Abuse of Trust Under Turkish Criminal Law (tpc Article 155): Elements, Aggravated Forms And Proceedings

Abuse of trust occurs where a person to whom property has been handed over for the purpose of safekeeping or use in a specified manner disposes of that property beyond the purpose of the transfer, for their own benefit or for the benefit of another. The law likewise treats denial of the fact of transfer as an offence. In other words, refusing to return the property by claiming "no such property was ever handed over to me" also falls within the scope of this offence.

The subject matter of the offence is property belonging to another. The offender is not the owner of the property; they hold possession only for a limited purpose. The legal interest protected has two layers: on the one hand the victim's right of ownership, and on the other the relationship of legal trust established between the parties. This second layer explains the name of the offence; the wrongfulness of the act arises not merely from withholding the property but from using the established relationship contrary to its purpose.

Whether the offence is an offence of harm (as opposed to an endangerment offence) is debated in doctrine; in practice, the reduction occurring in the victim's assets is separately assessed. The moment the offence is committed is the moment the offender carries out the disposal beyond the purpose or denies the transfer. For this reason, correctly determining the date of the offence is decisive both for the complaint period and for the statute of limitations on prosecution.

The entire logic of this offence rests on the principle that possession has been transferred lawfully. Possession denotes the establishment of actual control over property. In abuse of trust, the property has been handed over to the offender by the victim's own free will and on the basis of a lawful legal relationship. At the moment of handover there is no wrongfulness whatsoever; the handover is the requirement of a valid contract or relationship of trust.

The basis for the transfer may take many forms:

• Lease agreement: Handing over a vehicle or piece of machinery for use for a specified period
• Safekeeping (bailment) relationship: Leaving an item to be kept and preserved
• Loan for use: Giving property over for temporary use free of charge
• Agency relationship: Handing over money or documents so that a task may be performed
• Commercial relationships such as commission, carriage, storage and pledge
• Employment relationship: Providing an employee with a vehicle, device, cash register or collection authority as a requirement of the work

The offence arises after the handover. Where the offender uses, sells, transfers, pledges, consumes the property for a purpose outside that of the handover, or refuses to return it, the act acquires the character of an offence. For this reason the most critical point in practice is establishing on the basis of which legal relationship and for what purpose the property was handed over. Contract texts, delivery records, email correspondence, WhatsApp records, bank receipts and commercial books carry decisive evidentiary value at this point.

For abuse of trust to be established in a specific case, the following elements must be present together:

• The property must belong to another: The offender must not be the owner of the property. A person disposing of their own property does not commit this offence.
• Possession must have been transferred lawfully: The property must have been handed over with the victim's consent and on the basis of a valid relationship.
• The transfer must be tied to a specific purpose: The handover must have been made for the purpose of safekeeping or use in a specified manner. Where the transfer conveys ownership (a sale, for example), this offence does not arise.
• Disposal beyond the purpose or denial of the transfer: The offender must use the property beyond the purpose of the handover or deny that it was handed over to them.
• Intent: The offence can be committed only intentionally. The offender must act in the knowledge that the property belongs to another and that the handover was tied to a limited purpose. Commission through negligence is not possible.
• Intent to obtain a benefit: The disposal must be directed at obtaining a benefit for the offender or for another person.

A point frequently confused here is that mere non-payment of a debt does not in itself constitute an offence. A person's failure to perform an obligation arising from a contract gives rise, as a rule, to a civil dispute and is resolved through enforcement proceedings or a claim for debt. For criminal liability, there must be a tangible disposal that goes beyond the purpose of the handover and demonstrates an intention to act over the property as if one were its owner. This distinction is among the decisive criteria in the assessment of criminal complaints and is one of the reasons why decisions of non-prosecution are issued.

The law provides for a heavier penalty where the relationship that led to the handover of the property heightens the sense of trust. The aggravated form applies where the offence is committed in respect of property entrusted and delivered as a requirement of a profession and craft, trade or service relationship, or of the authority to administer the property of another, regardless of the source of that authority.

The practical counterparts of these situations are as follows:

• Profession and craft relationship: Handover of property as a requirement of the exercise of a profession such as repair, maintenance, jewellery-making or tailoring. For example, the sale of an item left for repair.
• Trade relationship: Handover of property or money within the scope of commercial activity such as purchase and sale, carriage, storage or brokerage.
• Service relationship: Vehicles, devices, cash registers or collected monies handed over to an employee on the basis of an employment contract.
• Authority to administer property: Situations involving authority to manage another's property, such as agency, guardianship, company representation or management.

Handover for safekeeping is the most typical manifestation of the "transfer for the purpose of safekeeping" element contained in the basic form of the offence. Where the safekeeping relationship arises from a professional, commercial or service relationship (for example, goods left with a paid warehouse business), the act is assessed within the scope of the aggravated form. By contrast, a gratuitous bailment between two neighbours remains, as a rule, within the basic form.

