Embezzle crime

The crime of embezzlement is regulated in the 4th part of the 2nd book of the Turkish Penal Code No. 5237, titled "crimes against the reliability and functioning of the public administration". According to Article 247 of the Turkish Penal Code; A public official who embezzles the property of himself or someone else, whose possession has been transferred to him due to his duty or who is obliged to protect and supervise it, will be guilty of embezzlement.

It is accepted that the legal interest protected by the crime of embezzlement is to ensure the honest management and use of public values. As we mentioned above, the crime of embezzlement is included under the heading of 'Crimes Committed Against the State Administration'.

Law 247/1. The basic condition of the crime of embezzlement is included in the article, and a qualified condition that increases the penalty is regulated in the 2nd paragraph. In the last paragraph, the crime of embezzlement is included and it is regulated that in this case, the penalty to be given to the perpetrator will be reduced. In addition, according to Article 249 of the law, in cases where the value of the property is low, the penalty to be given to the perpetrator is reduced.

Article 248 of the Turkish Penal Code contains effective remorse provisions in the crime of embezzlement.

Relevant law articles are as follows:

TCK art. 247

(1) Any public official who embezzles the property of himself or someone else, the possession of which has been transferred to him due to his duty, or the property for which he is obliged to protect and supervise, is punished with imprisonment from five to twelve years.

(2) If the crime is committed with fraudulent behavior to ensure that the embezzlement is not revealed, the penalty to be imposed is increased by half.

(3) If the crime of embezzlement is committed with the intention of returning the goods after being used for a temporary period, the penalty to be imposed may be reduced by half.

TCK art. 248

(1) Before the investigation begins, if the embezzled property is returned as is or the damage suffered is fully compensated, the penalty to be imposed will be reduced by two-thirds.

(2) Before the prosecution begins, if the embezzled property is voluntarily returned as is or the damage suffered is fully compensated, half of the penalty will be reduced. If effective repentance occurs before the verdict, one-third of the sentence will be reduced.

TCK art. 249

Due to the low value of the property that is the subject of the embezzlement crime, the penalty to be imposed is reduced from one-third to one-half.

ELEMENTS OF EMBEZZLE CRIME

A- PERPETRATOR AND VICTIM IN THE CRIME OF embezzlement

Unlike the Turkish Penal Code No. 765, it is clearly stated in the article that the perpetrator will be a public officer, and the confusion in the old law period has been tried to be eliminated. In Article 6 of the Turkish Penal Code, a public official is defined as a person who participates in the execution of public activities on a permanent, temporary or temporary basis, through appointment or election or in any other way.

The crime of embezzlement is a free crime type that can only be committed by public officials. Other persons who are not public officials and participate in this crime can only be held responsible as instigators or aiders. In the decision numbered 2020/12906 K. of the 5th Criminal Chamber of the Supreme Court of Appeals, the following provision was established:

"The defendant, who works as a police officer, can only be held responsible for the crime of embezzlement as the instigator or aider in accordance with Article 40/2 of the Turkish Penal Code, and since it is not possible to be an accomplice in a crime without a perpetrator in this context, it is not possible to overturn convictions on insufficient grounds, without taking into consideration the fact that the legal situations of the defendants must be evaluated and determined separately, according to the result that will be obtained after discussing in the reasoned decision how the said defendant participated in whose action. required."

According to the justification of the article; When determining whether a person is a public official or not, it is necessary to take into account the nature of the duty he performs.

There is no article of law to be used when determining who is a public official. Therefore, this determination is left to implementation. The Supreme Court determines whether a person is a public official or not based on whether the job the person performs is a public activity. Based on this, the concepts of public officer in the sense of administrative law and public officer in the sense of criminal law should not be seen as the same. Because the concept of public officer in criminal law has a very wide scope.

