The Crime of Breach of Trust

Nowadays, we establish many human relations and business relationships in order to continue our daily lives and to maintain our business and commercial lives. We establish the majority of these relations, which are commercial and non-commercial, or which we deal with in relation to our work or our daily lives, through contracts, which are one of the legal relations. In law, contracts are built on the principles of ancient law and morality, such as the harmony of mutual wills, commitment to the promise made (loyalty to the covenant), mutual trust and loyalty. Protecting the principle of trust, which is the guarantee of contracts and contracts that are the basis of economic and social relations in society,  was intended to be achieved by defining and punishing the crime of breach of trust in the the155th article of the Turkish Criminal Code,

In this article, we have tried to answer your questions about the circumstances in which the crime of breach of trust occurred, what are the most common forms of commission of the crime reflected in judicial decisions, the amount of punishment to be imposed as a result, and which institutions may be applied to the punishment.

1. How is the Crime of Breach of Trust Regulated by Law?

The crime of breach of trust is regulated in article 155 in the section Crimes Against Property of the Turkish Penal Code (TCK). As can be understood from the section in which it is regulated and the grounds of the article, it is the right to property of persons of value who want to be protected from crime[1] and a sense of trust in society.[2]

1 of Article 155 of the Turkish Commercial Code. in its paragraph, the simple(basic) form of the crime is regulated. 2. in the paragraph there is a qualified version of the crime committed, on“ goods that are deposited as a requirement of the profession and art, trade or service relationship, or the authority to manage someone else’s goods” and in this case, the perpetrator of the crime is punished more severely.

2. When Should the Right of Complaint Be Used?

The investigation and prosecution of the basic form of the crime of breach of trust(1. Paragraph),  is made possible by the complaint of the victim.[3] The aggrieved person must exercise their right to complain about the crime within 6 months from the day they know or finds out who the perpetrator and perpetrator are, before the statute of limitations expires.[4] If the complaint period is missed, it will be decided that there is no room for prosecution or the case will be dropped depending on what stage the case is at.

The follow-up of the qualified state of the crime does not depend on the complaint. Notification to the competent authorities is a notification. There is no complaint period for the victim; if they want, they can participate in the case until the verdict is given in the court of first instance.

3. Where is the Court in Charge of the Trial of the Crime of Breach of Trust?

The trial of the offense of breach of trust is held in the Criminal Courts of First Instance.

4. Is the Crime of Breach of Trust Subject to Compromise?

A settlement procedure should be applied to the offense of breach of trust. The trial stage cannot be started without trying the procedure of reconciliation of the perpetrator and the victim.

5. What are the Elements of the Crime of Breach of Trust?

In order for us to talk about the occurrence of a crime from the point of view of criminal law, the perpetrator must have implemented all the elements of the crime contained in the definition of the law. [5] In addition, the perpetrator must have acted deliberately to commit the crime.[6] The crime of Breach of trust is regulated in the Law as follows:

• On goods that belong to someone else or are transferred to them to maintain possession to use in a specific way, for the benefit of themselves or anyone else, a person who denies the fact of the transfer of possession or the transfer except for the purpose of saving, upon a complaint, is punishable by imprisonment from six months to two years.
• Crime, vocational and art trade or service for any reason or no matter of the relationship is born, someone else submitted as a requirement of the authority to manage their property on goods that have been delivered and are committed one to seven years ‘ imprisonment and shall be fined up to three thousand days.

 

The conclusions we can draw from the definition are as follows;

• There Should Be a Contractual Relationship in the Middle: The first condition for the decriminalization of the breach of trust is that there is a legally established valid contractual relationship between the persons. This is the most important difference that distinguishes the crime of breach of trust from crimes such as robbery, fraud, looting. The contractual relationship between them can be a lease, loan, financial lease (leasing), power of attorney, service, pledge, or any type of contract in which the decency of the property is transferred.[7] It is not necessary that the contract be made in writing necessarily, but if the contracts that are not subject to the written form requirement are established orally, the condition also becomes real.
• The Possession of the Goods Subject to the Crime Must be Transferred by Consent: The goods subject to the crime must be given (entrusted, left) to the other party by consent on the basis of a contractual relationship. If the property is taken out of the owner’s hands without his consent or forcibly usurped from him, there is no crime of breach of trust. In any case, in this case, if the victim has a property right that needs to be protected, there is no contractual sense of trust between the perpetrator.

