One of the most fundamental elements of the criminal justice system is to ensure a fair and accurate trial. For this purpose to be achieved, it is crucial that evidence is preserved, maintained, and presented to judicial authorities in a way that allows the truth to be established. Otherwise, it may be impossible to determine who the perpetrator is or to prove the innocence of an individual.
In this context, Article 281 of the Turkish Penal Code criminalizes the acts of “destroying, concealing, or altering evidence” and aims to ensure that trials are conducted in a proper and effective manner. This article examines the definition, elements, criminal consequences, and practical application of this offense.
LEGAL DEFINITION OF THE OFFENSE
The first paragraph of Article 281 of the Turkish Penal Code defines the destruction, concealment, alteration, or deterioration of criminal evidence as an independent offense. The relevant provision states: “Anyone who destroys, erases, conceals, alters, or damages evidence of a crime with the intention of preventing the truth from emerging shall be punished with imprisonment from six months to five years. No penalty shall be imposed under this paragraph for evidence related to a crime the person committed or participated in.”
This regulation safeguards the principle of uncovering the material truth, which is a fundamental basis of criminal proceedings. Evidence tampering can render the judicial process ineffective, which may harm criminal justice carried out on behalf of the public and violate an individual’s right to a fair trial.
ELEMENTS OF THE OFFENSE
The crime of destroying, concealing, or altering evidence, when examined in terms of both its objective and subjective elements, consists of the following fundamental components:
Mental Element (Mens Rea): This is an intentional crime. The perpetrator must know that their act destroys, conceals, or alters evidence related to an offense and must commit the act with the purpose of preventing the truth from being revealed.
1-Perpetrator: This offense, regulated under Article 281 of the Turkish Penal Code (TCK), is a general crime that can be committed by anyone. However, the perpetrator’s position may give rise to different legal considerations in certain cases.
2-Act (Actus Reus): The offense is structured as a crime of optional acts. The legislator defines the optional acts that constitute the crime as: destruction, concealment, alteration, or falsification. The commission of any single optional act is sufficient for the crime to be considered complete.
3-Object of the Crime: The subject of this crime is any object that constitutes evidence or proof related to a previously committed offense. Performing such acts on items that do not qualify as evidence does not constitute the crime. The concept of evidence should be interpreted broadly, including not only physical objects but also digital data, traces, documents, and facts that serve as indications. For example, washing away brake marks on a vehicle after a traffic accident can constitute the crime.
Personal Grounds for Exemption from Punishment
The legislator has provided for a specific personal exemption from punishment for this offense. Accordingly, if the perpetrator destroys, conceals, or alters evidence related to a crime they committed or participated in, they shall not be additionally punished for this act. However, this exemption applies solely under Article 281 of the Turkish Penal Code (TCK). If the perpetrator’s act also constitutes another crime (e.g., forgery of official documents, damage to property, theft, etc.), they may be punished separately for those offenses.
AGGRAVATED FORM OF THE OFFENSE AND GROUNDS FOR MITIGATION OF SENTENCE
1. Committed by a Public Official (TCK Article 281/2)
According to the second paragraph of Article 281 of the Turkish Penal Code, if the offense is committed by a public official in connection with their duties, it is considered an aggravated form of the crime.
“If this crime is committed by a public official in connection with their duties, the penalty to be imposed shall be increased by half.”
This provision ensures that a public official who abuses their authority derived from public service to prevent the disclosure of material truth is subject to a more severe sanction. Indeed, the act of a public official not only obstructs the course of justice but also undermines public trust and the principle of impartiality in public service. For the offense to be considered in its aggravated form, two conditions must be met simultaneously: the perpetrator must hold the status of a public official, and the crime must be committed in connection with their official duties. Acts committed by the public official for reasons unrelated to their duties, purely for personal motives, do not fall within this scope.
2. Effective Remorse (TCK Article 281/3)
Effective remorse is an institution of substantive criminal law that allows for a reduction in the penalty if the offender shows remorse for their act and compensates for the harm caused by the crime.
