TCK Article 209
(1) A person who fills in a signed and partially or completely blank paper delivered to him/her to be filled and used in a certain manner in a manner different from the reason for giving it shall be punished with imprisonment from three months to one year upon complaint.
(2) A person who unlawfully obtains or possesses a signed and partially or completely blank paper and fills it in a manner that will give rise to legal consequences shall be punished according to the provisions of forgery of documents.
The paper that is the subject of the crime must not be a legally valid document at the time it is delivered to the perpetrator. If the victim has given the perpetrator a legally valid document and the perpetrator has altered or falsified this document, the crime of forgery of a private or official document shall occur in accordance with TCK Article 209/2. For example, a perpetrator who writes a high amount contrary to the agreement on a promissory note where the victim has left the amount section blank shall be guilty of the crime of misuse of a signature that has been left open; The perpetrator who falsifies the amount written on the promissory note, for example, if 250 TL is changed to 1250 TL by changing the text, commits the crime of forgery of official documents.
The crime of misuse of a signature that is left open is among the crimes subject to complaint. The prosecutor’s office cannot open an investigation ex officio without a complaint application. The complaint period is 6 months from the date the victim learns about the act. For example, if the blank promissory note is put into execution, the debtor’s 6-month complaint period begins on the day the payment order sent by the enforcement office is served on the debtor. If the victim does not complain within the time limit, the right to complain is extinguished. Withdrawal of the complaint results in the dismissal of the public lawsuit.
Conciliation is the agreement between the person accused of a crime and the person who is the victim of the crime by communicating through a conciliator. The crime of misuse of a signature that is left open is among the crimes subject to conciliation. The statute of limitations is a criminal law institution that results in the dismissal of a criminal case if a lawsuit has not been filed after a certain period of time has passed since the date of the crime or if the lawsuit has been filed but has not been concluded within the legal period. The ordinary statute of limitations period for trials due to the misuse of an open signature is 8 years.
General Assembly of Criminal Law 2017/31 E., 2020/354 K.
TCK 209
Misuse of an open signature
The subject of the crime of misuse of an open signature is a paper that is signed to be filled in a certain way and given partially or completely blank. The article penalizes anyone who fills in a paper given in the specified manner contrary to the request of the person who delivered it and the reason for giving the paper.
In order for the crime in the first paragraph to occur, a person must give a blank paper with his signature to another person to be filled in in a certain way, and the person who receives the paper must fill in this paper in a way different from the reason for deposit and delivery, and turn it into a document that will have legal consequences. The signature on the paper must be genuine. Otherwise, the crime of forgery of a document will be in question. The investigation and prosecution of the crime is made subject to the condition of a complaint. The second paragraph stipulates that a person who unlawfully obtains or possesses a signed and partially or completely blank paper and fills it in a way that will have legal consequences will be punished according to the provisions of forgery of a document. In order for the crime in this paragraph to occur, the signed paper must not have been delivered or deposited to the perpetrator, and the perpetrator must fill in the signed paper by unlawfully obtaining or possessing it. The perpetrator will be punished according to the provisions of the crime of forgery of official or private documents depending on the nature of the document created when he/she fills in the blank paper given with signature.
After these general explanations regarding the elements of the crime of abuse of open signature, it is useful to examine whether there is a requirement for written evidence in order to prove that the document in question was filled in contrary to the agreement and which procedural provisions should be applied regarding whether witnesses can be heard.
In Article 288 of the Code of Civil Procedure No. 1086, which entered into force on 01.10.2011 and was repealed by Article 450 of the Code of Civil Procedure No. 6100, which was in force on the date of the crime; “Legal transactions made for the purpose of the creation, termination, transfer, change, renewal, postponement, acknowledgement and redemption of a right must be proven with a bill if their amount or value at the time they are made exceeds four hundred million liras.
