Legal Definition of the Offense
The offense of fabricating a crime is regulated under Article 271 of the Turkish Penal Code, within the section titled “Crimes Against the Judiciary.” The relevant article provides:
Article 271 of the TPC – (1)
Any person who reports to the competent authorities a crime that he/she knows has not been committed as if it had been committed, or who fabricates evidence or indications of a crime that has not occurred in a manner that causes an investigation to be initiated, shall be punished with imprisonment for up to three years.
This wording is set forth in the relevant provision of the law.
Elements of the Offense
The offense of fabricating a crime, when evaluated together with both its objective and subjective elements, is based on the following fundamental components:
1- Act (Conduct Element):
Article 271 of the Turkish Penal Code states that: “Any person who reports to the competent authorities a crime that he/she knows has not been committed as if it had been committed, or who fabricates evidence or indications of a crime that has not occurred in a manner that leads to the initiation of an investigation, shall be punished with imprisonment for up to three years.”
In terms of the formation of the offense, two alternative acts are предусмотрed (stipulated). The realization of either one of these alternative acts is sufficient for the offense to be constituted.
- Reporting a crime known not to have been committed as if it had been committed to the competent authorities:
This offense is constituted where the perpetrator reports or files a complaint with the competent authorities, such as the police, gendarmerie, or public prosecutor’s office, about a crime that he/she knows has not been committed, as if it actually had been committed. For the offense to be established, it is sufficient that the report or complaint be capable of initiating an investigation; it is not necessary that the competent authorities actually commence investigative proceedings as a result of the report.
- Fabricating evidence or indications of a crime that has not been committed in a manner that leads to an investigation:
With regard to this alternative act, for the offense to be constituted, the perpetrator must fabricate evidence or indications in such a way as to cause an investigation to be initiated in relation to a crime that has not been committed.
2- Offender:
Under Article 271 of the Turkish Penal Code, no special condition is required with respect to the perpetrator. Anyone may be the offender of this crime.
3- Victim:
In regard to this offense, the victim is society. However, the person or persons who suffer adverse consequences as a result of the commission of the offense may also be considered victims.
4- Legal Interest Protected by the Offense:
The offense of fabricating a crime is regulated under the heading “Crimes Against the Judiciary,” and the legal interests protected by this offense are the right to a fair trial and the public interest.
5- Mental Element (Mens Rea):
This offense can only be committed intentionally; its commission by negligence is not legally possible.
Differences Between the Offense of Fabricating a Crime and the Offense of Defamation (False Accusation)
The offense of false accusation (defamation) is regulated under Article 267 of the Turkish Penal Code. The relevant provision states:
“Any person who, by filing a report or complaint with the competent authorities or through the media and press, falsely imputes an unlawful act to another person, despite knowing that he/she did not commit it, for the purpose of initiating an investigation or prosecution against that person or having an administrative sanction imposed on him/her, shall be punished with imprisonment from one to four years.”
Accordingly, falsely attributing an unlawful act to a person in order to initiate a prosecutorial investigation or to have an administrative sanction imposed falls within the scope of the offense of false accusation.
As explicitly stated in the provision, for the offense of false accusation to be constituted, the act attributed to the person does not necessarily have to amount to a crime; attributing an unlawful act is sufficient. In contrast, for the offense of fabricating a crime to be established, the attribution must concern a crime.
Furthermore, for the offense of false accusation, the imputation of the unlawful act must be directed at a specific and identifiable person. If the attribution is not directed at a specific person, the offense of false accusation cannot be deemed to have occurred. In cases where a crime is alleged without being directed at a specific person, the offense of fabricating a crime will arise.
Complaint Period, Statute of Limitations, and Competent Court
The offense regulated under Article 271 of the Turkish Penal Code is not subject to a complaint, and investigatory proceedings are initiated ex officio by the public prosecutor. Although there is no limitation period for filing a complaint, the statute of limitations for prosecution is eight years. The competent court is the Criminal Court of First Instance.