For the aggravated forms, the law prescribes a separate and heavier range of imprisonment, together with a judicial fine, distinct from that of the basic form; this is not a mechanism by which the basic sentence is increased proportionally. Since sentencing ranges may change over time, the lower and upper limits applicable in a specific file must be verified against the current text of the law. Another significant consequence of the aggravated forms is that in such cases the offence is not subject to a complaint requirement; the prosecutor's office conducts an investigation of its own motion even in the absence of a complaint.

These are the three offence types most frequently confused in practice, and the distinction is drawn according to the criterion of how possession was obtained.

Distinction from theft: In theft, the property is taken from where it is located without the consent of the possessor; possession is obtained by breaking it. In abuse of trust, by contrast, the property has been handed over by the possessor's own consent. An employee secretly taking money from the cash register in a shop commits theft; an employee who has been given collection authority and who fails to hand over the money collected to the employer, transferring it instead to their own account, commits abuse of trust. For detailed information on the aggravated forms of theft, you may review our article on theft and its aggravated forms.

Distinction from fraud: In fraud, the offender's deceptive conduct exists from the outset; the victim hands over the property with a will vitiated as a result of deceptive acts. That is, the handover itself is the product of deception. In abuse of trust, there is no deception at the moment of handover; the relationship was established lawfully and bad faith emerges subsequently. For this reason, where it is established that the offender acted from the very beginning with the intent not to return the property and displayed deceptive conduct in order to conceal this, the legal classification may shift to fraud. Since a change in classification directly affects the competent court and the sentence, this distinction lies at the heart of the defence. For details on the subject, you may consult our article on aggravated fraud.

In summary, the criterion is this: where possession was obtained without consent, theft is in question; where it was obtained through consent vitiated by deception, fraud; and where it was transferred with valid consent and subsequently used beyond its purpose, abuse of trust.

Complaint: The basic form of the offence of abuse of trust is subject to a complaint. For an investigation to commence, the victim must file a complaint. The right of complaint must be exercised within six months from the date on which the act and the identity of the offender became known. This period is a forfeiture period; if it lapses, a decision of non-prosecution is issued. For this reason, documenting the date on which it became apparent that the property would not be returned is the most important step aimed at preventing loss of rights. In aggravated forms, no complaint is required and the investigation is conducted of the prosecutor's own motion.

Mediation: Abuse of trust is listed among the offences within the scope of mediation in criminal matters under the Code of Criminal Procedure by reference to the article number. For this reason the aggravated form, like the basic form, is treated as falling within the scope of mediation even though it is not subject to a complaint requirement; files concerning the aggravated form are likewise referred to the mediation bureau. At the investigation stage, the file is sent by the prosecutor's office to the mediation bureau and an offer is conveyed to the parties through a mediator. If mediation is successful, a decision of non-prosecution is issued; if it is achieved at the prosecution stage, the case is dismissed. If the mediation offer is rejected, the investigation continues in its ordinary course. Since the applicability of mediation in a specific file is determined by criteria such as the capacity of the victim and the nature of the file, the scope must be verified against the current text of the law.

Effective remorse: The effective remorse provisions laid down for offences against property may also be applied to abuse of trust. If the offender completely makes good the damage suffered by the victim by way of restitution in kind or compensation, a reduction in sentence is applied. The extent of the reduction varies according to whether the damage was made good before the prosecution commenced or before judgment; earlier restitution results in a higher rate of reduction. In cases of partial restitution, benefiting from the reduction is, as a rule, subject to the victim's consent.

In addition, the law provides for a personal ground excluding punishment or a reduction in sentence where offences against property are committed between relatives of certain degrees of kinship. In files arising from family partnerships, inheritance and company relationships, whether these provisions apply is assessed separately.

The competent court for the offence of abuse of trust, in both its basic and aggravated forms, is the Criminal Court of First Instance. Which courthouse hears the file is determined by territorial jurisdiction, that is, by the judicial district. İzmir does not have a single courthouse: the İzmir Criminal Courts of First Instance at the İzmir Courthouse in Bayraklı and the Karşıyaka Criminal Courts of First Instance at the Karşıyaka Courthouse, which has its own separate courthouse and its own separate Chief Public Prosecutor's Office, serve different judicial districts. Files arising in the districts within the Karşıyaka judicial district go to the Karşıyaka Courthouse rather than to Bayraklı.

The typical course of the process is as follows:

• Complaint and investigation: Depending on the judicial district, the complaint is filed with the İzmir or the Karşıyaka Chief Public Prosecutor's Office, or with law enforcement units. The file is handled by the economic crimes bureau or the relevant investigation bureau.
• Gathering evidence: Contracts, delivery records, invoices, waybills, bank records, correspondence and witness statements are collected. In files of a commercial nature, obtaining an expert examination of commercial books and records is a frequently used route.
• Mediation stage: If the scope of the offence is appropriate, the file is sent to the mediation bureau.
• Indictment and prosecution: Where sufficient suspicion exists, an indictment is drawn up and the case is heard before the criminal court of first instance in the judicial district with jurisdiction.
• Objection to a decision of non-prosecution: If the prosecutor's office issues a decision not to prosecute, an objection is filed with the Criminal Judgeship of Peace. This objection must be made within the period prescribed by law and on tangible grounds.
• Appeal: An application against the judgment of the first instance court is made to the criminal chambers of the İzmir Regional Court of Justice.