The property that is the subject of an offense of breach of trust can be movable property, as well as immovable property, money, valuable documents, etc. The person who owns the property must have transferred the right to own it to the perpetrator of his own free will, without transferring the ownership of the property.

• The Owner of the Property Must Have Transferred the Property to Another Person for Storage or Use in a Certain Way: The transfer of ownership of a property grants the transferee the powers to perform, use and store certain transactions on that property. For example, in a lease agreement, the lessor of the property transfers it to the lessee to use the property during the lease period. Or a client transfers a certain amount of money to the acting lawyer to be deposited in the account of the enforcement department. In which direction and manner the transferred goods will be used is a matter that will be understood from the contract between them.
• The Perpetrator Must Deny the Fact that the Property has Been Transferred to Them or Subject It to Work and Transactions Other Than the Purpose of Transferring the Property: In order for the crime of breach of trust to occur, the perpetrator must perform work and transactions other than the purpose of transfer on the property given to them. To explain by an example, if a car is rented, the person who rents the car on the basis of the lease agreement has the right to use and use the car within the limits of the lease relationship. In addition, if he acts for some other purpose, for example, selling the car to another person, pawning it, dissolving it, destroying it, an offense of breach of trust will be formed. Because only the lessor, who is the owner of the property, can use the rights such as selling, transferring, pawning, destroying the car, on the vehicle.

If the perpetrator acts as if he is the owner of the property, completely denying that the property has been transferred to him, this also gives rise to the crime of breach of trust.

If the perpetrator does not return it to its owner after a long period but does not deny that the property has been transferred to him, he is considered to deny the transfer. The Supreme Court seeks not only a delay in extradition, but also the presence of the will to act as the owner of the property, in order for the offense of breach of trust to occur in this case.[8]

6. A Crime of Breach of Trust in a Profession, Art, Trade, Service Relationship, or Goods Provided for the Management of Someone Else’s Property

If an offense of breach of trust is committed on a product that has been provided to him by his profession, or by a trade or service relationship between them, the act is punished with a more severe penalty. For example, the money or goods delivered to the lawyer as required by the proxy relationship, the money delivered to the accountant are covered by this scope.

Again, if the management of an asset is left to others, a qualified version of the crime of breach of trust may arise that requires a more severe punishment. For example, it is possible for members of the board of directors of a company to commit this crime on the company’s property. Or they can commit this crime in relation to the money that the members of the site’s board of directors collect within the framework of this task.[9]

If we go over the crimes of breach of trust that have also been the subject of judicial decisions and are very common in terms of making the issue more understandable, we can make a grouping as follows.

6.1. Actions and Actions of Certified Public Accountants and Chartered Accountants that Constitute a Crime of Breach of Trust

The profession of Certified Public Accountants and authorized accountants and financial advisors and using except for the purpose of delivery of the money and other goods given to them because of the areas they are assigned, claiming it, not returning it, or destroying it creates a breach of occupation owing to service. However, it should be noted here that the Certified Public Accountant and the Certified Public Accountant must have committed this crime in a matter included in the job descriptions specified in the Law. Otherwise, not the qualified form of the crime, but the basic form of the crime will be committed. As a matter of fact, the Supreme Court on this issue:

“ The defendant worked as a freelance accountant financial advisor, … By contract Foreign Trade Inc. follow-up of accounting affairs of S.. Given by B… to the accused, the company handed over 1,000 TL for the 2007-2008 tax return, payment of fees, and stamp money. Still, he did not make any payment to the tax office and thus transferred the money to his responsibility, allegedly committing the crime of breach of trust due to his service in the concrete case; among the duties of the Independent Accountants, which are stated in Article 2 of Law No. 3568, is not to deposit tax debt. It has been determined that the follow-up regulated in the article will constitute the crime of “breach of trust”, which is subject to complain.[10]

