Effective Remorse in Crimes Against Property, Especially Fraud (TCK 168)
In our previous posts, we have covered the victimization that has arisen in the trials of fraud, theft and abuse of trust. Especially in fraud crimes, we have observed that account holders are not actually suspects, but victims and therefore face serious penalties.
In the emails and phone calls that come to us frequently, one common complaint of victims of fraud crimes is pointed out: that they fall into the position of suspect in the crime of fraud because of the account information they give to relatives or friends, and that is why they are put on trial. They claim that they were unable to prove their innocence because they used their accounts and therefore had to cover the material damages suffered by those affected by the crime. Moreover, they say that this situation also caused them to be punished as if it were not enough.
In our opinion, a person should not be punished for fraud solely on the grounds that he used his account. However, it is important to exercise caution, keeping in mind the worst eventualities that may still arise.
In this article, we will discuss effective remorse provisions in accordance with Article 168 of the Turkish Penal Code, especially for crimes committed against fraud and property, and the aspects to be considered in this process.
Effective Regret TCK 168
(1) After the completion of the crimes of theft, damage to property, abuse of trust, fraud, fraudulent bankruptcy, installment bankruptcy, and but therefore before the initiation of the prosecution, by repaying or compensating the victim in person repentance. If it is completely eliminated, then up to two-thirds of the penalty will be reduced.
(2) If effective remorse is shown after the start of the prosecution, but before the conviction is not given, the penalty shall be reduced by half.
(3) The penalty to be imposed on the person who shows effective remorse for the crime of plunder shall be reduced to half in the cases referred to in the first paragraph and up to a third in the cases falling under the second paragraph.
(4) In order to apply the provisions of effective remorse in the form of partial restitution or compensation, the consent of the victim is also sought.
(5) (Appendix: 2/7/2012 — 6352/84 d.) In the case of the crime of gratuitous exploitation, a public action is not brought if the perpetrator, abuser or helper repents the damage suffered by the victim, public or private law legal entity in full before the investigation is completed; if the damage is fully compensated until a verdict is made, the penalty to be imposed is reduced to one-third. However, a person may not benefit from the provision of this paragraph more than twice.
In the text of the article above, effective provisions of regret are laid out. The following are the aspects that we must pay attention to, which we will list in substances below;
- In order to show effective remorse, the crime must first be completed. In other words, the above-mentioned crimes must be committed and completed.
- In these crimes, the perpetrator or participant in the crime must show repentance and exactly return or compensate.
- In order for effective remorse to be considered the reason for a reduction in the penalty, the damage must be carried out completely or as much as possible by minimizing the damage. In partial restitution or restitution, for effective remorse provisions to be applied, the victim must consent to the same restitution or compensation.
- Effective remorse can be shown both at the stage of investigation and prosecution. The point that should be taken into account here is the reduction of the penalty according to the rate in the text of the article, in accordance with which stage the remorse was shown.
Above we have already mentioned in detail the provisions of effective regret and the resulting table in case of recovery of damage. Now we want to draw attention to an issue that is often confused.
- If the victim shows effective remorse during the investigation phase and the victim is compensated, the penalty is reduced by 2/3.
- If the victim shows effective remorse at the stage of prosecution and the victim is compensated for the damage, the penalty is reduced by ½.
- In the case of partial damages, the consent of the victim is sought for the application of effective remorse.
- We would also like to draw attention to an issue that is often confused, that effective remorse cannot be shown at the stage of appeal or Supreme Court. That is, the person who is in the position of defendant in the file must show effective remorse and compensate for the damage without making the decision of the local court, that is, before the end of the prosecution. Otherwise, there will be no appeal or effective remorse by the Supreme Court. The only exception may be possible if the file is corrupted and sent back to the local court.
For example; For the crime of fraud, a person received a sentence of 6 years. If we assume that he also pays the damage during the investigation phase, this penalty is reduced to 2 years, if we assume that he covers the damage during the prosecution phase, this penalty is reduced to 3 years, but if the appeal or the Supreme Court covers this damage, there will be no benefit, and there will be no reduction.
As we discussed in detail, we touched on the provisions of effective remorse. In particular, we recommend that persons who are suspected or accused, benefit from effective remorse provisions and avoid further victimization because they are using only accounts, even though they have no crime in fraud offences. It should be remembered that taking advantage of effective remorse does not mean that you admit guilt.
When the penalties for fraud and other property crimes may be undeniably high, we recommend that you work with an expert lawyer in this matter and not lose your rights.