Definition
The crime of abuse of trust is defined in Article 155 of the Turkish Penal Code, under the section titled “Crimes Against Persons” and within the tenth chapter titled “Crimes Against Property.”
Article 155 – (1) A person who, with the right to possess or use property owned by another person, acts beyond the purpose of transferring possession, either for their own benefit or for another’s, or denies the transfer of possession, shall be punished upon complaint with imprisonment from six months to two years and a judicial fine.
(2) If the crime is committed regarding property entrusted or delivered in accordance with the authority to manage another person’s property due to a profession, trade, service relationship, or any other reason, the offender shall be sentenced to imprisonment from one year to seven years and a judicial fine up to three thousand days.
The subject of the crime of abuse of trust is movable or immovable property. The offender must have been granted possession of this property for their benefit. In the crime of abuse of trust, the offender is not the owner of the property in question. Therefore, regarding property owned jointly or in participation, those who own the property jointly or in participation cannot commit the crime of abuse of trust against each other. The offender is the person to whom possession has been granted over the property in question. However, this possession does not necessarily need to be established by the owner.
For the crime to occur, possession must be established in favor of the offender with the intention of using the property in a specific manner. Therefore, for the crime of abuse of trust to be committed, there must be a legally valid contractual relationship. No material damage is required for the crime of abuse of trust to occur.
Is the Crime of Abuse of Trust Subject to Complaint and Mediation?
The simple form of the crime of abuse of trust is subject to a complaint. However, the aggravated form regulated in the second paragraph of the relevant article is not subject to a complaint; it can be investigated and prosecuted ex officio. The simple form of the crime, as regulated in the first paragraph, is subject to mediation, whereas the aggravated form, as regulated in the second paragraph, is NOT subject to mediation.
Can the Crime of Abuse of Trust be Committed by Negligence?
This crime is one that the offender can commit knowingly and willingly. It cannot be committed by negligence.
The Simple Form of the Crime
According to Article 155 of the Turkish Penal Code (TCK).
“A person who, with respect to property belonging to another, over which possession has been transferred to them for safekeeping or for a specific purpose, disposes of it for their own or another’s benefit, beyond the purpose of the transfer of possession, or denies the existence of such a transfer, shall be punished upon complaint with imprisonment from six months to two years and a judicial fine.”
“Aggravating Circumstances”
According to Article 155/2 of the Turkish Penal Code:
“If the crime is committed regarding goods entrusted or delivered due to the obligation of managing someone else’s property, whether arising from a professional, commercial, or service relationship, or any other reason, the perpetrator shall be sentenced to imprisonment from one to seven years and a judicial fine up to three thousand days.”
Circumstances Requiring a Lesser Penalty
There is no provision in the Turkish Penal Code for a circumstance that requires a lesser penalty for this crime.
Effective Remorse
The crime of abuse of trust is also included in Article 168 of the Turkish Penal Code, titled “Effective Remorse.”
“After the completion of the crimes of theft, damage to property, abuse of trust, fraud, fraudulent bankruptcy, and negligent bankruptcy, but before prosecution is initiated, if the perpetrator, instigator, or aider shows remorse by fully compensating the victim’s loss either by returning the property or providing compensation, the sentence may be reduced by up to two-thirds.”
Attempt
Although attempting the crime of abuse of trust appears theoretically possible, proving the existence of an attempt in practice is extremely difficult.
The Execution Regime Applicable to the Crime of Abuse of Trust
According to the ruling established in Article 155 of the Turkish Penal Code, the punishment for the crime of abuse of trust is imprisonment and a judicial fine. The judicial fine can be converted into imprisonment.
For a decision to defer the announcement of the judgment (HAGB), the following conditions must be met:
a) The defendant must not have been previously convicted of an intentional crime.
b) The court must be convinced, based on the defendant’s personal characteristics and behavior in the trial, that the defendant will not commit further crimes.
c) The harm caused to the victim or the public due to the crime must be fully compensated through restitution, restoration to the previous state, or compensation.
d) The defendant must accept the deferral of the announcement of the judgment.
For a deferral of the announcement of the judgment (HAGB) decision to be made, the sentence must be a prison sentence of 2 years or less. If there is any damage caused by the crime, the defendant must compensate for the harm in order to benefit from the deferral of the announcement of the judgment. However, with the Constitutional Court’s decision dated 01/08/2023, the regulation on HAGB has been abolished, and this regulation will apply starting from 01/08/2024. Until the effective date, the conditions for applying HAGB may be applicable, but from 01/08/2024 onwards, HAGB will no longer be applicable.