In the Supreme Court Criminal General Assembly's decision numbered 2011/46 K., the criteria for determining public officials are listed as follows:

"In the Turkish Penal Code No. 5237, which came into force on 01.06.2005, the view that rejects the binary distinction such as "public duty" and "public service", which caused hesitation in the application of the Turkish Penal Code No. 765, was adopted, and the concept of "public officer" was included, including the concept of civil servant, in order to eliminate the drawbacks caused by the definition of "civil servant" in the Turkish Penal Code No. 765,

In clause (c) of the 1st paragraph of the 6th article of the Turkish Penal Code No. 5237; The definition of "public official" has been made by saying "a person who participates in the execution of public activities by appointment or election or in any other way on a permanent, temporary or temporary basis".

According to the new definition, the only criterion for a person to be considered a public official is that the work he/she performs is a public activity.

Public activity, in the justification of the mentioned article; It is defined as "the execution of a service on behalf of the public, with a political decision made in accordance with the procedures specified in the Constitution and laws."

Also; It is obligatory to accept that those who participate and assist in the public activities of the bodies that will exercise public authority and power, in accordance with the "general administrative principles", also perform "public duties".

Therefore; Based on the phrase "participating person" in the definition of "public official" in paragraph (c) of the first paragraph of Article 6 of the Turkish Penal Code No. 5237 and the "public activity" expansion in the justification of the article, in order for a person to be considered a "public official" in the application of the Criminal Code and the activity performed to be considered a "public activity", there must be a service carried out on behalf of the public and this must be based on a political decision made in accordance with the procedures specified in the Constitution and laws. and furthermore, the activity must be carried out by using public powers and authorities."

There are Supreme Court decisions in which lawyers are considered public officials in terms of embezzlement. In addition, there are also decisions stating that being a lawyer is a freelance profession. Supreme Court practices without consensus lead to rights violations for lawyers. In our opinion, due to the power of attorney relationship, lawyers can only be accused of abuse of trust. Lawyers do not have the ability to be perpetrators in terms of embezzlement.

According to article 62/last article of the Cooperatives Law No. 1163, members of the board of directors and cooperative officers are punished as public servants for their criminal acts and actions, and especially for the crimes they commit on the money and goods of the cooperative, balance sheets, minutes, reports and other documents, books and documents. Therefore, board members and officers of the cooperative may also be the perpetrators of embezzlement.

Since the crime of embezzlement is regulated among the "Crimes Against the Reliability and Functioning of Public Administration", the victim of this crime is considered to be the public administration.

B-HOW IS THE CRIME OF EMBLEMBLE COMMITTED? – ACTION ELEMENT

Before explaining the material element of the embezzlement crime, some explanations will be made regarding the subject of the crime. As stated in the justification of the article; The subject of the crime of embezzlement is movable or immovable property. The possession of this property must be transferred to the public official or the public official must have the obligation to protect and supervise this property. There is no difference whether the ownership of this property belongs to the state, any public institution or any person. In the crime of embezzlement, the subject of the crime is the benefit to be obtained, that is, the profit.

According to Article 247 of the Turkish Penal Code, the crime of embezzlement; It is committed by a public official's embezzlement by himself or someone else of the property whose possession has been transferred to him due to his duty or which he is obliged to protect and supervise, that is, by disposing of it as if he were the owner.

According to the justification of the article; In order for the crime of embezzlement to occur, the property subject to the crime must be embezzled. Embezzlement means disposing of the property subject to crime as if it were the owner. These dispositions may occur in the form of acquiring property, using or consuming the thing subject to crime, or by selling or giving it to someone else.

The phenomenon of embezzlement can occur through an executive act or through a negligent act. In order for the crime of embezzlement to occur, there is no difference whether the property in question is embezzled by a public official or someone else.

In the decision numbered 2020/2543 K. of the 5th Criminal Chamber of the Supreme Court of Appeals, it was ruled that "the claim that the defendant caused the cooperative to suffer losses by making payments above the minimum wage twice to his wife without any decision of the board of directors is also in the nature of embezzlement for the benefit of a third party."

