The offense of abuse of trust is regulated under the section of offenses against property in Article 155 of the Turkish Penal Code No. 5237; it is a crime type that penalizes the abuse of trust established between individuals within the framework of a contractual relationship. In this study, the legal value protected by the crime, material elements (subject matter of the crime, perpetrator, victim, act), mental element, element of unlawfulness, qualified form of the crime, features regarding culpability, personal grounds affecting the penalty (TCK Art. 167 and Art. 168), and special forms of appearance (attempt, participation, concourse) are addressed respectively. Furthermore, the discussion in the doctrine regarding the scope of the phrase “disposing outside the purpose of the transfer of possession”, which constitutes the element of the act, is included, and the differences of the crime from the offenses of theft, fraud, and embezzlement are touched upon.
I. INTRODUCTION
One of the fundamental duties of criminal law is to protect certain values that are necessary for the functioning of social life. Offenses relating to the property order constitute the widest area of application of this protection; however, modern economic life is established upon a network of relationships too complex to be content merely with the protection of ownership. In legal relationships encountered almost every day, such as rental, transportation, attorney/agency, and bailment/custody, one party delivers their property to the other party for a specific purpose and acts with the trust that this property will not be used outside the agreed purpose. The unlawfulness that arises when the said trust is abused by the person receiving the property is regulated as a crime under the name of “abuse of trust” in Article 155 of the Turkish Penal Code (TCK) No. 5237. Also referred to as “breach of trust” (emniyeti suistimal) in doctrine and former legislation, this crime type frequently requires recourse to private law institutions (possession, ownership, disposition transaction) in clarifying its elements, and is a crime with an intensity of controversial issues in practice and doctrine.
II. LEGAL VALUE PROTECTED BY THE CRIME
Correct interpretation of the elements of a crime type depends largely on a healthy determination of the legal value sought to be protected by that crime. In the offense of abuse of trust, this determination serves a decisive function, particularly in drawing the boundaries of the act element, as will be discussed below. According to the dominant view in doctrine, the legal value protected by this crime does not consist of a single element. In addition to the right of ownership, the relationship of trust established between the parties through contracts concluded also falls under the scope of protection of the criminal norm; some authors add possession to this duo, arguing that the crime also penalizes attacks directed against possession.
However, in doctrine, a view originating particularly from German law brings a critical perspective to this approach and defends that the sole legal value protected by the crime is ownership. The main cornerstone of this view is that the perpetrator of the offense of abuse of trust already carries the title of a legitimate possessor at the moment they commit the act. Since the perpetrator is a possessor by trust over the property subject to the crime, stating that they violate the value of “possession” through their own acts contains an internal contradiction—as it means the same person is in the position of both the perpetrator and the victim with respect to this value. The same criticism is also directed at the view that the relationship of trust between individuals is considered an independent protected value: Every contractual relationship is already based on a minimum element of trust; yet, the duty of criminal law is not merely to penalize contractual breaches. Due to the secondary (ultima ratio) nature of criminal law, it cannot be said that every breach of trust between individuals must be countered with a criminal norm; rectifying behavior contrary to a contract falls, as a rule, within the realm of private law, particularly the law of damages.
That this theoretical distinction does not consist of an abstract discussion will materialize in the interpretation of the concept of “exercising disposition”, which will be addressed below under the title of the act element: When it is accepted that the sole protected value is ownership, the boundary of typicality is narrowed to acts that legally restrict or eliminate the owner’s right of ownership; conversely, when the view that possession and the relationship of trust are also protected is adopted, a much broader group of behaviors exceeding the authority of the possessor can enter the scope of typicality.
III. MATERIAL ELEMENTS OF THE CRIME
A. Subject Matter of the Crime
The first paragraph of TCK Art. 155 is as follows: “Any person who disposes of property belonging to another, which has been transferred to their possession for custody or to be used in a specific manner, outside the purpose of the transfer of possession, or who denies this fact of transfer, for their own benefit or for the benefit of another, shall be sentenced to imprisonment from six months to two years and a judicial fine, upon complaint.”
