Legal Definition of the Crime
The crime of unauthorized use of special insignia and uniforms is regulated under Article 264 of the Turkish Penal Code (TCK) under the title “Crimes Against the Reliability and Functioning of Public Administration.” The relevant provision states:
TCK Article 264 (1) Anyone who wears the official uniform of a rank, public office, or profession publicly and in a manner that misleads others without authorization, or who wears medals or decorations to which they are not entitled, shall be sentenced to imprisonment from three months to one year.
(2) If a crime is committed by taking advantage of the conveniences and privileges provided by the uniform, the penalties specified in the first paragraph shall be increased by one-third solely for this act.
Elements of the Crime
The crime of unauthorized use of special signs and uniforms, when evaluated together with both its objective and subjective elements, has the following fundamental components:
1- Act (Actus Reus):
Article 264 of the Turkish Penal Code states: “Anyone who, without authorization, publicly wears the official uniform of a rank, public office, or profession in a manner that misleads others, or wears medals or insignia to which they are not entitled, shall be sentenced to imprisonment from three months to one year.” The formation of the crime includes multiple alternative acts, and the occurrence of any one of these alternative acts is sufficient for the crime to be constituted.
- Wearing the official uniform of a rank, profession, or public office publicly in a manner that misleads others without any authorization: For this alternative act, the formation of the crime is legally conditional upon certain requirements. In order for the crime to be constituted, the official attire in question must belong to a specific rank, profession, or public office, and the perpetrator must wear this official uniform publicly with the intention of misleading others, despite not having the authority to do so. These conditions are significant for the establishment of the crime.
- Wearing a medal or decoration to which one is not entitled: For this alternative act, it is sufficient for the crime to be constituted that the perpetrator has worn a medal or decoration to which they are not entitled. No other legal condition is prescribed for this alternative act.
2-Perpetrator: No special condition is required regarding the perpetrator of the crime under Article 264 of the Turkish Penal Code (TCK). The perpetrator of the crime can be anyone.
3-Victim: Regarding this crime, the victim is society. However, any person or persons who suffer adverse consequences due to the commission of the crime can also be considered victims.
4-Legal Interest Protected by the Crime: The crime of unauthorized use of special insignia and uniforms is regulated under the title “Crimes Against the Reliability and Functioning of Public Administration.” The legal interest protected by this type of crime is public security and the proper functioning of public administration.
5-Mental Element: The crime is an intentional offense and cannot be committed negligently under the law.
Aggravating Circumstances
The crime of unauthorized use of special insignia and uniforms, as regulated under Article 264 of the Turkish Penal Code, is structured to require a harsher penalty in certain situations. According to Article 264/2 of the TPC, if the offender commits another crime by taking advantage of the privileges and opportunities provided by the uniform in question, the penalty to be imposed will be increased by one-third. Thus, the punishment for this specific type of offense will be increased, and an additional penalty will also be imposed for the other crime committed.
COMPLAINT PERIOD, STATUTE OF LIMITATIONS, AND COMPETENT COURT
Under Article 264 of the Turkish Penal Code (TCK), this offense is not subject to a complaint, and investigation procedures are carried out ex officio by the public prosecutor’s office. Although there is no complaint period required for investigating the offense, the statute of limitations for filing a case is 8 years. The competent court is the Criminal Court of First Instance.
JUDICIAL FINES, SUSPENSION OF SENTENCE, AND POSTPONEMENT
According to Article 264 of the Turkish Penal Code (TCK); anyone who wears the official uniform of a rank, public office, or profession publicly and in a misleading way without authorization, or wears medals or insignia to which they are not entitled, shall be sentenced to imprisonment from three months to one year. Considering the minimum and maximum limits of the penalty, it is possible to convert the prison sentence into a judicial fine, to issue a decision to postpone the announcement of the verdict, and to defer the sentence.