According to the third paragraph of Article 281 of the Turkish Penal Code, if the offender, showing remorse, submits the evidence to the court, a significant reduction in penalty is foreseen. The provision states:
“For a person who delivers to the court the evidence that was hidden prior to the issuance of a verdict concerning the related crime, four-fifths of the penalty to be imposed for the crime defined in this article shall be reduced.”
This provision encourages the offender to return to the law voluntarily; if they contribute to the criminal justice system, a substantial reduction in their penalty is granted.
The necessary conditions for applying this reduction are as follows:
- The hidden evidence must be submitted to the court before a verdict is issued regarding the related crime.
- The submission must be made voluntarily by the offender. Evidence obtained by force or discovered as a result of a search is not considered within this scope.
COMPLAINT PERIOD, STATUTE OF LIMITATIONS, AND COMPETENT COURT
The crime of destroying, concealing, or altering evidence is not subject to a complaint and is investigated ex officio by the public prosecutor. Although there is no complaint period for the investigation of the crime, the statute of limitations for prosecution is eight years. This period begins from the date the crime was committed. The crime must be reported to the prosecutor within this period; otherwise, a case cannot be filed. Furthermore, this crime is not subject to reconciliation; it cannot be resolved through an agreement between the parties. The trial is conducted in the Criminal Court of First Instance.
POSTPONEMENT OF SENTENCE ANNOUNCEMENT, SUSPENSION, AND FINES
The crime of destroying, concealing, or altering evidence can be punished with either a fine or imprisonment. If a prison sentence is imposed, it may be converted into a fine, suspended, or subject to a postponement of the announcement of the judgment (HAGB).
SUPREME COURT DECISIONS
“…During the period in which the defendant was acting as the director at the Kastamonu Children’s Home under the Social Services and Child Protection Agency, it is alleged and accepted that he withdrew funds deposited from the general budget on behalf of the children in the dormitory, failed to return the surplus to the bank, thereby misappropriating the money, and, following the initiation of an investigation, in order to prevent the disclosure of his crime, defaced the outgoing record book related to the offense, rendering the official document unreadable. In this incident, the defendant’s actions of defacing and altering the outgoing record book to prevent the crime from being revealed constitute the offense of “destroying, concealing, or altering criminal evidence” as regulated under Article 281 of the Turkish Penal Code (TCK). Due to the provision in the last sentence of the first paragraph of the same article, which states that “no penalty shall be imposed on a person regarding the crime he/she committed or participated in,” a decision should have been made, pursuant to Article 223(4)(b) of the Criminal Procedure Code, that no punishment is to be imposed on the defendant…” (Supreme Court of Appeals, 11th Criminal Chamber, 2016/9854 E., 2018/5359 K., 05.06.2018)
“…The actions of the defendant, together with F.. M..—whose file was separated due to his inability to be apprehended—of not opening the door to prevent a planned search at the association where they were present, removing a data storage device connected to a computer and damaging it to make its contents inaccessible, and throwing it onto the rooftop of the building opposite the association to prevent access to the data contained therein, were accepted as acts. However, there was no conclusive, definite, and convincing evidence to prove that the data storage device intended to be destroyed contained evidence of a crime within the meaning of Article 281 of the Turkish Penal Code (TCK), and the existing doubt should have been resolved in favor of the defendants. Despite this, instead of acquittal, a written reasoning was used to convict them.
2- Furthermore, according to the acceptance and application, the written judgment was issued without considering whether the defendant’s alleged and accepted actions constituted the crime of aiding an armed terrorist organization, which is contrary to the law. The appeals of the defendant’s counsel were therefore deemed valid, and for this reason, the judgments were REVERSED…” (Supreme Court of Appeals, 9th Criminal Chamber, 2013/9234 E., 2014/6210 K., 12.05.2014)
“…For this offense to occur, the perpetrator must act with the intent to prevent the truth from being revealed. However, the text of the paragraph provides for a personal exemption from punishment. Accordingly, a person is not additionally punished for destroying, concealing, or altering evidence related to a crime they committed or participated in. This personal exemption, however, is limited only to the crime of destroying, concealing, or altering evidence. If the defendant’s act also constitutes another crime—such as falsifying, destroying, or concealing an official document, theft, or property damage—they may be punished for that crime…” (General Criminal Assembly, 2019/325 E., 2021/590 K., 25.11.2021)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
