Legal definition of the offense
The offense of providing false information about companies and cooperatives is regulated under Article 164 of the Turkish Penal Code within the section titled “Offenses Against Property.” The relevant provision states:
TCK Article 164 – (1) Persons who hold the status of founders, partners, administrators, managers, or representatives of a company or cooperative, or members of the board of directors or supervisory board, or liquidators, who, in their public statements or in reports or proposals submitted to the general assembly, provide or cause the provision of significant false information that may cause harm to the relevant persons, shall be punished with imprisonment from six months to three years or a judicial fine of up to one thousand days.
This provision emphasizes that the statements and information provided by company and cooperative officials within the scope of their duties must be accurate; otherwise, criminal liability will arise.
Elements of the offense
When evaluated together with both its objective and subjective elements, the offense of providing false information about companies and cooperatives has the following basic components:
1- Perpetrator: The perpetrator of the offense of providing false information about companies and cooperatives can only be persons who hold the status of “founders, partners, administrators, managers, or representatives of a company or cooperative, or members of the board of directors or supervisory board, or liquidators,” as specified in the law. In this respect, the offense defined under Article 164 of the Turkish Penal Code is a special (specific offender) crime.
2- Victim: The victim of this offense consists of the relevant persons who suffer harm due to false statements.
3- Act (Conduct) Element: The act element of this offense consists of providing or causing the provision of significant false information that may cause harm to the relevant persons in public statements, or in reports or proposals submitted to the general assembly.
4- Legal Interest Protected by the Offense: The offense of providing false information about companies and cooperatives is regulated under the heading “Offenses Against Property” in the Turkish Penal Code. The legal value protected by this offense is the relationship of trust in the economic order.
5- Mental Element: The offense can only be committed intentionally; negligence is not legally possible. For the offense to occur, it is not necessary for the perpetrator to have the aim of gaining profit or causing damage. Acting with the intent to provide or cause the provision of false information is sufficient for the offense to be established.
UZLAŞMA, ŞİKAYET SÜRESİ, ZAMANAŞIMI VE GÖREVLİ MAHKEME
The offense regulated under Article 164 of the Turkish Penal Code is subject to provisions of conciliation if it is committed against the persons specified in Article 167 of the Turkish Penal Code. In other cases, conciliation provisions do not apply. The relevant statutory provision is as follows:
TCK Article 167
(1) Except for robbery and aggravated robbery, if the offenses set forth in this section are committed to the detriment of:
a) One of the spouses for whom no legal separation has been decided,
b) A relative in the direct ascending or descending line, or a related relative by marriage in the same degree, or an adopter or adoptee,
c) One of the siblings living in the same household,
no penalty shall be imposed on the relevant relative.
(2) If these offenses are committed to the detriment of a spouse for whom a legal separation has been decided, a sibling who does not live in the same household, or an uncle, aunt, maternal uncle, maternal aunt, nephew/niece, or second-degree in-law relatives living in the same household, the penalty to be imposed upon complaint shall be reduced by half for the relevant relative.
Likewise, if the offense is committed against the persons specified in Article 167 of the Turkish Penal Code, its investigation is subject to complaint. If it is committed against persons outside the scope of Article 167, it is not subject to complaint and the investigation is carried out ex officio by the public prosecutor. Although there is no complaint period for the investigation of the offense, the statute of limitations for prosecution is 8 years. The competent court is the Criminal Court of First Instance.
Judicial fine, suspension of the sentence, and deferred pronouncement of the judgment decision
Pursuant to Article 164 of the Turkish Penal Code; persons who hold the status of founders, partners, administrators, managers, or representatives of a company or cooperative, or members of the board of directors or supervisory board, or liquidators, shall be punished with imprisonment from six months to three years or a judicial fine of up to one thousand days if, in their public statements or in reports or proposals submitted to the general assembly, they provide or cause the provision of significant false information that may cause harm to the relevant persons.
Considering the lower and upper limits of the penalty, it is possible for the imprisonment sentence to be converted into a judicial fine, for a decision of suspension of the pronouncement of the judgment (HAGB) to be issued, and for the sentence to be suspended.
