The Crime Of Forgery Of Official Documents – The Element Of Fraud
Republic of Turkey
Supreme Court of Appeals
11th Criminal Chamber
Case No. 2018/1686
Decision No. 2018/1857
Date: March 1, 2018
* THE CRIME OF FORGERY OF AN OFFICIAL DOCUMENT (Where the Document Constituting the Subject Matter of the Crime Is a Writing on a Portable Object That Serves to Prove a Legal Fact – The Presence of Written Paper Is Not Mandatory for the Existence of a Document; Since a Document Can Be Considered Such Even If Writing Is on a Metal Plate Provided Other Elements Are Present, Vehicle License Plates Must Also Be Recognized as Official Documents)
* FAKE LICENSE PLATE (The Forensic Report from the Criminal Police Laboratory states that no cold stamp marks were found on the fake license plate in question – According to Article 30 of the Highway Traffic Regulations, the seals of both the registration authority that processed the license plate and the entity that printed the plate must be present – For the license plate in question to qualify as an official document, it must bear a seal)
* ELEMENT OF FRAUD (In cases of forgery of documents, the determination of whether the element of fraud is present rests with the judge) – While the characteristics of the license plate alleged to be counterfeit should have been recorded in the minutes by having it brought to court for examination, and its legal elements and the presence or absence of the element of deception should have been discussed accordingly and included in the case file, rendering a decision based on an incomplete examination was erroneous)
5237/Art. 204
SUMMARY: The case concerns the crime of forgery of an official document.
The expert report from the Criminal Police Laboratory states that no cold stamp marks were found on the counterfeit license plate in question. According to Article 30 of the Highway Traffic Regulation in effect at the time of the crime: which mandates that registration plates must bear the seals of both the registration authority and the entity responsible for printing the plate, and given that the presence of a seal is essential for the plate in question to qualify as an official document, and considering that the determination of whether the element of deception exists in forgery offenses is within the judge’s discretion, the plate alleged to be counterfeit should have been brought to the hearing for examination, its characteristics recorded in the minutes, and its legal elements and the presence or absence of the element of deception properly debated to allow for review; however, rendering a written decision based on an incomplete examination is erroneous.
CASE: 1-) The document constituting the subject matter of the crime of forgery in an official document is a written statement on a portable medium that serves to prove a legal event; as stated in the rationale of Article 204 of the Turkish Penal Code No. 5237, the existence of the document does not require the presence of a written paper; and that even if the writing is on a metal plate, a document may still be considered as such provided the other elements are present; consequently, vehicle license plates must also be accepted as official documents. Therefore, in the expert report dated January 22, 2009, issued by the Kayseri Criminal Police Laboratory, the absence of any cold seal impression on the counterfeit license plate in question was noted; pursuant to Article 30 of the Highway Traffic Regulation published in the Official Gazette No. 23053 dated July 18, 1997, which was in effect at the time of the crime; it is stipulated that registration plates must bear the seals of both the registration authority that performed the registration and the entity that produced the plate; and given that the presence of a seal is mandatory for the plate in question to qualify as an official document, and considering that the determination of whether the element of deception exists in forgery offenses involving documents rests with the judge, the plate alleged to be counterfeit should have been brought to the hearing for examination, its characteristics recorded in the minutes, and its legal elements and the presence or absence of the element of deception properly debated to allow for review, yet a written decision was rendered based on an incomplete examination,
2-) According to the acceptance and application;
there is a necessity to reassess the application of Article 53 of the Turkish Penal Code No. 5237 in light of the Constitutional Court’s decision dated October 8, 2015, Case No. 2014/140, Decision No. 2015/85,
CONCLUSION: This warrants reversal, and since the defendant’s appeals are deemed valid for this reason, the judgment is hereby SET ASIDE in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which must be applied pursuant to Article 8/1 of Law No. 5320, as requested. This decision was rendered unanimously on March 1, 2018.