From this definition, the subject matter of the crime is “property”. Since the text of the law uses only the expression “property” rather than “movable property”, the subject matter of the crime is not limited to movable properties but also covers immovable properties. Although whether it is mandatory for something to have economic value to be considered a good/thing is controversial in doctrine, it is generally accepted that anything possessing a physical existence—no matter how small its value—can constitute the subject matter of this crime. Since the property subject to the crime must “belong to another”, joint owners or co-owners cannot commit this crime against each other regarding property subject to shared or joint ownership; for it is envisaged in the text of the article that the owner (full or shared) is protected under the title of victim of the crime and cannot be its perpetrator.
For the crime to occur, it is required that the possession of the property was transferred to the perpetrator on the basis of a valid legal relationship (contract). The type of contract is not important; named or unnamed contracts such as rental, loan, bailment/custody (vedia), transportation, and attorney/agency agreements can be the basis of this relationship. However, the contract must be valid, meaning the intent of the parties must not be impaired by reasons such as mistake, fraud, or duress; in the case of defect of intent, since a valid delivery relationship cannot be mentioned, the application of another crime such as fraud, theft, or robbery comes to the agenda according to the nature of the incident. Furthermore, it is also required that possession was transferred by the owner of the property themselves (or their authorized representative); if possession is acquired outside the owner’s consent or knowledge, not this crime, but another property crime (e.g., theft) occurs according to the characteristic of the event.
The purpose of the transfer is also important in terms of typicality: Possession must be left to the perpetrator for the purpose of preserving the property or using it in a specific manner. In cases where the delivered property is of a fungible nature—for instance, a sum of money given to be used in a specific job—since it is possible to return property of the same type and quantity, this matter may affect whether the crime occurs in the concrete event. Paying the price instead of a non-fungible property does not, as a rule, eliminate the occurrence of the crime; this situation can only be evaluated as a ground for sentence reduction within the framework of active repentance demonstrated subsequently.
B. Perpetrator
The perpetrator of the offense of abuse of trust is the person who holds possession of the property subject to the crime within the framework of a valid legal relationship, that is, the person who is a “possessor by trust” (emin sıfatıyla zilyet). In doctrine, whether this crime is a specific (mahsus) crime is controversial. According to one view, since the typicality of the crime can only be committed by the person in whose favor possession was established, this crime is specific in nature; as a result of this, persons participating in the act without having possession of the property can only be held responsible as instigators or accomplices within the framework of the rule of dependence in TCK Art. 40/2, and cannot acquire the title of perpetrator. According to another view, the crime displays no specialty regarding the perpetrator and carries the nature of a general crime that can be committed by anyone.
To be the perpetrator of this crime, it is accepted that the person must be in the position of “direct possessor” of the property. “Possessor assistants” (zilyet yardımcıları) who hold the property physically in their hands but do not carry an independent intent of possession on their own behalf (for example, a staff member using a piece of equipment temporarily delivered to them while working at a workplace) cannot be considered perpetrators of this crime; the unlawful dispositions of these persons over the relevant equipment constitute the crime of theft, since possession was never legally established.
The owner of the property cannot be the perpetrator of this crime either; for the right of ownership already grants the owner the widest authority to use, enjoy, and dispose over the property, and the statutory definition speaks only of dispositions over properties “belonging to another”. This principle also applies in cases where more than one person is a possessor: In cases where co-possessors also carry the title of co-owners, the act performed by one of them outside the consent of the other does not constitute this crime; the emerging dispute is resolved within the framework of private law rules. Conversely, if only one of the co-possessors carries the title of owner or if the property subject to the crime belongs to a third person, different conclusions can be reached according to the nature of the co-possession (joint possession or co-possession); for example, one of the joint possessors selling the property to a third person without the knowledge and consent of the other constitutes the crime of abuse of trust against the owner, while a separate crime of theft does not occur against the other joint possessor.
C. Victim
The victim of the crime is, as a rule, the owner of the property subject to the crime. If the owner and the person who personally transferred possession are the same, no difficulty is experienced in determining the victim. However, in cases where the person transferring possession is not the owner themselves, but transfers the possession they received from the owner to the perpetrator by their own intent (for example, a tenant transferring the rented property to someone else), whether this intermediate person transferring possession can also be considered a “victim” is controversial in doctrine. According to one view, this person should also be accepted as a victim. According to the view critical of this, a person who voluntarily transfers their possession to a third person has already lost the title of possessor at the moment of transfer, so considering this person a victim—since it relies on the premise that the protected value (from the perspective of this view) is possession—is inconsistent in itself; the person in question can only participate in the proceedings under the title of “person harmed by the crime”, while the main victim is the owner of the property.