In another decision the provision was established as “The defendant, while working as an accounting officer at the workplace belonging to the victim, unlocked the safe that was submitted and delivered to him due to his duty, took the gun belonging to the victim and kept it in his possession, and started to carry the gun without a license, the accused was caught with an unlicensed gun during the body search… when the concrete case is examined, considering that there is a service relationship between the accused and the victim, who is the owner of the workplace, and that the goods subject to the crime are in the nature of goods that were deposited and delivered to the accused due to his duty, the act of the accused, 155/2 of the TCK numbered 5237, which is a more specific regulation, “deficit sentence determination by making a judgment on the crime of theft by mistaken in the character of a crime, without considering that it falls within the scope of the crime of breach of trust due to the service specified in the article”.[11]

Failure of financial advisors to deliver taxpayer-owned books also constitutes a crime of breach of trust. The Court of Cassation considers it a crime of breach of trust due to the service to damage the workplace where he works by not delivering the books and documents he keeps within his duties to the tax office on time. For example, the Supreme Court on this issue “the defendant, who works as a registered accountant in Chamber of Public Accountant Financial Consultantsof Denizli is the responsible manager of the participant…  Owned by Limited Company, operating in Çal district… The rule was established as In the incident where the training school was carrying out the accounting works, the said classroom was sold on 31.01.2008, and it was understood that the accused did not return the books and documents even though the attendant asked the accused to return the company’s books and documents many times, there was no inaccuracy in the admission that he committed the [12]crime of breach of trust.”

6.2. Actions and Actions of Lawyers that Constitute a Crime of Breach of Trust

Article 155/2 of the TCK is decriminalized if the lawyer’s using the money and goods given to them except for the purpose of giving, destroying them, tearing up a document, transferring the entrusted cash or checks to his property due to the relationship between and his client based on the power of attorney agreement, or using them for his benefit. However, no crime will occur if the lawyer has the right to confiscate the money he has received in accordance with the interim agreement or by the lawyer’s fee tariff for the receivables that he is entitled to. Because in this case, the actual work of the lawyer ceases to be contrary to law.[13]

6.3. Actions and Transaction of Employees that Constitute a Crime of Breach of Trust

According to the service agreement, in case employees connected to the employer at a workplace receives, use, transfer to someone else, all kinds of goods like machines, tools, money, etc. are delivered to them for this purpose, except for the purpose of delivery to them, and damage these goods, the crime of breach of trust due to the service also occurs. Here, the Supreme Court seeks that the decency is made for a fee to accept the relationship as a service contract and that it be a business relationship that is continuous.  In addition, the subject property of the crime must be delivered to the perpetrator on an ongoing basis and with the condition that all responsibility belongs to him.[14] If the use of the goods is possible under the supervision and supervision of the owner, then, in this case, not the crime of breach of trust, but the crime of robbery may occur, since the possession will not be considered fully transferred.

In the Supreme Court’s decision on the matter, “..suspect…as of the date of the crime, the director of the factory in question and the other suspect….. works as a lathe maintenance worker, entered the factory’s mold shop without the knowledge and permission of the company’s employees and made mold discs using raw materials, and these mold discs are again without the knowledge and permission of the company’s employees… It was evaluated as [15]They sold one of the two die discs to a company called Metal for 7.500 TL, agreed to sell the other die disc for 4.000 TL,  caught by the participant while they loaded this die disc into the vehicle, the service contracts of the defendants were terminated due to this incident, in this way, the defendants’ information and information on the company It is clear that he has committed the crime of breach of trust due to the service by using the machinery and raw materials of the company without the permission of the company.”

