What Is the Crime of Using Public Office Equipment and Tools in the Commission of a Crime?
The offense of using equipment and tools belonging to public service in the commission of a crime is regulated in Article 266 of the Turkish Penal Code as follows:
“(1) If a public officer uses the equipment and tools that he/she possesses by virtue of his/her duty during the commission of a crime, and the status of being a public officer is not essentially taken into account in the definition of the relevant offense, the penalty to be imposed shall be increased by one third.”
Accordingly, it is understood from the statutory provision that, for the offense of using equipment and tools belonging to public service in the commission of a crime to be constituted, a public officer must commit the relevant offense by making use of the equipment and tools that he/she possesses by virtue of his/her duty.
Penalty for the Offense of Using Public Office Equipment and Tools in the Commission of a Crime
Pursuant to Article 266 of the Turkish Penal Code mentioned above, if the status of being a public officer is not taken into account in the definition of the offense committed, the penalty to be imposed on the perpetrator for the offense of using public office equipment and tools in the commission of a crime shall be increased by one third.
The Court with Jurisdiction and Competence in the Offense of Using Public Office Equipment and Tools in the Commission of a Crime
In criminal cases concerning the offense of using public office equipment and tools in the commission of a crime, the court with territorial jurisdiction is the court of the place where the offense was committed (Article 12 of the Criminal Procedure Code), while the court with subject-matter jurisdiction is determined according to the legal nature of the offense, being either the Heavy Penal Court (High Criminal Court) or the Criminal Court of First Instance. In this regard, the parties may need the assistance of a criminal defense attorney, specifically a criminal lawyer in Antalya, to file and pursue the relevant case.
Frequently Asked Questions
1. Can a Decision on Deferral of the Pronouncement of the Judgment Be Issued for the Offense of Using Public Office Equipment and Tools in the Commission of a Crime?
The decision on the deferral of the pronouncement of the judgment (HAGB) essentially aims, provided that the defendant meets the necessary conditions, to prevent any legal consequences from arising from the sentence imposed, in other words, to eliminate the effect of the penalty. Therefore, when such a decision is issued, the sentence is not enforced. Consequently, it should be known that if the term of imprisonment imposed for the offense of using public office equipment and tools in the commission of a crime is two years or less (provided that other conditions are also met), a deferral of the pronouncement of the judgment may be granted.
2. Can the Offense of Using Public Office Equipment and Tools in the Commission of a Crime Be Converted into a Judicial Fine?
A judicial fine is a type of sanction that may be imposed either together with a term of imprisonment for a committed offense or as a standalone penalty. In this regard, it should be known that the imposition of a judicial fine depends on the offense having been committed intentionally and the sentence imposed on the offender being one year or less. Accordingly, the term of imprisonment imposed for the offense of using public office equipment and tools in the commission of a crime may be converted into a judicial fine, provided that it is one year or less.
3. Is the Offense of Using Public Office Equipment and Tools in the Commission of a Crime Subject to Complaint?
Since the offense of using public office equipment and tools in the commission of a crime is not among the offenses that are subject to a complaint, it is investigated ex officio by the public prosecutor, and therefore it is not subject to any complaint period.
4. Is Mediation Applicable to the Offense of Using Public Office Equipment and Tools in the Commission of a Crime?
In Turkish criminal law, mediation refers to an agreement reached between the defendant and the person who became the victim of the offense as a result of communication through an intermediary. However, the offense of using public office equipment and tools in the commission of a crime is not among the offenses that fall within the scope of mediation.
5. Can a Decision on Suspension of the Sentence Be Issued for the Offense of Using Public Office Equipment and Tools in the Commission of a Crime?
Suspension is a decision by the court to conditionally waive the execution of the imposed term of imprisonment in prison. In this regard, a decision to suspend the sentence may be issued if the term of imprisonment imposed for the offense of using public office equipment and tools in the commission of a crime is two years or less.