D. Element of Action (Act)
Abuse of trust is regulated as a crime with alternative acts; two alternative acts are mentioned in the statutory definition: (i) denying the fact of the transfer of possession, and (ii) disposing outside the purpose of the transfer of possession.
Denying the fact of transfer is an alternative act that is subject to relatively less discussion in practice and doctrine. The perpetrator claiming that they never received the property delivered to them, or concealing the true reason for delivery and alleging that the property was given to them on another legal ground (for example, by way of donation or sale), are typical manifestations of this act.
The alternative act of the crime that creates the main difficulty, however, is “disposing outside the purpose of the transfer of possession”. How the phrase “disposing” (tasarrufta bulunma) here is to be interpreted—whether in its broad daily meaning (“performing any work or transaction”) or in its technical meaning in private law (“performing a disposition transaction”)—is a deep-seated subject of discussion in doctrine, and the answer to be given directly affects whether the crime occurs in concrete cases.
In practice and in the majority view of doctrine, this phrase is interpreted broadly; almost every act performed by the possessor over the property contrary to the owner’s intent and the purpose of the transfer of possession—such as using it outside its purpose, renting it out, or lending it, as much as selling it or pledging it—is evaluated within the scope of typicality.
Another view defended in doctrine asserts that this broad interpretation does not reconcile with the principle of subsidiarity of criminal law, and that the lawmaker consciously selected the phrase “to dispose” (tasarrufta bulunmak), which has a technical counterpart in private law. According to this view, a “disposition transaction” (tasarruf işlemi) is defined as transactions that directly alter, transfer to another person, or eliminate the content of a right or legal relationship (such as transfer of ownership, establishment of a pledge, creation of a limited real right); in contrast, transactions merely giving rise to obligations (of a commitment nature)—such as making a promise of sale or signing a lease agreement—are not considered disposition transactions.
To make this second view concrete, an example can be given as follows: A laptop computer lent to a person to be used in a single meeting being pledged to an acquaintance by this person or sold and its proceeds used against their own debt is a typical act of abuse of trust according to both the broad interpretation and the narrow/technical interpretation; because according to both views, a direct interference over the owner’s right of ownership has been carried out. Conversely, if the person who borrowed the same laptop uses the computer only by themselves, even though it is outside the purpose in the agreement, or lends it to another acquaintance for a few days without the owner’s knowledge, the crime will occur according to the view adopting the broad interpretation; whereas according to the view adopting the narrow/technical interpretation, since the owner’s right of ownership legally remains complete and recoverable (since the owner can always demand their computer back), typicality will not materialize, and the dispute will be resolved within the framework of private law rules.
Another issue connected with this discussion is whether acts directed at the physical-material structure of the property (consuming, destroying, or altering the quality of the property) can be evaluated within the scope of this crime. According to one view, since the authority of disposition of the right of ownership also covers consuming and destroying the property, these acts can be considered a disposition in the broad sense. According to the other view, since damage directed at the material existence of the property is separately secured under TCK Art. 151 regulating the crime of damage to property, the possessor spoiling, consuming, or transforming the property—so long as the fact of transfer is not denied—constitutes the crime of damage to property, not abuse of trust. Indeed, observing that the phrase “disposition” is also used in other crime types such as “Encroachment on Unlawful Places” (TCK Art. 154) and “Abuse of Custody Duty” (TCK Art. 289), and that the examples given in the justifications of these articles (such as selling, giving to another) point to disposition transactions in the technical sense, it is asserted that the lawmaker systematically used this phrase in the narrow/technical sense.
Consequently, this discussion regarding the scope of the phrase “disposing” is intertwined with the discussion on the protected legal value addressed above: When it is accepted that the sole protected value is ownership, typicality must be kept limited to disposition transactions in the narrow sense that legally restrict or eliminate the owner’s right of ownership; whereas when it is accepted that possession and the relationship of trust are also protected, the conclusion is reached that a much broader set of behaviors exceeding the authority of the possessor can enter the scope of typicality.
