Embezzlement Crime and Penal Sanctions in the TCK in 2025

Embezzlement Crime and Penal Sanctions in the TCK in 2025. The crime of embezzlement (Zimmet) is classified under Article 247 of the Turkish Penal Code (TPC) No. 5237, within the section titled “Crimes Against the Reliability and Functioning of Public Administration,” and constitutes a specific crime (özgü suç) that can only be committed by individuals holding the status of a public official. At the heart of this crime lies the act of the perpetrator misappropriating property that was entrusted to them due to their duty, or property they were responsible for safeguarding, for their own benefit or the benefit of a third party, contrary to the requirements of their duty. While its primary sphere of legal protection is the safeguarding of public trust in administration, it also possesses the quality of an economic crime committed against property values. The crime of embezzlement is examined in conjunction with special provisions such as its aggravated form (fraudulent acts) , use embezzlement (Kullanma Zimmeti) , diminution in value of the property , and effective repentance (Etkin Pişmanlık) (TPC Art. 248) , which encourages the offender to compensate the public loss. This report meticulously analyzes all these elements of the crime and its penal sanctions within the current legal framework of 2025.

SECTION I: INTRODUCTION AND THE SCOPE OF LEGAL PROTECTION FOR THE CRIME OF EMBEZZLEMENT

1. Purpose, Scope, and Methodology

The main purpose of this expert report is to thoroughly examine the crime of embezzlement, meticulously regulated under Articles 247, 248, and 249 of the Turkish Penal Code (TPC) No. 5237, within the legal perspective of 2025. Report focuses on the fundamental legal structure of the crime, its nature as a specific offense, its aggravated forms, and mitigating circumstances such as effective repentance and the low value of the property, which affect the offender’s penal liability. The analysis is based on academic discipline and technical depth, relying especially on the current jurisprudence of the Court of Cassation’s Criminal Chambers and the General Assembly of Criminal Chambers. Given that the complex structure of the crime of embezzlement involves intricate issues related to both substantive and procedural law, the subject examined concerns not only the financial discipline of public officials but also the maintenance of public trust in the public administration.

2. Legal Status and Protected Value of the Crime of Embezzlement

The crime of embezzlement is regulated under the Second Book, Third Part, of the special provisions of the TPC, specifically under the heading “Crimes Against the Reliability and Functioning of Public Administration.” This placement clearly demonstrates that the legislator’s primary objective in protection is the reliability, prestige, and healthy functioning of public administration. The victim of the crime is therefore the public administration and the public itself.

However, structurally, the crime of embezzlement is more than just a breach of trust; it is also an economic crime committed against property values. The legislator exhibits a dual focus when formulating the penal policy for this type of crime. There is no distinction based on whether the ownership of the property subject to the crime of embezzlement belongs to the state, any public institution, or any private person. The legal contradiction underlying the act of embezzlement is the public official’s violation of the power of disposition over the property entrusted to them by virtue of their duty, regardless of who owns the property.

If the crime of embezzlement aimed solely to protect trust in public administration, the existence of the provision regarding the Diminution in Value of the Property (TPC Art. 249) would be meaningless. This is because the breach of trust occurs regardless of the monetary amount embezzled. However, TPC Art. 249 regulates the low value of the property as a mitigating circumstance for the penalty. This situation indicates that the legislator pursues a proportional and pragmatic penal policy, considering the magnitude of the economic loss caused by the crime while simultaneously protecting institutional reliability. This dual focus necessitates evaluating both the misuse of the perpetrator’s institutional position and the degree of concrete economic loss that occurred during the proceedings.

SECTION II: FUNDAMENTAL ELEMENTS OF THE CRIME OF EMBEZZLEMENT (TPC Art. 247/1)

1. Status of the Offender: Nature as a Specific Crime

The crime of embezzlement (TPC Art. 247), within the system of the Turkish Penal Code, is a specific crime (özgü suç) that can only be committed by individuals who possess a specific status. To be the perpetrator of this crime, the person must necessarily be a public official.

