Supreme Court Decision On Invoice Fraud
Republic of Turkey
Supreme Court of Appeals
11th Criminal Chamber
Case No.: 2011/1769
Decision No.: 2012/13015
Date: July 2, 2012
1- In the public prosecution case against the defendants, alleging that they committed the crime of forgery of official documents by using false invoices to show a value lower than the actual value of the fabrics they imported from abroad with import declarations on the date of the crime, in order to pay less customs duty and value-added tax than the import transactions; in order to establish the facts beyond any doubt; to determine whether the customs entry declarations related to the crime accurately reflect the real value of the imported goods and, accordingly, whether the invoices attached thereto are forged, the copies of the invoices remaining with the seller company regarding the imported goods shall be examined to determine whether they are consistent with the invoices attached to the customs entry declarations in terms of date, number, quantity, and amount, with the invoices attached to the customs entry declarations; whether these imports were declared to the Customs and Tax Authorities in the seller company’s country; if so, how and in what amount they were declared; and whether the company that carried out the export and the relevant Customs Authority and South Korean Embassy in Turkey ‘s relevant Customs Administration and the Turkish Embassy in South Korea, and accordingly, whether there is a difference in number and value between the goods actually imported and the goods declared to the Customs Administration, whether there was any under-declaration or tax loss, or whether the aforementioned invoices were entirely fabricated by the defendants. Considering that a case file numbered 2002/191 has been opened at the Bakırköy 1st Heavy Penal Court for the crime of violating the Smuggling Law in relation to the same incident, The case file opened at the Criminal Court of First Instance shall be obtained and its summary shall be included in the trial minutes, certified copies of the evidence relevant to this case shall be submitted to the file, and certified copies of the Customs Inspectorate report shall also be obtained. The division of authority within the company with regard to the defendants should be investigated, all evidence gathered and the concrete facts in the investigation report should be evaluated together, and if necessary, a new expert report should be obtained. The legal status of the defendants should be determined based on the outcome, without considering the fact that the decision was made in writing based on an incomplete investigation.
2- Accordingly;
Although the penalty for forgery of official documents is imprisonment from 2 to 8 years under Article 342/1 of the Turkish Penal Code No. 765 and imprisonment from 2 to 5 years under Article 204/1 of the Turkish Penal Code No. 5237, if the basic penalty is determined at the lower limit, Article 53 of the Turkish Penal Code No. 5237 stipulates that security measures shall be applied as a legal consequence of imprisonment, and since these measures are not found in Law No. 765, and pursuant to Articles 6 and 95 of Law No. 647, Article 95 of the Turkish Penal Code, if no crime is committed during the probation period, the conviction shall be deemed not to have occurred. Therefore, the decision should be rendered in writing without considering the consequences of Turkish Penal Code No. 5237 against the defendants.
3- Although it was accepted by the court that invoices were issued with customs entry declarations on multiple occasions on different dates, the penalties should have been increased in accordance with the provisions on consecutive offenses, but this was not taken into account.
4- Despite the decision to defer the sentence imposed on the defendants pursuant to Article 51 of the Turkish Criminal Code No. 5237, the same decision was in force on the date of the ruling and was published in the Official Gazette No. 26781 dated 08.02.2008 and entered into force on the same day, and which resulted in a favorable outcome for the defendants, pursuant to Article 231 of the Code of Criminal Procedure No. 5271, as amended by Article 562 of Law No. 5728, without evaluating and discussing whether the conditions listed in Article 231/5 of the CCP were met in this case, and deciding not to apply Article 231 of the CCP in writing with insufficient justification on the grounds that the sentence was suspended,
is contrary to the law. The appeals of the defendants’ counsel and the representative of the participant are therefore deemed valid. For these reasons, the judgment is REVERSED pursuant to Article 321 of the Code of Criminal Procedure No. 1412, which must be applied in accordance with Article 8/1 of Law No. 5320. It was unanimously decided on July 2, 2012.