The most important point to be emphasized here is that the property subject to embezzlement was transferred to the perpetrator as per his duty. If the possession of the property is handed over to a public official who does not have the authority to receive it, that is, if the condition of delivery is not met, the crime of embezzlement cannot be considered. This situation was pointed out in the decision No. 2020/633 K. of the 5th Criminal Chamber of the Supreme Court of Appeals and the verdict was established as follows:

"For the crime of embezzlement regulated in Article 247 of the Turkish Penal Code No. 5237 to occur, "a public official or a person who can be punished as a public official in accordance with special legislation must embezzle the property that has been transferred to him/her due to his/her duty or that he/she is obliged to protect and supervise, for the benefit of himself or someone else", and in the concrete case, the defendant acquired property by withdrawing some of the money that he had to withdraw with a double signature, with a single signature, and the other part by imitating the signature of the other defendant. Since it was understood that the money subject to the crime was not handed over to the defendant due to his duty, the defendant did not have the responsibility of keeping and supervising these funds, and therefore the legal deposit element was not realized, making a written judgment by making a criminal mistake, without taking into consideration that his actions would constitute the crime of fraud to the detriment of the public institution in a chain manner, and that the defendant's action of keeping the money sent to him by the appointed contract teacher until the investigation started, without transferring it to the account of the property directorate, would constitute the crime of abuse of trust due to service, It is inaccurate."

Another decision of the 5th Criminal Chamber of the Supreme Court of Appeals established the following provision:

"In the face of the fact that it is not legally possible to assign the defendant, who works as a bailiff in the Civil Court of Peace, to deliver the money given to him by the courthouse cashier as postal expenses to the postal administration, it is inappropriate to make a written judgment as a result of erroneous evaluation, without considering that his action will not constitute the crime of embezzlement but the crime of abuse of trust due to service, since the money subject to the crime cannot be considered to have been entrusted to him due to his duty." 2019/9121 K.

In cases where the deposit element is not fulfilled, the perpetrator is punished by saying that he committed the crime of fraud against the public institution. An example decision on the subject is shared below.

"... actions of acquiring property that should not have been accrued to the personnel in question or by accruing excessive amounts and by issuing false accrual documents will constitute the crime of fraud against the public institution in a chain manner due to the lack of legal deposit.." Y5. CD. 2018/1114 K.

For a crime to occur, the perpetrator must embezzle the property transferred to him or her or someone else. Therefore, the movable properties must have been transferred to the sovereignty of the perpetrator. For immovable properties, the title deed must be transferred. Situations such as losing, damaging or burning property cannot be considered as embezzlement.

Even though a public official can complete a job with less expense, paying more (waste) cannot be considered within the scope of embezzlement. In this case, only the crime of abuse of office can be mentioned. An example Supreme Court decision on the subject is as follows:

"In the trial held on the allegation that the defendant, who was working as the deputy manager of the Bakırköy 9th Enforcement Office on the dates of the incident, abused his position by sending the stored goods to the trustee warehouse owners with whom he had close relations, even though there was another trustee warehouse close to the scene of the seizure, it was stated that the defendant made approximately 20 seizures in one day in the lien files of large stores operating in the market, and since the vehicles belonging to the trustee warehouse with which these companies had previously agreed were present during the seizure, he removed the seized goods and brought them to the warehouse. In the face of the defense of the fact that they took the seizure, even if it was far away from the place of seizure, because it was time-consuming and economical for the debtor, in order to reveal the material fact beyond any doubt, it is necessary to determine whether the trustee warehouses, where the goods were allegedly delivered, have the qualifications stipulated in Article 5 of the Regulation on the Operation of the Warehouses and Garages of the Ministry of Justice Where the Seized Goods Will Be Stored, which were in force on the dates of the incident, and to determine the parties to the enforcement files subject to the goods delivered to the trustee warehouses. and after asking their statements as witnesses regarding the incident whether the selection of the trustee's warehouse was made within their knowledge, determining whether an extra fee was paid due to the distance between the seizure location and the trustee's warehouse, and discussing and evaluating whether one of the objective punishment conditions in the form of personal victimization, public damage or unfair benefit has been met due to the defendant's action, in a way that allows for supervision, and then making a written decision with incomplete examination and insufficient justification, without taking into consideration the need to evaluate and determine the legal situation, Y5. CD. 2019/8122 K.