Even if the amount or value of these legal transactions falls below four hundred million liras for any reason such as payment or discharge from debt (discharge), they cannot be proven without a promissory note.”, Article 290 of Law No. 1086 includes the following provisions: “Legal transactions put forward as a defense against any kind of claim based on a promissory note and which would eliminate or reduce the validity and force of the promissory note cannot be proven with a witness even if they are for an amount less than four hundred million liras.”
Article 200 of the Civil Procedure Law No. 6100 titled “Obligation to prove by promissory note” states; “(1) The birth of a right,
Legal transactions made for the purpose of reducing, transferring, changing, renewing, postponing, acknowledging and redeeming must be proven with a promissory note if their amount or value at the time they were made exceeds two thousand five hundred Turkish Lira. Even if the amount or value of these legal transactions falls below two thousand five hundred Turkish Lira for a reason such as payment or debt relief, they cannot be proven without a promissory note. (2) In matters that require proof with a promissory note in accordance with this article, the regulation in the first paragraph should be reminded and a witness can be heard with the express consent of the other party.”,
Article 201 of the same Law titled “Prohibition of proof with a witness against a promissory note” also provides that; “Legal transactions put forward against all kinds of claims based on a promissory note and that will eliminate or reduce the validity and force of the promissory note cannot be proven with a witness even if they are for an amount less than two thousand five hundred Turkish Lira.” In established judicial decisions and dominant views in the doctrine, it is stated that it is not possible to prove the defenses to be put forward against any kind of claim based on a document with a witness, however, the obligation to prove with a document is only for legal transactions and there is no obligation to prove legal acts with a document, since the payment of a debt is not a legal act but a legal transaction since it is aimed at terminating a debt, it is not necessary to prove with a witness that the debts based on a document have been paid. In the concrete case, the defendant’s action is a legal transaction that is alleged to have been carried out in the form of issuing a document contrary to the agreement.
While the rule that legal transactions put forward against a document cannot be proven with a witness regardless of their value is stipulated in Article 290 of the Civil Procedure Law No. 1086, the same Law also includes exceptions to proof with a document.
In Article 217 of the Criminal Procedure Law No. 5271, which entered into force on 01.06.2005 and was in force on the date of the crime;
“(1) The judge may base his decision only on evidence brought to the hearing and discussed in his presence. This evidence is freely evaluated by the judge’s conscientious opinion.
(2) The charged crime may be proven with any evidence obtained in accordance with the law.”,
Article 218 of the same law states,
“(1) If the proof of the charged crime depends on the solution of a problem that falls within the jurisdiction of a court other than the criminal courts; the criminal court may also rule on this problem in accordance with the provisions of this law. However, it may decide on a pending problem regarding the filing of a lawsuit in the competent court regarding this problem or the conclusion of the lawsuit that has been filed.
(2) If a problem is encountered regarding the determination of the age of the victim or the defendant in terms of criminal provisions during the prosecution phase; the court shall resolve this problem in accordance with the procedure determined in the relevant law and give its verdict.” Accordingly, if the question of whether an act is a crime or not depends on the solution of a question that falls within the jurisdiction of another court, the criminal court may resolve this issue itself, or it may adjourn the trial and grant the relevant parties an appropriate period of time to file a civil lawsuit, and may also wait for a decision on this issue from the civil court. If the relevant parties are granted a period of time and a decision is expected from the civil court, for example, the civil court that evaluates the promissory note that is alleged to have been issued in violation of the agreement will not make a decision according to the provisions of the principle of free evidence adopted in criminal procedure, but according to the principle applied in civil procedure that “claims against the promissory note, except for exceptions, can only be proven by the promissory note”, and the decision given by the civil court regarding the promissory note will also bind the criminal court. As can be seen, if the criminal court has allowed the solution of a question that it has not decided within the rules of criminal procedure in terms of proving the charged crime in the civil court, it will now be bound by the decision given by the civil court. If it wants to decide on a question that falls within the jurisdiction of another court, it will have to apply the same rules, that is, the rules adopted in civil procedure. In