The Supreme Court of Cassation considers that there will be no crime of breach of trust due to the fact that the transfer of the ownership of the goods has not been made due to the acts committed by the workers outside their area of responsibility at work. The crime that occurs here should be considered a theft crime.[16]

6.4. Actions and Actions of the Agent that Constitute an Offense of Breach of Trust

Like a proxy, the agent is obliged to provide them to the insurance company on time, since he holds the money and goods belonging to the insurance company as a representative and depositor. Otherwise, the agent will have to pay compensation together with interest, and even according to the terms  he should also be punished fo crime of breach of trust.[17]

6.5. Actions and Transactions of Company Managers that Constitute a Crime of Breach of Trust

In case the parent, guardian, trustee, or general managers of the company and members of the board of directors of an asset commit this crime in relation to the goods they manage, a qualified version of the crime is formed that requires more severe punishment. It is stated that for whatever reason specified in Article 155/2 of the TCK, the purposeless actions of a person who uses the authority to manage someone else’s property in relation to these goods will give rise to this crime.

Nowadays, companies leave the management of company assets to people who specialize in this business as a requirement of professionalization. For this reason, this issue is often the subject of Supreme Court decisions. Members of the board of directors of joint-stock companies and directors of limited liability companies may be the perpetrators of this crime due to their actions and actions related to the company’s assets.

There was no misconduct in the court’s admission that the defendant acted, while he was serving as the export manager of the company, which is the chairman of the board of directors and the partner of the participant, by issuing fake receipts on behalf of Hakel customs consultancy and acquiring the money he received in return for the receipt, constituted the crime of breach of trust due to service.[18]

Important Note: The company’s managers, agents, workers, lawyers, CPA, and accountants were convicted on charges of breach of trust in the service of their own money which has been entrusted and Goods Service and will not be returned because of commercial books and records, account statements, receipts, accounting records can be proved in a certain way.

7. Distinguishing the Offense of Breach of Trust from Similar Offenses

The crime of breach of trust can be confused with crimes against other assets. This issue requires quite technical and detailed examination. Here we will only briefly mention the main misconceptions in order to draw attention to them and show them the way.

A Crime of Breach of Trust and a Crime of Theft: Goods or money on the basis of a contract on the offense of breach of trust is given, entrusted, and left with the consent of the owner and to someone else. However, the perpetrator of the crime then refuses this relationship and avoids using or returning the goods for other than the purpose for which it was given.

In the case of theft, the person who receives the property seizes it without the owner’s consent and often even without their knowledge. The crime of breac of trust can be committed on all kinds of goods, such as movable, immovable, and money, while the crime of theft can only be committed on movable property and money.[19]

A Crime of Breach of Trust and Embezzlement: In the crime of embezzlement, there is also the act of embezzling the property entrusted to him due to his duty to himself or someone else. However, the perpetrator of the embezzlement crime must be a public official; the property subject to the crime must also have been given to him because of his public duty.[20]

The Crime of Breach of Trust and Fraud: In case of misusing the trust, the owner of the property gives his/her property to someone else with his/her own free and unfaithful healthy will. However, in order for the crime of fraud to occur, the owner must have been deceived by fraudulent behavior and his property taken away.[21] In addition, the occurrence of a fraud crime is called unfair benefit of the perpetrator. However, in terms of the crime of breach of trust, the perpetrator only needs to use it for the purpose of the transfer, or deny the transfer.

8. May the Punishment for the Crime Be Postponed?

In our criminal law, postponement is provided only for prison sentences. Therefore, if conditions arise when a prison sentence is received for a crime of breach of trust,[22]the punishment can be postponed. It is not possible to terminate the judicial fine.

9. May Effective Remorse Provisions Be Used?

If the perpetrator of the crime of breach of trust regrets the act he has committed and fulfills the conditions required by Law, a reduction in his sentence is made. For this, he must completely eliminate the damage he has caused to the victim. If the terms of effective remorse are provided by the perpetrator while the case has not yet been filed against him, the penalty is reduced by 2/3. If he fulfills the conditions of effective remorse after the case is filed, but before the verdict is given, the penalty will be reduced by half.