Judicial Fine, Decision to Defer the Pronouncement of the Judgment, and Suspension of the Sentence
Pursuant to Article 271 of the Turkish Penal Code, any person who reports to the competent authorities a crime that he/she knows has not been committed as if it had been committed, or who fabricates evidence or indications of a crime that has not occurred in a manner that causes an investigation to be initiated, shall be punished with imprisonment for up to three years. Considering the minimum and maximum limits of the penalty, it is possible to convert the prison sentence into a judicial fine, to decide on the deferral of the pronouncement of the judgment, and to suspend the sentence.
Decisions Regarding the Subject
“… For the offense of fabricating a crime to be constituted, it is necessary to report to the competent authorities a crime known not to have been committed as if it had been committed, or to fabricate evidence or indications of a crime that has not occurred in a manner that enables an investigation to be initiated; moreover, the act must not be directed against a specific person. If a real person is shown as the perpetrator of the fabricated crime, the act constitutes the offense of false accusation.
In the present case, considering that the defendant applied to the police station as a complainant on 17.01.2013 and stated in his statement taken on the same date as the complainant that his vehicle bearing license plate no. 59 UF 635 had been stolen, and that the persons to whom he had informally transferred the vehicle were identifiable; the attribution by the defendant of an unlawful act to the victim, despite knowing that it had not been committed, for the purpose of causing an investigation and prosecution to be initiated, required his conviction for the offense of false accusation. Instead, due to an error in legal classification, a written judgment convicting him of the offense of fabricating a crime was rendered, which has been found to be unlawful…”
(Supreme Court of Appeals, 8th Criminal Chamber, Case No. 2022/1140, Decision No. 2023/3625, dated 23.05.2023)
“… In the alleged incident, it is claimed that the defendant, together with an unknown person, deceived the complainant by claiming that they would sell live animals and took his money; and that at the very beginning of the investigation, the complainant went to the police station together with the defendant, where the defendant fabricated a crime by presenting himself as if he had also been deceived by the unknown person and filed a complaint against that unknown person;
1-In terms of the offense of fraud:
Due to the offense of fraud attributed to the defendant, in accordance with Articles 253 and 254 of the Code of Criminal Procedure No. 5271, as amended by Article 34 of Law No. 6763, which was published in the Official Gazette dated 02.12.2016 and entered into force on the same date, it was mandatory to carry out reconciliation (mediation) procedures and then to assess and determine the defendant’s legal status based on the outcome.
2-In terms of the offense of fabricating a crime:
For the offense of fabricating a crime to be constituted, it is required that the person report to the competent authorities a crime that he/she knows has not been committed as if it had been committed, or fabricate evidence or indications of a crime that has not occurred in a manner that leads to the initiation of an investigation. However, in the present case, the defendant’s statement should have been evaluated within the scope of the right of defense, and since the elements of the offense of fabricating a crime were not met, the judgment convicting the defendant in writing instead of acquitting him of the charged offense required reversal…”
(Supreme Court of Appeals, 15th Criminal Chamber, Case No. 2015/9283, Decision No. 2018/5486, dated 11.09.2018)
“… The offense of fabricating a crime is defined by law as reporting a crime to the competent authorities as if it had been committed even though it is known not to have been committed, or fabricating evidence or indications of a crime that has not occurred in a manner that causes an investigation to be initiated. According to the circumstances of the incident and the content of the case file, it is established that the police station was located across from the defendants’ workplace; that, according to the police report dated 01/12/2010, officers who heard noise at the workplace arrived at the scene and intervened in the situation at the workplace where both the defendants and the complainants were present; that the defendants stated that the complainant … had broken the shop window and that a scuffle had taken place between them and the complainants, and that following the complainants’ filing of complaints, an investigation was initiated by law enforcement.
