When the history of the crime of embezzlement is considered, it is feasible to discuss a process that dates back to the Roman Empire. The fact that the stolen goods belonged to the government or God was a requirement for the crime of embezzlement, which was then seen as a form of theft. In Islamic Law, the judge had the discretion to define the crime of embezzlement, which was not mentioned in Germanic Law. The definition of embezzlement was reduced under French law, and it was acknowledged that civil servants were often the perpetrators.
The Ottoman Law was governed by a system based on the sultans’ declarations and was first inspired by Islamic Law. The crime of embezzlement was regulated during the Tanzimat (Reforms) and lasted until the foundation of the Republic of Turkey, despite the fact that there was no mention of it in these regulations.
In the Turkish Penal Code No. 765, which was abolished in 2005, the offense of embezzlement is defined as ” In Chapter Three of the heading “Crimes Against State Administration” ” The crime of embezzlement, which is regulated in Article 202 of the First Section of the “Simple and Qualified Embezzlement and Benefiting in State Transactions” title, was reorganized in the Turkish Penal Code No. 5237 in 2005 with the repeal of this law and took its current form.
Embezzlement, as a word, means money or goods delivered to the employees of institutions and organizations or to the official dealing with money affairs in return for signature. The crime of embezzlement is defined as the crime of embezzlement among the Crimes Against the Reliability and Functioning of the Public Administration in the first section of the fourth part of the Turkish Criminal Code No. 5237 titled Crimes Against the Nation and the State and the Final Provisions, and in the embezzlement crime regulated in Article 247, based on the definition in question, the public official who embezzles the property, the possession of which has been transferred to him due to his duty or which he is obliged to protect and supervise, is defined as a public official who embezzles himself or someone else, and a prison sentence of five to twelve years is envisioned. In the continuation, it is stated that the penalty will be increased by half for the person who engages in fraudulent behavior in order not to reveal the crime in question. It is also stated that if the crime of embezzlement is committed in order to return the property after it has been used temporarily, the penalty to be imposed may be reduced by up to half.
For the existence of the crime of embezzlement;
1. Committed by a public official,
2. The delivery of the ‘thing’ to the public official due to his/her duty,
3. The public official must transfer the ‘thing’ delivered to him/her to himself/herself or to someone else. The crime is considered to have been committed when these conditions are met.
The crime of qualified embezzlement applies to the more severe form of this offense. In such a case, according to TCK(Turkish Penal Code) 247, fraudulent acts that prevent the occurrence of the crime must be carried out by the public official, in which case the penalty for the crime will be increased by half.
In the crime of embezzlement by use, the article states that if the subject of the crime is returned after use, the penalty to be imposed may be reduced by half, and the crime definitions are made in the law. The distinction of these issues will be determined by considering the intent of the public official.
PROTECTED LEGAL INTEREST
The legal interest protected is the reliability of the public administration. Likewise, what has been transferred or what needs to be protected and supervised has been entrusted to the public official. The perpetrator who abuses the trust placed in him violates the interests of the state and will also abuse the trust of the citizens in the administration.
Specific crimes are crimes that can only be committed by persons with certain qualifications. Since the crime of embezzlement can be committed by public officials, the perpetrator must be a public official. The public official should be understood as anyone who contributes to the execution of public activity, and as such, a wider group of people can be perpetrators compared to the old laws.
The individual whose protected legal value is compromised or jeopardized is the victim of the crime. In this situation, legal entities may also suffer losses. Moreover, because it involves the dependability and efficiency of the administration, both the administration and the general public are the victims of the crime.
SUBJECT OF THE CRIME
The subject of the crime of embezzlement is property. Property is all movable or immovable assets under the ownership of a real or legal person, and all kinds of goods that can be bought and sold. It may be movable or immovable property, or the subject of the offense may be money. At this point, the main point to be considered is the delivery of the possession of the property to the public official. The property in question may belong to the state or to individuals or institutions. In this case, no distinction is made for the crime of embezzlement to be committed.
ELEMENTS OF THE OFFENSE
The property subject to the crime must be in the possession or under the protection and supervision of the public official due to his/her duty. This is a mandatory prerequisite stipulated in Article 247 of the TCK for the occurrence of the offense. In other words, the embezzled property must be in the possession of the perpetrator due to his duty or he must be obliged to protect and supervise the property. In other words, the perpetrator of the crime of embezzlement must act with the intention of benefiting himself or someone else other than the purpose for which the property, the possession of which has been transferred to him due to his duty or which he is obliged to protect and supervise, has been allocated.
In order to commit the crime of qualified embezzlement, the public official must engage in fraudulent behavior in order to conceal the use of the property for purposes other than the purpose for which the possession was established. Behaviors aimed at concealing evidence provide the formation of the qualified form of this crime, and cannot be evaluated separately from the crime of embezzlement.