IV. MENTAL ELEMENT OF THE CRIME
Abuse of trust is a crime that can only be committed intentionally; committing it by negligence is not possible pursuant to statutory regulation. The phrase “for their own benefit or for the benefit of another” passing in the statutory definition requires that, alongside general intent, a specific purpose (motive) must also exist in the perpetrator for the crime to occur. However, this element of purpose does not stipulate that the perpetrator must have obtained a concrete and realized unlawful benefit; it is sufficient that they acted with the purpose of providing a benefit to themselves or someone else while disposing outside the purpose of the transfer of possession. Whether this benefit actually materializes or whether the victim suffers a concrete loss is not decisive for the completion of the crime.
V. ELEMENT OF UNLAWFULNESS
The ground of justification most emphasized regarding the offense of abuse of trust is the exercise of a right. In this context, the right of retention regulated in the Turkish Civil Code carries a special importance. The right of retention grants the creditor the authority to hold a movable belonging to the debtor in their own possession until the debt is paid and, when necessary, to convert this property into money. For this reason, the act of a person who holds property delivered to them to be returned based on the right of retention cannot be punished because a ground of justification exists.
The consent of the person concerned can also come to the agenda as a ground of justification for this crime. For example, a person who receives the possession of a property within the framework of a main contractual relationship transferring this possession to another person (such as a sub-tenant) to the extent permitted by the contract can be accepted as lawful to the extent it occurs within the consent of the other party to the main contract.
VI. QUALIFIED FORM OF THE CRIME (TCK Art. 155/2)
The second paragraph of TCK Art. 155 is as follows: “If the crime is committed regarding property entrusted and delivered pursuant to the requirements of a profession and art, trade or service relationship, or the authority to manage another’s property regardless of the reason from which it arose, imprisonment from one year to seven years and a judicial fine up to three thousand days shall be ruled.”
This provision regulates committing the crime within the framework of certain legal relationships as a reason aggravating the penalty. A profession and art relationship relates to property left to a person within the framework of an activity they continuously execute to earn their living, and for example, property left to a repairer or tailor for repair is evaluated in this context. A trade relationship covers relationships established between parties as a requirement of economic life that subject a swap of goods; here it is sufficient that the perpetrator acted for a commercial purpose, and carrying the title of merchant is not additionally sought. A service relationship points to a relationship that does not necessarily have to be continuous, but is established in return for a price or similar benefit; employment contracts and attorney/agency relationships are frequently shown as examples in this context. Finally, the authority to manage another’s property expresses a person being equipped with the authority to manage property values belonging to another, regardless of from which legal source this authority arose (contract, law, court decision); guardians, trustees, or persons appointed as attorneys to manage property are typical examples of this group.
For the qualified form to be applied, as in the basic form, it is required that the perpetrator does not carry the title of owner over the property subject to the crime; if the person given the management authority is at the same time one of the shared or joint owners of the property, this qualified form cannot be mentioned. The thought behind the lawmaker countering this situation with a heavier penalty is that a denser trust than ordinary is felt in social life toward persons carrying the listed titles, and therefore a direct causal link exists between the title of the perpetrator and the delivery made to them. In case the subject matter of the crime is a motor land, sea, or air vehicle, pursuant to TCK Art. 155/3, the specified penalties are applied by increasing them by one fold.
VII. CULPABILITY
General grounds affecting culpability (minority of age, mental illness, falling into mistake, etc.) can also find an area of application regarding the offense of abuse of trust. Among these, the state of necessity particularly draws attention. For example, the act of a person who is forced to consume a quantity of food delivered to them for custody to sustain their life, with no other way out, cannot be punished because they cannot be considered culpable due to the state of necessity, even though their act typically carries the material and mental elements of the crime.
VIII. PERSONAL GROUNDS FOR NON-PUNISHMENT AND REASON REQUIRING SENTENCE REDUCTION (TCK Art. 167)
The lawmaker regulated committing certain crimes against property (excluding robbery and qualified robbery) within the framework of certain close kinship relationships as a personal ground for non-punishment or sentence reduction under the provision of TCK Art. 167. According to this provision, regarding acts committed to the detriment of one of the spouses between whom no separation decision has been rendered, an ascendant or descendant (or in-laws of this degree, adopter or adoptee), or one of the siblings living together in the same residence, no penalty is ruled for the relevant relative. It must be emphasized that this regulation does not eliminate the crime quality of the act, but merely prevents the perpetrator from being punished. Conversely, in acts committed to the detriment of spouses between whom a separation decision has been rendered, siblings not living together, or other relatives of certain degrees living together (uncle, maternal uncle, paternal aunt, maternal aunt, nephew/niece, second-degree in-laws), the penalty is reduced by half; furthermore, for this second group, the crime becomes dependent upon complaint.