Relevant decisions of the Court of Cassation
“…The judgment of acquittal of the defendant for the offense of providing false information about a company or cooperative was appealed by the complainant’s counsel, and upon examination of the file, the following was considered:
In the incident where it is alleged that the defendant worked as a coordinator at the … educational institution (dershane) managed by the complainant, and after leaving the job, sent messages to the parents of students stating that the institution was experiencing financial difficulties, thereby committing the offense of providing false information about a company or cooperative;
it was found that there was no error in the acquittal decision rendered on the grounds that the legal elements of the offense were not constituted. Considering the trial conducted, the evidence collected and indicated in the reasoning of the judgment, the conviction and discretion formed by the court in accordance with the outcome of the proceedings, and the scope of the examined file;
the objections raised in the appeal by the complainant’s counsel were rejected, and the judgment was upheld unanimously on 01/10/2018…” (Court of Cassation, 15th Criminal Chamber, 2015/12062 E., 2018/6147 K., 01.10.2018)
“…In the review of the judgment rendered for the offense of providing false information about a company or cooperative:
It is established that the complainant … was the chairman of the S.S. … Housing Construction Cooperative, and the defendant was a member of this cooperative. At the general assembly held on 30/06/2013, the defendant was a candidate for the chairmanship of the cooperative. During the candidacy process, in the leaflet he distributed, it is alleged that he provided false information about the cooperative with statements such as: ‘…the chairman always treats us members as fools… I have never seen the chairman tell the truth… I have presented you with a large amount of evidence and corruption documents… I can also deliver them in person upon request, this cooperative has been prolonged too much, the members have suffered…’
For the offense of providing false information about a company or cooperative to occur, it is required that founders, partners, administrators, managers, or representatives of the cooperative, or members of the board of directors or supervisory board, or liquidators, provide or cause the provision of intentionally false information through public statements, reports, or proposals submitted to the general assembly, in a manner that may cause harm to the relevant persons. Considering that this offense is regulated to protect the trust and good faith in cooperatives, no error was found in the acquittal decision rendered on the grounds that the legal elements of the offense attributed to the defendant were not constituted.
As a result of the trial, since the court concluded and exercised its discretion on the basis that the elements of the offense attributed to the defendant were not established, the objections raised by the complainant’s counsel regarding the existence of the offense were rejected, and the judgment was upheld…” (Court of Cassation, 15th Criminal Chamber, 2017/31008 E., 2020/7348 K., 02.07.2020)
“…The subject matter of the offense of providing false information about a company or cooperative consists of false statements made to the public and reports submitted to the general assembly in a manner that may cause harm to the relevant persons. In this context, public statements may be made through press and media or by sending brochures via mail, addressing unspecified persons, and such significant false information may also be contained in reports or proposals submitted to the general assembly, such as preparing balance sheets that do not reflect the truth or referring to fictitious profits. However, in all cases, it is required that the statements, reports, or proposals are knowingly false, presented as true with the intent to deceive, and that, based on this, another person’s economic interest related to the company or cooperative has been harmed or at least exposed to the risk of harm.
In the present case, the defendant’s act consisted merely of sending a letter to the Keçiborlu Enforcement Office stating that “…one of the company’s partners … serves as the company manager, does not receive any salary from the company, and therefore his salary cannot be subject to attachment.” Without considering that the legal elements of the offense of providing false information about a company or cooperative were not constituted by this act, the defendant was convicted instead of being acquitted, which is contrary to the law.
Since the grounds of appeal raised by the defendant were found to be justified, it was unanimously decided on 07.02.2022 to reverse the judgment pursuant to Article 321 of the Code of Criminal Procedure No. 1412, which is applicable under Article 8/1 of Law No. 5320.” (Court of Cassation, 11th Criminal Chamber, 2021/17070 E., 2022/1559 K., 07.02.2022)
“……The judgments of acquittal of the defendants for the offense of providing false information regarding … were appealed by the complainant’s counsel, and upon examination of the file, the following was considered:
In the incident alleged, the defendants were the founders and managers of the company …, and the complainant had been working as an employee in this company and suffered a workplace accident. Although the Labor Court ordered compensation to be paid, it is alleged that the defendants, acting as company officials, liquidated the company without paying the determined compensation, thereby committing the offense attributed to them.
It was determined that no illegality or procedural irregularity was found in the liquidation process of the company, and that no false statement had been made by the defendants to the general assembly or the public. It was also understood that the dispute is of a legal nature. Accordingly, no error was found in the acquittal decision rendered on the grounds that the offense of providing false information about a company or cooperative was not constituted in terms of its legal elements.
