Crime of abuse of trust

The crime of abuse of trust, also known as abuse of security, is regulated under the title of crimes against property of the Turkish Penal Code.

According to Article 155 of the Turkish Penal Code, the crime of breach of trust is committed by disposing of property that belongs to someone else but whose possession has been transferred to him/her for the purpose of preserving or using it in a certain way, for the benefit of himself or someone else, for purposes other than the purpose of transfer of possession, or by denying the fact of this transfer.

Legal values protected by crime are possession and property rights. In addition, it can be said that the relationship of trust is also preserved. The subject of the crime is movable and immovable property. Receivables and other rights that do not have material existence do not constitute the subject of the crime.

CONDITIONS OF THE CRIME OF ABUSE OF TRUST

1- Possession of the Goods Must Be Delivered Based on Consent.

Possession of the property must be delivered based on a legally valid consent. Otherwise, no crime occurs. Goods taken without consent may be the subject of other crimes. The delivered goods must be transferred within the framework of trust and contractual relationship. There is no crime of breach of trust regarding forgotten goods. The occurrence of a crime depends on voluntary surrender. It is not mandatory for the delivery to be made by the owner. In addition, the person who transfers the possession must have left all control over the property to the possessor.

2- The Perpetrator of the Crime is the Person to whom the Possession is Transferred.

For the crime to occur, the disposal of the transferred property must have been carried out personally by the transferee. Disposal of property by persons other than the person who acquired possession based on consent does not constitute the crime of abuse of trust. As a matter of fact, the 15th Criminal Chamber of the Supreme Court of Appeals said, "In the incident where it is alleged that the defendant, who worked as a secretary in the law office, took money from the participant's father and told the participant's family that the enforcement proceedings were removed from the transaction, but the defendant did not transfer the money he received to the enforcement file, thus committing the crime of abuse of trust due to service; in order to constitute the crime of abuse of trust due to service regulated in Article 155/2 of the Turkish Penal Code, it is necessary to take someone else's property, regardless of the relationship between profession and art, trade or service, or for whatever reason." As a requirement of the authority to administer, it must be processed about the goods deposited and delivered, and considering that there is no service relationship between the defendant and the participant and that the defendant obtained unfair advantage by acting fraudulently to the mother and father of the participant, the establishment of a verdict for the crime of abuse of trust due to service by making a mistake in the nature of the crime, without considering that the action falls within the scope of Article 157/1 of the Turkish Penal Code, which is within the scope of reconciliation, necessitated reversal.

3- The One Who Takes Over the Possession Must Make Disposals Outside the Purpose of Transfer or Deny the Fact of Transfer.

Another condition for the crime to occur is that the accessory possessor to whom the possession is transferred disposes of the property contrary to the purpose of the transfer. By making dispositions other than the purpose of transfer of possession, it is meant that the possessor acts as the owner. Another situation regulated in the law is the transferee's denial of the fact of transfer. What is meant by denying the fact of transfer is that the transferee rejects the legal relationship.

If the transferee has the right to imprisonment, no crime occurs. As a matter of fact, in a decision of the 15th Criminal Chamber of the Supreme Court of Appeals, "In Article 950 of the TMK, the creditor can imprison the movable or negotiable documents that belong to the debtor and are in possession of him with his consent, if the debt is due and these goods are related to the receivable due to their nature, until the debt is paid. In the face of the defendant stating that he has not received his salary for 3.5 months and that he spent on his credit card as a deduction for his receivables after leaving the job, the defendant receives a salary in the company belonging to the complainant." Obtaining a report to determine whether there is a receivable or not, and also, in the face of the defendant stating that he collected the check from someone and gave it to the company, the company accounts were examined to determine whether the money was entered into the company, and regarding the other check, the witness who received the check from the participating company stated in his statement that he had seen the defendant for the first time, and since the person who received the checks from the company stated that he was an employee of the company, the legal status of the defendant should have been determined and appreciated, but the decision was made with incomplete examination. He ruled as follows.

4- It is not necessary to obtain benefit for the crime of abuse of trust to occur.

The legislator has regulated the benefit in the text of the law not in terms of the typicality of the crime but in terms of its commitability. In other words, the crime can also be committed for the benefit of someone else. However, it cannot be concluded that there should be benefit in terms of the formation of the crime. There is also a relationship of trust between crime and legal values ​​protected. Therefore, hurting the sense of trust is sufficient for the crime to occur. It is not necessary for any benefit or harm to occur.

ELEMENTS OF THE CRIME OF ABUSE OF TRUST

Act-Result

In the crime of abuse of trust, as can be understood from the text of the law, the act is to dispose of the property whose possession has been transferred to oneself for the purpose of preserving or using it in a certain way, for the benefit of oneself or someone else, for purposes other than the purpose of transfer of possession, or to deny the fact of transfer.

