Article 247 of the Turkish Penal Code is a general provision. In response to the crime of embezzlement specified in Article 5411 of the Banking Law, special regulations have been introduced regarding the crime of embezzlement involving the chairman and members of the bank’s board of directors and other members.
The content of Article 160/1 of Banking Law No. 5411, published in the Official Gazette dated November 1, 2005, is as follows:
“The chairman and members of the bank’s board of directors and other members shall be punished with imprisonment for a term of five thousand six to twelve years until the day they are punished by the court to cover the bank’s losses due to the embezzlement or protection and supervision of money or documents in lieu of money, securities or other goods that they have failed to perform their duties.”
One of the values constituting the subject of the crime is money. Furthermore, Article 198 of the New Turkish Penal Code No. 5237 states that bearer bonds, shares, debentures, and coupons issued by the state, as well as securities, debentures, gold jewelry, and documents legally issued and put into circulation by the competent authorities, are considered national currency. The term “other goods” in the article refers to any goods of economic value.
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Although it may be thought that only movable property can be the subject of the crime of embezzlement and that immovable property cannot be the subject of the crime of embezzlement, Article 247 of the New Turkish Criminal Code No. 5237, concerning the crime of embezzlement, states that “the subject of the crime of embezzlement is movable or immovable property” and accepts that the crime of embezzlement can also be committed with immovable property. Although the Banking Law No. 5411 does not clarify this issue, embezzlement can be discussed in the context of a bank member who has the authority to sell, lease, and use other real estate belonging to the bank.
Article 22/3 of Law No. 4389 states that for the crime of embezzlement to occur, the money or property embezzled by the bank employee must belong to the bank. Therefore, when making an assessment taking into account the period during which the relevant law was in force, as stated in Article 3, embezzlement will not be considered in relation to property belonging to individuals, even if they work at the bank.
The Banking Law No. 5411, which came into force after Law No. 4389, does not contain a condition that the value embezzled must belong to the bank. Therefore, if legal elements exist regarding whether the money embezzled by the bank employee belongs to the bank or to third parties, the crime of embezzlement occurs. What is important is that the money subject to the crime is under the supervision of the bank.
BK md 160/2
“If the crime was committed fraudulently to prevent the embezzlement from being discovered, the perpetrator shall be punished with at least twelve years’ imprisonment and a fine of up to twenty days; however, the amount of the fine shall not be less than three times the damage suffered by the bank. Furthermore, if the damage caused is not compensated, the court shall order you to pay compensation.”
If the crime was committed through fraudulent conduct intended to prevent the discovery of the embezzlement, it may be considered aggravated embezzlement. It is essential that the fraudulent act committed be aimed at preventing the embezzlement crime from being discovered. This is because, even if a fraudulent act has been committed, if this behavior is not deceptive in nature and the crime can be detected at first glance, it cannot be said that the crime of aggravated embezzlement exists. This is also the practice of the Supreme Court. That is;
“The subject of the case is receipt No. 845 Bimref No. 981672, which the expert report determined did not belong to the complainant. Bank officials investigate whether the forged signature in the bank records is at first glance his own. If it is understood at first glance that the forged signature does not belong to him and it is determined that there is no element of deception, this action is considered embezzlement through gambling. If it is understood that the forged signature does not belong to him and there is also a confession, he is tried for the crime of qualified embezzlement. A written judgment given without conducting a thorough investigation and examination in this regard is contrary to the law.”
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Regarding criminal liability, in cases of simple embezzlement, the defendant shall be sentenced to imprisonment for a term of six to twelve years and a fine of up to five thousand days. In cases of aggravated embezzlement, the defendant shall be sentenced to imprisonment for a term of at least twelve years and a fine of up to twenty thousand days. On the other hand, it is unlikely that the amount of the fine will be less than three times the damage suffered by the bank.
In the Banks Law, as in paragraphs 4 and 5 of Article 160 of Turkish Criminal Law No. 5237 concerning embezzlement, the case of “active repentance” is not regulated under a separate heading; instead, it is included between the paragraphs.
Accordingly, if, before the investigation into the crime of embezzlement begins, the person who committed the crime reports the situation to the competent authorities and returns the embezzled amount in full or fully compensates for the damage caused, the penalty to be imposed on them shall be reduced by two-thirds. It is irrelevant whether this payment is voluntary or not, or who makes it.
If the act of repentance occurs after the investigation has begun but before public prosecution is initiated, the penalty is reduced by half; if it occurs before public prosecution is initiated, the penalty is reduced by one-third. However, payments made at this stage must be voluntary. Therefore, for example, if the damage is compensated through enforcement, it is not possible to benefit from the provisions on act of repentance.
The following decisions of the 5th Criminal Chamber of the High Court also state that repayment is sufficient to benefit from the provisions of effective repentance:
“Considering that the payment of the principal amount embezzled, excluding interest, is sufficient for the application of restitution provisions, the rights of defendants who are understood to have made payments in relation to the principal amount must be determined by establishing the exact payment dates under Article 202/3 of the Turkish Penal Code; failure to apply this article is contrary to the law.”
Furthermore, in accordance with Law No. BKm162, the Banking Regulation and Supervision Agency or the Deposit Insurance Fund must submit a written application to the Chief Public Prosecutor’s Office for the investigation and prosecution of crimes committed. Unless this condition is met, an investigation cannot be initiated.