RELEVANT CASE DECISIONS
“…The act of the defendant presenting a police badge without authorization and thereby representing himself as a police officer constitutes the offense of unauthorized use of special insignia and uniforms as regulated under Article 264/1 of the Turkish Penal Code (TCK). In the incident, since the defendant did not wear a police uniform, the elements of the aggravated form under Article 264/2 of the TCK did not occur. Furthermore, in consideration of the amendment to Article 75 of TCK No. 5237 by Article 12 of Law No. 6763, published in the Official Gazette on 02/12/2016 and entered into force the same day, the offense of unauthorized use of special insignia and uniforms attributed to the defendant falls within the scope of prepayment under Article 264/1 of TCK No. 5237. Therefore, it was necessary to assess the legal status of the defendant. This situation warranted annulment, and since the defendant’s appeal objections were found valid in this regard, the judgment was REVOKED pursuant to Article 321 of the CMUK, also taking into account Article 8/1 of Law No. 5320…” (Court of Cassation, 5th Criminal Chamber, Case No. 2020/6663 E., Decision No. 2021/3075 K., 24.06.2021)
“…The defendant, while performing his military service at the Training Regiment Command located in …, deserted his military unit and went to the … district. He wore his military uniform, went to the … impound parking lot, and introduced himself to the parking attendant as a gendarmerie public order officer, stating that he urgently needed to take the motorcycle involved in the offense from the parking lot and then took it away. According to Article 42/1 of Turkish Penal Code (TCK) No. 5237, a “compound offense” is defined as a single act that constitutes an element or an aggravating factor of another offense. In such cases, aggregation rules do not apply. Since the defendant’s wearing of his military uniform in a misleading manner constituted an aggravating factor for the theft offense regulated under Article 142/2-f of the same Code, the defendant should have been acquitted of the offense of unauthorized use of special insignia and uniforms under Article 264/1 of the TCK. However, a conviction was erroneously issued. Therefore, the request for annulment in favor of the law was accepted, and the decision of the Criminal Court of First Instance, dated 14/01/2015, Case No. 2014/892 E., Decision No. 2015/8 K., was REVOKED pursuant to Article 309, paragraph 3 of the Criminal Procedure Code No. 5271, and the defendant was ACQUITTED of the offense of unauthorized use of special insignia and uniforms…” (Court of Cassation, 2nd Criminal Chamber, Case No. 2016/741 E., Decision No. 2016/5842 K., 30.03.2016)
“…In the specific case, the child involved in the offense wore a police uniform and carried a blank-firing pistol, went to a café opposite the İzmir Riot Police Branch, befriended an officer working there, and introduced himself as a Riot Police officer assigned from Hakkari province, subsequently staying as a guest at the victim’s house. Later, he met another police officer, the complainant …, and decided together to rent a house. After deciding on one house, the complainant gave the child 1,000 TL for the contract, and it was later claimed that the child disappeared with this money. Based on the evidence collected in the file, the court found no error in concluding that the child committed the alleged offenses. Regarding the punishment given to the child for the unauthorized use of special insignia and uniforms, the court did not apply an increase under Article 264/2 of the Turkish Penal Code; however, since there was no appeal against this, it was not considered a reason for annulment…” (Court of Cassation, 15th Criminal Chamber, Case No. 2020/6551 E., Decision No. 2021/2822 K., 11.03.2021)
“…Considering that the offense of unauthorized use of special insignia and uniforms attributed to the defendant is subject to the statutory limitation periods of 8 years as principal and 12 years as extended, pursuant to Articles 66/1-e and 67/4 of the Turkish Penal Code No. 5237, and taking into account the suspension periods related to the postponement of the announcement of the verdict between the date of the crime, 12/01/2008, and the date of review, it is understood that the extended statute of limitations has expired; therefore, in accordance with Article 8/1 of Law No. 5320 and Article 321 of the CMUK, the verdict is ANNULLED…” (Court of Cassation, 5th Criminal Chamber, Case No. 2017/5580 E., Decision No. 2021/3658 K., 13.09.2021)
“…Considering that when the defendant passed through the free turnstile of the metro, he showed a metal police badge (insignia) to the private security officer and claimed to be a police officer, and that this badge is not among the medals and decorations regulated under Law No. 2933, it is understood that the offense of unauthorized use of special insignia and uniforms regulated under Article 264 of the TPC, whose material elements are “Anyone who wears the official uniform of a rank, public office, or profession publicly and in a misleading manner without authorization, or wears a medal or decoration they are not entitled to…,” did not occur. Accordingly, the decision to convict the defendant instead of acquitting him with written and insufficient reasoning is contrary to law. Considering the defendant’s appeal is justified, the verdict is ANNULLED pursuant to Article 8/1 of Law No. 5320 and Article 321 of the CMUK…” (Court of Cassation, 5th Criminal Chamber, Case No. 2013/7988 E., Decision No. 2015/11457 K., 11.05.2015)
“…The provisions regarding the acquittal of the defendants for the offense of fraud were appealed by the defense counsel of the defendant … and the public prosecutor of that jurisdiction; the conviction of the defendant … for the offense of unauthorized use of special insignia and uniforms was appealed by the defense counsel of the defendant …. Upon examination of the file, it was determined that the defendant …, although not a soldier, went in military uniform with the other defendant … to the complainant’s jewelry store. The defendant … told the complainant that he wanted to buy bracelets and showed three of them. The complainant stated that the total price of the bracelets was 697 TL. The defendant … then took off the bracelet on his wrist, referred to as the Trabzon bracelet, gave it to the complainant, and asked for its price. When the complainant said the bracelet was worth 2,100 TL, the defendant … told defendant …: “If we sell the bracelet, we will incur a loss.” Meanwhile, the witness …, the Commander of the Ladik District Gendarmerie, arrived at the store and realized that the uniformed defendant … was not a soldier, and warned the complainant. Upon examination, it was determined that the bracelet on the defendant …’s wrist was counterfeit. In the concrete case, the defendants were caught while the defendant … wore the military uniform, a material asset of a public institution, creating trust with the complainant, committing fraudulent acts, and attempting to obtain unlawful benefit together with the other defendant …. Considering that the assessment of evidence regarding whether these acts constitute the aggravated fraud offense under Article 158/1-d of the Turkish Penal Code belongs to the higher Criminal Court of First Instance, and a lack of jurisdiction decision should have been given, continuing the trial and issuing a written judgment required annulment…” (Court of Cassation, 15th Criminal Chamber, Case No. 2017/29714 E., Decision No. 2019/6091 K., 21.05.2019)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
