The second book of Law No. 5237 “Crime of Abuse of Trust”, which is regulated in Article 155 of the Turkish Criminal Code (TCK), entitled “Special Provisions”, is edited in the second part of the “Crimes against Persons”, and in the tenth chapter under the heading “Crimes against Property”. In this article we will consider the legal elements of the crime of abuse of trust, its terms and the amount of penalties imposed.
“Crime of Abuse of Trust” Article 155 of the TCK No. 5237;
(1) A person who, for the benefit of himself or someone else, saves or denies the fact of such transfer, or denies the fact of such transfer, for the benefit of himself or someone else, in respect of property which has been transferred to him or her for preservation or use in a particular way, shall, on complaint, be punished with imprisonment from six months to two years.
(2) If the crime is committed in connection with the profession and the relationship of art, trade or service, or for whatever reason it arose, in respect of the transfer and delivery of the goods of another, he shall be sentenced to imprisonment from one year to seven years and a judicial fine of up to three thousand days.
arranged in the form. When the article is examined, it can be seen that in the first paragraph the crime is established as the basis, and in the second paragraph, the qualified state is regulated.
For example, a person who sells your computer that you have entrusted as a trust to someone else is committing a simple crime of abuse of trust. However, if the mechanic sells the computer that you have given for repair to someone else, the mechanic will have committed a qualified crime of abuse of trust.
Spiritual Elements of the Crime of Abuse of Trust and the Legal Value Protected
The legal value is the property rights of persons protected by the crime in question. This crime is aimed at protecting property. However, in order for the crime in question to occur, there is a contractual relationship between the person who has the right of ownership over the object and the person (perpetrator) in favor of whom the property is established.
- Crime of abuse of trust wilfully is being processed. The perpetrator (the person who committed the crime) must act knowingly and willingly.This crime taxidermy processing is not possible.
- The subject of the crime of abuse of trust, movable or immovable is a commodity. Diligence in favor of the perpetrator must be established on this property.
Victim and Perpetrator of the Crime of Abuse of Trust
- Victim of the crime of abuse of trust is the person who establishes a contract and trust relationship with the perpetrator of the crime and thus transfers the ownership of the property to the perpetrator. He is the person who establishes a contract and trust relationship with the perpetrator of the crime and thus transfers the ownership of the property to the perpetrator.
- The person who carries out this transfer phenomenon can be the owner of the property, as well as the third person who owns the property.
- Only natural persons can be victims of crime, while entities such as family, state, legal entities can only be victims of crime. Although the victim is a person directly affected by the crime, the victim is a person whose interests are directly or indirectly violated by the commission of an injured crime.
- Perpetrator in the crime of abuse of trustis a person whose favor has been established over the subject of the crime. However, this dignity does not necessarily have to be established by the owner. In order to use in a certain way on the property that constitutes the subject of the crime, the resort of guardianship in favor of the perpetrator is required. Therefore, the existence of a legally valid contractual relationship is necessary for the crime of abuse of trust to occur. This legal relationship can be established by, for example, a lease agreement, an estate contract, a vedia contract, an exception agreement, a power of attorney agreement, a surety agreement, a service contract, a pledge agreement.
- This transfer of ownership gives the non-owner the right and authority to make certain savings on the thing, according to the nature of the legal relationship between them.
- The perpetrator of the crime of abuse of trust is not the owner of the property that is the subject of the crime. Therefore, in relation to the property that is subject to joint or joint ownership, joint or joint owners cannot commit the crime of abuse of trust against each other.
- In order for the crime in question to occur, the perpetrator must save or deny the fact of transfer of the property, for the benefit of himself or someone else, other than for the purpose of the transfer of property.
Is the offense of Abuse of Trust Subject to Complaint?
The simple version of the crime of abuse of trust is subject to complaint. Unlike the basic form of the crime, the investigation and prosecution are not subject to complaint and the amount of punishment to be issued is greater.