Some Court of Cassation (Supreme Court of Appeals) Decisions Regarding the Offense of Using Public Office Equipment and Tools in the Commission of a Crime
- “Following the trial of the defendant C….. K….. for the offense of endangering traffic safety; upon the request of the Chief Public Prosecutor and the defense counsel for the review by the Court of Cassation of the judgment of conviction rendered by the (Mengen) Criminal Court of Peace on 29/03/2006, and since the case file was referred to our Chamber by the Jurisdictional Incompetence Decision of the 7th Criminal Chamber of the Court of Cassation dated 04/12/2007, the matter was examined and considered accordingly. Pursuant to Article 6 of the Turkish Penal Code No. 5237, no error was found in accepting that the defendant was a public officer, and based on the facts and the contents of the file, no error was found in concluding that the offense attributed to the defendant had been established. The remaining objections on appeal were also found to be unfounded in light of the file contents. However, since under Article 266 of the Turkish Penal Code No. 5237, in order to increase the sentence of a public officer who uses the tools and equipment he holds by virtue of his duty during the commission of an offense, it is necessary that such tools and equipment facilitate the commission of the offense and be used in accordance with their normal function, and since these conditions were not met in the defendant’s act, increasing the sentence pursuant to the said article as written and thus imposing an excessive penalty … required reversal. Therefore, as the grounds of appeal raised by the Chief Public Prosecutor and the defense counsel were deemed justified, it was unanimously decided on 30/04/2008 to REVERSE the judgment for this reason, as requested.”** (Criminal Chamber No. 2 of the Court of Cassation, Decision dated 30/04/2008, File No. 2008/1132, Decision No. 2008/7878)
- “However; 1- Considering that the defendant, who was a duty police officer, wanted to have the truck owned by … and driven by the complainant …—which was unregistered and without license plates and therefore required to be banned from traffic under the Highway Traffic Law and the relevant Regulation—towed to the impound lot, and that the complainants asked that the owner …’s truck not be taken to the lot, and in the face of the victim … driving slowly and acting reluctantly, saying that he did not know whose instruction to follow, the defendant became angry and pointed a firearm at the driver-complainant and ordered him to have the vehicle towed to the impound lot; in this act, the elements of the offense of threat were not constituted, and although the defendant acted within the scope of Article 16 of the Law on the Duties and Authority of the Police, since the conditions for the application of that article had not materialized, it should have been considered that his act of exceeding the limits by pointing a firearm should be evaluated as the offense of abuse of duty, yet this was not taken into account; 2- Even according to the acceptance; a) in the face of the duty police officer’s attempt to have the truck towed and the complainants’ attempt to prevent this, and the complainant … slowing the vehicle, the failure to discuss whether the provisions on unjust provocation should be applied, by assessing the cause and development of the incident; b) the failure to investigate whether the firearm used by the defendant in the offense was among the tools and equipment he possessed by virtue of his duty, and the failure to consider that, if it was established that he possessed it by virtue of his duty, an increase should have been applied pursuant to Article 266 of the Turkish Penal Code; … required reversal, and since the grounds of appeal raised by the defendant … and the Chief Public Prosecutor of the relevant jurisdiction, as well as the opinion in the official notice, were found to be justified, it was unanimously decided on 02/06/2016 to REVERSE THE JUDGMENT, and to remit the case file to the court of first instance/judgment court so that the proceedings may be continued and concluded starting from the stage prior to the reversal.” (Criminal Chamber No. 4 of the Court of Cassation, Decision dated 02/06/2016, File No. 2014/3376, Decision No. 2016/11181)
- “Upon examination based on the minutes, documents, and the reasoning reflecting the hearing process during which the court’s conscientious conviction was formed; it was determined, as a result of the hearing conducted in accordance with the law, that the compulsory elements justifying the conclusion reached with respect to the act of threat attributed to the defendant, and that the act was committed by the defendant, were established; that all evidence and the allegations and defenses put forward at the various stages were presented fully and in a manner enabling appellate review, discussed without altering their substance, and that the court’s conscientious conviction was based on definitive, consistent, and non-contradictory data; that the act was correctly characterized and corresponded to the type of offense prescribed by law; and although it was not taken into account that, on the date of the incident, the defendant, who was serving as a gate guard, carried out the accepted act of threat—namely, loading his weapon to full capacity after being struck and insulted by the victim—with the firearm he possessed by virtue of his duty, and that an increase in the sentence should have been made pursuant to Article 266 of the Turkish Penal Code, nevertheless, since there was no cross-appeal, no reversal could be made. Therefore, as the grounds put forward by the defendant … were not found to be justified, it was unanimously decided on 15/05/2017 to DISMISS THE APPEAL ON THE MERITS AND UPHOLD THE JUDGMENT.” (Criminal Chamber No. 4 of the Court of Cassation, Decision dated 15/05/2017, File No. 2015/19968, Decision No. 2017/14439)
