Turkish Supreme Court
5th Criminal Chamber
Case No.: 1994/246
Decision No.: 1994/620
Date of Decision: February 22, 1994
Summary:
The individual accused of manipulating payrolls; by preparing overtime and payroll tax returns based on the accrued amount and in the same amount, by entering an amount greater than the amount to be paid in the column, and by adding the amount to be paid from the net increase to his gross income and stamp duty, in accordance with the increase in the accrued payroll, by adding items to be deducted by the bank, obtained 13,319,941 pounds via check for commuting expenses, and regardless of whether this amount was included in payroll costs, the total amount payable was 13,442,941 pounds; this individual obtained 124,000 pounds.
Since it is understood that these funds were not deposited in accordance with the defendant’s normal duties or were not under his custody and responsibility, the offense of embezzlement does not apply. If the defendant’s act possesses the capacity to deceive, it constitutes the offense of fraud; otherwise, it constitutes the offense of abuse of office.
(Turkish Penal Code Art. 59, 202, 219)
Case: Following the trial of Abdülkadir, who was accused of embezzling funds while serving as a payroll administrator at the Tax Office; pursuant to Articles 202/2, 3, 59, and 219 of the Turkish Penal Code, he was sentenced to 5 years of imprisonment, a fine of 16,834. 926 lira in fines, and a lifetime ban from public service (Elazığ 1st High Criminal Court). Based on the decision dated December 14, 1993, No. 1993/39, and following the notification sent from the Prosecutor’s Office to the Chamber via Decision No. 1993/209, the matter was reviewed and deemed necessary:
Ruling:
The decision is based on the evidence gathered and presented during the hearing, the court’s views and discretion as established in accordance with the results of the investigation, and the rejection of other objections. However;
The defendant’s pay stub shows that the amount accrued and held in trust in the same columns exceeds the amount in the corresponding column of the actual pay, overtime, and payroll tax declarations; the payment of the accrued income, the increase in the stamp tax amount, and the continuation of the process by adding it to the payroll and proceeding with the gross net amount; the amount written on the shortened check, the additional tax fee of £13,319,941
H… collected by your bank for accounting purposes, the IRS payment from April 1991 to March 15, 1991, and the total cost, including Mehmet’s pay stub, amounting to £124,000 and £13,433,941, which this individual is required to pay, the court further observed that this constitutes a crime regarding the matter of money; the defendant is under the responsibility of acting in accordance with the normal functions or custody of a trustee and is liable for the loss of funds; if there is intent to defraud, it is not embezzlement but forgery of a trust; otherwise, it constitutes the crime of abuse of office regardless of the written judgment.
This situation is contrary to the law; since the defendant’s attorney’s objections regarding this matter have been taken into account, there is no need for this ruling. (No. 321) Decided unanimously on February 22, 1994.