Finally, it should be noted that for the crime of embezzlement to occur, the perpetrator must use the embezzled goods for his own benefit. The Supreme Court ruled that it should be investigated whether the person who bought fuel for his own vehicle used this fuel for public purposes. The relevant decision is as follows:

"In the incident where it is alleged that the defendant, who was a hospital manager, had the institution invoice the fuel he bought for his and his son's private vehicles with fake debt slips; in the face of the confirmation of his defense by the defense witnesses, who were hospital employees, that he used his personal vehicles for official work because the hospital vehicles were insufficient, in order to reveal the material truth beyond doubt, whether the private vehicles belonging to the defendant were used in hospital works on the date of the crime and the number of vehicles belonging to the hospital were asked with a warrant from Gaziantep Children's Hospital. "Hearing the head physician of the hospital, the assistant head nurse and the relevant person as witnesses, taking into account the declaration petitions in the file on 2010-2012, the date of the crime, and making an expert examination on the credit receipts, invoices and payment order documents taken from the fuel station and found in the hospital in the years 2010-2012, which is the date of the crime, and determining the amount of fuel purchased by the defendant for his private vehicles. While the legal situation should be determined and appreciated, a written judgment is made as a result of the incomplete examination," Y5. CD. 2017/5254 K.

CONCLUSION

According to the Supreme Court, for the crime of embezzlement to occur, a damage must occur or the possibility of damage must arise. Otherwise, no crime would occur. This provision was made in the decision numbered 2016/6309 K. of the 5th Criminal Chamber of the Supreme Court of Appeals:

"It is understood that there are contradictions between the witness statements regarding the claim that the doors, windows and floor boards of the school in the village were sold to the relevant person in exchange for money; by trying to resolve the contradictions, and in case of failure to be resolved, by revealing which statements are taken into account in a way that allows auditing, by investigating the amount and value of the materials removed from the school, and taking into consideration the response letter of the District Directorate of National Education, dated 29.11.2011, stating that written or verbal permission was not given for the distribution of these materials free of charge, "While the legal status of the defendant should be determined and appreciated by focusing on whether public harm has been caused, a written judgment should be made based on incomplete examination and insufficient justification."

C-MORAL ELEMENT OF EMBRACEMENT CRIME

The crime of embezzlement is a type of crime that can only be committed intentionally. According to the Supreme Court, the perpetrator must have a specific intent to steal. However, this distinction is not made in the doctrine. There are also opinions that the crime can be committed with possible intent.

The perpetrator's intention must be to dispose of the property. Otherwise, there can be no question of embezzlement crime. However, if the intent is to use, the perpetrator will be punished. As a matter of fact, as we will explain below, it is possible to commit the crime of embezzlement as use embezzlement.

QUALIFIED EMBEZZLE CRIME

TCK 247/2. According to the article; If the crime is committed with fraudulent behavior to ensure that the embezzlement is not revealed, the penalty to be imposed is increased by half.

As can be seen, in order for the penalty to be increased, the perpetrator must exhibit fraudulent behavior. Since it is not possible to limit fraudulent behavior, each concrete incident should be examined separately. However, it should be noted that simple tricks that can be understood by everyone are not enough to constitute a qualified crime. The statements of the General Criminal Assembly of the Supreme Court of Appeals regarding fraud in the crime of embezzlement are as follows.

"According to the established acceptance in practice, cheating is a qualified lie. The lie must be severe, intense and masterful to a certain extent, and it must eliminate the victim's ability to control the way it is displayed. The victim must be misled by the fraud used, and the defendant or someone else must be given unfair advantage by the victim who believes the lies through deceptive behavior as a result of the deception... the fraudulent behavior must be deceptive. It is defined as "A simple lie cannot be considered a fraudulent act."

