Embezzlement Crime - Av. Gökhan Akgül

Definition

The crime of embezzlement is stated in Article 247 of the Turkish Penal Code, under the fourth section titled “Crimes Against the Nation and the State and Final Provisions,” and in the first chapter titled “Crimes Against the Reliability and Functioning of Public Administration.”

According to the relevant article, the crime involves a public official who embezzles property that has been entrusted to them due to their duties, or property for which they are responsible for protection and supervision, for their own benefit or that of another.

Article 247

(1) A public official who embezzles property that has been entrusted to them due to their duties or property for which they are responsible for protection and supervision, for their own benefit or that of another, shall be punished with imprisonment from five to twelve years.

(2) If the crime is committed through fraudulent behavior aimed at concealing the embezzlement, the penalty shall be increased by half.

(3) If the crime of embezzlement is committed with the intention of returning the property after it has been temporarily used, the penalty may be reduced by up to half.

Is the Crime of Embezzlement Subject to Complaint?

The crime of embezzlement, being a crime against the reliability and functioning of public administration, is not subject to complaint. It can be investigated and prosecuted ex officio.

Is the Crime of Embezzlement Subject to Mediation?

The crime of embezzlement is not among the crimes subject to mediation.

Can the Crime of Embezzlement Be Committed by Recklessness?

The crime of embezzlement is a crime that can only be committed intentionally. It cannot be committed through recklessness.

Simple Form of the Crime

According to Article 247 of the Turkish Penal Code:

“A public officer who takes possession of property that has been entrusted to them due to their duties or for which they are responsible for its protection and supervision, either for themselves or for another person, shall be punished with imprisonment from five to twelve years.”

Circumstances Requiring a Harsher Penalty

If the crime is committed with fraudulent behavior aimed at concealing the embezzlement, the penalty shall be increased by half (Turkish Penal Code, Article 247/2).

Circumstances Requiring a Lesser Penalty

If the embezzlement crime is committed with the intention of temporarily using the property and returning it later, the penalty may be reduced by up to half (Turkish Penal Code, Article 247/3).
If the value of the property involved in the embezzlement crime is low, the penalty may be reduced by one-third to one-half (Turkish Penal Code, Article 249).

Effective Remorse

The provisions related to effective remorse in embezzlement crimes are regulated in Article 248 of the Turkish Penal Code.

If the embezzled property is returned in kind or the damage caused is fully compensated before the investigation begins, two-thirds of the penalty will be reduced.

If, before the prosecution begins, the embezzled property is voluntarily returned in kind or the damage caused is fully compensated, half of the penalty will be reduced. If effective remorse occurs before the verdict, one-third of the penalty will be reduced.

Attempt

Embezzlement is a crime that is susceptible to attempt. If the property, goods, or valuable documents that are embezzled are not the specific ones in question but another type of property, the completion of the crime requires these items to be brought into the perpetrator’s control. Therefore, if the perpetrator is prevented from bringing the property into their control due to reasons beyond their control, it can be accepted that the crime remains at the stage of attempt.

Embezzlement by Failure to Perform Supervisory Duties

A public officer responsible for supervision who deliberately ignores the commission of embezzlement is held liable as a joint perpetrator of the crime (TCK. art. 251/1).

A public officer who, by neglecting their supervisory duties, facilitates the commission of embezzlement, shall be punished with imprisonment from three months to three years (TCK. art. 251/2).

Execution Regime for the Crime of Embezzlement

As stated in Article 247 of the Turkish Penal Code, the commission of the crime of embezzlement results in a prison sentence. Due to the severity of the punishment for embezzlement, it is not possible to convert the penalty into a judicial fine.

According to Article 231 of the Code of Criminal Procedure, “If the sentence imposed at the conclusion of the trial for the offense charged to the defendant is a prison sentence of two years or less, or a judicial fine, the court may decide to defer the pronouncement of the judgment. Provisions regarding reconciliation are reserved. The deferral of the pronouncement of the judgment means that the judgment does not have any legal consequences for the defendant.”

In order for the court to decide on the deferral of the pronouncement of the judgment:

a) The defendant must not have been previously convicted of an intentional crime,

b) The court must be convinced, considering the defendant’s personality traits and behavior during the trial, that the defendant will not commit another crime,

c) The harm caused to the victim or the public by the commission of the crime must be completely compensated either by return of the property, restoration to the previous state, or full compensation,

d) The defendant must accept the deferral of the pronouncement of the judgment.

In order for the deferral of the pronouncement of judgment (HAGB) to be applicable in the embezzlement crime, certain circumstances for penalty reduction must be applied. However, with the Constitutional Court’s decision dated 01/08/2023, the regulation regarding HAGB has been annulled, and this regulation will apply starting from 01/08/2024. Until the effective date, HAGB provisions may still be applied if the conditions are met, but starting from the effective date (01/08/2024), HAGB will no longer be applicable.

