Crime and punishment of forgery in official documents

The crime of forgery of official documents is regulated in the "Crimes Against Public Trust" section of the TCK Article 204. Crime according to the relevant article; It can be committed in three different ways: forging an official document, changing a real official document in a way to deceive others, or using a fake official document. For this reason, it is an optional mobile crime type. The fact that the perpetrator of the crime is a public official is regulated in the 2nd paragraph of Article 204 and is considered a separate crime. TCK 204/2. In the article, unlike the first paragraph, it is regulated that the crime can also be committed by the optional act of issuing false documents. All of these situations will be examined in detail under separate headings below.

The legal issue of forgery crimes is public trust. The underlying idea behind sanctioning the actions of preparing documents contrary to reality, changing them completely or partially, or making additions to a real document is the acceptance that these actions undermine public trust.

ELEMENTS OF THE CRIME OF FORGERY IN OFFICIAL DOCUMENTS

Material Subject of the Crime of Forgery of Official Documents

Official documents constitute the material subject of the crime. For this reason, first the concept of document will be explained and then the definition of official document will be made. In addition, the characteristics that the document must have in order to constitute the crime of forgery in an official document will be discussed.

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 a decision of the Supreme Court, the document; He defined it as an article that has content, creates rights, abolishes 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 constitutes the crime of forgery of official documents. 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 also be accepted. In this respect, vehicle license plates should also be accepted as official documents." It is explained with expressions.

Elements of the Document in the Crime of Forgery of Official Document

In order for a document to be subject to the crime of document forgery, it must meet certain conditions. According to the criteria specified 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 official documents as follows.

1- In case of forgery of official documents, the document must be 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 official 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 official 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 official documents.

What is an Official Document?

In the justification section of the article, official document is defined as a letter issued by a public official as part of his duty. For a document to be accepted as an official document, it must meet the following conditions.

1- The document must be issued by a public official.

2- There must be a causal link between the document issued and the duty of the public official.

"In our criminal law, the definition of an official document is not made. However, as it is unanimously put forward in the doctrine and consistently emphasized in judicial decisions; in order for a document to be considered an official document, the following two elements must be present.

1) The document must be issued by an officer,

2) There must be a causal link between this regulation and the function performed by the officer, in other words, the document must be issued as per duty." YCGK 2003/250 K.

There is no article of law that clearly lists what official documents are. However, when the Supreme Court jurisprudence is examined, some examples that are accepted as official documents will be encountered. Some documents accepted by the Supreme Court as official documents; It is possible to list these as promissory notes, prescriptions, muhtar's certificates, insurance documents, diplomas, power of attorney, identity cards, exam documents, vehicle license plates, vehicle licenses, customs declarations, receipts from enforcement offices showing that the debt has been paid, and signature circulars.

Again, the Supreme Court stated that in order for forgery of bills of exchange to be subject to the crime of forgery of official documents, the document must meet the mandatory form requirements. Accordingly, official documents issued without complying with the formal requirements cannot be subject to the crime of forgery.

In order for the crime of forgery to occur in an official document, the document must be an official document, or one of the documents accepted as an official document. The official document is defined above. We find it useful to mention here an issue that we will explain below under the heading of the perpetrator of the crime. In other words, anyone can be the perpetrator of the crime of forgery of official documents. The commission of the crime by a public official is regulated as a separate crime. From the official document definition we have made here, it does not follow that the perpetrator of the crime must be a public official. The crime occurs by forging documents that are considered official documents. If the document is not an official document, no crime will occur.

What are the documents that have the force of official documents?

The law considers some private documents as official documents and regulates that the provisions of forgery of official documents must be applied when punishing. 210/1 of the Turkish Penal Code. Although these documents listed in the article are not official, they are accepted as official documents. According to the article, the following documents are considered official documents.

1- Bill of exchange written as Emre or Imreg,

2- Document representing the commodity,

3- Stock,

4- Bond,

5- Will.

The justification of Article 210 of the Turkish Penal Code explains why these documents are considered official documents with the following expressions.

"The article is intended to protect more seriously some documents that have a large place in commercial life and are circulated with or without a simple endorsement. It has been accepted that in case of forgery in the private documents listed in the article, the provisions regarding the crime of forgery of official documents will be applied. What is in question here is not only the implementation of the penalty for the crime of forgery in official documents. In case of forgery of the documents listed, the official document is forged." Provisions regarding the crime of forgery are applied in their entirety.