The concept of a public official should not be interpreted within a narrow framework in the sense of the TPC; it refers to a broad definition that includes civil servants. Any person who continuously, periodically, or temporarily participates in the execution of public activities through appointment, election, or any other method is considered a public official. For example, civil servants, experts appointed by administrative bodies, notaries, and even guardians managing the assets of a restricted person until the decision of guardianship is lifted, possess the status of a public official and can be the perpetrator of the crime of embezzlement. When individuals who are not public officials perform similar actions, these acts are evaluated as theft or the crime of breach of trust, depending on the circumstances.

In this context, the status of lawyers is of separate importance. Although lawyers are accepted as public officials in some legal processes, their actions related to the money they collect from clients by virtue of the power of attorney relationship are generally evaluated not as embezzlement but within the scope of the crime of breach of trust due to service.

2. Subject of the Crime and the Requirement of Possession Due to Duty

The property constituting the subject of the crime of embezzlement is not simply any property under the control of the public official. Property must have been transferred to the offender’s possession due to their duty, or the offender must have been responsible for its protection and custody. The subject of the crime includes movable and immovable property, as well as monetary values.

The critical point is the existence of a mandatory and absolute connection (nexus) between the transfer of the property and the public duty. If the property delivered to the public official was not delivered by virtue of their duty, the crime of embezzlement does not occur. For instance, a civil servant secretly using the property of another civil servant friend, which was entrusted to that friend due to their duty, for their own benefit does not fall within the scope of the crime of embezzlement. This absolute connection requirement links the formation of the crime of embezzlement to the exploitation of institutional procedures and official job descriptions, rather than merely the personal intent of the offender. The actual violation in the crime of embezzlement is the transgression of the institutional boundaries of the authority obtained through a legal and institutional process of possession.

3. Material Act and Mental Element

The material act of the crime of embezzlement is the public official misappropriating the property entrusted to them or under their custody, for their own benefit or the benefit of another, contrary to the requirements of their duty. This means that the perpetrator disposes of the property as if they were the owner; they can consume it, sell it, or allocate it for their own interest.

The crime of embezzlement can be committed intentionally (kasten) as the mental element.Embezzlement cannot be committed by negligence (taksirle). Intent can manifest as direct intent or possible intent. It is mandatory that the perpetrator acts with the will and knowledge (intent to appropriate, temellük kastı) to acquire the property left for their protection for their own or another person’s benefit.

SECTION III: AGGRAVATED AND MITIGATING CIRCUMSTANCES OF THE CRIME OF EMBEZZLEMENT

1. Aggravated Embezzlement (TPC Art. 247/2): Fraudulent Acts

The aggravated form of the crime of embezzlement is regulated in the second paragraph of Article 247 of the TPC. According to this paragraph, the penalty to be imposed on the perpetrator shall be increased by half if the crime is committed through fraudulent acts intended to conceal the embezzlement. The purpose of this aggravated circumstance is to punish not only the act of embezzlement but also the effort to conceal the act, thus imposing a heavier sanction on the perpetrator who deceives the control mechanisms of the public administration.

Court of Cassation Standard for Fraudulent Acts

Not every irregularity is accepted as sufficient for the existence of fraudulent conduct. The Court of Cassation has set a high threshold for applying this aggravated circumstance. As emphasized in the decisions of the Supreme Court, the fraudulent act must be of a nature that prevents the detection of the embezzlement and must possess a high capacity for deception. Irregularities that can be easily understood with a simple audit, investigation, or comparison should be evaluated within the scope of the basic (simple) crime of embezzlement, not as aggravated embezzlement (Court of Cassation General Assembly of Criminal Chambers, E. 2020/379, K. 2021/599).