A person sentenced to imprisonment for two years or less for a crime may have their sentence postponed (TCK Art. 51). The upper limit of this period is three years for individuals who were under eighteen years old or over sixty-five years old at the time the crime was committed.
In order to issue a postponement decision, the person must:
- The person must not have been sentenced to more than three months of imprisonment for an intentional crime previously.
- The court must form the opinion that the person will not commit another crime due to the remorse shown during the trial process after committing the offense.
The sentence to be imposed based on the manner in which the crime was committed may be deferred.
Relevant Court of Cassation Rulings
“1. The defendant …, along with the plaintiffs S.D. and …, is a partner in the company … Kumanyacılık Emlak Tarım Gıda Tekstil Taşımacılık İnşaat Turizm Sanayi Ticaret Ltd. Şirketi. The plaintiffs … and the defendant … are joint managing directors of the company. The defendant … is accused of committing the crime of abusing trust due to a service relationship, having, upon the instigation of the company’s accounting manager (who is not subject to appeal), withdrawn 248,000 TL and 1,600 USD from the company on different dates.
2. The defendant claims that, in collaboration with the company’s accounting manager and the plaintiffs, they took money from the company in his name, and that the accounting manager, in an effort to cover up his own irregularities and theft from the company, falsely accused him. The defendant denies any involvement with the money that was shown as a cash shortage.
3. The accounting manager (who is not subject to appeal) testified that the defendant …, claiming that the partners were aware, took money from the cash register on various dates without proper records. Later, when the plaintiffs conducted their investigation, it was discovered that the defendant had taken money, and the defendant informed the plaintiffs, also handing over the notes he had made in his agenda.
4. The plaintiffs stated that after detecting certain irregularities in the company’s accounts, they sent a warning letter to the defendant …, and after discussions with the defendant, it was revealed that the shares belonging to his brother were transferred. However, one day after this transaction, they were subjected to enforcement proceedings due to a bond worth 1,084,000.00 TL, which involved their company as a guarantor and incurred debt. They declared that they were complaining about this situation.
5. The witnesses were found to have made statements consistent with the court’s acceptance as indicated in the appeal decision.
6. Since the crime of abusing trust due to service, attributed to the defendant, is covered under the provisions of Article 26 of Law No. 7188, which was published in the Official Gazette dated 24/10/2019 and came into force on the same date, and in accordance with Articles 253 and 254 of Law No. 5271, the case was referred to the reconciliation office. However, reconciliation could not be achieved.
7. According to the reasoning in the appeal decision, the court established the conviction judgment regarding the defendant’s punishment.
IV. REASONING
It has been determined that the proceedings during the trial were carried out in accordance with the procedure and the law by following the ruling of the higher court, the allegations and defenses presented during the stages were shown and discussed in the reasoned judgment along with all the collected evidence, it was found that the act was committed by the defendant, and the moral judgment was based on concrete facts consistent with the documents and information in the case file. The crime classification and the penalties imposed were determined correctly. Therefore, the other appeal grounds put forward by the defendant’s attorney, which were not considered valid, have also been rejected.
V. JUDGMENT
For the reasons explained in the rationale section, the appeal reasons raised by the defendant’s counsel and other matters considered in the Antalya 5th Criminal Court of First Instance’s decision dated 08.01.2021 and numbered 2020/340 E., 2021/16, were not found to be contrary to law. Therefore, the appeal reasons of the defendant’s counsel were rejected, and the judgment was unanimously APPROVED in accordance with the notification (Yargıtay 11th Criminal Chamber, 2022/6611 E., 2023/4594 K., 31.05.2023).