Regarding fraud in the doctrine, it is stated that cheating means causing a person to make a mistake through material or moral actions (Faruk Erem, TCK Commentary Special Provisions, Ankara, 1993, p. 588), and that, in terms of the way it is expressed and displayed, it is necessary to take away the authority of the person to whom it is directed and to pull the person in the desired direction with the atmosphere of trust it creates (Sami Selçuk, Differentiation of the Crime of Fraud from Certain Crimes and Concerning Checks Crimes, Ankara, 1986, p.106-110. ), the behavior shown must be capable of deception in order to qualify as cheating ( İzzet Özgenç, Crimes committed for economic gain, Seçkin Yayınevi, 2004, p.26. ), cheating must affect the victim's power of judgment by exploiting subjective and objective conditions and covering up the truth, and a crude, naked and easily understandable lie does not fall within the concept of cheating ( Vural Savaş - Sadık Mollamahmutoğlu, TCK Comment, Seçkin Yayınevi, Ankara, 1995, Vol. 4, pp. 5155-5157).

As can be understood from these explanations, the fraudulent behavior in the crime of qualified embezzlement must be intense and deceptive in a way that is suitable for achieving this result, in addition to being aimed at ensuring that the act is not revealed. In other words, the fraudulent behavior must be capable of deception in a way that will prevent the action from being discovered. Behavior that is understandable to everyone and not inherently deceptive will not be considered fraudulent behavior. The fact that a method used to prevent the action from being revealed, preventing this crime from occurring due to the carelessness and carelessness of the people assigned the duty of control and supervision, will not qualify such behavior as fraudulent behavior, nor will it lead to the occurrence of the crime of qualified embezzlement. As a matter of fact, in the doctrine; Similar views are included as follows: "These fraudulent behaviors must be at such a level that the emergence of the real action must require some research that requires expertise" (Suheyl Donay, Banking Criminal Law, p.115.). If the opposite is accepted, the scope of the crime of qualified embezzlement will expand considerably, while the scope of the crime of simple embezzlement will narrow considerably, which is doubtful whether the legislature intended this.

In addition, although a method that is deceptive and suitable for preventing the emergence of this crime has been used, if the crime is still discovered, that is, if the fraudulent method used cannot prevent the discovery of the crime of embezzlement, the crime of qualified embezzlement will occur. Because here, the fraudulent behavior required by the law to prevent the crime of embezzlement from being discovered has been carried out." YCGK 2018/368 K.

According to the justification of the article; In the crime of embezzlement, since the property subject to crime is in the possession of the public official or under the responsibility of protection and supervision, it is not necessary for any person to be deceived in order for it to be embezzled. Here, the fraud is carried out only to prevent the fact of embezzlement from being discovered later. In this respect, fraud in the crime of embezzlement is an act aimed at hiding the evidence of the crime.

The qualified form of the crime of embezzlement is generally committed by forgery of official documents. As is common in practice, perpetrators want to hide their embezzlement by forging some official documents. The Supreme Court of Appeals gives decisions that if the crime of forgery of official documents is proven, the qualified form of the crime of embezzlement occurs.

A qualified situation will also occur in cases where a fake invoice is issued to prevent embezzlement from being revealed. In the decision numbered 2018/8176 K. of the 7th Criminal Chamber of the Supreme Court of Appeals, the following provision was established:

"If payment slips cannot be found or there is no signature of the depositor on the payment slips found, the action is simple embezzlement;

If the property is acquired by using a blank payment voucher that was signed by the depositor by misleading or deceiving, and by withdrawing money from the depositor's account without his knowledge and instructions, it is an act of embezzlement;

Regarding the transactions carried out by putting forged signatures on the payment voucher instead of the depositor, if the forged signatures on the vouchers are determined to be fake at first glance and with a simple examination, the action will constitute simple embezzlement, and if the forgery has a deceptive nature, the action will constitute qualified embezzlement.

As we stated above, the fraudulent behavior must have been committed by the defendant. Another requirement is that the trick should not be so simple that it can be understood by everyone. The following Supreme Court decision serves as an example for our explanations.

"The case is about the crime of banking embezzlement. In the incident, the methods used by the defendant in order to prevent the embezzlement from being revealed are methods devoid of the nature of fraudulent behavior resulting from the carelessness and carelessness of the people assigned the duty of control and supervision, and the failure to detect the crime for a while due to the lack of adequate and necessary supervision will not qualify the actions of the defendant as fraudulent behavior. "It should be accepted that the actions constitute the crime of simple embezzlement since it is understood that they are not of a nature that could prevent the issuance of the documents." YCGK 2018/368 K.