As a result of the trial, since the court concluded and exercised its discretion on the basis that the elements of the offenses attributed were not established, the objections raised by the complainant’s counsel, which were not based on any grounds, were rejected, and the judgment was upheld unanimously on 10/03/2016.” (Court of Cassation, 15th Criminal Chamber, 2013/26401 E., 2016/2481 K., 10.03.2016)
“…The subject matter of the offense set out in Article 164 of the Turkish Penal Code consists of false statements made to the public and reports submitted to the general assembly in a manner that may cause harm to the relevant persons. In this context, public statements may be made through press and media or by sending brochures via mail to address unspecified persons, and such significant false information may also be included in reports or proposals submitted to the general assembly, such as preparing balance sheets that do not comply with reality or referring to fictitious profits. However, in all cases, it is required that the statements, reports, or proposals are knowingly false, presented as true with the intent to deceive, and that, based on this, another person’s economic interest related to the company or cooperative has been harmed or at least exposed to the risk of harm.
In light of these considerations, when the concrete case is evaluated; it is observed that no unlawful or procedural irregularity was detected in the liquidation process of the company, and that the defendants did not make any statements intended to deceive the public or the general assembly of the company. Moreover, even if the company is found to be indebted, pursuant to Article 547 of the Turkish Commercial Code No. 6102, the legal personality of the company may be restored for the purpose of additional liquidation and it may be re-registered in the registry. Therefore, no situation involving damage arises, and the matter falls within the jurisdiction of civil courts. Taking all these together, no error was found in the acquittal decision rendered by the court…” (Court of Cassation, 15th Criminal Chamber, 2014/2451 E., 2016/8391 K., 07.11.2016)
“…In the incident, it is alleged that the defendant, who was a partner and the chairman of the board of directors of … Investment Holding Joint Stock Company, stated to the enforcement officer who went to the company for attachment proceedings—following the finalization of enforcement proceedings initiated due to the company’s debt—that the company had been transferred one month earlier to a person named …, and that this statement was recorded in the attachment report, leading to the termination of the attachment process. It is further alleged that, although the defendant had not actually transferred the company, he committed the offenses of providing false information about companies or cooperatives and making false statements in the preparation of an official document in order to avoid the attachment process.
As established by the letter of the Trade Registry Directorate, it is clear that the defendant did not transfer the company. However, in order for an offense to be constituted under Article 164 of the Turkish Penal Code No. 5237, false information must be provided in public statements or in reports submitted to the general assembly. As explained in the reasoning of the article, “public statements” must be made through press and media or by sending brochures via mail, addressing unspecified persons and providing them with false information. Furthermore, under Article 206/1 of the same Law, for the offense to occur, the official document drawn up based on a person’s statements must have the capacity to prove the accuracy of those statements. Otherwise, the document prepared cannot be considered capable of proving the truth of the statement, and the person cannot be deemed to have caused the issuance of such a document merely through their own declaration.
In light of these considerations, it is understood that the legal elements of the offenses attributed to the defendant were not established. Therefore, rendering a judgment in writing without taking this into account is erroneous.
Moreover, even on the merits, under Article 53/2 of the Turkish Penal Code No. 5237, it was unlawful not to consider that, due to the imposition of a judicial fine on the defendant, the rights deprivation measures set out in Article 53/1 of the same Law could not be imposed.
For these reasons, the appeal objections of the defendant’s counsel were found justified, and pursuant to Article 321 of the Code of Criminal Procedure No. 1412, which is to be applied under Article 8/1 of Law No. 5320, it was unanimously decided on 11/11/2019 to REVERSE the judgments.” (Court of Cassation, 15th Criminal Chamber, 2017/30885 E., 2019/11393 K., 11.11.2019)
“…The defendants consistently maintained in all stages of the proceedings that they had fully fulfilled their duties. According to the records obtained from the İzmir Provincial Directorate of Industry and Trade regarding the cooperative, at the general assembly meetings held on 29/08/2004, 19/02/2006, and 02/03/2008, it was sufficiently reported by the board of directors to the general assembly about the lawsuits filed by the landowners and the stages of those proceedings, and a resolution was adopted by the general assembly regarding making payments. Although an action for annulment of the general assembly resolution was filed before the Commercial Court against this decision, the case was dismissed and became final. The board of directors carried out transactions in accordance with the decision of the general assembly. Likewise, at the general assembly meeting dated 21/12/2008, the proposal to seek recourse against the contractors was not accepted by a majority vote. Furthermore, as a result of the investigation conducted by the İzmir Governorship Provincial Directorate of Industry and Trade, it was determined that the members of the board of directors had no negligence.
In light of the above, since no conclusive and convincing evidence free from all doubt could be obtained to impose a conviction on the defendants, no error was found in the acquittal decisions rendered…” (Court of Cassation, 15th Criminal Chamber, 2016/545 E., 2018/1165 K., 20.02.2018)
Lawyer Gökhan AKGÜL & Lawyer Yasemin ERAK