IX. ACTIVE REPENTANCE (TCK Art. 168)
Abuse of trust is one of the crime types where the active repentance provisions regulated in TCK Art. 168 can be applied. According to this provision, if the perpetrator, instigator, or accomplice, after the crime is completed but before prosecution begins against them for this reason, completely remedies the loss suffered by the victim through returning in kind or compensation, the sentence to be ruled is reduced up to two-thirds. In case active repentance is displayed after prosecution begins but before a judgment is rendered, the reduction rate drops up to one-half. In case the loss is only partially remedied, being able to benefit from active repentance provisions additionally depends on the victim having accepted (consented to) this partial performance.
X. SPECIAL FORMS OF APPEARANCE OF THE CRIME
A. Attempt
An attempt at the offense of abuse of trust is possible; however, this possibility gains meaning essentially regarding the alternative act of “disposing”. Denying the fact of transfer is an act completed instantaneously, so applying an attempt regarding this alternative act is difficult. Conversely, if the possessor attempts to sell or pledge the property to a third person but cannot complete this transaction due to reasons beyond their control, provisions of attempt can be applied.
B. Participation
Regarding participation in the crime, general rules of participation are valid. When the view that the crime is specific in nature is taken as the basis, persons who do not possess possession of the property can only be held responsible as instigators or accomplices pursuant to the rule of dependence in TCK Art. 40/2, and cannot be perpetrators. For example, a possessor who acts together with a relative to sell property left to them for repair to a third person will be responsible as a perpetrator, whereas their relative participating in the act without holding the title of possession can only be held responsible as an accomplice (şerik).
C. Concourse
If the perpetrator both disposes outside the purpose of transfer over the same property and denies the fact of transfer, a single offense of abuse of trust occurs; this situation is a result of the consuming-consumed norm relationship seen in crimes with alternative acts. If the perpetrator commits this crime more than once against the same person within the framework of a decision to commit the same crime, the provision of TCK Art. 43 regarding successive crimes is applied. If the act at the same time carries the elements of another crime, the provision of TCK Art. 44 regarding ideal concourse comes into play.
XI. COMPARISON WITH SIMILAR CRIME TYPES
The offense of abuse of trust is susceptible to being confused with certain other crime types committed against property—especially the offenses of theft, fraud, and embezzlement.
In the crime of theft, the perpetrator does not have possession of the property at the moment they commit the act; they acquire possession outside the consent of the owner or possessor, and their intent toward the crime exists from the beginning. In the offense of abuse of trust, however, the perpetrator already holds possession of the property legitimately while performing the act; the intent to commit a crime arises after the transfer of possession, that is, subsequently.
In the crime of fraud, the victim’s delivery of the property occurs as a result of being deceived by the fraudulent behaviors of the perpetrator, and the perpetrator acts with the intent to secure an unlawful benefit from the beginning. In the offense of abuse of trust, the victim delivers their property by their own free will and within the framework of a valid contractual relationship without being subjected to any deceptive behavior; furthermore, it is not mandatory that the perpetrator has obtained a concrete unlawful benefit.
The crime of embezzlement is a specific crime that can only be committed by public officials over property values delivered to them in connection with their duties. If a public official disposes over a delivery arising not from their duty but entirely from a personal relationship of trust, not the crime of embezzlement, but simple or qualified abuse of trust will occur according to the characteristic of the concrete event.
XII. PROCEDURAL LAW DIMENSION
The basic form of the offense of abuse of trust (TCK Art. 155/1) is among the crimes subject to prosecution upon complaint; the right of complaint must be exercised within six months from the date the act and perpetrator are learned. The qualified form of the crime (TCK Art. 155/2) is not dependent upon complaint; in this form, the investigation is initiated ex officio by the prosecution. Conversely, excluding the aggravating form regarding motor vehicles regulated in TCK Art. 155/3, both forms of the crime are among the crimes subject to conciliation procedures within the scope of the Code of Criminal Procedure; therefore, during the investigation or prosecution, conciliation must primarily be sought, and if conciliation cannot be achieved, the process must be continued.