This jurisprudence ensures the principle of proportionality in sentencing. Abstract lies are not sufficient for the existence of aggravated fraud; committing acts of a material deceptive nature is required. In today’s legal environment, where financial technologies and electronic control systems are increasingly evolving, for the acceptance of aggravated embezzlement, the perpetrator is expected to have used advanced methods that exploit system vulnerabilities, or manipulate digital records or institutional databases. Simple paperwork irregularities, while violating the professional seriousness of the public official, generally remain within the scope of basic embezzlement.

2. Use Embezzlement (TPC Art. 247/3)

Use embezzlement is regulated as a lighter form of the crime of embezzlement in TPC Art. 247/3. This act occurs when a public official uses the property entrusted to them due to their duty with the intention of using it for a temporary period and then returning it. Unlike the intent to appropriate in simple embezzlement, the perpetrator in use embezzlement does not have the goal of permanently acquiring the property. For this crime to occur, the property must be used temporarily and then intended to be returned. If this mitigating circumstance is applied, the penalty imposed on the perpetrator can be reduced by up to half.

3. Diminution in Value of the Property (TPC Art. 249)

Although the crime of embezzlement is classified among crimes against the reliability of public administration, due to its economic aspect, it includes a special mitigating circumstance in TPC Art. 249. It stipulates that the penalty imposed on the perpetrator should be reduced due to the low value of the property constituting the subject of the crime of embezzlement.

Reduction Rate and Application Conditions

This reduction, pursuant to TPC Art. 249, is applied from one-third (1/3) to one-half (1/2). The law does not set a concrete monetary limit for the low value of the property. The judge will evaluate whether the value of the property is low based on the characteristics of each concrete case and the criteria specified in TPC Art. 61/1 (the manner in which the crime was committed, the means used, the severity of the resulting damage and danger). If the judge concludes that the value of the property is low, they are obliged to apply the penalty reduction.

The diminution in the value of the property is a reason for reduction also applied to property crimes (such as theft and robbery). If the crime of embezzlement is committed in a chain of offenses, the total value of all the property acquired by the perpetrator is taken as the basis when deciding whether to apply this reduction.

SECTION IV: PENAL SANCTIONS AND THE INSTITUTION OF EFFECTIVE REPENTANCE

1. Imprisonment Penalties Prescribed for the Crime of Embezzlement

The penal sanctions for the crime of embezzlement are quite severe and gradually increase depending on the manner in which the crime is committed.

Embezzlement Type (TPC Article)	Penal Sanction	Minimum Penalty Limit	Maximum Penalty Limit
Simple Embezzlement (TPC 247/1)	Imprisonment	5 Years	12 Years
Aggravated Embezzlement (TPC 247/2)	Basic penalty increased by half	7 Years 6 Months	18 Years
Use Embezzlement (TPC 247/3)	Basic penalty reduced by up to half	Discretionary Reduction	Discretionary Reduction

2. Effective Repentance (TPC Art. 248): Graded Reduction Regime

Effective repentance (TPC Art. 248) is a special penal reduction institution specific to the crime of embezzlement, applied when the perpetrator shows remorse after committing the crime and compensates the loss incurred by the public. This provision is accepted only as a reason requiring a reduction in the penalty. The rates of reduction in the penalty are determined according to the time when repentance is shown, which signifies a system that rewards the speed of compensating the public loss.

In crimes like embezzlement that directly affect public finance, the legislator has seen the rapid and minimum-cost compensation of the economic loss as an absolute priority, even before the restoration of institutional trust. This indicates a legislative will that prioritizes the restitution function over the classic penal function of criminal law.

For the provisions of effective repentance to be applied, the embezzled property must be returned in kind, or the incurred loss must be fully compensated.

