Banking Law No. 5411 On The Crime Of Embezzlement
In contrast to the offense of embezzlement listed in Article 247 of the Turkish Criminal Code, which is a general provision, the Banking Law No. 5411 has introduced special regulations regarding the offense of embezzlement involving the chairman and members of the board of directors and other members of the bank.
Article 160/1 of the Banking Law No. 5411 published in the Official Gazette dated 01.11.2005;
“The chairman and members of the board of directors and other members of the board of directors and other members of the bank who embezzle money or money substitute documents or securities or other assets, the possession of which has been transferred to them due to their duties or which they are obliged to protect and supervise, shall be sentenced to imprisonment from six to twelve years and a judicial fine up to five thousand days, and shall be sentenced to compensate for the damage suffered by the bank.”
One of the values that constitute the subject of the crime is money. In addition, Article 198 of the New Turkish Penal Code No. 5237 states that bills, stocks, bonds and coupons issued by the state and written to bearer, bills, bonds and documents issued by authorized institutions and circulated by law, and national jewelry gold are also considered as money. The concept of “other goods” in the article refers to all kinds of goods with economic value. Although it is thought that only movable goods can constitute the subject of embezzlement and that immovable goods cannot constitute the subject of the crime of embezzlement, in the justification of Article 247 of the New Turkish Criminal Code No. 5237 regarding the crime of embezzlement, it is accepted that the crime of embezzlement can also occur in terms of immovable goods with the regulation “The subject of the crime of embezzlement is movable or immovable goods”. Although the Banking Law No. 5411 is not clear on this issue, it is possible to talk about the crime of embezzlement in terms of a bank member who is authorized to sell, lease and make other disposals of an immovable property belonging to the bank.
Article 22/3 of the abrogated Law No. 4389 stipulates that the money or property embezzled by the bank employee must belong to the bank in order to be subject to the crime of embezzlement. For this reason, when the evaluation is made in terms of the period when the relevant law was in force; the offense of embezzlement cannot be mentioned in terms of the goods belonging to third parties although they are in the custody of the bank.
In the Banking Law No. 5411, which entered into force after the Law No. 4389, there is no requirement that the embezzled value belongs to the bank. For this reason, whether the money embezzled by the bank employee belongs to the bank or to third parties, the crime of embezzlement occurs if the legal elements are formed. What is important is that the subject of the offense is present in the bank.
Article 160/2 of B.K.
“If the offense is committed by fraudulent behavior to ensure that the embezzlement is not revealed, the perpetrator shall be sentenced to imprisonment for a term not less than twelve years and a judicial fine up to twenty thousand days; however, the amount of the judicial fine shall not be less than three times the loss incurred by the bank. In addition, if the damage is not paid, the court shall order the bank to pay it ex officio.”
In the event that the crime is committed by fraudulent behavior to ensure that the embezzlement is not revealed, there is a qualified embezzlement. It is mandatory that the fraudulent behavior must be suitable to ensure that the embezzlement crime is not revealed. Because, even if a fraudulent behavior has been committed, if this behavior does not have a deceptive nature, and if the crime can be detected at first glance, then it is not possible to talk about the existence of a qualified embezzlement crime. This is also the practice of the Court of Cassation. As follows;
“By investigating whether the signature on the disbursement receipt numbered 981672 and numbered 845 Bimref, which is the subject of the case, which is determined by the expert report that it does not belong to the complainant, and whether the applied signature belonging to the depositor in the bank records is understandable whether it belongs to the depositor at first glance by the bank officials, In the event that it is understood at first glance that the forged signature on the disbursement receipt does not belong to the depositor, the act will constitute the crime of ordinary embezzlement, and in the event that it cannot be understood, it will constitute the crime of qualified embezzlement with the acceptance that the element of deception is present, it is against the law to establish a written judgment as a result of incomplete investigation without examining this issue. ”
In the case of simple embezzlement, the defendant shall be sentenced to imprisonment from six to twelve years and a judicial fine up to five thousand days. In case of qualified embezzlement, the defendant shall be sentenced to imprisonment for a term not less than twelve years and a judicial fine up to twenty thousand days. On the other hand, the amount of the judicial fine cannot be less than three times the amount of the loss incurred by the bank.
In the Banking Law, “Effective Repentance” is not regulated under a separate heading as in the Turkish Penal Code No. 5237, but is included in paragraphs 4 and 5 of Article 160 on the crime of embezzlement.
Accordingly, if the person who committed the act informs the competent authorities of the situation before the investigation for the crime of embezzlement begins and returns the embezzled value in full or fully compensates the damage suffered, the penalty to be imposed on him will be reduced by two-thirds. For this, it does not matter whether the payment is voluntary or not, or by whom it is made.
If the effective remorse is realized after the initiation of the investigation but before the opening of the public case, the penalty to be imposed will be reduced by half, and if it is realized after the opening of the public case but before the verdict is given, it will be reduced by one third. However, the payments made at this stage must be voluntary. For this reason, for example, if the damage is compensated through forced execution, it is not possible to benefit from the provisions of effective remorse.
The following decisions of the 5th Criminal Chamber of the Court of Cassation also state that restitution in kind is sufficient to benefit from the effective remorse provisions:
“Considering that the payment of the principal amount of embezzlement, excluding interest, is sufficient for the application of the restitution provisions, it is contrary to the law not to apply Article 202/3 of the TPC by determining the exact payment dates of the defendants who are understood to have paid in proportion to the principal.
Furthermore, pursuant to Article 162 of the B.K., in order to initiate an investigation and prosecution for offenses under this law, the Banking Regulation and Supervision Agency or the Savings Deposit Insurance Fund must apply in writing to the Chief Public Prosecutor’s Office. An investigation cannot be initiated before this condition is met.