Another Supreme Court decision established the following provision:

"The actions of the defendants, such as making irregular deductions from personnel salaries in the pay lists they created falsely and ensuring that these deductions are transferred to their own accounts, are authorized to prepare payrolls and lists as fiduciaries, the possession of the money related to the salary payments subject to the crime has been transferred to them due to their duties, and the action can easily be revealed by comparing different payrolls in the institution, taking the internal totals of the payrolls or comparing the payrolls with the bank records in the institution, only the payrolls are arranged differently." "Considering that it will not qualify the act of embezzlement, it should be taken into consideration that the actions will constitute the crime of simple embezzlement in a chain manner." Y5. CD. 2017/864 K.

USE DEPOSIT

TCK 247/3. Article; "If the crime of embezzlement is committed with the intention of returning the goods after being used for a temporary period, the penalty to be imposed may be reduced by up to half." It is arranged as follows. No definition has been made here, but the concept of usufruct has been brought into practice by the Supreme Court of Appeals. The following statements are included in the justification of the article:

"The last paragraph of the article includes the provision regarding embezzlement of use. In this provision, it is envisaged that the penalty to be imposed will be reduced if the crime of embezzlement is committed in order to return the goods after being used for a temporary period.

Since the fact of embezzlement has emerged with the dispositions of the property in question by the owner; It is necessary to check whether the use is a savings that the owner can find. For this reason, it must be determined whether each use constitutes embezzlement through an evaluation taking into account the circumstances of the relevant concrete case. In this respect, the fact that the use is limited to a certain period of time does not prevent the formation of embezzlement."

According to the conclusion here, the occurrence of the crime in this case depends on the existence of the intended use in the perpetrator. The evaluations of the General Criminal Assembly of the Supreme Court of Appeals regarding embezzlement are as follows:

"Embezzlement is the acquisition by a public official of something that has been transferred to him due to his duty or that he is obliged to protect or supervise. Embezzlement of use is the situation where the perpetrator keeps the property under his/her responsibility with the intention of returning it after it has been used for a temporary period of time. In embezzlement, the subject of the crime is not the property, thing or money itself, but the benefit obtained from use. For this reason, the value that should be taken as basis in the usage charge is the benefit obtained by using the goods.

During the period when the Turkish Penal Code No. 765 was in force, considering that in some cases, public officials used the money they collected on behalf of the public in income-generating transactions such as interest without depositing it on time, and then deposited it to the relevant unit, and in such cases, the main purpose of the perpetrator was not the money in his possession, but to benefit from its profit, in other words, the purpose of the perpetrator was not to acquire the money, but to use it and return it and in the meantime benefit from its profit, and with the practices of the Special Chamber and the Criminal General Assembly, although it is not clearly mentioned under this name in the law. The authorization to use has been accepted. As a matter of fact, in the decision of the General Criminal Assembly of the Supreme Court of Appeals dated 27.05.1991 and numbered 135-170; "... the defendant deposited the money he received before the action was detected by the administration, without any official letter, detection or warning from the administration. The defendant's purpose is not to appropriate the money belonging to the administration, but to use this money and gain benefit for himself in this way. The action of using the money for short periods such as 10 and 23 days and returning it without any warning after benefiting from its benefit constitutes the crime of embezzlement." conclusion has been reached. This practice, which has been consistently maintained by judicial decisions, has also been adopted by the legislator, in accordance with Article 247/3 of the Turkish Penal Code No. 5237. The article includes the authorization of use.

It is aimed at determining the intent of the perpetrator whether the action is a misdemeanor or not. Considering the behavior of the perpetrator reflected in the outside world and the way the crime was committed, it must be determined in each concrete case whether his intention is to acquire property on the subject of the crime or to return it after using it temporarily, that is, to use it. "When making this determination, an important criterion should be taken into consideration whether the perpetrator spontaneously returns the property subject to the crime to the relevant institution without any warning, notice, complaint or investigation, as is practiced by the General Criminal Assembly and the Special Chamber."

