Crime of Forgery in a Private Document

In our legal system, the crime of forgery in a private document is regulated under Article 207 of the Turkish Penal Code. By definition, this crime occurs when a person either creates and uses a forged private document or alters and uses a genuine private document in a deceptive manner to mislead others. The legal interest protected by the crime of forgery in a private document is public trust, and the general victim of the offense is the individuals in society. However, real and legal persons who are directly harmed by the act of forgery may also participate in the trial as victims. The perpetrator of the crime can be anyone.

Turkish Penal Code Article 207/1 is regulated as follows:
“A person who prepares a forged private document or alters and uses a genuine private document in a way that deceives others shall be punished with imprisonment from one to three years.”

Turkish Penal Code Article 207/2 continues as follows:
“A person who knowingly uses a forged private document is also punished according to the provision of the paragraph above.”

This offense protects both the interest of the individual (i.e., the victim) and public trust. The subject of the offense is a private document; official documents constitute a separate offense. Article 207 of the Turkish Penal Code defines the offense of forgery in private documents as a compound offense involving alternative acts.

In the first of these alternative acts, a private document that does not actually exist is directly fabricated to appear as if it does. The second alternative act involves altering a genuine private document by erasing or adding elements in a manner intended to deceive others.

It is important to note that, for this offense to be completed, in addition to the realization of one of these alternative acts, the forged document must also be used. In other words, for the crime to be constituted, the act of using the document must occur and the document must be considered in the course of a transaction.

Whether the Crime is Subject to Complaint

Since this type of crime is not specifically stated in the law as being subject to a complaint, it is not dependent on a complaint for prosecution. Investigation and prosecution are carried out ex officio. The public prosecutor may initiate and conduct an investigation ex officio as soon as they become aware of the act.

THE POSSIBILITY OF SETTLEMENT FOR THE OFFENSE

The Turkish Penal Code does not provide a reconciliation (settlement) procedure for the offense of forgery in private documents. Moreover, the offense of forgery in private documents is not a complaint-based crime, nor is it among the catalog of crimes listed in Article 253 of the Code of Criminal Procedure. Therefore, reconciliation is not applicable for this offense.

The Manner of Commission of the Crime of Forgery in Private Documents

In order for the crime to be constituted, it is necessary to forge a document, alter an existing document in a manner contrary to the truth, or knowingly use a forged document prepared by someone else. The realization of these elements requires intent, and this offense can only be committed with direct intent. Although the production of a forged document is considered one of the alternative acts constituting the crime, it is actually preparatory in nature. Therefore, producing a forged document is not considered an attempt. Since the act of using the document is required for the crime to occur, it is classified as an instant offense. As a result, it is difficult for an attempt to occur in this type of crime.

For the crime of forgery in private documents to be proven, the forged document must have a deceptive character and be capable of misleading others.

Circumstances That Mitigate the Punishment in the Crime of Forgery in Private Documents

According to Article 211 of the Turkish Penal Code; if the crime of forgery in a private document is committed to prove a claim arising from a genuine legal relationship or to demonstrate the authenticity of a situation, the penalty to be imposed shall be reduced by half.

Institution of Effective Remorse

The institution of effective remorse is not provided by law for every type of crime. It can only be applied to crimes for which there is a specific regulation. There is no provision for effective remorse for the crime of forgery of private documents under the law.

The Enforcement Regime Applicable to the Crime

In cases of forgery of private documents, the competent court is the Criminal Court of First Instance, and the authorized court is the court where the crime was committed. An 8-year statute of limitations is set for the crime of forgery of private documents, within which the investigation and prosecution must be conducted by the prosecutor’s office.

According to Article 207 of the Turkish Penal Code, the perpetrator who commits the crime of forgery of private documents is punished with imprisonment from one to three years. If the perpetrator commits the crime as described in the second paragraph of this article, they shall be sentenced to the same penalty.

Anyone who commits the crime of forgery of private documents with the intention of committing another crime is punished separately for each offense.

According to the Turkish Penal Code, a judicial fine is imposed as a conversion of imprisonment sentences of one year or less into a monetary penalty. In the case of forgery of private documents, it is possible to impose a judicial fine on the offender if the sentence is given at the lower limit.

If a person sentenced to imprisonment is deemed to have good behavior during their time in prison and is expected to adapt to social life, the remaining sentence may be served outside the prison under conditional release. This is also referred to as parole. Conditional release is possible in cases of forgery of private documents; however, the convicted person must have served approximately half of their sentence in the correctional facility.