The crime of embezzlement by use is committed in order to return the property after it has been used temporarily. The action here is the use of the property whose possession is delivered to him.
The crime of embezzlement is a free-movement crime and it is sufficient to use the property outside its purpose. In this context, situations such as using the property on behalf of oneself or someone else, consuming it, pawning it are sufficient for the crime to be committed.
As a result of the embezzlement, a damage must occur or the possibility of damage must arise. As a matter of fact, the Court of Cassation stated that ” The crime of embezzlement occurs when the defendant unjustly acquires the property entrusted to him/her by virtue of his/her duty and legally. For this, it is a condition that the victim party suffers damage or faces the possibility of damage as much as the increase in the perpetrator’s assets as a result of the acquisition of property. It is not possible to characterize actions that do not cause harm or the possibility of harm as embezzlement.” In his decision, he considered the result sought for the occurrence of the crime as the occurrence of harm or the possibility of harm. Thus, the crime will be deemed to have been committed in cases where the value of the property is small or the damage has been compensated or the crime of embezzlement of use is committed, but the penalty can be reduced.
In cases where the public official returns the embezzled property or compensates the damage before the investigation begins, 2/3 of the penalty to be imposed may be reduced.
If the perpetrator, who wants to benefit from effective remorse before the prosecution begins, returns or compensates the damage, the penalty to be imposed is reduced by 1/2.
The moral element of the crime of embezzlement is intent. This intent may be direct or indirect intent. In the case of the crime of embezzlement by use, the intention is to return the property subject to the crime.
SPECIAL FORMS OF CRIME
The crime of embezzlement is a consequential crime. In order for the crime to remain in the attempt stage, the crime must be divisible into parts, and in the crime of embezzlement, it is possible to attempt the crime at the stage of return of the property.
As we mentioned, the crime of embezzlement is a specific crime. Specific crimes are crimes that can be committed by certain persons, and the perpetrator in the crime of embezzlement must be a public official. Persons who are not public officials but who have a role in the commission of the offense may be an aider or abettor, except that participation in the crime of embezzlement is not possible.
The crime of embezzlement can be combined with other crimes. In addition, it can also be committed in sequence, and in such a case, a penalty should be imposed due to the qualified form of the offense.
In line with the prescribed prison sentence, the court in charge of the crime of embezzlement is the high criminal court. The court where the crime is committed, i.e. the court where the property is embezzled, is the competent court.
The prosecution of the crime of embezzlement is not subject to complaint and the statute of limitations for the case is 15 years and the statute of limitations for the penalty is 20 years.
COMPARISON OF EMBEZZLEMENT AND OTHER CRIMES
It is common to confuse the crime of embezzlement with the crimes of extortion, bribery and breach of trust regulated in the Turkish Penal Code. To mention briefly:
- The crime of extortion is the abuse of the power granted to a person by virtue of the public office he/she fulfills to obtain benefits for himself/herself or others, or to make promises for this purpose. In the crime of embezzlement, on the other hand, the public official takes advantage of the goods delivered to him.
- The offense of abuse of trust is defined as the act of disposing of or denying the fact of transfer of possession on the property belonging to another person, the possession of which has been transferred to him for safekeeping or use in a certain way, for the benefit of himself or someone else, outside the purpose of the transfer of possession. While this crime, also called abuse of trust, can be committed by anyone, the crime of embezzlement can only be committed by public officials.
- The crime of bribery means providing a benefit to a public official or another person, directly or through intermediaries, in order for him/her to do or not to do a job that is required by his/her duty. In the offense of bribery, it is an agreement to do or not to do a job, while in the offense of embezzlement, the main thing is the delivery of the goods to the public official due to his duty and the benefit provided by the public official. In addition, in the crime of bribery, the perpetrator is both the bribe-giver and the bribe-taker, in other words, it is a bilateral crime. In the crime of embezzlement, the perpetrator is a public official.
Atty. Ünsal BENER
Adana Bar Association
- CENTEL, Nur, D.E.Ü. Hukuk Fakültesi Dergisi, Prof. Dr. Durmuş TEZCAN’a Armağan, C.21, Özel S., 2019, s. 2779-2800
- Baran DOĞAN (https://barandogan.av.tr/blog/ceza-hukuku/zimmet-sucu-nedir.html)
- Öğr. Üyesi Volkan ASLAN( İstanbul Üniversitesi Hukuk Fakültesi Mecmuası Cilt: 71 – Sayı: 1)
- GÜLŞEN, Taner Ankara Üniversitesi Yüksek Lisans Tezi, 2011, Ankara
- Zimmet) – Mert Asker Yüksektepe ( TCK Genel Hükümleri Dahilinde Bölge Adliye Mahkemeleri Ceza Daireleri ve Yargıtay İlamları ile- Seçkin Yayınları 1. Baskı Ocak 2018)