Usage embezzlement generally comes to the fore in terms of expendable goods, especially money. If the perpetrator takes money delivered to him as part of his duty and uses it, he will have committed the simplest form of the crime of embezzlement. However, if the perpetrator replaces the money after spending it, his sentence will be reduced this time. Restitution must be made by the perpetrator and before the crime is noticed. There are opinions here that paying the money automatically when necessary does not constitute a crime. But we do not agree with these views. Because in such a case, the profit from public money will remain unpunished. Moreover, the subject of the crime of embezzlement is the profits that can be obtained. As can be seen below, the Supreme Court also accepts that such situations constitute a crime:

" Considering that the defendant's actions such as using interest-free loans taken on behalf of the cooperative employees and providing interest-free loans to their relatives are in the nature of embezzlement of use if the money withdrawn is paid in full, and embezzlement of appropriation if there are unpaid money, the amount of interest that the money will provide during the period in which the money remains in the defendant's possession should be calculated and included in the amount of embezzlement in terms of embezzlement, and incomplete examination, without taking into consideration that the provisions of effective regret cannot be applied as long as the interest amount is not deposited. "And it is wrong to make a judgment based on erroneous evaluation." Y5. CD. 2021/2191 K.

In another Supreme Court decision, it was stated that the subject of embezzlement in the crime of embezzlement of use arises from "interest" and the verdict was established as follows:

"In the concrete case; the interest obtained from the money deposited spontaneously by the defendant, who did not have any money as of the audit date, without any warning, notice, complaint, audit or investigation, would constitute the crime of embezzlement, and in the case of the subject of the crime in embezzlement being the benefit (profit) obtained by use, the file, together with all its attachments, should be delivered to the expert committee consisting of retired expert auditors of the Court of Accounts, and the amount of interest should be calculated, and it should be investigated whether this amount has been paid or not. Deduction from the penalty in accordance with Article 248 of the Turkish Penal Code, and making a decision in writing by making a mistake in the nature of the crime, without taking into account the fact that after the amount of interest is determined, the issues of whether Article 249 of the same Law will be applied due to decrease in value should be discussed at the decision-making place in case the conditions are present," 2013/33 K.

It should not be forgotten that in some cases, no punishment can be given to the perpetrator for embezzlement of use. In the justification of Article 249, it is stated that in some cases, the charge of use can be tolerated in terms of both duration and form. An example of this could be the school principal taking the school computer to his home, using it for his personal work, and then bringing it back.

IMPAIRMENT OF VALUE IN EMBEZZLE CRIME

According to Article 249 of the Turkish Penal Code, if the value of the embezzled property is low, the penalty to be given to the perpetrator is reduced. Here, the tolerability of embezzlement was evaluated. Because the explanations in the justification of the article are as follows:

"The crime of embezzlement also occurs if the value of the property in question is low. However, in these cases, a certain reduction in the penalty to be given for the crime of embezzlement is foreseen. The rate of this reduction is determined in the text of the article in question.

If the value of the embezzled property is very low, this disposal may be tolerated. Although the value of the property subject to the crime is very low, embezzlement of it constitutes an injustice, and the injustice content expressed by the act may not be at a level that deserves or requires punishment. In some cases, the embezzlement of use may be tolerated in terms of both duration and form."

When determining the impairment, the economic conditions of the day and the purchasing power of the money as of the date of the crime are taken into consideration. In case of decrease in value, the penalty to be given to the perpetrator is reduced. The following Supreme Court decision is an example of impairment.

"Failure to consider that the value of 1,323.00 TL, which is accepted as the embezzlement amount, is low considering the economic conditions at the date of the crime and the purchasing power of the money, and that Article 249 of the Turkish Penal Code No. 5237 should be applied to the defendant," Y5. CD. 2016/8906 K.

