Crime and punishment of forgery in private documents

The crime of forgery of private documents is regulated under the title of crimes against public trust in Article 207 of the Turkish Penal Code. Crime according to article; It is committed by forging a private document or changing and using a real private document in a way to deceive others. As can be seen, in order for the crime of forgery of a private document to occur, the private document must be used in a legal relationship, among other optional actions. Mere acts of forging the document or changing it in a way to deceive others will not constitute a crime without the act of using it. In this form, this crime is a type of crime with more than one action.

It is aimed to protect public security through the crime of forgery of private documents. The material subject of the crime is the private document. For this reason, it will be necessary to define the characteristics of the document that may be the subject of the crime.

WHAT IS A DOCUMENT?

The document is defined by the Turkish Language Association as "A text, photograph, picture, film, etc. that bears witness to a fact." It is defined as 'document, document'. However, there is no definition of this concept in the criminal law. In one of its decisions, the Supreme Court declared the document; It is defined as a writing that has content, creates rights, revokes rights and is a tool of evidence. From this definition, it follows that a document in the sense of criminal law can only be written. It is not required that the text be on paper. As a matter of fact, the act of issuing a fake license plate gives rise to the crime of document forgery. This situation is stated in the justification of Article 204. "It should also be noted that, although the existence of a written paper is necessary in cases where a document is mentioned; in some cases, the existence of the document does not need to be on paper to be accepted. In case of writing on a metal plate, the existence of the document must be accepted." It is explained with expressions.

ELEMENTS OF THE DOCUMENT IN THE CRIME OF FORGERY IN A PRIVATE DOCUMENT

In order for a document to be subject to the crime of document forgery, it must meet certain conditions. According to the criteria stated in the justification of the article and accepted by the Supreme Court, it is possible to list the elements of the documents that may be subject to the crime of forgery of private documents as follows.

1- The Document Must Be in Written

As we defined above, in order for the document to be subject to a crime, it must be in writing. As we mentioned, the text does not necessarily have to be on paper. If the conditions are met, objects such as metal sheets, leather, or plastic can also be considered documents. As a matter of fact, in the justification of Article 204, "Although the existence of a written paper is necessary in cases where a document is mentioned; in some cases, the existence of the document does not need to be on paper to be accepted. In case of writing on a metal plate, the existence of the document must be accepted. In this respect, vehicle license plates should also be accepted as official documents." Expressions are included.

No document that is considered evidence in the sense of criminal law but is not written constitutes the subject of the crime. For example, even if computer programs or photographs qualify as evidence, they cannot be considered as documents.

It is accepted that issues such as how the text is written and its language do not change the quality of the document. But the text must be understandable by a certain group.

The Supreme Court is of the opinion that the text should be written on something that can be moved. Writings written on immovable property cannot be considered as documents. For example, graffiti is not considered a document.

2- The Organizer of the Document Must Be Known

Another element of the document is that the issuer of the document must be known. This obligation arises from the warranty function of the document. In the justification of Article 204 of the Turkish Penal Code, it is clearly stated that the issuer of the document must be known. According to the justification;

"This writing must be attributable to a certain person or persons. However, these persons do not have to be real persons. In this respect, a written paper that cannot be attributed to a certain real or imaginary person does not qualify as a document. In order for the writing on the paper to be attributable to a certain person, it is not necessary for the name and surname of this person to be written on the paper completely and for the paper to be signed by this person."

If the person who prepared the document is not known, the crime of forgery cannot be mentioned in the document. According to the Supreme Court, "There is a document when a person writes someone else's name on the document he prepared and signs the document; however, this document is fake. The person whose name is written and signed under the document may be a real or fictitious person. This has no effect on the existence of the document."

3- The Document Must Contain a Legal Value

Criminal law does not accept every writing as a document. As stated in the justification of Article 204, for a writing to be accepted as a document; The content of the writing on paper must have a legal value, express a legal judgment, and be capable of producing a legal result.

For the document to be considered to have legal consequences, it must create a right, change or eliminate a right. A document that does not meet these conditions does not constitute the crime of forgery of private documents. The doctrine defines this situation as useless fraud, and this definition has been accepted by the Supreme Court. As a matter of fact, the 15th Criminal Chamber of the Supreme Court of Appeals ruled in 2016 that "According to the medical board report which was detected to be fake, the defendant's total body function loss rate is 30%, according to the health board report taken from the State Hospital, the defendant's whole body function loss rate is 8%, it is not possible for the defendant to receive a disability pension according to the fake health board report he has already received in accordance with Law No. 2022 and the regulation for the implementation of this law, and as a matter of fact, according to the written response of the SSI Presidency, he will not be able to pay any salary." "There is no misapprehension in the acquittal verdicts given on the grounds that no damage was done to the SSI, therefore the defendant's actions will be evaluated as useless fraud, and the material and moral elements of the crimes charged against the defendant have not occurred." With the expressions like this, it has created an exemplary provision for useless forgery.

The legal significance of the document should be evaluated separately according to each concrete event.

In addition, it is not possible for a document that is invalid with absolute nullity to be subject to the crime of forgery of private documents.

WHAT IS A SPECIAL DOCUMENT?

In order to define a private document, it will first be necessary to understand what an official document is. Because there is no definitive definition of the private document, it has been characterized based on the opposite. As a matter of fact, in the doctrine, the concept of private document is defined as any document that is not an official document. All writings that do not have the characteristics of an official document can be described as private documents. In addition, it has been regulated that some special documents will be considered official documents as required by law. According to Article 210 of the Turkish Penal Code; If the subject of the crime of forgery of a private document is a bill of exchange written to order or bearer, a document representing a commodity, a share, a bond or a will, the provisions regarding the crime of forgery of an official document shall apply.

According to the decision of the Supreme Court Criminal General Assembly No. 2020/299 E.; "A private document is a writing other than those prepared by a public official due to his/her duty, which is not considered an official document, which is not issued due to an official transaction, but which produces a direct legal ruling, result, and serves to establish or prove a right (Kubilay Taşdemir, Documents Forgery Crimes, Ankara, 2013, p. 441). In other words, all writings that do not have the characteristics of an official document can be described as private documents."

It is not possible to limit the documents that are considered special documents. According to the Supreme Court, someexamples of special documents are as follows:

Tender slip, visit slip, salary document, rental agreement, reference letter, insurance policy, bank loan agreement, payroll, architectural project, letter of consent, collection receipt, payment voucher, population registration sample, exam answer sheet, private bank letter of guarantee, sales invoice, insured service schedule, exam entry document, etc.

HOW IS THE CRIME OF FORGERY IN A PRIVATE DOCUMENT COMMITTED?

We have stated above that the crime of forgery of private documents is a combined action crime type. Based on this, the crime of forgery of private documents is committed by forging a private document or changing and using a private document in a way to deceive others. The act of use is necessary for the crime to occur. On the other hand, it is sufficient to prepare a fake private document or to modify the private document in a way that deceives others, along with the act of using it. The two verbs do not have to occur together.

1- ISSUING FORGED PRIVATE DOCUMENTS

With this optional move, the private document is produced as if it existed, even though it does not actually exist.

In order for a fraudulent document to be subject to a crime, it must be issued in the name of the person authorized to issue the document and the authorized person's signature must be forged.

After the private document is prepared, subjecting it to certain procedures such as notary certification does not change its criminal nature.

The fake document must be used to punish the perpetrator. As long as the act of use does not occur, a crime will not occur.

2- ALTERING A REAL PRIVATE DOCUMENT TO DECEIVE OTHERS

The second optional act of the crime consists of altering a real private document in a way that deceives others. With this optional action, changes are made to the existing official document by deleting or making additions. In order to be considered a forgery on an existing private document, the change made must be deceptive. Otherwise, the crime of tampering with a private document occurs.

The deception ability of the document is determined according to objective criteria. In other words, falsehood that could deceive anyone was deemed sufficient to constitute a crime. Again, for this optional movement, a fake document must be used. Changing the signature or date on a document is also considered in this context.

3- DO NOT USE FORGED DOCUMENT

According to the justification of Article 208 of the Turkish Penal Code; For a crime to occur, use as an element must occur. The purpose of using it is to try to ensure that this fake document is taken into consideration in any legal relationship or any legal process.

For the crime to occur, the original document must be used. The Supreme Court of Appeals is of the opinion that the crime of forgery cannot be proven through photocopies. "In the face of the fact that the original of the document consisting of a photocopy of the pay slip issued in the name of one of the defendants, which was determined to be fake and submitted by the defendants in order to obtain a consumer loan from the bank, could not be obtained in original, and it was understood that the photocopy in the file could not be examined for the ability to seduce, the decision to convict the defendants in writing, without taking into consideration that the element of deception, which is the constitutive element of the crime of forgery, did not occur in the concrete case, and that the defendants should be acquitted of the crime charged, necessitated reversal." Supreme Court 23rd CD. 2015/738 K.

As we stated, a crime will not occur unless a fake private document is used. As a matter of fact, in a decision of the 15th Criminal Chamber of the Supreme Court of Appeals dated 2019, this situation was stated as follows: "In the examination made against the defendant for the crime of forgery of private documents; defense, statements, documents with Russian-Turkish translations, notary documents, bank information, expert reports, labor court case information and the scope of the file, the defendant made contradictory statements at stages, admitted that he prepared the documents subject to the crime, said that he did not know who gave the instructions, and according to the expert report received, the defendant transferred "worker's salary" to the other defendant's account." He stated that he sent money with the statement that he sent money with the statement that the originals of the forged documents were seized during a search at the defendant's house, that the defendant stated that these documents were prepared to give to his company, but he did not use the documents after being told that it was not necessary, that the payment receipts were prepared to ensure that the receivables were collected from this company, but that he did not send the originals to the company, and that contrary to the defendant's defense, there was no evidence that the forged documents subject to the crime were used in any way. "Since it was understood that the defendant died after the verdict, the decision was reversed because it was necessary to evaluate whether the public case filed against the defendant would be dropped." It is indicated by the expressions in the form.

Whether the document is used or not should be examined separately in every case. For example, in terms of rental agreements, the tenant's occupation of the rented property is considered use. Each concrete event like this should be examined on its own and an evaluation should be made in this direction.

KNOWINGLY USING A FORGED PRIVATE DOCUMENT

This way of committing the crime is in accordance with Article 207/2 of the Turkish Penal Code. It is regulated in the article. In this case, the perpetrator has not prepared or changed the forged document. But he used it knowing that the document was fake. The legislator felt the need to punish this situation.

In order for the crime to be committed in this way, it is sufficient for the perpetrator to use the document knowing that it is fake. Participation in other actions is not required.

Issuing a fake bill

If the crime of forgery is committed on bills of exchange, the perpetrator is punished for crime of forgery of official documents. But a double distinction has been made here. If the mandatory elements of the fake check, promissory note or policy are missing, the perpetrator will be punished for forgery of private documents.

"In order for the forgery of bills of exchange to be considered as an official document, the relevant bill of exchange must have all the elements stipulated in the Turkish Commercial Code. Otherwise, in case of forgery of a bill of exchange that does not have legal elements, the act will constitute the crime of forgery of a private document. Pursuant to Article 776 of Law No. 6102, if there is no "place of issue and beneficiary name", which are the mandatory elements that must be included in the text of the bill, the bill will be considered a private document, and the bill will be considered a private document in the file. In the observation made by our committee on the photocopy of the document subject to the crime, it was understood that the place of issue and the name of the beneficiary were not clearly stated and the bill did not have the characteristics of a promissory note. Therefore, it was not taken into account that the defendant's action would constitute the crime of forgery of a private document in accordance with Article 207 of the Turkish Penal Code." 11th Criminal Chamber of the Supreme Court of Appeals 2020/2401 K.

DECEPTIONAL FEATURE OF PRIVATE DOCUMENT IN THE CRIME OF FORGERY IN PRIVATE DOCUMENT

For the crime of forgery to occur in a private document, the document must have a deceptive nature. The feature of deception constitutes the basic element of the crime. Therefore, the document must be examined to determine whether a crime has occurred. Forgery of documents must have the ability to deceive people. If the forgery of the document can be easily detected, the crime of document forgery does not occur.

As a matter of fact, in a decision of the 13th Criminal Chamber of the Supreme Court of Appeals dated 2020, it was stated that "The document must have objective ability to deceive and the quality of deception must be objectively understood from the document, actual seduction resulting from the interlocutor's mistake, carelessness or carelessness will not indicate the existence of the ability to deceive, the discretion of whether there is the ability to deceive in crimes of forgery of documents belongs to the judge, the documents subject to the crime are not capable of giving rise to legal consequences if they are photocopies, the original cannot be found." It is stated that it cannot be determined whether the documents have the ability to deceive or not, and since actual seduction does not indicate the nature of deception; when it is understood that the original document cannot be found within the scope of the file, the defendant should be acquitted of the crime charged, but a sentence of conviction should be given.

POSSIBILITY OF DAMAGE DUE TO FORGERY IN PRIVATE DOCUMENTS

Although it is not necessary for any harm to occur for the act of forgery to constitute a crime, there must be at least a possibility of harm occurring as a result of the act. According to the established jurisprudence of the Supreme Court, the possibility of harm occurring is sufficient for the crime to occur.

FRAUDULATION FOR THE PURPOSE OF PROOFING A RECEIVABLE BASED ON A LEGAL RELATIONSHIP OR DOCUMENTING A REAL SITUATION

This qualified state requires less punishment than the basic state of the crime. An example of this would be arranging a fake promissory note in order to arrange a person's receivables from someone who owes him money.

As a matter of fact, in a decision of the 15th Criminal Chamber of the Supreme Court of Appeals dated 2018, "In his defense, the defendant stated that he had a business partnership with the participant, that he established a mortgage on his real estate as a result of using a loan in favor of the participant, that as a result of the non-payment of the loan debt, the promissory note in question was given and therefore he initiated enforcement proceedings in order to collect this receivable, and that he submitted documents regarding the mortgage establishment and loan debt to the file in line with this defense; whether the conditions for the application of Article 211 of the TCK are present for the defendant." According to the results of the investigation, the legal situation of the defendant should be evaluated by discussing whether the conditions are met or not, but a verdict should be made with incomplete examination.

PUNISHMENT FOR FORGERY IN PRIVATE DOCUMENTS

According to Article 207 of the Turkish Penal Code;

1- Any person who forges a private document or changes and uses a real private document in a way to deceive others is punished with imprisonment from one to three years.

2- Anyone who uses a fake private document knowing this feature will be punished in accordance with the provisions of the above paragraph.

In Article 211 of the Turkish Penal Code;

It has been regulated that if the crime of forgery of documents is committed in order to prove a receivable based on a legal relationship or to document a real situation, the penalty to be imposed will be reduced by half.

Since the crime of forgery of private documents is not a crime subject to complaint , it is investigated ex officio by the prosecutor's office.

FRAUDULATION IN PRIVATE DOCUMENT CONVENTION

According to Article 212 of the Turkish Penal Code, "If a forged official or private document is used during the commission of another crime, separate penalties are imposed for both forgery and the relevant crime." In view of this provision, the perpetrator who commits the crime of forgery and another crime at the same time is punished separately for the two crimes. In practice, it is often seen that forgery of official documents and fraud crime are committed together. In such cases, the perpetrator will be punished separately for both crimes.