The statute of limitations period for the lawsuit in the basic form of the crime is eight years, and in its qualified form, it is fifteen years. The competent court for both forms is the Criminal Court of First Instance (asliye ceza mahkemesi); however, since the upper limit of the prison sentence envisaged in the qualified form exceeds two years, it is not possible to apply the simple trial procedure for this form.
XIII. CONCLUSION
Although the offense of abuse of trust aims to protect contractual trust, which is an indispensable part of daily and economic life, it is a crime type that necessitates making heavy use of private law concepts (possession, ownership, disposition transaction) in determining its elements. As demonstrated in the examination, the perpetrator of the crime is limited only to persons who can be legitimate possessors of the property; the owner cannot be the perpetrator of this crime, and the act can be realized through one of two alternative acts (denying the fact of transfer or disposing). The scope of the phrase “disposing” among these acts—whether it is to be interpreted in a narrow/technical or broad/daily sense—is still a controversial topic in doctrine, and the result of this discussion reflects directly upon concrete events in terms of the principles of certainty and subsidiarity of criminal law. The approach that acts constituting a mere breach of contract and not legally restricting the owner’s right of ownership should be left to the realm of private law, whereas disposition transactions eliminating or restricting the owner’s right of ownership should justify criminal law intervention, appears more compatible with the last-resort nature of criminal law. Nevertheless, in the application of the crime, qualified forms (profession, art, trade, service relationship, and authority to manage property) and personal reasons affecting the penalty (active repentance, non-punishment or reduction linked to kinship relationship) must be evaluated within the framework of the specific conditions of each concrete event.
Offense of Abuse of Trust (TCK Art. 155) – Frequently Asked Questions in Light of Court of Cassation Decisions
1. If gold left to a jeweler for safekeeping as an entrustment is spent, does the penalty increase?
Answer: No, the penalty does not increase; the act is considered simple abuse of trust (TCK Art. 155/1). Giving gold to a jeweler for safekeeping is not a mandatory requirement of the profession and relies on the personal relationship of trust between the parties. Since a “service relationship” does not exist between the customer and the jeweler, the qualified form requiring a heavier penalty is not applied.
11th Criminal Chamber of the Court of Cassation (E. 2021/24439, K. 2025/13531):
“It must be accepted that the complainants giving their gold as an entrustment without any commission or fee to the jeweler operated by the defendants is not related to a service relationship but relies on a relationship of trust, as jewelers do not have a duty to keep their customers’ gold, and in this scope, the acts of the defendants constitute the crime of abuse of trust regulated in TCK Art. 155/1.”
2. If the lawyer to whom I gave a power of attorney does not pay me the money they collected from execution, will they be tried for embezzlement?
Answer: No, the lawyer will not be tried for embezzlement. A lawyer’s authority to collect money from an execution file on behalf of their client (ahzu kabz) arises not from a public duty, but from the attorney/agency contract between the parties. Because public authority is not violated and only the personal agency relationship is damaged, the act constitutes the crime of abuse of trust due to service (TCK Art. 155/2).
Assembly of Criminal Chambers of the Court of Cassation (E. 2021/43, K. 2021/287):
“It must be accepted that the delivery of the said money to the defendant was realized not due to the defendant’s direct duty, i.e., as a natural consequence of being a lawyer, but based on the authority of ahzu kabz given due to the relationship of trust felt toward the person of the defendant by the participant, and that the relationship between them remained within the scope of a service relationship… and that their act constitutes the crime of abuse of trust due to service.”
3. The financial advisor with whom we stopped working does not return our company’s legal books and documents; can we file a criminal complaint?
Answer: Yes, you can. A continuous agency and service relationship exists between a financial advisor and a taxpayer. Failing to deliver legal books despite a notary warning notice or rightful request gives rise to the crime of abuse of trust due to service pursuant to TCK Art. 155/2.
15th Criminal Chamber of the Court of Cassation (K. 2019/3020):
“In the face of the financial advisor defendant not fulfilling the duty of delivery for 5 years despite the participant drawing a warning notice and requesting their books, and delivering them only in their law enforcement statement, it must be observed that the defendant’s crime of abuse of trust due to service is fixed.”
4. I cannot get back the title deed that I temporarily transferred to my friend out of trust; what does criminal law say to this?
Answer: Temporarily registering an immovable on someone else’s behalf based on a fiduciary transaction (based on trust) and subsequently adopting it by not transferring it despite the owner’s request constitutes the crime of simple abuse of trust (TCK Art. 155/1).
15th Criminal Chamber of the Court of Cassation (E. 2013/4524, K. 2014/20771):
“The act of foreign national complainants temporarily registering the house they purchased under the name of the Turkish citizen defendant due to procedures, and the defendant subsequently not transferring the house and claiming it belonged to himself, constitutes the crime of simple abuse of trust pursuant to TCK Art. 155/1.”
5. If a part of the vehicle I left with a mechanic for repair is sold, does the penalty aggravate?
Answer: Yes. Leaving a property with persons such as an industrial mechanic, tailor, or repairer is a requirement of the execution of a profession and art. These persons secretly selling the delivered property or its part falls under the scope of TCK Art. 155/2 (qualified form due to profession and art relationship).
15th Criminal Chamber of the Court of Cassation (E. 2017/4244, K. 2019/1097):
“The act of the participant leaving his minibus with the repairer defendant for the purpose of dismantling its body and engine parts, and the engine part being secretly sold to someone else, constitutes the crime of abuse of trust stemming from a profession and art relationship regulated in TCK Art. 155/2.”
6. Is a public official or cooperative employee transferring money delivered to them into their account considered abuse of trust?
Answer: No. If property value was delivered to the perpetrator not through a personal trust contract, but due to a public duty or an authority arising from law, the act exceeds the boundary of abuse of trust and constitutes the crime of embezzlement.
5th Criminal Chamber of the Court of Cassation (E. 2012/6626, K. 2012/10286):
“The act of the defendant, who worked as an authorized officer at the Agricultural Credit Cooperative, transferring money collected from members using credit into his personal account constitutes not abuse of trust due to service, but the crime of embezzlement.”
7. Does simply being unable to pay my debt on time or delaying borrowed money constitute a crime?
Answer: No. Pursuant to Article 38 of the Constitution, no one can be deprived of their liberty merely because they are unable to fulfill a contractual obligation. Returning property or money with delay does not give rise to criminal liability on its own; the incident must be resolved as a private law dispute (debt lawsuit, execution proceeding) within the framework of the Code of Obligations. For the crime to occur, it is mandatory that the property is adopted never to be returned or that the fact of delivery is denied.
8. What is the complaint period in the offense of abuse of trust, and is conciliation procedure applied?
Answer: In the basic form of the crime (TCK Art. 155/1), the complaint period is 6 months from the date the act and perpetrator are learned. In its qualified form committed due to service, profession, or trade (TCK Art. 155/2), prosecution is carried out ex officio, and there is no complaint period. However, excluding the qualified form regarding motor vehicles (Art. 155/3), both the basic and qualified forms of the crime are within the scope of conciliation pursuant to the CMK. During the investigation stage, conciliation is primarily offered to the parties.
9. If I subsequently pay the damage subject to the crime to the victim, can I escape receiving a penalty?
Answer: Paying the damage does not eliminate the crime entirely, but provides an active repentance reduction pursuant to TCK Art. 168. If you return in kind or remedy the victim’s loss during the investigation stage before a lawsuit is filed against you, the penalty to be given can be reduced up to 2/3. If you pay the damage after a lawsuit is filed but before a court decision is rendered, the penalty is reduced up to the rate of 1/2.
Importance of Expert Lawyer Support in the Offense of Abuse of Trust
The offense of abuse of trust is a highly technical crime type located precisely at the intersection of criminal law and private law (especially the Law of Obligations). Whether a dispute is merely a “breach of contract” or a “crime giving rise to criminal liability” must be meticulously analyzed taking into account the nature of the transfer of possession, the dimension of the disposition act, and the current jurisprudence of the Court of Cassation.
Throughout the process, monitoring the 6-month complaint period, correctly operating sentence-reducing mechanisms such as conciliation and active repentance, and not confusing the act with other crime types such as theft, fraud, or embezzlement carry vital importance. To prevent potential losses of rights and execute the process in the healthiest manner, it is recommended to receive professional legal support from a criminal lawyer who is an expert in their field.