FORGERY OF DOCUMENTS
Author : Att. Kamer Özcü
A. LEGAL CHARACTERISTICS OF THE CRIME
The crime of forgery of documents (former Criminal Code: Crime of Forgery of Documents) is stipulated in The Turkish Criminal Code numbered 5237 under the title of “Crimes Against Public Confidence”. In accordance with the characteristic of the document, this crime can be examined under two sections such as forgery in official documents and forgery in private document; the elements of crime and the relevant sanctions have been stipulated separately within the frame of this division.
First, it is required to properly define the term “DOCUMENT”, which is the first element of crime, in order to understand the crime.
Document; is the name given to papers enabling to maintain and prove the legal relationships which are being established in the society permanently and which are in the characteristics of evidence. The confidence on the society regarding the accuracy of the document is named public confidence. Therefore, the interest protected in the crimes of the forgery of documents: PUBLIC CONFIDENCE.
Therefore, both forgery in official and private documents are investigated by the Chief Public Prosecutor's Office ex officio. The investigation is not subject to any complaints. Since the main victim of the crime is the public, itself, naming the persons suffering from such crime “affected from the crime” instead of victim, is based on this reason.
B. ELEMENTS OF THE DOCUMENT
1. A written document,
2. Bearing a legal value,
3. Certainty of the person who issued such document.
When these three elements come together, then a document can be considered. As the unwritten agreements cannot be deemed as document and the papers of which the issuer is not certain cannot bear the characteristics of a document. To enlighten the concerned matters; a letter which does not bear a legal value shall not be deemed as a document. While the Court of Appeal makes a resolution regarding the evidential characteristics of a forged or accurate document, it shall benefit from the criterion of “whether such document form a basis to a legal claim or not”.
C. DOCUMENT TYPES
I. OFFICIAL – PRIVATE DOCUMENT DIFFERENTIATION
OFFICIAL DOCUMENTS (Turkish Criminal Law Article 204-206 and 210/1)
Even though the definition of official document is not made in the law externally, the relevant definition and explanation are made in the doctrines and legal precedents. In short, it is possible to define official document as a document bearing a legal value which is issued duly by the public official within the scope of his/her own duty. The criteria were stated above one by one;
1- The person who issues such document is required to be a public official. As the term “public official” was explained in Article 6/1-c of the Turkish Criminal Code, it means “the person or persons who participate the operation of public activities by way of appointment or election or with another way permanently, temporarily or for a certain period”.
2- The second mandatory element is that the document is required to be in relation with the scope of duty and authority of the public official. However, issuing a document out of his/her scope of duty and authority is subject to sanction.
3- The third element is acting in line with the procedure and form requirement however this element is always not mandatory (for instance, not all correspondences made by ministries are subject to form requirements while the way to prepare or validity conditions of an official testament is clearly stated in the law).
PRIVATE DOCUMENTS (Turkish Criminal Code Article 207-208)
Private documents are the documents not bearing the elements which make a document an official document. In other words, in case a written document is issued by a person who is not a public official in a way to be convenient to bear legal consequences, then such document will be named as a private document. The crime of forgery of private documents may be committed by;
** Issuing a private document as forged,
** Modifying an accurate private document or
** Using a forged private document by legal means.
Apart from these, the fact that a private document can be a subject to a crime depending on the fact that the abovementioned elements have a direct and definite legal consequence.
II. THE MUTUAL ELEMENTS OF THE CRIME OF FORGERY OF OFFICIAL-PRIVATE DOCUMENT
Imposing legal sanctions in terms of both documents and crimes depends on the presence of two main elements.
1- PROBABILITY OF ENDAMAGING
For the existence of such crimes, occurrence of a concrete loss or concrete benefit of the perpetrator with the forgery are not sought. For the existence of crime, the probability of causing a damage of the forgery act is necessary and sufficient.
2- DECEIVING SKILLS
The criterion in the deceiving skills of the document is objective, not subjective. In other words, it is important that the document is in a quality to deceive many persons as per the objective criteria, not the personal status of a person to whom the document is submitted or whether he/she has personally ben deceived by it or not.
III. CONVERSION OF A PRIVATE DOCUMENT TO OFFICIAL DOCUMENT
If an unauthorized official document is issued with the use of a forged private document, the perpetrator will be judged and convicted of the crime of forgery, although he/she has issued a forged private document.
Submission of a private document to the governmental authority and putting registration and transfer cachet on such document are transactions regarding registration and such transactions do not convert the private document into an official document. However, if the private document is approved by a governmental authority, then it will be deemed an official document as of the approval date. Although the beginning of such a document is forgery of private documents, forgery is now turned into the forgery of official documents.
For instance, let us think of a “no debt letter” which was submitted to the execution office after being issued and signed in the name of another person. Even though this document shall be deemed as a private document since the person who issued and signed this document in the name of another person is not a public official, if it is approved by the execution officer then this document shall become an official document. Likewise, in case it is submitted to any banks, it has now been converted to a document which bears the credibility of the execution office with the approval even though it was issued by a third person and the relevant bank will transact based on such credibility or not.
D. MORAL ELEMENT OF THE CRIME
The crimes of forgery of documents are intentional crimes.
The crime of forgery of private documents may only be committed intentionally, cannot be committed with negligence. The moral element of crime becomes present when the perpetrator acts in awareness and willingly of forming and using a forged private document. Since a reason or purpose is not sought for the presence of crime, general intention is sufficient, no special intention is required.
General intention is required to be interpreted broadly as per the Turkish Criminal Code numbered 5237 and High Court Precedents and the existence of ENDAMAGING CONSCIOUSNESS must certainly be searched.
In the decision of the Supreme Court of Appeal No. 11 Criminal Division concerning the subject dated 06.02.2008 and numbered 2007/8425 - 2008/617; it is stated that:
“...Intention in the crimes of forgery in documents are accepted as endamaging conscious and will. The presence of intention cannot be asserted that since the defendant who used the signature of the victim by copying it upon the approval of the victim, will not have an endamaging consciousness...’
and endamaging consciousness was considered as a mandatory criterion to constitute a moral element.
E. REFLECTION OF SUCH CRIME TO CORPORATES
As a rule, every crime is personal as per the principle of individual crime and punishment responsibility. It is not possible to blame or punish any other person but the guilty. Therefore, although criminal liability of the criminal(s) concerned will occur when a criminal case is filed due to a concrete case, during the investigation processes, the board of directors of a company will be touched slightly.
Whereas the prosecutor who is responsible of the file during an investigation to be conducted ex officio or upon complaint, will require several documents and information from the relevant company to collect information or to have a command on the essentials of the file. Since the addressee institution will not be the Company which is a legal entity in this phase, the prosecutor will direct his/her questions to the executives, signatories of the company and ask for their statements.
In conclusion, even though managers/directors can not to be automatically judged under the name of suspected/perpetrator neither in the investigation file nor in the lawsuit to be filed, the unlimited signatories of a company which have the high-level representation authority of the company will more likely to give their statements regarding the case before the prosecutor.
Att. Kamer Özcü
Jurlegal Founder Partner