A person sentenced to a prison term of two years or less for a crime committed during the trial may have their sentence postponed (TCK. Article 51). The maximum limit for this period is three years for individuals who were under eighteen or over sixty-five years old at the time the offense was committed.

In order for a deferral decision to be made, the person must:

The person must not have been previously sentenced to more than three months of imprisonment for an intentional crime.
Additionally, the court must form an opinion that the person will not commit another crime due to the remorse shown during the trial process after committing the crime.

The institution of sentence postponement cannot be applied in the basic form of the embezzlement crime. However, if certain reduction circumstances exist, a decision to postpone the sentence may be made if the relevant conditions are met.

Relevant Court of Cassation Decisions

“In the laws numbered 4389 and 5411, unlike the Turkish Penal Code, no distinction is made between ordinary embezzlement or use of embezzlement, and since every act of embezzlement constitutes a crime, it is understood from the legal investigation report available in the case file and the statements of the account holder … that the defendant withdrew money from the account without the account holder’s knowledge and deposited it back into the account.

a) If the account holder’s account card is obtained, and if the embezzlement can be definitively established through the usual monitoring, research, and comparison of the bank’s internal records, it may be considered as a simple embezzlement, and furthermore;

Regarding the embezzlement of the bank’s money using payment slips, the determination of whether the act constitutes simple or qualified embezzlement should be evaluated as follows:

If the payment slips cannot be found or if the found payment slips do not have the account holder’s signature, the act is simple embezzlement;
If a blank payment slip was obtained by misleading or deceiving the account holder and used to withdraw money from the account without the account holder’s knowledge and instructions, the act is qualified embezzlement;
In cases where transactions are carried out by forging signatures on the payment slip in place of the account holder, and the forgery is evident upon a simple examination of the slips, the act constitutes simple embezzlement. However, if the forgery contains fraudulent characteristics, the act would qualify as qualified embezzlement.

A decision must be made after evaluating these points, and a judgment of acquittal was issued in the written form, which is contrary to the law. Since the appeal of the complainant’s lawyer is deemed appropriate for these reasons, the judgment is overturned in accordance with Article 321 of the Code of Criminal Procedure No. 1412, in effect under Law No. 5320, and the decision was made unanimously on 28.05.2013.”

(Court of Cassation 7th Criminal Chamber, 2012/28265 E., 2013/15410 K.)

“In the expert report dated 02.02.2017, which was the basis for the judgment, it was understood that the defendant embezzled a total of 44,584 TL from the expropriation fee deposited into the pool account at the bank on behalf of …; of this amount, 27,530 TL was embezzled using seven payment slips with forged signatures. The attempt to resemble the signatures on the slips to those of the account holder led to these transactions being considered as qualified embezzlement. However, in the external examination carried out by our Court, it was observed that the signatures on the slips did not resemble those of …’s sample signatures, and therefore, the transactions, which did not have a fraudulent characteristic, should have been categorized as simple embezzlement, but a judgment was made as written.

Upon reviewing the transaction where the defendant embezzled 8,332 TL using a payment slip with a forged signature dated 06.12.2007 from the expropriation fee deposited into the pool account at the bank on behalf of …, the expert report dated 02.02.2017, which was the basis for the judgment, concluded that the act was considered as qualified embezzlement due to the similarity between the signature on the slip and the sample signatures of …. However, in the external examination by our Court, it was found that the signature on the slip did not resemble …’s sample signatures, and therefore, the transaction, which did not possess a fraudulent nature, should have been categorized as simple embezzlement, but a judgment was made as written.

Upon reviewing the transaction where the defendant embezzled 9,804.60 TL using a payment slip with a forged signature dated 08.01.2008 from the expropriation fee deposited into the pool account at the bank on behalf of …, the expert report dated 02.02.2017, which was the basis for the judgment, concluded that the act was considered as qualified embezzlement due to the similarity between the signature on the slip and the sample signatures of …. However, in the external examination by our Court, it was found that the signature on the slip did not resemble …’s sample signatures, and therefore, the transaction, which did not possess a fraudulent nature, should have been categorized as simple embezzlement, but a judgment was made as written.

In the examination of the transactions where the defendant embezzled 9,575 TL on 19.02.2007 and 5,000 TL on 05.12.2007 from …’s credit account, it was not considered whether the signatures on the slips in question belonged to the account holder, and whether the account holder was asked why he provided the defendant with blank signed slips, and the nature of the act should have been determined accordingly.

In the examination of the transactions where the defendant withdrew 2,250 TL on 05.03.2007 using a payment slip numbered …, and 250 TL using a payment slip numbered …, the Forensic Medicine Institution’s report dated 26.10.2011 revealed that there were no sample signatures of the account holder for comparison, and no examination was carried out on the slips. In this case, the account holder’s signature samples and signature cardlets should have been obtained by the Court, and the Court should have determined whether the signatures were authentic and whether they had fraudulent intent, documenting the findings in a way that allows for review. Instead, the expert report dated 02.02.2017 was relied upon, and it was accepted that the signatures on the slips were attempts to resemble the account holder’s signatures, leading the acts to be considered as qualified embezzlement, resulting in a judgment based on incomplete examination.”