10. May the Sentence of Imprisonment Be Commuted to a Fine?

In our law, short-term prison sentences of less than 1 year can be converted into a fine. The sentence of a person sentenced to a term of imprisonment of less than 1 year for breach of trust may be commuted to a judicial fine.[23]

11. Is it Possible to Take Advantage of the Institution of Revoking the Disclosure of the Provision?

It is possible that a decision of the HAGB will be made against a person who has been sentenced to 2 years or less in prison for committing a crime of breach of trust. However, for this purpose, the suspect should not have been convicted of a deliberate crime before, and must fully pay for his damage to the victim if harm has occurred as a result of the crime. Thanks to the HAGB decision, the defendant will be deemed to have served his sentence by not committing a deliberate crime during the specified supervision period and acting in accordance with the obligations set by the court, and the sentence against him will not be entered into the judicial records.

Conclusion

The crime of breach of trust can be confused with many other crimes because of its name. It is of great importance to know the criteria used to distinguish this crime from similar crimes and the practice of the Supreme Court in order to obtain the desired result from the trials. If you are facing a legal problem similar to those described in this article on the crime of breach of trust, you can always visit us to get support from the expert staff of our team in the field of Criminal Law.

Best regards.

References

[1] Turkish Criminal Law Legislation, Gazi University Turkish Criminal Law Application and Research Center Laws, volume:1, Distinguished Publishing House, 2013, p.358.

2 CÜSTAN, Semray, A Crime of Breach of Trust Contained in the Turkish Criminal Code No. 5237, Master’s Thesis, Istanbul University Institute of Social Sciences Department of Public Law, Istanbul, 2006, p.7.

3Gazi University Turkish Criminal Law Application and Research Center Laws, a.g.e., s.359.

4 Article 73/1-2 of the Turkish Commercial Code.

5OZGENÇ, Izzet, 2011, Turkish Criminal Law, Distinguished Publications, Ankara, p.143.

6Article 21/1 of the Turkish Commercial Code.

7MERAKLI, Serkan, “The Crime of Breach of Trust(TCK m.155)”, Journal of the Faculty of Law September Dokuz Eylul University, Vol: 11, Special p: 2009, p. 1657-1713, Year of Publication:2010, p.1678.

8 MERAKLI, a.g.e., s.1695; Criminal General Assembly of the Supreme Court, e. 6.234, K.its resolution No. 3296 dated 10.10.1983.

9 Supreme Court 15. CD., E.2017/14655, K.decision No. 2019/9154 dated 30.09.2019.

10 Supreme Court 15. CD., E.2013/6703, K.resolution No. 2014/21867 of 23.12.2014.

11 Supreme Court 15. CD., E. 2015/6725 – K. Decision No. 2018/4641 dated June 25, 2018; BALCI, Umut, Crimes of Breach of Trust in Turkish Law, Master’s Thesis, Ankara University Institute of Social Sciences Department of Public Law, Ankara, 2019, p.155.

12 CD., E.2012/16322, K.decision No. 2014/8593 dated 30.04.2014.

13 Supreme Court 15. CD., E.2017/14479, K.decision No. 2017/18849 dated 25.09.2017.

14 General Assembly of the Supreme Court of Criminal Justice, E. 2017/497, K.decision No. 2020/133 of 25.02.2020.

15 Supreme Court, 15. CD., E.2017/11977, K. resolution No. 8607 of 2019 and dated 19.09.2019.

16 Supreme Court 15. CD., E. 2015/5663 – K. Decision No. 2018/4343 of 6 June 2018; BALCI, a.g.e., s.65.

17 General Assembly of the Supreme Court of Criminal Justice, E. 2017/497, K.decision No. 2020/133 of 25.02.2020.

18 Supreme Court 15. CD, E.2017/25602, K. resolution No. 2019/9944 dated 15.10.2019.

19 KOSE, Hamid, A Crime of Breach of Security (Breach of Trust), Master’s Thesis, Marmara University Institute of Social Sciences Department of Public Law, Istanbul, 2009, p.26-30.

20 KOSE, a.g.e., p.34-36.

21 KOSE, a.g.e., p.32-34.

22 For terms, see Terms and Conditions. Article 51 of the Turkish Commercial Code.

23 Article 49-50 of the Turkish Commercial Code.