There is no penalty for very small amounts. The following Supreme Court decision is an example of this situation:

"While the defendant, who worked as a traffic police officer at the Bingöl Provincial Traffic Branch Directorate, was supposed to deliver the money and receipt for the prepaid traffic penalty dated 24/10/2002 and amounting to 20.20 TL to the trustee to whom he is affiliated within seven days; in the incident where it is claimed that he committed the crime by delivering it on 08/11/2002, the money subject to the crime was of very low economic value and was not at a level that would provide any benefit or cause harm, and the act Establishing a written verdict even though the content of injustice is not at a level that would constitute a crime, the delay is limited to a single act, and the defendant cannot be punished for the crime charged and should be acquitted, considering the defendant's defenses," Y5. CD. 2014/8413 K.

In chain embezzlement crimes, the value of the goods is determined by taking into account the total value. In cases where the value of the goods is high but a portion of it has been paid, an assessment of decrease in value must be made.

EMPLOYMENT CRIME PUNISHMENT

• The simplest form of the crime requires a prison sentence of 5 to 12 years.
• If the crime is committed with fraudulent behavior to ensure that the embezzlement is not revealed, the penalty to be imposed is increased by half.
• If the crime of embezzlement is committed as embezzlement of use, the penalty to be imposed can be reduced by half. Due to the low value of the property that is the subject of the embezzlement crime, the penalty to be imposed is reduced by one-third to one-half.

In addition, effective remorse provisions apply to the crime of embezzlement, as we will explain below.

The crime of embezzlement is not a crime subject to complaint. Investigation and prosecution are carried out ex officio.

The statute of limitations for the lawsuit is 15 years.

The trial of the crime is carried out by the High Criminal Court.

ACTIVE REPENTANCE IN THE CRIME OF EMBEZZLE

Effective repentance is regulated in the Turkish Penal Code as a personal reason that removes or reduces the punishment. Effective repentance, which is a general regulation, is regulated in the general provisions section of the Turkish Penal Code, but special regulations are included for the crime of embezzlement. According to Article 248 of the Turkish Penal Code:

• Before the investigation begins, if the embezzled property is returned in its original form or the damage suffered is fully compensated, the penalty to be imposed will be reduced by two-thirds.
• Before the prosecution begins, half of the penalty will be reduced if the embezzled property is voluntarily returned as is or the damage suffered is fully compensated. If effective repentance occurs before the verdict, one-third of the sentence will be reduced.

In order for the perpetrator to benefit from the provisions of effective remorse, he must have repaired all the damage or returned all the goods. Otherwise, TCK 248 will not find application. A decision of the Supreme Court on the subject is shared below:

"In the face of understanding that a part of the embezzled money was paid by the defendant, it is inappropriate to reduce the penalty according to the provisions of effective regret, which cannot be applied, even though the conditions for returning the embezzled money in its entirety or fully compensating the damage suffered are not met." Y5. CD. 2017/220 K.

CHAIN EMBEZZLE CRIME

Regulations regarding chain crime are included in Article 43 of the Turkish Penal Code. Accordingly:

• Within the scope of the execution of a decision to commit a crime, if the same crime is committed against a person more than once at different times, a penalty is imposed. However, this penalty is increased from one quarter to three quarters. The basic form of a crime and its qualified forms that require more severe or lesser punishment are considered the same crime. The provision of this paragraph also applies to crimes where the victim is not a specific person.
• The provision of the first paragraph also applies if the same crime is committed with a single act against more than one person.

It is possible to commit the crime of embezzlement as a chain crime. If the above conditions are met, the perpetrator is punished for a single crime of embezzlement. However, the penalty will be increased. According to an exemplary Supreme Court decision regarding the crime of chain embezzlement:

"The actions of the defendants, such as making irregular deductions from personnel salaries in the pay lists they created falsely and ensuring that these deductions are transferred to their own accounts, are authorized to prepare payrolls and lists as fiduciaries, the possession of the money related to the salary payments subject to the crime has been transferred to them due to their duties, and the action can easily be revealed by comparing different payrolls in the institution, taking the internal totals of the payrolls or comparing the payrolls with the bank records in the institution, only the payrolls are arranged differently." "Considering that it will not qualify the act of embezzlement, it should be taken into consideration that the actions will constitute the crime of simple embezzlement in a chain manner." K. 2017/864 5.CD.