The crime of abuse of trust is a crime of mere action. The crime is completed if the actions specified in the law are carried out. Also, no conclusion is sought.

Perpetrator of the Crime

The perpetrator of the crime is the person who has taken possession of the property based on consent. The person to whom possession is transferred must be able to act independently. The person transferring the possession must not be able to interfere with the transferee. For example, if a person who takes someone else's phone to talk to his friend runs away with the phone, the crime of theft occurs, not the crime of breach of trust. Because there is no transfer of possession. The perpetrator of the crime of breach of trust may also be the owner of the property right. If the owner acts in a way that violates trust after transferring the possession of the property to someone else, he may be the perpetrator of the crime.

Victim

As a rule, the victim of the crime is the owner of the property. However, as we mentioned above, the transfer of possession does not necessarily have to be made by the owner in order for the crime to occur. The owner of the right of possession may also be the victim of the crime.

Spiritual Element

Intent constitutes the moral element of the crime. The crime of breach of trust is not a crime that can be committed through negligence. In addition, a crime is considered to have occurred in case of possible intent.

QUALIFIED CONDITIONS OF THE CRIME OF ABUSE OF TRUST

TCK 155/2. The qualified circumstances of the crime are regulated in the article. According to the article; It is envisaged that "if the crime is committed regarding goods deposited and delivered as a result of a professional, artistic, trade or service relationship, or the authority to manage someone else's property, regardless of the reason", the penalty will be increased. In cases listed in the law, the intensity of the trust relationship between the perpetrator and the victim was taken into account and therefore the penalty was increased. In addition, the aim of increasing the penalty is not to undermine the security of the profession and art, as well as commercial life.

ABUSE OF TRUST DUE TO SERVICE

In order for this qualified condition to apply, the perpetrator must have a service relationship with the victim. In other words, the contract between the perpetrator and the victim must be in the nature of a service contract. Provisions regarding the service contract are included in the TBK. Whether a contract is a service contract or not is determined according to the relevant provisions of the Turkish Code of Obligations.

The continuity of the service relationship was sought in terms of the formation of qualified status. Temporary service relationships are not within the scope of qualified status. Additionally, a fee must be paid for the service. It is not necessary for the service agreement to be in writing.

CRIME OF ABUSE OF TRUST DUE TO TRADE RELATIONSHIP

As we mentioned above, it is certain that commercial life will be damaged if the crime is committed due to a commercial relationship. For this reason, the legislator has regulated the commission of the crime in this way as a reason for increasing the penalty.

In order for the crime to be committed, the goods must be delivered to the perpetrator for trade purposes. But the parties do not have to be merchants. A crime may also be committed on goods delivered to a street vendor for sale.

CRIME OF ABUSE OF TRUST DUE TO PROFESSION AND ART

This qualified situation refers to the delivery of the goods to a professional or artisan. For example, since the tailor is a professional, if he sells the goods delivered to him to someone else, the penalty will be increased. This is also the case for other professions and branches of art.

PUNISHMENT FOR ABUSE OF TRUST

The law determines separate penalties for simple and qualified forms of the crime.

The punishment for the simplest form of the crime requires imprisonment from 6 months to 2 years and a judicial fine.

In case of qualified circumstances of the crime, the perpetrator is punished with imprisonment from 1 to 7 years and a judicial fine of up to three thousand days.

As can be seen, the law stipulates that imprisonment and judicial fines must be applied together. The judge evaluates the punishment according to the characteristics of the incident. The judge is not obliged to assess the prison sentence and the judicial fine at the same limit. In other words, there is no obstacle to applying the prison sentence at the lower limit and the judicial fine at the upper limit.

COMPLAINING PERIOD FOR ABUSE OF TRUST

The investigation and prosecution of the basic form of the crime is subject to complaint. In case of qualified circumstances, no complaint is required. The complaint period is 6 months. If the 6-month period has passed, the right to complain cannot be exercised.

The trial of the crime of breach of trust is carried out by the criminal courts of first instance.

RECONCILIATION FOR THE CRIME OF ABUSE OF TRUST

The crime of abuse of trust is within the scope of mediation. Before the investigation or trial of the crime can be carried out, the mediation procedure must be implemented. If the parties cannot reach an agreement, the investigation or prosecution will continue where it left off.

ABUSE OF TRUST CRIME CHAINING CRIME

If the perpetrator commits the crime against the same person at different times, the punishment to be imposed is increased by applying chain crime provisions. Again, if the perpetrator commits the crime against more than one person at the same time with a single action, chain crime provisions will be applied.