The crime of abuse of trust (TCK md.155) is one of the offenses that require the implementation of the Conciliation procedure between the parties. In the case of crimes covered by the settlement, if the nature of the crime is revealed both at the stage of investigation and prosecution, it is necessary to apply the reconciliation procedure first, and if a settlement is not reached, the investigation or trial should be continued.
Penalty for Abuse of Trust
- Punishment for the crime of abuse of trust, It depends on how the crime was committed. In the basic form of the crime, which we have described above, that is, the penalty for the crime of simple abuse of trust, is a prison sentence of 6 months to 2 years and a judicial fine. The law has stated that both imprisonment and judicial fine must be imposed together as punishment for the crime.
- If qualified cases of the crime are committed, namely abuse of trust due to service, abuse of trust due to profession and art, abuse of trust arising from a commercial relationship, or abuse of trust in cases of abuse of trust in the case of surrender and abuse of trust about the delivered goods, imprisonment from 1 year to 7 years and up to three days It is as much a judicial fine. In the case of the qualification of the crime, both imprisonment and a judicial fine must be imposed on the perpetrator together.
Abolishing the Penalty for the Crime of Abuse of Trust
Or Personal Reasons That Decrease (TCK 167)
- Personal impunity and effective remorse for crimes committed against one's property are regulated in a single article under the name of common provisions and not separately from each crime aspect. Therefore, in the case of crimes of abuse of trust, these provisions will also come into play.
- TCK according to Article 167
(1) Other than plunder and qualified plunder, the offences contained in this section;
a) One of the spouses whose rights have not been granted a separation order,
b) that of a parent or descendant or of one of the in-laws to such an extent, or of the adopter or adoptee,
c) One of the brothers living together in the same dwelling,
If it is treated as a detriment, the penalty is not imposed on the relative concerned.
(2) If these offences are committed to the detriment of one of the spouses in whose rights a decision has been made to separate, one of the brothers who do not live together in the same dwelling, an uncle, uncle, uncle, aunt, nephew or second-in-law living together in the same dwelling, the penalty to be imposed upon complaint against the relative concerned shall be reduced by half.
Crime of Abuse of Trust and Effective Remorse (TCK 168)
- Effective regretis a criminal law institution that allows the offender to benefit from the penalty reduction provisions by eliminating the damage if there is a subsequent remorse for the act committed and if there is a “direct material damage” caused by the crime. If effective remorse is shown by the perpetrator after the crime has been committed, the penalty for the crime of abuse of trust is reduced due to effective remorse.
- If effective remorse is shown at the stage of the prosecutor's investigation, the penalty for the crime of abuse of trust can be reduced by up to 2/3. In order for the perpetrator to benefit from effective remorse provisions, he must provide information about the crime and, if applicable, disclose the accomplices, the abuser, the helper, or remedy the harm suffered by the victim.
- If, as a result of the investigation, the case has been filed in court, but before the verdict has been made, the perpetrator provides information about the crime or recovers the damage suffered by the victim, the penalty for the crime of abuse of trust is reduced by up to ½.
Court in Charge of Abuse of Trust
The court in charge of the crime of abuse of trust is the court of first instance.
Misuse of Trust Lawyer
It will certainly be in your favor to file your defense with a criminal lawyer, as it is a crime of abuse of trust as it is a criminal offense and the penalties given are high. It does not matter where the lawyer who handles the criminal cases in which you are going to work is or where the crime was committed. It does not make any difference if your case is seen in Bakırköy, Çağlayan, Kartal, Ankara or İzmir courthouses. The important criterion here is that the lawyer you will work with will effectively defend. So when searching, you do not need to search for criminal lawyer Istanbul, criminal lawyer Bakırköy, criminal lawyer Çağlayan, criminal lawyer Kartal.
It is advisable to contact our Law Office for support in resolving your disputes arising from the Criminal Law and for detailed information about your legal rights.