Upon reviewing the transaction where the defendant withdrew 1,000 TL from …’s credit account on 19.04.2007 using a payment slip numbered …, it was noted that the original receipt could not be found, and because the photocopy of the receipt could not be sent to the Forensic Medicine Institution, no signature examination could be conducted. Despite this and in disregard of the settled case law of our Court that photocopy receipts cannot be used as the basis for a qualified embezzlement offense, the expert report dated 02.02.2017, which was the basis for the judgment, stated that the forgery on the payment slip could easily be recognized with the naked eye, and yet, contrary to this conclusion, the signature was attempted to be made to resemble the authentic signature. As a result, the act was accepted as qualified embezzlement.

In the transaction where the defendant withdrew 11,535 TL from …’s credit account on 29.11.2007 using a payment slip numbered …, and since there was no signature from the account holder on the receipt, the act should have been considered as simple embezzlement due to the lack of fraudulent intent, but it was instead included in the qualified embezzlement amount.

In the transaction where the defendant withdrew 2,975 TL from …’s credit account on 24.03.2008 using a payment slip numbered …, and since there was no signature from the account holder on the receipt, the act should have been considered as simple embezzlement due to the lack of fraudulent intent, but it was instead included in the qualified embezzlement amount.

In the transaction where the defendant withdrew 9,700 TL from …’s credit account on 01.05.2008 using a payment slip numbered …, and since there was no signature from the account holder on the receipt, the act should have been considered as simple embezzlement due to the lack of fraudulent intent, but it was instead included in the qualified embezzlement amount.

In the transaction where the defendant embezzled 4,100 TL from …’s account on 30.11.2007, and due to the absence of the receipt at the branch, the act should have been considered as simple embezzlement due to the lack of fraudulent intent, but it was instead included in the qualified embezzlement amount.

According to the acceptance:

When sentencing the defendant under Article 160/2 of Law No. 5411, the amount of the fine should first be determined and converted into a judicial fine. After applying the necessary increase and reduction provisions under Articles 43/1 and 62/1 of the Turkish Penal Code (TCK), the amount of the judicial fine should be tripled due to the actions considered as qualified embezzlement that caused and remain unpaid damage, but the judgment was made in writing without considering this.

Regarding the determination of the judicial fine; in accordance with the legal provision in Article 160/2 of Law No. 5411, which states “… however, the amount of the judicial fine cannot be less than three times the loss suffered by the bank,” in the application of the three-fold increase, the amount of damage caused and unpaid due to the actions considered as qualified embezzlement should be taken into account. Considering that the participating bank’s letter dated 05/01/2009 and numbered 15/2 indicated that the defendant had made a payment of 38,058.10 YTL, the court accepted that 104,926.50 TL of the total embezzled amount of 344,470.78 TL was the amount of qualified embezzlement. However, the court failed to subtract the 38,058.10 YTL the defendant had already paid from the qualified embezzlement amount of 104,926.50 TL and should have determined the base judicial fine as 200,605 TL, which is three times the bank’s damage of 66,868.40 TL in relation to the qualified embezzlement offense. Instead, without considering the payment of 38,058.10 YTL, the court mistakenly set the base judicial fine as 314,779 TL, which is three times the qualified embezzlement amount of 104,926.50 TL, resulting in an excessive judicial fine for the defendant.

According to the legal provision in the second sentence of Article 160/2 of Law No. 5411: “… Furthermore, if the damage that occurred is not paid, the court shall order the payment to be made ex officio.” The court, after deducting the amount of 4,450.00 TL from the total embezzled amount of 344,470.78 TL, should have subtracted the 38,058.10 YTL paid by the defendant as indicated in the participant’s letter, leaving the remaining 301,962.18 TL as the damage to the bank. This amount should have been considered as the bank’s loss and ordered to be paid by the defendant. Additionally, the calculation of the proportional fee and the lawyer’s fee in favor of the participant should have been based on the amount of 301,962.18 TL, rather than on the excessive amount of damage paid by the defendant without considering the 38,058.10 YTL payment. Therefore, the court ruled on an excessive amount of damage and a disproportionately high legal fee and court fees in favor of the plaintiff.

In conclusion, due to the violations of the law, the defendant’s lawyer’s appeal objections were found to be valid, and the decision was overturned in accordance with Article 321 of the Code of Criminal Procedure No. 1412, as amended by Law No. 5320, on 04/07/2019, by unanimous decision. (Court of Cassation, 7th Criminal Chamber, 2018/18008 E., 2019/33821 K.)

[1] ÖZBEK, Veli Özer; DOĞAN, Koray; BACAKSIZ, Pınar; MERAKLI, Serkan; BAŞBÜYÜK, İsa; Pratik Çalışma Kitabı Ceza Hukuku Özel Hükümler, Seçkin Yayınları, 18. Baskı, s.271.