The crime of forgery in official documents is committed by preparing a fake official document, altering a genuine official document in a way that deceives others, or using a forged official document. The crime of forgery in official documents is regulated in Article 204 of the Turkish Penal Code (TCK). According to this:
Article 204: (1) A person who prepares a fake official document, alters a genuine official document in a way that deceives others, or uses a forged official document, shall be punished with imprisonment from two to five years. (2) A public official who, in the course of their duties, prepares a fake official document, alters a genuine document in a way that deceives others, prepares a document contrary to the truth, or uses a forged official document, shall be punished with imprisonment from three to eight years. (3) If the official document is valid until its falsity is proven according to the provisions of the law, the penalty to be imposed shall be increased by half.
According to our law, the crime of forgery in official documents can be committed through three alternative actions:
- The production of a forged official document or the alteration of an existing official document in a way that is contrary to the truth,
- The alteration of a genuine official document in a way that deceives others,
- The use of a forged official document.
THE PERPETRATOR AND VICTIM IN THE CRIME OF FORGERY IN OFFICIAL DOCUMENTS
The perpetrator of the crime of forgery in official documents is a private individual who is not a public official, as stated in Article 204, paragraph 1 of the Turkish Penal Code (TCK). However, according to paragraph 2 of the same article, the perpetrator of the crime is a public official authorized to prepare the document. In order for the perpetrator to be punished for the crime of forgery in official documents, the forged document must possess a deceptive nature. Otherwise, it is not possible to punish the individual.
Since the legal interest to be protected by the crime of forgery in official documents is public trust, the victim of this crime is society, which constitutes the public.
STATUTE OF LIMITATIONS IN THE CRIME OF FORGERY IN OFFICIAL DOCUMENTS
The ordinary statute of limitations for the crime in paragraph 1 of the crime of forgery in official documents is 8 years. For the crimes in paragraphs 2 and 3, the statute of limitations is 15 years.
Reconciliation in the Crime of Forgery in Official Documents
This crime is not one of the offenses covered by reconciliation.
Effective Remorse in the Crime of Forgery in Official Documents
The legal interest harmed by the crime of forgery in official documents is public trust. For this reason, the possibility of applying the provisions of effective remorse is not considered feasible within the scope of this crime.
Attempt and Participation in the Crime of Forgery in Official Documents
This crime is one of those that is completed with the execution of the act. In other words, the crime is considered complete when the act is carried out. Therefore, it is not possible to attempt this crime.
This crime can be committed by a single person, or it can be jointly committed by multiple individuals. It is possible to participate in this crime as an instigator, joint perpetrator, or aider. For participation to be accepted, there must be multiple perpetrators, the intention to participate, and the initiation of the criminal acts. Multiple individuals can directly commit the forgery crime together, or they can participate in the crime by instigating or assisting the perpetrator.
Aggravated Form of the Crime of Forgery in Official Documents
In paragraph 2 of the law, it is considered an aggravated form of the crime of forgery in official documents when a public official prepares, alters, or uses a forged official document. Additionally, in paragraph 3 of the law, the fact that the document is considered valid until its forgery is proven also constitutes an aggravated form of the crime of forgery in official documents.
Investigation and Prosecution in the Crime of Forgery in Official Documents
The crime of forgery in official documents is not a crime that requires a complaint for prosecution. A report made to the public prosecutor or law enforcement is not subject to any complaint deadline. If reported within the statute of limitations of 8 years, the public prosecutor may conduct an investigation.
For the prosecution phase to begin in the crime of forgery in official documents, there must be strong suspicion of the crime during the investigation phase, which leads to a decision to proceed to prosecution. Additionally, in the case of a public official committing the crime of forgery in official documents, in order to proceed to the prosecution phase, permission for investigation must be obtained in accordance with Law No. 4483 on the Prosecution of Civil Servants and Other Public Officials, and the investigation must go through the proper procedures.
Competent and Authorized Court in the Crime of Forgery in Official Documents
The competent court for the basic form of the crime regulated in paragraph 1 of the law is the Criminal Court of First Instance, while the competent court for the aggravated form of the crime regulated in paragraph 2 of the law is the Heavy Penal Court.
The authorized judicial authority for this crime is the court in the location where the crime of forgery in official documents was committed.
Conversion of Judicial Fines, Suspension, and Deferred Pronouncement of Judgment in the Crime of Forgery in Official Documents
Conversion of Judicial Fines in the Crime of Forgery in Official Documents
A judicial fine is imposed either as the sole penalty or in combination with imprisonment, to be paid in monetary form. Although the imposition of a judicial fine is not possible under Article 205 of the Turkish Penal Code (TCK), a judicial fine can be imposed optionally under Article 206.