Stages of Effective Repentance and Reduction Rates

TPC Art. 248 stipulates the following graded reduction rates based on the time when effective repentance occurs:

Time of Effective Repentance	Legal Provision	Penalty Reduction Rate
Before the Investigation Commences	TPC 248/1	Two-thirds (2/3) Reduced
Before the Prosecution (Lawsuit) Commences	TPC 248/2, Sentence 1	Half (1/2) Reduced
Before the Verdict is Given	TPC 248/2, Sentence 2	One-third (1/3) Reduced

For example, the penalty of a perpetrator who fully compensates the loss before the investigation commences and would normally receive 6 years of imprisonment may be reduced to 2 years with a 2/3 reduction. For voluntary return or compensation after the investigation commences but before the lawsuit is filed, the penalty to be imposed is reduced by half.

SECTION V: PROCEDURE AND JUDICIAL PROVISIONS

1. Competent Court, Jurisdiction, and Statute of Limitations

Since the crime of embezzlement is a crime type with severe sanctions, the investigation and prosecution processes are subject to special provisions.

Competent Court: The court responsible for handling embezzlement cases is the High Criminal Court (Ağır Ceza Mahkemesi).
Authorized Court (Jurisdiction): The authorized court is the court of the place where the crime was committed, according to general provisions.
Statute of Limitations (Dava Zamanaşımı): The statute of limitations period prescribed for the crime of embezzlement is 15 years. This period begins to run from the date the crime was committed.
Complaint: The crime of embezzlement is not a crime dependent on a complaint (şikâyet). Upon denunciation, the investigation and prosecution are pursued ex officio (resen) by the prosecutor’s office. The capacity of the injured party generally belongs to public institutions.

2. Investigation Permit Procedure and Interaction (Law No. 4483)

The initiation of an investigation against public officials for the allegation of embezzlement is generally subject to the provisions of Law No. 4483 on the Trial of Civil Servants and Other Public Officials. Accordingly, an investigation permit must be obtained from the relevant administrative authorities (governor, district governor, highest administrative superior). Unless permission is granted by the administrative authority, civil servants cannot be prosecuted by the prosecutor’s office, with some exceptions.

Exceptions

In some cases, the provisions of Law No. 4483 do not apply to persons with the status of public officials, and prosecutors may initiate prosecution directly. These exceptions include:

Personnel whose main and continuous duties are not based on general administrative principles and who do not have the authority to use public force (e.g., workers, contracted personnel not attached to a cadre).
High-level public officials who are subject to special laws due to their status, such as members of high judiciary, Turkish Armed Forces (TSK) personnel, judges, and prosecutors.
Special laws exist, historically noted in Law No. 3628, that mandate direct prosecution by prosecutors for serious corruption crimes such as bribery, embezzlement, and smuggling.

Relationship Between Investigation Permit and Effective Repentance

The highest penalty reduction (2/3) in TPC Art. 248 is tied to the compensation of the loss before the investigation commences. However, pursuant to Law No. 4483, the commencement of an investigation for the crime of embezzlement is subject to the permission of the administrative authority. Bureaucratic delays in this administrative permit process or the use of administrative discretion may prevent the perpetrator from acting, even if they have the will to compensate the loss, due to the extension of the investigation permit process. This situation may procedurally eliminate the perpetrator’s opportunity to benefit from the highest effective repentance reduction (2/3). Consequently, the perpetrator’s will to mitigate their penalty becomes dependent on an administrative decision, rather than purely a judicial evaluation.

3. Participation and Chain of Offenses Applications

Since the crime of embezzlement is a specific crime, the perpetrator who carries out the material elements of the crime must necessarily be a public official. Other persons who do not hold the status of a public official can only participate in this crime as instigators or accessories. The general provisions on participation in the TPC (TPC Art. 40/2) apply to these participants.

If the perpetrator has committed the same crime against the same victim (public administration) multiple times at different times, these acts may constitute a chain of offenses (TPC Art. 43). In the decisions of the Court of Cassation, it has been stated that the acts committed in a chain of offenses constitute the aggravated crime of embezzlement (TPC 247/2) and a sentence should be passed accordingly. When deciding whether to apply the chain of offenses provision, the total value of all acquired property is taken into account for the reduction due to the low value of the property.