the event of accepting the contrary, the trust in justice will be shaken due to the possibility of establishing contradictory decisions. In this case, since the criminal court will reach a conclusion by determining whether a legal transaction, namely the promissory note, was prepared contrary to the agreement, rather than whether an act is a crime, it must resolve the crime of abuse of open signature by applying the rules stipulated in the legal procedure. This obligation is only related to the claim that the promissory note was prepared contrary to the agreement, and while evaluating other elements such as the defendant’s intent and whether he used the promissory note, it may use its discretion in accordance with the principle of free evidence in criminal procedure. In criminal and civil courts, the application of different procedural rules in resolving a problem related to evidence may lead to different legal results. The claim that a signed blank paper was filled in contrary to the agreement is subject to the free evidence procedure in the criminal court, and in civil court, with some exceptions, it is subject to the limited evidence procedure.The acceptance of the solution and the emergence of different results due to this would be contrary to justice and fairness. Therefore, in order to prevent the drawbacks that may arise in practice from different decisions given by criminal and civil courts in resolving the issue of whether the promissory note was drawn up contrary to the agreement, the criminal court must apply the procedural rules to which the civil court is bound regarding the issue of witness evidence. In other words, if the claim that a signed blank paper was filled in contrary to the agreement due to the application of different procedural provisions is found to be established in the criminal court and a conviction is given, whereas the civil court accepts that such a claim is not grounded and the receivable is deemed valid, the creditor who was convicted for the crime of misuse of open signature as a result of the criminal court decision will be able to collect his receivable in execution according to the civil court decision. Moreover, this acceptance, in addition to the risk of the creditor who has a promissory note drawn up in accordance with the truth and law not being able to collect the receivable subject to the promissory note, also poses the risk of the TCK Article 209/1. This will cause the creditor to be kept under the threat of punishment as stipulated in the article, and will even result in the easy conviction of the creditor who does not seek witnesses during the transactions because he/she sees his/her receivables as legally secure by relying on the provisions of the Code of Civil Procedure, the Enforcement and Bankruptcy Code and the Commercial Code, and will cause insecurity in economic life. It is clear that legal logic will not allow such inconveniences and the emergence of such a contradictory situation. In fact, during the period when the Code of Criminal Procedure No. 1412 was in force, the same conclusion was reached in the Unification of Jurisprudence Decisions dated 12.04.1933 and numbered 31-7, dated 02.04.1941 and numbered 19-12, dated 24.03.1989 and numbered 1-2, and in the decision of the General Assembly of Criminal Procedures dated 05.02.2013 and numbered 1086-40. Since Articles 254 and 255 of the Criminal Procedure Code No. 1412 and Articles 217 and 218 of the Criminal Procedure Code No. 5271, which was in force on the date of the crime, contain parallel provisions in terms of the sections concerning the subject of the dispute, the said Unification of Jurisprudence Decisions still maintain their validity even in the face of the changing criminal legislation. …
It cannot be proven with the evidence in the file that the document titled “Client Application Form and Settlement and Release” dated 15.03.2005, which states that the respondent … will pay 40,000 TL to the defendant, was prepared as a forgery without the knowledge and consent of the respondent …, because as stated in the Unification of Jurisprudence Decision No. 1-2 dated 24.03.1989, which is also valid in criminal proceedings, the claim that the signed blank paper was filled out without an agreement must be proven with written evidence, in this sense, since the forgery of the document in question could not be proven, there is not sufficient evidence that the defendant committed the crime of fraud, but by using the documents given to him by the respondent … against him and assuming the representation of both the respondent … and the company he filed a debt claim against within the scope of the same lawsuit, he fulfilled his duty under the Law on Attorneyship with care, integrity and honor, befitting the sanctity of this duty, acting in accordance with the respect and trust required by the title of attorney and It should be accepted that the actions of the defendant, who caused the victimization of … by acting contrary to the obligations not to act as a lawyer for parties with opposing interests in the same case and by initiating enforcement proceedings against him even though he did not deserve it, as narrated in the indictment and proven, constitute the crime of abuse of office within the scope of the first paragraph of Article 257 of the TCK.
Attorney GAMZE KARA