“It was observed that in the power of attorney relationship between the defendant and the authorized representatives of the complainants’ company, public authority and public power were not used. The delivery of the mentioned funds was not a natural result of the defendant being an attorney, but rather was executed within the scope of the authority given to the defendant by the complainants G. and S. due to the trust relationship between them, and therefore, the relationship between them remained within the scope of a service relationship. Considering this, the defendant’s actions constitute the offense of abuse of trust, as defined in Article 155, paragraph 2 of the Turkish Penal Code No. 5237, and in light of the fact that the crime of abuse of trust was included in the scope of reconciliation under the amendments made by Law No. 7188, published in the Official Gazette No. 30928 on 24.10.2019, which entered into force on the same date, and the amendment to Article 253 of the Turkish Criminal Procedure Code No. 5271 by the 26th article of Law No. 7188; in light of the provisions of Article 7, paragraph 2 of the Turkish Penal Code, which states that ‘If the provisions of the law in effect at the time of the commission of the crime differ from those of the law that later comes into force, the law favorable to the perpetrator shall be applied and enforced,’ it was found that there was a need to reassess the defendant’s legal situation after the reconciliation procedure, as outlined in Article 253 of the Law No. 5271, as amended by Article 35 of Law No. 6763, had been carried out. Therefore, a legal violation was found.” (Yargıtay 5th Criminal Chamber, 2021/12525 E., 2023/5634 K., 02.05.2023)
“1. On 09.07.2014, following a report made to the 155 Police Emergency line, informing that fuel was being siphoned from the fuel tank of a truck parked next to the Kipa Shopping Center, police officers went to the scene. Upon arrival, they saw that fuel had been siphoned from the truck driven by the defendant …. The defendant stated to the police officers, ‘I am the truck driver, I was lying down, these people were stealing my fuel…’ and claimed that the complainants … and … had committed the theft. It was alleged that the defendant, as the truck driver, committed the crime of abuse of trust against the complainant …, who is the manager of the transport company Bumerang Logistics, where the defendant worked. Furthermore, it was claimed that the defendant, with the intention of concealing this crime, falsely accused the complainants Ibrahim and … of theft, thereby causing an investigation to be initiated against them for the crime of theft, although he knew the crime had not occurred.”
2. The defendant stated that he was the driver of the vehicle with the license plate “…” belonging to Bumerang Logistics. He claimed that he called the phone number “0 536 (…)(..)(..)” registered under the name “Derbent” to purchase fuel for his personal vehicle. After a while, the person who brought him the fuel told him that the other person had left a hose in the truck’s fuel tank. Later, when the police arrived, the fuel in the canisters from the individuals’ vehicle was perceived as having been siphoned from his truck.
3. The complainant …, who was subject to a non-prosecution decision for the theft charge, stated that about 15-20 days before, the defendant had called from the phone number “0532 (…)(..)(..)” and told him he had excess fuel and would sell it at a good price. The complainant then bought 133 liters of fuel for 455.00 TL. On 09.07.2014, the defendant called again, offering fuel at a good price. The complainant, along with the complainant …, went to meet the defendant near the Kipa Shopping Center. They started filling the fuel siphoned from the truck’s fuel tank into canisters. While filling the canisters, the police arrived. The defendant claimed he had been sleeping in the truck and stated that he and … were stealing. The complainant stated that he gave his mobile phone to the police, and the police called the number “0532 (…)(..)(..)” that had called him, confirming that the defendant’s phone had been stolen from inside the truck. He asserted that the defendant had falsely accused them.
4. The complainant … also made similar statements as complainant ….
IV. REASONING
A. Regarding the Verdict Established for the Defendant’s Crime of Abuse of Trust in Relation to the Complainant … ….’s Service
It has been understood that due to the crime of abuse of trust in service, regulated in Article 155, Paragraph 2 of the Turkish Penal Code No. 5237, the reconciliation procedures must be carried out according to Article 26 of Law No. 7188, which was published in the Official Gazette No. 30928 on 24.10.2019 and entered into force on the same date, and Articles 253 and 254 of the Criminal Procedure Code No. 5271 as amended by the aforementioned law, after which the defendant’s legal situation must be evaluated based on the outcome of these procedures.
B. Regarding the Convictions for the Crime of Defamation Committed Against Participants … and …
Based on the trial proceedings, the evidence that was collected and discussed in the reasoned decision, the court’s formation of belief and discretion in accordance with the facts, and the content of the file reviewed, the objections of the public prosecutor and the defendant’s defense lawyer regarding other grounds for appeal were not accepted. However,
Since the defendant committed the act of defamation against both participants in a single act, the defendant should have been sentenced to one punishment for the defamation offense in accordance with the provisions on the legal amalgamation of offenses. Instead of imposing separate penalties for each participant’s action, the punishment should have been increased as per Article 43, Paragraph 2 of the Turkish Penal Code No. 5237. The separate penalties imposed for each act directed toward each participant were found to be contrary to the law.
V. DECISION
For the reasons explained in the grounds section, the appeals made by the public prosecutor and the defendant’s defense lawyer regarding the decision of the Turgutlu 2nd Criminal Court of First Instance, dated 16.06.2015, with case number 2014/210 and decision number 2015/819, are found to be valid. Therefore, the decision regarding the crime of abuse of trust in connection with public service, which has not been examined in other aspects, and the conviction for the crime of defamation, are overturned in accordance with Article 321 of the Code of Criminal Procedure No. 1412, in line with the notification, and unanimously reversed. (Court of Cassation, 11th Criminal Chamber, 2021/20839 E., 2023/1421 K., 13.03.2023)
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