With the Constitutional Court’s decision dated 01/08/2023, the regulation regarding deferred pronouncement of judgment (HAGB) has been annulled. The decision will come into effect on 01/08/2024. Until the effective date, the provisions of HAGB will be applied if the conditions are met, but will not be applicable once the regulation comes into force.
Postponement in the Crime of Forgery in Official Documents
In the crime of forgery in official documents, it is possible to postpone the imprisonment sentence of the defendant whose trial has been completed, as the penalty for this crime may be less than 2 years. Postponement refers to the deferral of the time the convicted person would spend in prison, provided that the conditions are met and the court determines that the conditions are in place.
Deferred Pronouncement of Judgment in the Crime of Forgery in Official Documents
Similar to the postponement decision, the decision for the deferred pronouncement of judgment can also be applied in cases of forgery in official documents where the penalty is 2 years or less. Before a decision for the deferred pronouncement of judgment is made, it is necessary to obtain consent from the defendant or their defense attorney regarding this matter. With the deferred pronouncement of judgment decision, if the defendant does not commit any intentional crimes during the supervision period, it results in the defendant being treated as though they have never been convicted.
Court of Cassation Decisions
11.Criminal Chamber 2018/2196 E., 2018/3635 K.
“Case Law Text” COURT: Criminal Court of First Instance CRIME: Forgery in Official Documents VERDICT: Acquittal
With the indictment dated 10.04.2013, the defendant was charged with the crime of forgery in official documents due to the use of a fake ID card, under Article 204/1 of the Turkish Penal Code No. 5237. Additionally, the defendant was charged with the crime of forgery in private documents for signing a contract using the fake ID card, under Article 207/1 of the same law. In the judgment dated 01.10.2013, a decision was made only regarding the crime of forgery in official documents, and no decision was made regarding the crime of forgery in private documents. As stated in our Chamber’s decision of 21.09.2016, it was noted that a decision could be made by the court within the statute of limitations. Following the appeal, the decision regarding the crime of forgery in official documents was overturned and sent back to the court. In the retrial, a judgment was again rendered only for the crime of forgery in official documents, and no decision was made regarding the crime of forgery in private documents. It was understood that the public prosecutor’s appeal was not based on the acquittal decision for the crime of forgery in official documents, but rather on the lack of a decision regarding the crime of forgery in private documents. Therefore, due to the absence of a judgment on the crime of forgery in private documents, the public prosecutor’s appeal request was rejected, in accordance with Article 317 of the Criminal Procedure Code No. 1412, as applicable under Article 8/1 of Law No. 5320. The decision was made unanimously on 18.04.2018.
15.Criminal Chamber 2020/505 E., 2020/1742 K.
“Jurisprudence Text”
COURT: Criminal Court of First Instance
CRIME: Fraud, forgery of official documents
VERDICT:
1- The defendants … and … were acquitted of the charge of forgery of official documents.
2- The defendant … was acquitted of the charges of forgery of official documents and fraud.
The judgments regarding the acquittal of the defendant … for forgery of official documents and the acquittal of the defendants … and … for forgery of official documents and fraud were appealed by the attorney of the plaintiff. After reviewing the file, it was decided as follows:
The defendant … signed a general credit agreement with the complainant …Ş., and based on this agreement, provided a cheque issued by … Livestock, Food, Transportation, Tourism, Industry and Trade Inc., a company represented by the other defendants … and …, with a forged drawer’s signature. After the bank followed up on the unpaid credit debt, it was discovered that the cheque was forged. In this case, where the defendant … is accused of fraud and forgery of official documents, and the defendants … and … are accused of committing forgery of official documents, the indictment dated 03/09/2014 charged defendant … with fraud and forgery of official documents, and defendants … and … with forgery of official documents.
Considering whether the actions attributed to defendant … constituted aggravated fraud and forgery of official documents, as stipulated in Article 158/1-j of the Turkish Penal Code No. 5237, for the purpose of “obtaining a credit that should not be granted,” the court must examine the evidence and make a determination regarding the defendant’s actions. As this falls under the jurisdiction of the higher court, the decision of jurisdiction should have been made accordingly instead of continuing with the trial and issuing the judgments in the written form.
This requires reversal. As the appeal by the complainant’s attorney is deemed valid, and for this reason, the decisions were overturned without further examination of other matters, in accordance with Article 321 of the Code of Criminal Procedure No. 1412, as applied under Article 8/1 of Law No. 5320, and the decision was made unanimously on 10/02/2020.
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