be imposed for the crime of false accusation shall be reduced.
Other circumstances that require a lesser penalty will be explained under the heading of “Effective Remorse” below.
Effective Remorse
According to Article 269 of the Turkish Penal Code (TCK),
The effective remorse will result in:
a) If it occurs before the judgment regarding the victim, two-thirds of the sentence to be imposed shall be reduced.
b) If it occurs after the victim’s conviction, half of the sentence to be imposed shall be reduced.
c) If the execution of the imposed sentence has begun, one-third of the sentence to be imposed shall be reduced.
Due to the act that constitutes the subject of the false accusation, which specifically requires the application of an administrative sanction:
a) If effective remorse is shown before the decision on the administrative sanction, half of the sentence to be imposed shall be reduced.
b) If effective remorse is shown after the administrative sanction is applied, one-third of the sentence to be imposed shall be reduced.
Relevant Court of Cassation Decisions
- “Upon examining the appeal request regarding the judgment rendered for the crime of making false statements in the preparation of an official document against the defendant;”
“According to the case file, the other appeal objections were not deemed appropriate. However;
The defendant, who initially concealed their identity and provided the identity information of their cousin, and later revealed their true identity during the investigation, had their actions not considered as constituting the crime of false accusation as defined under Articles 267/1 and 269 of the Turkish Penal Code (TCK), based on Article 268/1, which leads to a misclassification of the offense and the decision being made in writing accordingly.
In accordance with the acceptance and application; instead of applying a one-third reduction as per Article 31/3 of TCK No. 5237, a one-sixth reduction was made, resulting in an excessive sentence.
This required a reversal, and the defendant’s attorney’s appeal objections were deemed valid for this reason, leading to the judgment being overturned for the stated reasons. It was decided by unanimous vote on 03/04/2014 that the judgment would be overturned, and Article 326/last of the 1412 Criminal Procedure Code (CMUK) would be taken into account in the subsequent ruling. (Court of Cassation, 2nd Criminal Chamber, E. 2013/16572 K. 2014/9161, T. 3.4.2014)”
- “Upon reviewing the minutes, documents, and reasoning content reflecting the trial process in which the conviction was formed, no other grounds were found to be appropriate.”
“However, in order for the crime of defamation regulated in Article 267 of the Turkish Penal Code (TPC) to occur, it is necessary for a person to falsely accuse someone of an unlawful act, either by notifying or filing a complaint with the competent authorities or through the press and media, knowing that the person did not commit the act, in order to initiate an investigation and prosecution or to apply an administrative sanction. In order for the crime of using someone else’s identity or identification information, regulated under Article 268, which addresses a specific form of defamation, to occur, the person must use someone else’s identity or identification information in order to prevent an investigation or prosecution against themselves due to a crime they committed. In other words, in the crime outlined in this article, the perpetrator does not only make a false statement about their own identity but also uses someone else’s identity or identity information to present themselves as innocent and another person as the perpetrator of a crime they did not commit. In this context, the identity information used by the perpetrator must belong to a real person.”
“When a public official authorized to prepare an official document makes a false statement, in other words, when the information is not related to a specific person but is entirely fabricated, it cannot be considered a crime of defamation, but rather a crime of making a false statement in the preparation of an official document as regulated in Article 206 of the Turkish Penal Code (TPC).
When considering the concrete case, when the defendant was questioned about their identity during the investigation at the police station, the provided information should have been investigated. If the information was found to belong to a real person, the act should be evaluated under Article 268 of the TPC; if the provided information was completely fabricated, the crime under Article 206 should have been considered. However, without proper investigation, the defendant was sentenced under Article 267/1 of the TPC for using someone else’s identity or identity information.
Since this decision was contrary to the law and the defendant Şevket’s appeal grounds were found to be valid, the recommendation to approve the decision was rejected, and the judgment was reversed. The case was sent back to the main/court of judgment to continue the trial from the pre-reversal stage and conclude. The decision was made unanimously on 21/11/2007. (Court of Cassation, 4th Chamber, E. 2006/4634, K. 2007/9761, dated 21.11.2007)”
- “The defendant, when arrested, reported identity information as Cengiz and Yüksel’s son, born in 1995, Fatih KARADAN. It was necessary to investigate whether these identity details belong to a real person. If it was determined that the details belonged to a real person, the act would constitute the crime defined in Article 267/1 of the Turkish Penal Code (TPC) by referencing Article 268/1. However, without this investigation, the court issued a verdict based on incomplete examination. This required a reversal of the judgment. The appeal of the defendant Uygar KARADAN’s defense was therefore accepted, and for the reasons stated, the decision was reversed in a manner contrary to the request. In accordance with Article 8/1 of Law No. 5320, and Article 326/last paragraph of the Code of Criminal Procedure (CMUK) No. 1412, the defendant’s acquired rights should be taken into consideration. The decision was made unanimously on 01/11/2006.” (www.adalet.org)
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