REASONS FOR IMPUNITY AND REDUCTION FOR THE CRIME OF ABUSE OF TRUST

According to Article 167 of the Turkish Penal Code, the crime of breach of trust is;

"a) One of the spouses for whom a separation decision has not been made,

b) Ancestor or descendant, or one of such relatives in-laws, or an adoptive or adopted child,

c) If it is committed to the detriment of one of the siblings living together in the same residence, the relevant relative will not be penalized.

If these crimes are committed to the detriment of one of the spouses for whom a separation decision has been made, one of the siblings who do not live together in the same residence, one of the uncles, aunts, nieces or second-degree relatives-in-law who live together in the same residence; The penalty to be imposed upon a complaint about the relevant relative is reduced by half."

ACTIVE REPENTANCE IN THE CRIME OF ABUSE OF TRUST

It is possible to apply effective remorse provisions in the crime of abuse of trust. In order for the perpetrator to benefit from effective remorse, the crime must be completed. The perpetrator who wants to benefit from effective remorse must compensate for the damage in kind by restitution or compensation. If the perpetrator shows remorse during the investigation phase, the penalty will be reduced by 2/3. If remorse is shown at the trial stage, the discount rate will be ½.

The defendant who wants to benefit from effective remorse must have repaired the damage voluntarily. If the damage is repaired by law enforcement or others finding the goods or due to any other reason, effective regret provisions do not apply. As a matter of fact, the Supreme Court ruled in one of its decisions as follows: "Although the defendant stated at some stages that the seized gold could compensate for some of the damage to the participants, complainants and victims, since the gold in question was obtained as a result of the investigation carried out by the law enforcement, not in line with the will or indication of the defendant, there are no conditions for the application of effective remorse provisions for the defendant, who did not contribute to the seizure of these golds and did not show a will to show his remorse for the compensation of the damages of the participants, victims and complainants..." established.

RELATIONSHIP OF THE CRIME OF ABUSE OF TRUST WITH OTHER CRIMES

The crime of breach of trust is confused with other types of crimes due to some of its characteristics. For this reason, explanations about the relationship between the crime of breach of trust and other crimes are given below.

DIFFERENCE FROM ABUSE OF TRUST AND THEFT

The crime of breach of trust and theft crime are other crimes. Theft crime cannot be committed with respect to immovable goods, while the crime of breach of trust can be committed with respect to both movable and immovable goods. Another distinction is that in the crime of theft, the perpetrator takes the property without the consent of the possessor. In order for the crime of abuse of trust to occur, possession must be transferred to the perpetrator based on consent. In the crime of theft, the perpetrator intends to take the property from the beginning, while in the crime of breach of trust, this intention is revealed later.

DIFFERENCE FROM ABUSE OF TRUST AND FRAUD

The crime of fraud is committed by the perpetrator deceiving the victim and taking his property. However, in the crime of abuse of trust, the victim was not deceived, on the contrary, he transferred the possession within the scope of a contract. In addition, a damage must occur in the crime of fraud. However, there is no requirement for damage for the crime of breach of trust to occur.

In one of its decisions, the Supreme Court explained the differences between crime types as follows: "In order for the crime of fraud to occur, the perpetrator must mislead a person with fraudulent behavior that can deceive him or her, and benefit himself or someone else, at the expense of that person or someone else. Cheating is a qualified lie. The fraudulent behavior committed by the perpetrator must be severe, intense and skillful to a certain extent, and there must be some actions that will eliminate the victim's ability to examine it in terms of display. The victim must be misled by the fraudulent behavior used, and this Unfair benefit must be provided to the defendant or someone else by the victim who believes the lies as a result of deception. Whether the deception is deceptive or not should be evaluated on a case-by-case basis, the nature of the event, its relationship with the act, the situation of the victim, and the characteristics of the document hidden or changed, if used, must be taken into consideration separately in order to constitute the crime of abuse of trust; "In addition, he must sell, pledge, consume, change or destroy the property he possesses as if he were the owner, dispose of it in similar ways, or deny the fact of transfer, thereby providing benefit to himself or others." He stated as follows.

Abuse of Trust and Embezzlement Difference

The crime of embezzlement is a specific crime. Only public officials can commit the crime of embezzlement. The crime of breach of trust is a type of crime that can be committed by anyone. If a public official takes possession of a property or the value of assets in connection with his/her duty, he/she will be committing the crime of embezzlement. However, a public official who commits the same action independently of his/her duty will be guilty of abuse of trust.

DIFFERENCE FROM ABUSE OF TRUST AND DAMAGE TO PROPERTY

The crime of damaging property is committed in cases such as destroying, burning, destroying, destroying, spoiling, or rendering unusable property belonging to someone else. There is no need to remove the property from the owner's possession in order to commit the crime of damaging property. A crime can also be committed in terms of property within the victim's jurisdiction. However, in order for the crime of breach of trust to occur, the property must pass into the sovereignty of the perpetrator.