THE CRIME OF ABUSE OF TRUST: A COMPREHENSIVE ASSESSMENT

Entrance

This report aims to provide a comprehensive, consistent and informative answer to the questions posed by the user, "What is the crime of breach of trust, what is its penalty, what are the reasons that increase and decrease the penalty, what are the points to be considered during the trial?" in the light of the information obtained from the decisions of the Supreme Court of Appeals. The report will examine the definition of the crime, its legal basis, penal sanctions, factors affecting the penalty and important points that emerged during the trial process.

Main Findings

1. Definition of the Crime of Abuse of Trust

The crime of breach of trust can be generally defined as the use, consumption, sale, transfer or retention of a property that has been transferred to a person or that he is responsible for managing, for his own benefit or for the benefit of another person, in a manner contrary to the purpose of transfer or management. In the decisions of the Supreme Court, this crime is evaluated within the scope of Article 155 of the Turkish Penal Code (TCK).

Simple Abuse of Trust (TCK 155/1): This is the basic form of the crime. In the decision of the 15th Criminal Chamber of the Supreme Court of Appeals (2017/36370 E., 2021/178 K.), this situation has been defined as "simple abuse of trust". As an example, in the decision numbered 2018/5068 E., 2019/6951 K. of the 15th Criminal Chamber of the Supreme Court of Appeals, the action alleged that "the participant received 128,605.53 TL from him to make the tax payments, paid 44,941.55 TL for tax transactions and kept the remaining 83,668.98 TL in his possession" is a claim that can be evaluated within this scope.
Qualified Abuse of Trust (TCK 155/2): This is the qualified form of the crime that requires a more severe penalty if it is committed regarding property entrusted or delivered as a requirement of a professional and artistic, commercial or service relationship or the authority to manage someone else's property.
- In the decision of the 11th Criminal Chamber of the Supreme Court of Appeals (2022/7452 E., 2023/3583 K.), it was stated that "the defendant did not pick up the participant's vehicle from the parking lot by proxy and did not return it" and that this situation constituted the crime of "abuse of trust due to service" because "there was a service relationship established based on the defendant's profession as a vehicle repairer".
- In the decision of the 12th Criminal Chamber of the Supreme Court of Appeals (2016/5189 E., 2016/10117 K.), it was stated that "the participant leaving his car in the parking lot operated by the defendant for parking purposes and the defendant taking this car without permission and using it and causing an accident" constituted the "crime of abuse of trust due to service".
- In the decision of the 23rd Criminal Chamber of the Supreme Court of Appeals (2015/20395 E., 2016/204 K.), TCK Article 155/2 was clearly mentioned and it was stated that the qualified case will occur "in case the crime is committed regarding the goods entrusted and delivered as a requirement of the professional and artistic, commercial or service relationship or the authority to manage the goods of another person, regardless of the reason arising from it".

2. Penalty for the Crime of Breach of Trust

Simple Abuse of Trust (TCK 155/1): As stated in the decisions of the 15th Criminal Chamber of the Supreme Court of Appeals numbered 2017/36370 E., 2021/178 K. and 2020/11336 E., 2021/2779 K., the penalty for this crime is "imprisonment from six months to two years and a judicial fine " .
Qualified Abuse of Trust (TCK 155/2): As stated in the decision numbered 2015/20395 E., 2016/204 K. of the 23rd Criminal Chamber of the Supreme Court of Appeals, "a sentence of imprisonment from one to seven years and a judicial fine of up to three thousand days shall be imposed."

In the decisions, it is seen that provisions such as Article 50 (alternative sanctions to short-term imprisonment), Article 51 (suspension of imprisonment), Article 52 (judicial fine) and Article 53 (deprivation of certain rights) of the Turkish Penal Code are also applied.

3. Factors Increasing the Penalty

Committed Due to Service, Profession, Trade or Administrative Authority (TCK 155/2): This situation increases the basic penalty amount by creating a qualified form of the crime. In the decision of the 11th Criminal Chamber of the Supreme Court of Appeals (2022/7452 E., 2023/3583 K.), it is understood that the Regional Court of Justice "increased the penalty by taking into account the service relationship."
Chain Crime (TCK 43): It is stated in the decision numbered 2015/12328 E., 2018/6595 K. of the 15th Criminal Chamber of the Supreme Court of Appeals that the provisions of chain crimes should be applied in the event that the defendant "has gained an unjust benefit by violating the same provision of the Law more than once at different times with the decision to commit the same crime". Again, in the decision numbered 2017/3817 E., 2017/9998 K. of the 15th Criminal Chamber of the Supreme Court of Appeals, reference was made to TCK 43/1.
Repetition (TCK 58): If the defendant has a final conviction for a crime he has committed before, the provisions for repetition may be applied and the sentence may be increased ( Example : 23rd Criminal Chamber of the Supreme Court of Appeals, 2016/10579 E., 2016/8781 K.).
Committing the Crime Against More Than One Person in a Single Act (TCK 43/2): In the decision numbered 2015/17860 E., 2016/1653 K. of the 23rd Criminal Chamber of the Supreme Court of Appeals, "the failure to apply Article 43/2 of the TCK despite the defendant committing the crime against more than one person in a single act" was listed as a reason for reversal.

4. Reasons that reduce or eliminate the penalty

Effective Remorse (TCK 168): If the perpetrator shows remorse after the crime and compensates the victim for the damage, his/her sentence may be reduced. In the decision numbered 2016/5054 E., 2016/4244 K. of the 23rd Criminal Chamber of the Supreme Court of Appeals, it was emphasized that "if the victim's damage is compensated before the prosecution begins, up to two-thirds of the sentence to be imposed should be reduced." The defendant's compensation for the damage during the investigation phase is within this scope. The decision numbered 2018/332 E., 2018/1035 K. of the 15th Criminal Chamber of the Supreme Court of Appeals also states that the provisions of effective remorse may be applied.
Reconciliation (CMK 253, 254): The crime of breach of trust (both simple and, according to some Court of Cassation decisions, the one due to service) is within the scope of reconciliation. Court of Cassation decisions frequently emphasize that "the necessary should be done for reconciliation procedures in accordance with Articles 253 and 254 of Law No. 5271, amended by Article 34 of Law No. 6763, and the legal situation of the defendant should be evaluated according to the result" ( Ex : Court of Cassation 11th Criminal Chamber 2021/38712 E., 2023/255 K.; Court of Cassation 15th Criminal Chamber 2014/13749 E., 2017/694 K.). If reconciliation is reached, the case may be dismissed. In the decision numbered 2018/7790 E., 2020/6463 K. of the 15th Criminal Chamber of the Supreme Court of Appeals, it was stated that a settlement would be deemed to have been reached by compensating the damages and that "a decision of striking out" should be given.
Simple Trial Procedure (CMK 251): It is a procedure that came to the agenda after the annulment decisions of the Constitutional Court and can yield results in favor of the defendant. In the decision numbered 2017/36370 E., 2021/178 K. of the 15th Criminal Chamber of the Supreme Court of Appeals, it was stated that "When the simple trial procedure is applied, the resulting penalty is reduced by one fourth" and the necessity of evaluating this procedure was stated.
Discretionary Reasons for Reduction (TCK 62): The court may reduce the sentence by taking into account the discretionary reasons for reduction in favor of the offender, such as his/her past, social relations, behavior after the act and during the trial (Many decisions refer to TCK 62).
Reasons for Personal Impunity or Sentence Reduction (TCK 167): Situations such as kinship between the perpetrator and the victim may be reasons for impunity or sentence reduction. In the decision numbered 2022/1057 E., 2024/5876 K. of the 11th Criminal Chamber of the Supreme Court of Appeals, "the failure to consider the necessity of reducing the sentence imposed on the defendant in the crime of breach of trust against a sibling who does not live together in the same residence" was criticized.
Statute of Limitations (TCK 66, 67): If the statute of limitations of the case or the penalty expires, it is decided that the public lawsuit is dismissed or the penalty cannot be executed ( Example : Court of Cassation 11th Criminal Chamber 2021/38712 E., 2023/255 K.; Court of Cassation 15th Criminal Chamber 2017/3580 E., 2019/1392 K.).

5. Matters to be Considered in the Trial

Correct Determination of Criminal Nature: It must be meticulously determined whether the action is simple abuse of trust (TCK 155/1), qualified abuse of trust (TCK 155/2), or whether it constitutes another crime such as theft (Court of Cassation 15th Criminal Chamber 2020/7286 E., 2021/1241 K.: "the fact that the possession of the phone that is the subject of the crime was not transferred to the defendant... the action may constitute the crime of theft at night"), misuse of a bank or credit card (Court of Cassation 15th Criminal Chamber 2015/12328 E., 2018/6595 K.: "the defendant's action actually constitutes the crime of 'misuse of a bank or credit card' (TCK 245/1)").
Sufficiency and Evaluation of Evidence: For a conviction , it is necessary to have "concrete evidence that is clear, convincing and definitive, beyond all doubt" (Court of Cassation, 15th Criminal Chamber, 2018/5068 E., 2019/6951 K.). It is important to collect the evidence and discuss it in a reasoned decision, and to determine that the act was committed by the defendant (Court of Cassation, 11th Criminal Chamber, 2022/7452 E., 2023/3583 K.).
Application of the Conciliation Procedure: Since the crime is within the scope of conciliation, it is mandatory to first conduct conciliation procedures and evaluate the legal situation of the defendant according to the results. Many Supreme Court decisions have been overturned due to non-compliance with this provision.
Evaluation of Simple Trial Procedure: Especially in the light of the Constitutional Court decisions, the necessity of evaluating the file in terms of "Simple Trial Procedure" has been emphasized in many decisions.
Existence of Service Relationship: In order for the qualified case to be applied, it is important to determine whether there is a "service relationship" between the defendant and the victim (Court of Cassation 11th Criminal Chamber 2022/7452 E., 2023/3583 K.).
Statute of Limitations: Taking into account the statute of limitations of the lawsuit and the penalty may result in the dismissal of the trial.
Compliance with Effective Repentance Provisions: It should be investigated whether the victim's damage has been compensated and the conditions of Article 168 of the Turkish Penal Code should be evaluated.
Prohibition of Unfavorable Change (TCCP 326/last): This principle, which is in favor of the defendant, must be observed (Court of Cassation 23rd Criminal Chamber 2016/10579 E., 2016/8781 K.).
Accuracy of the Decision Based on Repetition: In case of recurrence , it is important to correctly determine the verdict that will be used as the basis for recurrence.
Justification in Determining the Judicial Fine: As stated in the decision numbered 2017/17074 E., 2017/10251 K. of the 15th Criminal Chamber of the Supreme Court of Appeals, "although there is no obligation that the judicial fine should also be determined from the lower limit in case the prison sentence is determined from the lower limit , it is important that the justifications for this are stated and the justifications based on them must be legal and consistent with the content of the file."
Favorable Application of Law: In case of amendments to the law, the favorable ruling should be determined by comparing all the provisions of the previous and subsequent laws by applying them to the case; "mixed application" should not be made (Court of Cassation 15th Criminal Chamber 2014/987 E., 2014/3246 K.).
Consideration of Constitutional Court Decisions: The effects of the Constitutional Court's annulment decisions on matters such as TCK Article 53 (deprivation of the use of certain rights) and CMK Article 251 (simple trial procedure) should be evaluated.

Examination

When the decisions of the Court of Cassation are examined, it is seen that several basic points are constantly emphasized in the prosecution of the crime of breach of trust. The first of these is the correct qualification of the crime . Whether the action is simple breach of trust, qualified breach of trust for reasons such as service, or constitutes a completely different type of crime (e.g. theft, fraud, misuse of a bank or credit card), the status of the perpetrator and the victim, and the method of transfer of possession should be meticulously determined by taking into account factors such as. For example, in the decision numbered 2020/7286 E., 2021/1241 K. of the 15th Criminal Chamber of the Court of Cassation, it was stated that the action could be theft because "the possession of the phone in question was not transferred to the defendant", and in the decision numbered 2015/12328 E., 2018/6595 K. of the 15th Criminal Chamber of the Court of Cassation, it was stated that using a credit card for purposes other than its intended purpose could constitute the crime of "misuse of a bank or credit card". This distinction is of critical importance in terms of the amount of punishment to be applied and the trial procedure.

the conciliation institution as a priority, especially after the changes made by Law No. 6763. The Court of Cassation has considered the rendering of a verdict without applying the conciliation procedure as a reason for reversal in its numerous decisions. This situation brings the possibility of compensating the victim and reaching an agreement between the perpetrator and the victim to the center of criminal proceedings.

Thirdly, the applicability of the provisions of effective repentance (TCK 168) is another element that should be carefully evaluated in the trials, especially since it provides significant reductions in the sentence if the damage is remedied. In the decision numbered 2016/5054 E., 2016/4244 K. of the 23rd Criminal Chamber of the Supreme Court of Appeals, it is clearly stated that "up to two-thirds of the sentence should be reduced if the damage to the victim is remedied before the prosecution begins."

Finally, it is frequently emphasized that the legal situation of the defendant should be re-evaluated in the light of favorable regulations in line with the various annulment decisions of the Constitutional Court and legislative changes (e.g. "simple trial procedure"). As stated in the decision numbered 2017/36370 E., 2021/178 K. of the 15th Criminal Chamber of the Supreme Court of Appeals, when the simple trial procedure is applied, a "one-fourth reduction" in the final sentence produces a significant result in favor of the defendant.

The certainty of evidence, the standard of "concrete evidence that is beyond all doubt, definite and convincing" (Court of Cassation 15th Criminal Chamber 2018/5068 E., 2019/6951 K.) and the due process of the trial proceedings are other fundamental principles that the Court of Cassation emphasizes.

Conclusion

The crime of breach of trust is a property crime, regulated in its simple and qualified forms in Article 155 of the Turkish Penal Code, and characterized by the offender's violation of the trust placed in him and his actions on the transferred property contrary to the purpose of the transfer. The penalty varies according to the simple or qualified forms of the crime and includes imprisonment and a judicial fine.

While the reasons that increase the penalty include committing the crime for reasons such as service, profession, trade (qualifying case), serial crime and repetition; the reasons that reduce or eliminate the penalty include effective remorse, reconciliation, simple trial procedure, discretionary reductions, personal impunity or reduction reasons and statute of limitations.

In the trial, it is of great importance to correctly determine the nature of the crime, to be certain of the evidence, to evaluate the conciliation and simple trial procedures first, to observe the provisions of effective repentance, to follow the statute of limitations and to take into account the decisions of the Constitutional Court. The decisions of the Court of Cassation show that failure to comply with these issues is often a reason for reversal. Therefore, each concrete case related to the crime of abuse of trust should be meticulously examined in line with this legal framework and judicial precedents.

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