247 Of the Turkish Criminal Code, which is a general Provision. In response to the Embezzlement Offense mentioned in Article 5411 of the Banking Law, special regulations have been introduced regarding the embezzlement offense involving the chairman and members of the board of directors of the bank and other members.
160/1 of the Banking Law No. 5411, published in the Official Gazette dated 01.11.2005. The Substance;
“Due to the task are transferred to the possession of, or the protection and supervision of money or money substitutes required documents or securities or other property or from someone else who embezzled the chairman and members of the board of Directors of the bank with other members, and five thousand six to twelve years of imprisonment as penalty until the day they will be punished with a judicial compensation for the bank’s losses were sentenced to.”
One of the values that constitute the subject of crime is money. In addition, Article 198 of the New Turkish Criminal Code No. 5237.in substance, the bearer bonds issued by state and also, stocks, bonds and coupons, and legally issued by the competent authorities which circulate securities, bonds, gold jewellery and paperwork is in lieu of national money. The concept of “other goods” contained in the article refers to all types of goods that have economic value. Although it is considered that only movable property can constitute the subject of embezzlement and immovable property cannot constitute the subject of embezzlement crime, the New Turkish Criminal Code No. 5237 247 on embezzlement crime.according to the article, “the subject of the embezzlement crime is movable or immovable property” and it is accepted that the embezzlement crime may also occur in terms of immovable property. Although the Banking Law No. 5411 does not clarify this issue, the crime of embezzlement can be mentioned in terms of a bank member who is authorized to sell, rent and make other savings on a real estate belonging to the bank.
Article 22/3 of the Law No. 4389 states that in order for an embezzlement crime to occur, the money or property embezzled by a bank employee must belong to the bank. For this reason, when an assessment is made in terms of the period in which the relevant law is in force; 3, although he is with the bank.there will be no mention of the crime of embezzlement in terms of goods belonging to persons.
In the Banking Law No. 5411, which came into force after the 4389 Saya Law, there is no such condition as the embezzled value belongs to the bank. For this reason, if legal elements have been formed, whether the money embezzled by the bank employee belongs to the bank or belongs to third parties, the embezzlement crime occurs. The main thing is that the subject of the crime is in the custody of the bank.
B.K md 160/2
“If the crime is committed with fraudulent behavior aimed at ensuring that the embezzlement is not revealed, the perpetrator will be sentenced to imprisonment of not less than twelve years and a judicial fine of up to twenty days; however, the amount of a judicial fine cannot be less than three times the damage suffered by the bank. In addition, if the damage caused is not paid, the court is ordered to make you pay re’sen.”it has been said.
If the crime is committed with fraudulent behavior aimed at ensuring that the embezzlement is not revealed, there is talk of the existence of a qualified embezzlement. It is imperative that the fraudulent behavior committed is conducive to ensuring that the embezzlement crime does not arise. Because, if a fraudulent act has been committed, but this behavior does not have a deceptive nature, and also if the crime can be detected at first glance, then it is impossible to mention the existence of a qualified embezzlement crime. This is also the application of the Supreme Court. That is to say;
“The subject of the case is 845 Bimref No. 981672 with the signature determined by the expert report that it does not belong to the complainant on the tediye slip, the bank officials investigate whether the applied signature of the depositor on the bank records belongs to the depositor at first glance, and if it is understood at first glance that the fake signature on the tediye slip does not belong to the depositor, since there is no seduction ability, the action is called adyen embezzlement by betting, and if it is not understood, there is an element of fraud with his admission, he will be charged with qualified embezzlement, the provision in writing as a result of incomplete investigation without examination in this regard is contrary to the law.’’
As for criminal liability, in case of simple embezzlement, the defendant is sentenced to imprisonment from six to twelve years and a judicial fine of up to five thousand days. In case of qualified embezzlement, the defendant is sentenced to imprisonment not less than twelve years and a judicial fine of up to twenty thousand days. On the other hand, it is unlikely that the amount of the judicial fine will be less than three times the damage suffered by the bank.
In the Banks Law, the state of “Active Regret” is not regulated under a separate title as in the Turkish Criminal Code No. 5237, related to the crime of embezzlement No. 160.article 4 and 5 of the article. it has been included in the anecdotes.
Accordingly, before the investigation begins for embezzlement, the person who committed the act notifies the authorities authorized to investigate the situation and returns the embezzled value in kind or fully compensates for the damage caused, the penalty that will be given to him will be reduced by two-thirds. It does not matter if the payment for this is voluntary or by whom.
If the active state of remorse occurred only after the investigation began, and before the opening of the public case, the penalty will be reduced by half, and if it occurred only before the opening of the public case, a third discount will be given. However, payments made at this stage must be voluntary. For this reason, for example, if the damage has been compensated by compulsory enforcement, there is no possibility to use the provisions of effective remorse.
Supreme Court 5.The following decisions of the Criminal Chamber also state that extradition is sufficient in order to take advantage of the effective remorse provisions:
“Taking into account that it is sufficient to pay the principal amount of embezzlement, excluding interest, to implement the extradition provisions, the defendants, who are understood to have paid in relation to the main currency, have their rights determined by determining the exact payment dates of TCK 202/3. it is against the law that the article is not applied.’’
Also, B.K.m.162 in order to start investigating and prosecuting crimes committed in accordance with this law, the Banking Regulation and Supervision Agency or the Savings Deposit Insurance Fund must apply to the Prosecutor General’s Office in writing. An investigation cannot be launched until this condition is met.