- “In the examined case file; it was understood that with respect to the defendant …, who had no prior criminal record as of the date of the offense, a public prosecution was initiated against him upon the request for punishment under Article 106/2-a of the Turkish Penal Code (TPC) due to his act described in the indictment as follows with regard to his wife, the victim Zeynep Olcay: ‘The complainant and the suspect, whose full identity information is stated above, had been married for approximately ten years and had an argument on the date of the incident; the suspect placed a round into the chamber of his service weapon and put it on the table in the room they were in, saying “Go on, speak then,” without pointing the gun at the complainant in any way; the complainant’s mother … witnessed the incident and corroborated the complainant’s statements; the suspect later left the house taking his children and belongings with him; and it was understood that the complainant filed a complaint against the suspect. In his defense, the suspect stated that the firearm issued to him by the institution he worked for was in his waistband, that he went toward the bedroom to remove it, that he loaded and unloaded the weapon in the hallway to make it safe, removed the round from the chamber and, after making the weapon safe, placed it in the bedroom, then sat in the living room; that he did not threaten his wife by placing the gun on the table, and therefore did not accept the accusations.’ As it was understood from the aforementioned evidence and the entire case file that the suspect had thus committed the offense of threat with a weapon attributed to him, a public action was filed. Following the trial, by the decision of the Keşan Criminal Court of First Instance dated 12/05/2009 and numbered 2008/428 (Merits), 2009/228 (Decision), the court held as follows: ‘It is established from the complainant’s statement, the statement of …, the sole eyewitness of the incident, and the entire contents of the file that the complainant and the defendant had been married for approximately ten years and argued on the date of the incident; that the defendant threatened the complainant by placing a round into the chamber of his service weapon and putting it on the table in the room, saying “Come on then, say whatever you are going to say,” without pointing the gun at the complainant in any way; that the complainant’s mother … witnessed the incident and corroborated the complainant’s statements; and that the defendant later left the house taking his children and belongings with him…’ On these grounds, the defendant was sentenced to 1 year and 8 months’ imprisonment pursuant to Articles 106/2-a and 62/1 of the TPC; the sentence was suspended under Article 51 of the same Law, and the defendant was placed under probation for 1 year and 8 months; moreover, it was decided that there was no room to apply discretionary suspension of the pronouncement of the judgment under Article 231 of the Code of Criminal Procedure (Law No. 5271), as the statutory conditions were not met on the ground that compensation for damages could not be discussed; and the judgment became final without being appealed. … For the reasons explained; the decision of the Keşan Criminal Court of First Instance dated 12/05/2009 and numbered 2008/428 (Merits), 2009/228 (Decision)—sentencing the defendant … to 1 year and 8 months’ imprisonment pursuant to Articles 106/2-a and 62/1 of the TPC, suspending the sentence under Article 51 of the same Law and placing the defendant under probation for 1 year and 8 months, and ruling that there was no discretion to order suspension of the pronouncement of the judgment under Article 231 of the CCP—is not correct. IV – Conclusion and Ruling: For the reasons explained above, (1) as the request for reversal in the interest of the law is found justified, the final decision of the Keşan Criminal Court of First Instance dated 12/05/2009 and numbered 2008/428 (Merits), 2009/228 (Decision) is hereby REVERSED pursuant to Article 309 of the Code of Criminal Procedure No. 5271 …” (Criminal Chamber No. 4 of the Court of Cassation, Decision dated 03/04/2019, File No. 2019/1084, Decision No. 2019/5993)
- “Since it has been understood that the firearm used in the offense was issued to the defendant, who is a staff sergeant, by virtue of his duty, the failure to consider that Article 266 of Law No. 5237 should be applied to the defendant has been found unlawful. IV. DECISION For the reasons explained in paragraphs (2) and (3) of the reasoning section, as the appeal request of the complainant’s counsel has been deemed justified, the judgment of the 4th Criminal Chamber of the Antalya Regional Court of Justice dated 18.12.2023 and numbered 2023/3083 (Merits) and 2023/3847 (Decision) is, with respect to the issues of “the degree of unjust provocation and the use of tools and equipment belonging to a public duty in the commission of the offense,” and pursuant to Article 302/2 of Law No. 5271, REVERSED by unanimous vote as being contrary to the Prosecutor’s Opinion (tebliğname). It has been decided on 28.04.2025 that the case file be remitted to the Denizli 5th High Criminal Court pursuant to Article 304/2-a of Law No. 5271, and that a copy of the Court of Cassation’s ruling be served on the 4th Criminal Chamber of the Antalya Regional Court of Justice through the Chief Public Prosecutor’s Office of the Court of Cassation.”** (Criminal Chamber No. 1 of the Court of Cassation, Decision dated 28.04.2025, File No. 2024/2416, Decision No. 2025/3371)