According to the relevant police report, it was stated that there had been a fight between the parties. Therefore, considering that there was no fabricated crime, but merely that it could not be determined who had committed the offense, the defendants should have been acquitted pursuant to Article 223/2-a of the Code of Criminal Procedure No. 5271. However, issuing a written conviction ruling instead, without taking this into account, was found to be contrary to law…”
(Supreme Court of Appeals, 15th Criminal Chamber, Case No. 2017/14858, Decision No. 2017/18868, dated 25.09.2017)
“… In the incident in which it was alleged that one of the defendants, …, agreed in traffic with his son …, who owns the van with license plate …, and the trailer with license plate …, to load food products belonging to the complainant company onto the vehicle through the company … Gıda operating in the province of Gaziantep and deliver them to Bim markets located in Gebze and Beylikdüzü; however, the defendant parked the vehicle in a location near a Bim market in Istanbul where there were no security cameras, without delivering the food products he had undertaken to transport to Gebze, and subsequently went to the hospital on the pretext that he had fallen ill and prepared documents allegedly evidencing his hospital visit; yet, by acting in agreement with his son, who is also a defendant, …, and his brothers, the other defendants …, … and …, they took the food products off the truck and sold them to defendant …, and then claimed that the food products had been stolen and filed a complaint — in this event, no error was found in the court’s conclusion that the act of defendant … constituted the offense of fabricating a crime…”
(Supreme Court of Appeals, 15th Criminal Chamber, Case No. 2017/24476, Decision No. 2019/12863, dated 26.11.2019)
“… In order for the offense of fabricating a crime to be constituted, it is necessary to report to the competent authorities a crime which the person knows has not been committed as if it had been committed, or to fabricate evidence or indications of a crime that has not been committed in a manner that will lead to an investigation, and furthermore, no accusation must be directed against a specific person.
For the offense of false accusation (slander/defamation under criminal law), it is required that, by making a report or complaint to the competent authorities, a concrete and identifiable person be accused of an unlawful act which the accuser knows was not committed, for the purpose of initiating an investigation or prosecution or causing an administrative sanction to be imposed against that person. In the present case, although the defendant knew that no theft had occurred, he filed a complaint alleging theft by reporting the license plate of his vehicle, and since it was possible to identify the person who had possession of the vehicle based on the reported plate, it should have been considered that his act constituted the offense of false accusation as regulated in Article 267/1 of the Turkish Penal Code; however, by falling into an error as to the legal characterization, a judgment was rendered for the offense of fabricating a crime instead.
According to the acceptance and application:
- While establishing a judgment against the defendant for the offense of fabricating a crime, confusion was caused in the judgment by referring to Article 267 via the reference in Article 271/1 of Law No. 5237 (TCK);
- Although the final sentence imposed was a judicial fine, the provisions on recidivism were applied pursuant to Article 58 of Law No. 5237;
These matters are contrary to law. Since the defendant’s appeal objections were therefore found to be justified, the judgment was REVERSED for these reasons pursuant to Articles 321 and 326/last of the Code of Criminal Procedure No. 1412, which is applicable under Article 8/1 of Law No. 5320, without prejudice to the acquired rights in terms of the amount of punishment…”
(Supreme Court of Appeals, 8th Criminal Chamber, Case No. 2020/15855, Decision No. 2022/19342, dated 20.12.2022)
“… It is established that the offense of fabricating a crime defined in Article 271 of the Turkish Penal Code (TCK) is constituted when a person reports a crime that has not been committed as if it had been committed, whereas the offense of assuming a crime regulated in Article 270 of the same Code is constituted when a person notifies the competent authorities that he himself committed a crime that was in fact committed by another person; however, in the present case, without taking into account that the defendant’s act of reporting to the competent authorities a crime that had not been committed as if it had been committed constituted the offense of fabricating a crime as set forth in Article 271 of the TCK, a judgment was rendered as written…”
(Supreme Court of Appeals, 16th Criminal Chamber, Case No. 2016/716, Decision No. 2016/2738, dated 27.04.2016)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