According to the Enforcement Law No. 5275, for crimes committed after 30.03.2020, in order for a convicted person to benefit from supervised release, they must be in an open penal institution or have earned the right to be transferred to such an institution, and must have good behavior. The crime of forgery of private documents is also suitable for the application of supervised release. It is stipulated that supervised release will be applied to those with one year or less remaining on their conditional release period. The legislator has also set certain exceptions regarding this period. Female convicts with children aged 0-6 years who committed crimes after 30.03.2020 are subject to a two-year supervised release period. If the convict is over 65 years old and unable to live independently due to illness, disability, or old age, the required supervised release period is set at three years.

According to the Turkish Penal Code, the decision to postpone the execution of a prison sentence means that the convicted person is conditionally exempted from serving the sentence in prison. It is possible to grant a postponement of the sentence for the crime of forgery of private documents.

The decision to defer the announcement of the verdict, regulated in the Turkish Penal Code, is given for prison sentences of two years or less. Due to the penalty limits of the crime of forgery of private documents, it is possible to grant a deferral of the verdict. If such a decision is made, the offender must comply with the conditions specified by law for a certain period, and if the offender fulfills these conditions, the decision will be annulled at the end of the supervision period without any consequences.

Sample Supreme Court Decisions on the Crime of Forgery of Private Documents

  • Forgery by taking an exam on behalf of someone else

The defendant entered the motor vehicle driver candidate exam using an exam entrance document and identity card issued in the name of …, without any alterations on the documents. The defendant marked the exam answer sheet related to the crime and filled it out. However, during the exam, the officials noticed the situation during their checks and reported it to the authorities. Since it was known from the beginning by the officials that the exam answer sheet was fake in content, it was found not to produce any legal consequences. According to the case file, no other document was prepared by the officials. Therefore, the elements of the crime of “forgery of a private document” within the scope of Article 207/1 of the Turkish Penal Code No. 5237 are not constituted. Issuing a written judgment without considering that the act falls under Article 40 of the Misdemeanors Law No. 5236 is a reason for reversal. (Supreme Court 11th Criminal Chamber – Decision: 2017/8181)

  • The Concurrent Commission of Forgery of Private Documents and Forgery of Official Documents Crimes

The defendant arranged fake subscription contracts for mobile phones, landlines, and internet lines from the victim companies Turkcell and Türk Telekom. Additionally, the defendant took out a personal loan using a fake identity card in the name of the plaintiff by utilizing a credit account at a bank. Furthermore, the defendant established taxpayer registration at the tax office on behalf of the plaintiff and registered two motorcycles to ensure tax assessments. The defendant was prosecuted by the heavy criminal court for offenses including misuse of bank or credit cards, forgery of official documents, and forgery of private documents. A conviction was issued against the defendant, and appeals were filed by the defendant, the plaintiff, and the victim’s attorney. The Court of Cassation noted that the trial court rendered its decision without discussing whether the defendant’s actions constituted a violation of Article 56 of the Electronic Communications Law. It was also determined that the court failed to consider that the defendant’s actions as a whole constituted separate crimes corresponding to the number of victims. Therefore, the decision was overturned due to insufficient reasoning. (Court of Cassation 8th Criminal Chamber – Decision No: 2019/6094)

  • The Deceptive Nature of the Forged Document

The trial conducted by our court, the defendant’s defense, the passport registered under the custody number 2022/ by the Antalya Chief Public Prosecutor’s Office, the examination of this passport by our court, together with the defendant’s identity and criminal record and the entire case file, have been evaluated. It was understood that the forgery detected in the passport in question during our court’s examination was apparent at first glance and did not have a deceptive nature. Consequently, since the elements of the crime of forgery of an official document attributed to the defendant were not constituted, the defendant was acquitted pursuant to Article 223/2-a of the Criminal Procedure Code (CMK). It was also decided that the passport registered under custody number 2022/ be kept as evidence in the file, and the flight ticket registered in the same custody, which is not related to the crime, be returned to the defendant, as set forth below.

The defendant was acquitted due to the absence of the elements of the crime of forgery of an official document attributed to him/her pursuant to CMK 223/2-a. The passport registered under custody number 2022/ shall be kept as evidence in the file, and the flight ticket registered in the same custody, which is not related to the crime, shall be returned to the defendant. The trial expenses were left to the public. Decision issued by Antalya Criminal Court of First Instance, 2023.

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