If the bill of exchange or the document representing the commodity has been deposited to the perpetrator signed and blank, but the perpetrator has filled it in a way different from the purpose of deposit, then sanctions will be imposed for the misuse of the revealed signature. Because, in this case, the paper deposited has not yet gained the quality of a document, as it is signed but given blank.

In the article, "all kinds of bonds" are also placed under special protection due to the fact that the acts of forgery in bonds have been carried out on a large scale recently and therefore the security has suffered a lot of damage; It has also been announced that due to forgery in hand-written wills, the provisions of forgery of official documents will be applied. The wills in question here are those that were not made in the presence of a notary. Since the will prepared by the notary upon request is an official document, it does not need to be mentioned within the scope of this article. The wills mentioned here are the wills made in the handwriting of the deceased or determined by private persons upon his declaration."

In order for these documents to be subject to the crime of forgery, they must be prepared in accordance with the formal requirements. For example, in the crime of forgery of an official document, the subject of which is a promissory note, the promissory note must be issued in accordance with the formal conditions of the promissory note. As a matter of fact, in a decision of the 21st Criminal Chamber of the Supreme Court of Appeals dated 2016, it was stated that "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..."

Forgery of Official Documents, Photocopying

The Supreme Court is of the opinion that a conviction cannot be made for the crime of forgery of official documents based on photocopies. Accordingly, if the original document cannot be accessed, the perpetrator will not be punished. According to the decision of the 21st Criminal Chamber of the Supreme Court of Appeals, numbered 2017/1217 K.;

"As explained in the decisions of the General Criminal Assembly, dated 14.10.2003 and numbered 232-250, and dated 09.10.2012, numbered 2011/8-335, Principle numbered 2012/1804, the document must have an objective ability to deceive and the quality of deception must be objectively understood from the document, and the act resulting from the mistake, carelessness or carelessness of the addressee Since seduction does not indicate the existence of the ability to deceive; Since the "title deed" subject to the crime was an unapproved photocopy, there was no deception and the court did not agree with the idea of ​​reversal in the notification, as there was no error in the court's acceptance and appreciation that the crime of forgery in official documents did not occur due to the elements of the crime of forgery; "The fact that the place of crime and the date of the crime were not written in the reasoned decision title was considered as a deficiency that can be corrected locally."

Deceptive Feature of Official Document in the Crime of Forgery of Official Document

For the crime of forgery to occur in an official document, the document must be deceptive. 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 forgery of official documents does not occur. The requirement that the document be deceptive is valid for all forms of crime (optional acts).

As a matter of fact, in the decision numbered 2020/347 K. of the General Criminal Assembly of the Supreme Court of Appeals, the following provision was established.

"In order for the act of forging an official document or changing a real official document to constitute the crime of forgery, the prepared or changed document must be misleading to the person that it is a real document. The deceptive feature is the basic element of the crime and a document that cannot be understood to be real unless subjected to a special examination should be considered a fake document. Whether the forgery is capable of deceiving people must be determined beyond doubt.

The forged document must be prepared in a way that does not attract attention at first glance, must be capable of deceiving many people, not a specific person, and its deceptive power must be determined objectively. For this reason, for example, if officials act on a document that is not capable of deception due to their ignorance and negligence, it does not give legal validity to the document. Pre-existing subjective information does not have the effect of eliminating the ability to deceive existing on the document.

In the decision of the General Criminal Assembly dated 14.10.2003 and numbered 232-250, it was stated that the quality of deception should be understood objectively from the document, and that actual seduction resulting from the interlocutor's mistake, carelessness or carelessness does not indicate the existence of the ability to deceive. At this point, discussing and determining whether the document subject to forgery has the ability to deceive or not belongs primarily to the court conducting the trial, and the judge must personally determine whether the forgery can be easily detected by taking into account the emergence, occurrence and flow of the incident, the transactions made with the documents prepared, and evaluate and determine whether there is the ability to deceive in the documents according to the result."

Possibility of Damage in the Crime of Forgery of Official 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 probability of harm occurring is sufficient for the crime to occur.