SECTION VI: DISTINCTION OF EMBEZZLEMENT FROM OTHER PUBLIC ADMINISTRATION CRIMES

The crime of embezzlement is often confused with other crimes committed against the reliability of public administration (Extortion, Misconduct in Office, etc.). The distinction between these crime types is made through the status of the perpetrator, the mental element (intent), and the manner in which the material act is committed.

Crime	Perpetrator Status	Core Act and Intent	Distinguishing Feature from Embezzlement
Embezzlement (TPC 247)	Public Official (Specific Crime)	Intent to appropriate (temellük kastı) property taken into possession due to duty.	Mandatory Existence of Possession Due to Duty and Intent to Appropriate.
Extortion (TPC 250)	Public Official	Misuse of influence to compel (icbar), persuade, or benefit from the victim’s mistake to obtain an advantage.	Possession of the property by the public official is not required; the victim’s will is affected.
Breach of Trust (TPC 155)	Everyone (Not a Public Official)	Appropriation of property transferred into possession, contrary to the purpose of the transfer.	The perpetrator is not a public official. Embezzlement is specific to public officials.
Misconduct in Office (TPC 257)	Public Official	Acting contrary to the requirements of duty to gain an unfair advantage.	Lack of intent to appropriatepresent in embezzlement. Misconduct in Office is a more general crime of duty violation.

1. Difference Between Embezzlement and Extortion

The main difference between the crime of embezzlement and the crime of extortion (TPC Art. 250) lies in who possesses the property. In embezzlement, the perpetrator is already in possession of the property because it was delivered to them or left under their custody due to their duty. In the crime of extortion, the transfer of any property or money into the possession of the public official is not required. In extortion, the public official uses their influence to compel, persuade the victim, or takes advantage of the victim’s mistake to gain an unfair benefit.

2. Difference Between Embezzlement and Breach of Trust

The most prominent distinction between these two crimes stems from the perpetrator’s status. If the act is committed by a person who is not a public official, the action is evaluated within the scope of the crime of breach of trust, not embezzlement.

SECTION VII: CONCLUSION AND 2025 LEGAL EVALUATION

The crime of embezzlement is among the most serious crimes committed against public administration within the Turkish Penal Code system, and in 2025, the penal regime for this crime (the penalty range of 5 to 12 years of imprisonment in TPC 247/1) remains an indicator of the importance given to the reliability of public institutions.

Upon reviewing the current legal framework and the jurisprudence of the Court of Cassation, two fundamental areas of sensitivity regarding the application of the crime have been identified:

Principle of Proportionality and Aggravated Fraud Standard: The Supreme Court has set a strict standard for the application of aggravated embezzlement (TPC 247/2). The jurisprudence stating that irregularities that can be understood with a simple audit should not be considered aggravated embezzlement provides a legal distinction between perpetrators who deserve a lower penalty and those who cleverly manipulate public administration. In the future, due to the digitalization of financial systems, demanding the existence of sophisticated methods such as electronic record manipulation for the proof of aggravated embezzlement will become inevitable.
Public Interest Focus in Effective Repentance: The graded penalty reduction system established by TPC Art. 248 displays a pragmatic penal policy that prioritizes the fastest compensation of public loss, rather than merely the perpetrator’s intention of remorse. However, the procedural conflict between the provisions of Law No. 4483, which makes the commencement of the investigation dependent on administrative permission, and the highest reduction in TPC 248 (2/3 reduction before the investigation commences), creates a significant area of debate in jurisprudence, as it can narrow the perpetrator’s opportunity to benefit from effective repentance in an equitable manner.

The crime of embezzlement and its penal sanctions will continue to play a central role in the application area of Turkish Criminal Law, requiring the meticulous analysis of mandatory substantive law elements such as “possession due to duty” and “intent to appropriate,” as well as the correct management of procedural law aspects such as investigation permit procedures and the timing of effective repentance.

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