Material Falsification Of Official Documents: An Analysis Under The Turkish Criminal Code

Introduction

Forgery of official documents is one of the most serious crimes undermining the foundations of the relationship of trust between individuals and the state. This crime, regulated in Article 204 of the Turkish Criminal Code No. 5237 ["TCC"], is subject to more severe penalties, especially when public officials perform acts contrary to the truth in documents they have the authority to regulate.

One of the most striking aspects of forgery is content-related forgery. This is because, in most cases, documents may appear correct in form, with genuine signatures and seals affixed in accordance with procedure; however, the inclusion of statements that are contrary to the truth in the content deeply undermines public trust. For this reason, content forgery is significant in terms of documents that "appear to be flawless on the surface but are deceptive at their core."

Legal Framework

The first paragraph of Article 204 of the TCC provides for a prison sentence of two to five years for any person who falsely prepares, alters, or uses an official document. The second paragraph introduces a provision specific to public officials, stating that if forgery is committed on official documents that they are authorized to prepare in the course of their duties, they shall be sentenced to imprisonment for a term of three to eight years.

The critical point here is that the document must be an official document. Three basic elements are required for a document to be considered an official document: (i) The document must be drawn up by a public official, (ii) The drawing up must be carried out within the scope of the official's duties, (iii) The document must be prepared in accordance with procedural and formal rules. ¹

The reasoning behind the ruling states that an official document must be drawn up by a public official in the course of their duties and must be related to the duties performed by the public official. In this regard, the reasoning of the ruling also emphasizes that even if the document in question is a contract and falls within the scope of private law provisions, it is still considered an official document , as it is signed by a public official on behalf of a public institution.²

Article 6 of the Turkish Criminal Code defines a public official as "a person who participates in the conduct of public affairs through appointment or election or in any other manner."³

Therefore, in terms of content, the elements of the crime of forgery will be present if a public official falsifies an official document falling within the scope of their duties.

Characteristics of Content Forgery

Content forgery applies to documents that appear completely valid and in accordance with procedure when viewed from the outside but contain statements that are contrary to the truth. ⁴

A public official who records an event or declaration of intent that has occurred in a manner contrary to the truth, or who documents an event or declaration of intent that has not occurred as if it had occurred, also commits forgery. ⁵ ⁶

Content forgery arises particularly in the following situations:

Putting a date on a document that is contrary to the truth. For example, if a notary public prepares a document with a past date, even if the content of the document is legally compliant, the document is considered entirely false because the date is contrary to the truth.
Recording an event that did not occur as if it had occurred. This includes presenting a declaration of intent that was not made in the presence of a public official or writing about an event that did not occur as if it had occurred.
The subsequent preparation of documents such as eviction commitments or their signing with a date that is contrary to the truth. These types of documents are typical examples of content forgery in practice.

Therefore, in content forgery, even if the document appears to be an official document in terms of its external appearance, the inaccuracy of its content undermines public trust.

Indeed, in the ruling of the Criminal General Assembly of the Court of Cassation dated March 6, 2007, with case number 2006/276 and decision number 2007/55, it was emphasized that the crime of document forgery aims to protect public trust and that false statements or deliberate omissions in official documents should be considered as forgery:

"According to the generally accepted view in both established judicial decisions and doctrine, the legal subject of the crime of document forgery is public trust. The acts of falsifying documents, adding to genuine documents, or altering them in whole or in part are considered to undermine public trust and are therefore criminalized and subject to punishment. Pursuant to the provisions of the law explained above, the defendants were obliged to record the seizure of the pistol in the minutes and immediately report the situation to the public prosecutor's office, in accordance with Article 100 of CYUY No. 1412, which was in force at the time of the crime, and Article 4 of PVSY No. 2559. they abandoned this duty and obligation, failing to include in the record that the firearm in question had been seized, thereby concealing the material truth with incomplete and misleading statements. The search record, which was drawn up by the officials and constitutes an official document, is a false document in terms of its content, as it states that "no evidence of a crime was found." Official documents, to the extent of the findings they contain, will also serve as evidence for what should have been included but was excluded from their content; therefore, such a deliberate omission must be considered within the scope of forgery intent and action in light of the responsibilities imposed by the law. Therefore, the Local Court's decision to find that the crime of forgery of an official document had been committed and to sentence the defendants is appropriate and in accordance with procedure and law."

Similarly, this matter is clearly stated in the ruling of the Criminal General Assembly of the Supreme Court dated December 22, 2009, with case number 2009/105 and decision number 2009/303:

"In the specific case, the defendants, who served as members of the municipal council and municipal assembly, as evidenced by the agenda minutes and witness statements, drafted and signed the decisions in question even though they were not on the agenda of the municipal assembly and council and were not discussed. (...) It is also clear that the grader, the purchase of which was decided, was not delivered to the municipality. Indeed, this matter was later brought to court, and the contract with Albaraka Türk was terminated by court order. The defendants' actions of signing a decision that had not been taken as if it had been taken constitute the crime of forgery of official documents, given that a document with false content was drawn up."

These decisions show that forgery is not limited to a formal deficiency; on the contrary, any discrepancy in the content is equally dangerous in terms of public trust.

Evaluation

Falsification in terms of content is the most common but the most difficult type of falsification to detect in practice. This is because the documents appear correct in form and do not raise any suspicion at first glance. However, the fact that the content is contrary to the truth undermines both the rights of individuals and public trust.

Therefore, for example, the authenticity of signatures, the proper use of seals, or the apparent absence of any deficiency in the manner in which the document was drawn up does not eliminate forgery. If a document contains an element that is contrary to the truth, it is entirely forged.

Conclusion

Content forgery is one of the most typical manifestations of public officials' abuse of their regulatory powers under Article 204(2) of the Turkish Penal Code. The presence of inaccuracies in the content of a document that appears to be legally compliant in form undermines public trust at least as much as forgeries committed in terms of form, and in many cases can lead to even more serious consequences. Supreme Court decisions also clearly state that the essence of content forgery is the inaccuracy in the content of the document.

Footnotes

1. Durmuş TEZCAN/Mustafa Ruhan ERDEM/Rıfat Murat ÖNOK, Criminal Law, 6th Edition, Ankara. 2008 p.678.

2. Reasoning behind Article 204 of the Turkish Criminal Code No. 5237

3. The concept of public official is defined in Article 6(1)(c) of the Turkish Criminal Code. Furthermore, even if not covered by this definition, it is possible for a person to be considered a public official due to provisions in special regulations. For this reason, according to Article 1 of the Attorney Act No. 1136, "since the practice of law is a public service and a liberal profession, attorneys are considered public officials."

4. M. Emin ARTUK/ Ahmet GÖKCEN, Criminal Law Special Provisions, Ankara, 2021, p.823.

5. ARTUK/ GÖKCEN p.821.

6. Indeed, as stated in the justification for Article 204 of the Turkish Criminal Code: "(...) if a public official prepares a document by presenting an event as having occurred in his presence or a statement as having been made in his presence, contrary to the truth, the crime defined in this paragraph is committed."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.