PERPERT AND VICTIM IN THE CRIME OF ISSUING OFFICIAL DOCUMENTS

TCK 204/1. Anyone can be the perpetrator of the crime of forgery of official documents regulated in the article. No characteristics were sought regarding the perpetrator. But TCK 204/2. The person who forges an official document that he/she is authorized to issue in accordance with his/her duty, changes a real document in a way to deceive others, prepares a document untruthfully or uses a fake official document must be a public official. Therefore, the 1st paragraph of the article punishes acts that can be committed by anyone, and the 2nd paragraph regulates the condition that the perpetrator is a public official. While there are three different actions in the crime of forgery of official documents, which can be committed by anyone, it is stated that the act of issuing false documents for public officials will also constitute a crime.

TCK 204/2. There is another point that needs to be taken into consideration regarding the article. In order for the perpetrator, who is a public official, to be punished according to this article, he must commit the forgery on a document that he is authorized to issue as part of his duty. If a public official commits the crime of forgery on a document that he is not authorized to issue due to his duty, TCK Article 204/1. He is punished according to article.

The victim of the crime of forgery of official documents is accepted as the whole society. As a matter of fact, the crime is among the crimes committed against public security.

HOW IS THE CRIME OF FORGERY IN AN OFFICIAL DOCUMENT OCCURRED?

We stated that the crime of forgery of official documents can be committed with three different actions. TCK 204/1. These actions listed in the article; These are the acts of forging an official document, changing a real official document in a way to deceive others, or using a fake official document. In addition, TCK 204/2. With the article, an additional procedure has been introduced in case the perpetrator is a public official. According to the article, the act of issuing false documents is also considered a crime according to Article 204/2.

1- Forging an Official Document

As it is known, official documents can only be issued by public officials in accordance with their duties. At this point, a fake document occurs due to the use of an authority belonging to public officials by individuals. With this optional move, the official document is fakely produced as if it existed, even though it does not actually exist. The crime of issuing a false document can be committed by issuing a document that does not actually exist, or by making an untrue change on an existing document. Making changes to the information on the identity card is considered within this scope. As we have stated, if the fake document issued does not contain the elements of an official document, a crime will not occur and the perpetrator will not be punished. Again, in case of useless forgery, the perpetrator is not punished.

Again, as we mentioned above, the fake document must have deceptive properties in order for the perpetrator to be punished. A document that appears to be fake at first glance cannot be the subject of a crime. The document issued should be considered a genuine document and should not be considered misleading. According to the justification of Article 204; In order to be considered fraudulent, the document issued must be misleading to the person that it is a real document. In other words, fakeness should not be detectable by the five senses. A document that cannot be understood to be genuine unless subjected to a special examination should be considered a fake document.

In its decision numbered 2020/108 K., the Criminal General Assembly of the Supreme Court accepted the absence of a seal mark on the license plates as a lack of seduction ability. According to the Supreme Court, the absence of a seal mark on the license plates shows that it does not have the ability to deceive.

"Considering that the license plate printing process is carried out by the Turkish Drivers and Automobile Federation according to the legislation, and that the regulation states that the registration plates will have the seal of the organization that carries out the plate printing process; it is understood that the seal, which is an element of the license plates and is required to be on them, is not on the license plate originals in the file, and that the license plates subject to the crime in their current state do not have the ability to deceive and are not suitable for legal consequences, the elements of the crime of forgery in the official document filed against the defendant. It should be accepted that deciding to convict the defendant instead of acquitting him, without taking into account that the crime has not occurred in the first place, is against the procedure and the law."

It is not necessary to use a fake document in order to punish the perpetrator. The crime is considered completed when the document is issued.

2- Changing a Real Official Document to Deceive Others

The second optional act of the crime consists of altering a genuine official document in a way that deceives others. As stated in the justification of the article; 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 official document, the change made must be deceptive. Otherwise, the crime of tampering with an official 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, it is not necessary to use a fake document for this optional move.

3- Using Fake Official Document

The third and last optional form of the crime for normal individuals is using a fake official document. It does not matter whether the fake document used was prepared by the person himself or by someone else. The use of the document is sufficient for the crime to occur. If the perpetrator both prepared and used a false document, he will be punished only for the act of using it.

FORGEMENT OF OFFICIAL DOCUMENTS BY A PUBLIC OFFICIAL

TCK 204/2. The article defines the crime of forgery of official documents committed by a public official as a separate crime. For the crime to occur, the perpetrator must be a public official. In addition, the document issued must be a document that the perpetrator is authorized to issue as per his duty. Otherwise, the provisions of the first paragraph apply. Unlike the first paragraph, there is another optional action to commit this crime. Public officials may commit the crime of forgery of official documents by issuing false documents.