If the classification of the act shifts to the aggravated forms of fraud, the competent court may change and the file may fall, depending on the judicial district, within the jurisdiction of the İzmir or the Karşıyaka High Criminal Court. For this reason, it is important that the classification set out in the indictment be discussed from the outset.

Rented vehicle: In the vehicle rental sector concentrated in Gaziemir and around the airport, the typical example is failure to return the vehicle despite expiry of the rental period, or transferring, pledging or offering the vehicle for sale. What is decisive here is that expiry of the period alone is not sufficient; a tangible disposal must be established showing that, despite a demand for return, the vehicle was used beyond the purpose of the handover. Sending a formal notice and gathering records relating to the vehicle's location carry weight in this respect.

Bailed goods and storage: In storage and bonded warehouse operations in Konak, Alsancak and around the port, a frequently encountered situation is the sale of goods left for safekeeping, their transfer to a third party, or refusal to return them with the claim "it was never handed over to me". If the storage is carried out within the scope of a commercial enterprise, the aggravated form comes into play. Delivery records, warehouse receipts and warehouse entry records are the key evidence here.

Commercial agency and company management: In small and medium-sized businesses in Bornova and Karşıyaka, situations assessed within this scope include an employee granted collection authority failing to transfer the money collected to the company, a company manager transferring movable property belonging to the company into their own name, or an agent using money entrusted to them beyond the purpose of its allocation. Since a service relationship or authority to administer property exists, such acts mostly give rise to a discussion of the aggravated form.

Common mistakes are as follows:

• Missing the complaint period: Accepting too late a date as that on which the act and the offender became known, or failing to document it at all
• Confusing a civil dispute with an offence: Making a mere unpaid debt the subject of a criminal complaint
• Failure to document the purpose of the handover: Inability to prove the purpose in handovers made without a contract or delivery record
• Failure to question the classification: Not discussing whether the file falls within theft, fraud or abuse of trust
• Late assessment of the effective remorse option: Where making good the damage is contemplated, failing to do so at the stage that would secure the highest reduction
• Rejecting the mediation offer without considering its consequences

Each of these points is assessed according to the circumstances of the particular file; the nature of the handover relationship, the state of the evidence and the capacity of the parties directly affect the outcome.

What can I do about a person who fails to return a vehicle I rented out on time? Where the vehicle is not returned despite a demand for return after expiry of the rental period, and a disposal beyond the purpose of the handover is made over the vehicle, a complaint may be filed for abuse of trust. Gathering documents such as the contract, the delivery record and a formal notice is important.

Does a person who fails to pay a debt commit the offence of abuse of trust? As a rule, no. Mere non-payment of a debt gives rise to a civil dispute and is resolved through enforcement proceedings or a claim for debt. For the offence to arise, the property must have been handed over for a specific purpose and there must be a disposal going beyond that purpose.

Is abuse of trust subject to a complaint? The basic form of the offence is subject to a complaint, and the right of complaint must be exercised within six months from the date on which the act and the offender became known. In aggravated forms no complaint is required and the investigation is conducted of the prosecutor's own motion.

Does this offence fall within the scope of mediation? Abuse of trust is listed among the offences brought within the scope of mediation in criminal matters under the law by reference to the article number; the aggravated form, like the basic form, is subject to mediation. If mediation is successful, a decision of non-prosecution is issued at the investigation stage, and a decision of dismissal at the prosecution stage. The applicability of mediation in a specific file is assessed according to the circumstances of that file and the current text of the law.

Does making good the damage affect the sentence? Where the damage suffered by the victim is completely made good by way of restitution in kind or compensation, the effective remorse provisions may be applied and a reduction in sentence is made. The extent of the reduction varies according to whether restitution took place before the prosecution commenced or before judgment.

Which court hears these cases in İzmir? The competent court, in both the basic and aggravated forms, is the criminal court of first instance. Which courthouse the file goes to varies by judicial district: the İzmir Criminal Courts of First Instance at the İzmir Courthouse in Bayraklı, or the Karşıyaka Criminal Courts of First Instance at the Karşıyaka Courthouse, which has its own separate courthouse and its own separate Chief Public Prosecutor's Office. An objection to a decision of non-prosecution by the prosecutor's office is filed with the Criminal Judgeship of Peace.

The entire logic of the offence of abuse of trust lies in the fact that possession has been transferred lawfully and that the offender has gone beyond the purpose of that transfer. This criterion is the fundamental line separating the offence from theft (acquisition without consent) and from fraud (consent vitiated by deception). Whether the aggravated forms apply, whether the complaint period has run, whether the file is subject to mediation, and at what stage effective remorse is to be assessed all directly determine the direction of the process.

What determines the outcome in these files is most often how the handover relationship has been documented. Presenting contracts, records, invoices, bank entries and correspondence in an organised manner at an early stage is decisive for both the complaining party and the defending party. Which classification the file will be handled under is assessed according to your particular circumstances.

We provide legal assistance in investigation and prosecution proceedings concerning the offence of abuse of trust; for the diligent monitoring of these processes, please contact Yücesoy Attorney Partnership & Law Office.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy