Abuse Of Trust Due To Service
TC.
Supreme Court
15th Criminal Chamber
Principal No :2013/6703
Decision No :2014/21867
K. Date :
Notification No: 15 – 2011/321452
COURT : Eskişehir 5th Criminal Court of First Instance
DATE: 08/12/2010
NUMBER : 2010/81 (E) and 2010/890 (K)
CRIME : Abuse of trust due to service
The file was examined and considered;
In order for the crime of abuse of trust to occur; the perpetrator must be in possession of a property, the property must be entrusted and delivered to the perpetrator with consent to be returned or used in a certain way, the perpetrator must benefit himself or someone else by selling, pledging, consuming, changing or spoiling the property given to him as if he is the owner of the property he is in possession of, or by denying the fact of transfer.
The defendant works as a public accountant and financial advisor and operates in Eskişehir, the follow-up of the accounting affairs of … Foreign Trade A.Ş. was given to the defendant by S.. B…, the company delivered 1.000 TL money to the defendant for the payment of the 2007-2008 tax declaration, fees and stamps, but the defendant did not make any payment to the tax office and transferred the money to his own account, thus allegedly committing the crime of abuse of trust due to service; In the concrete case; Among the duties of Independent Accountants specified in Article 2 of Law No. 3568. Article 2 of Law No. 3568 does not include depositing tax debts, and Article 1 of the Circular No. 1996/1 published in the Official Gazette dated 26.01.1996 regarding the Compulsory Professional Decisions of the Union of Chambers of Certified Public Accountants and Certified Public Accountants of Turkey. According to the provision in the article that “members of the profession cannot receive financial values under any name to make payments to third parties on behalf of the customer”, in the face of the allegation and acceptance that the defendant, who is the accountant of the kiosk operated by the participant, did not deposit the 450 TL received by the participant to deposit the tax debts of the participant to the relevant places and used it for himself, his action is not related to his duty, and the prosecution of which is subject to complaint as regulated in Article 155/1 of the TPC No. 5237 in force on the date of the crime will constitute the crime of “abuse of trust”. Article 155/1 of the TPC No. 5237 in force on the date of the crime; in terms of determining the truth in a way that leaves no room for doubt, determining whether the participant was a partner and authorized person of the company in question on the date of the incident, and whether he had the right to complain in this context, and then determining and appreciating the legal status of the defendant, but ruling his conviction in writing with incomplete examination and research,
According to the acceptance
1- Although the imprisonment sentence was determined from the lower limit, without showing sufficient and legal justification when determining the judicial fine, determining the number of full days by moving away from the minimum limit with the same justification and assigning excessive punishment to the defendants,
2- According to Article 52/4 of the Turkish Penal Code No. 5237; “in the decision, it is decided to pay the fine in four equal installments and the installment interval is not clearly indicated,
3- Ruling the application of security measures in accordance with Article 53/1-c to cover persons other than his/her descendants, without considering that the deprivation of rights related to the deprivation of rights related to the deprivation of a service of custody, guardianship and trusteeship only for his/her own descendants from the rights specified in subparagraph c of paragraph 1 of Article 53 of the Law No. 5237 shall not be applied from the date of conditional release according to paragraph 3 of the same article,
Since it required to be reversed and the appellate objections of the defendant’s defense were deemed appropriate for these reasons, it was decided unanimously on 23/12/2014 that the verdict be reversed in accordance with Article 321 of the Code of Criminal Procedure, which should be applied in accordance with Article 8 of the Law No. 5320.