According to the decision of the Supreme Court Criminal General Assembly No. 2007/55 K., "Defendants who are police officers for the crime of extortion and forgery of official documents are obliged to record the capture of the gun they confiscated in accordance with Article 100 of the CYUY No. 1412 and Article 4 of the PVSY No. 2559, which were in force on the date of the crime, and to immediately report the situation to the Public Prosecutor's Office, but they abandoned these duties and obligations, It is established that they did not include the fact that the gun in question was seized, thus hiding the material fact with incomplete and misleading statements. The search report, which is an official document and prepared by the officers, is a fake document in terms of its content, as it was prepared with the statement that "no criminal elements were found."

Issuing Untrue Documents

As we mentioned, this optional situation only comes to the fore if the perpetrator is a public official. As stated in the justification of the article; If a public official prepares a document falsely stating that an event took place in his/her presence or a statement as if it were made in his/her presence, the crime defined in this paragraph occurs. There is content fraud here. This situation is defined in the doctrine as intellectual forgery in an official document. The document is prepared by the authorized person, but its content is tampered with.

QUALIFIED CASES OF THE CRIME OF FORGERY IN OFFICIAL DOCUMENTS

There are two qualified forms of the crime of forgery of official documents regulated by law. In the 3rd paragraph of Article 204, the act of forgery on a valid document until its forgery is proven is a qualified situation that causes the penalty to be increased, while the act of forgery for the purpose of proving a receivable based on a legal relationship or documenting a real situation, regulated by Article 211, causes the penalty to be reduced.

Forgery of Valid Documents Until Proven to be Forgeries

204. According to the justification of the article; If the official document that constitutes the subject of the crime is a document that is valid until its forgery is proven in accordance with the provision of law, the penalty must be increased at the determined rate. This provision meets the need to further protect the document with superior proof power, considering the relationship between document forgery crimes and the theory of evidence. However, in order to put an end to different interpretations, it has been deemed necessary to have a provision in the law stating this issue in order to determine whether a document has such a power.

Some of the documents regulated in special laws that are valid until their falsity is proven are as follows; court writs, notary documents prepared in notary public form, hearing minutes, election minutes, municipal penalty minutes, documents in the nature of a writ, minutes related to smuggling.

Forgery for the Purpose of Proving 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 is the arrangement of 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 OFFICIAL DOCUMENTS

1-Any person who forges an official document, changes a real official document in a way to deceive others, or uses a forged official document is punished with imprisonment from two to five years.

2- A public official who forges an official document that he/she is authorized to issue as part of his/her duty, changes a real document in a way to deceive others, prepares a document untruthfully, or uses a forged official document is punished with imprisonment from three to eight years.

3- If the official document is valid until its forgery is proven in accordance with the provisions of the Law, the penalty to be imposed is increased by half.

4- 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 is reduced by half.

FORGEMENT IN OFFICIAL 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 the crime of qualified fraud are committed together. In such cases, the perpetrator will be punished separately for both crimes.

It is possible to commit the crime of forgery of official documents as a chain crime. As a matter of fact, the Criminal General Assembly of the Supreme Court of Appeals stated in 2015, "The dispute is about determining whether the defendant's action constitutes the crimes of forgery of official documents and forgery of private documents separately, or the crime of forgery of official documents in a chain. In the concrete case where the defendant issued a fake identity card and driver's license and prepared a fake car rental contract in the name of the participant with these documents, it was determined that the defendant committed the same crime at different times with the decision to commit the same crime and the act was punished for the crime of forgery of official documents as a whole, chained." There is an obligation to accept that it is necessary.” He made a decision as follows.

In the crime of forgery of official documents, if the perpetrator commits more than one action at the same time, for example, if he prepares and uses the forged document, he will be punished for a single crime. However, when determining the penalty, the lower limit is deviated from.

THE COURT IN CHARGE OF THE CRIME OF FORGERY IN OFFICIAL DOCUMENTS

If the crime of forgery of official documents is committed within the scope of Article 204, Paragraph 1, the trial is carried out by the Criminal Courts of First Instance.

If the crime is committed by public officials, High Criminal Courts will be in charge.

The investigation and prosecution of the crime is not subject to complaint.

HAGB decision may be given in case of forgery of official documents. However, for this, the sentence must be 2 years or less than 2 years.

The crime of forgery of official documents is not within the scope of mediation.

The statute of limitations for forgery of official documents is 8 years.