Forgery Crimes and Negotiable Instruments

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Chapter 1: Introduction – Forgery Crimes and the Importance of Negotiable Instruments

1.1. The Social Impact of Counterfeiting

Crimes of forgery undermine the foundation of trust not only between individuals but also between the state and its citizens. Therefore, the Turkish Penal Code as crimes against public trust . The loss of trust in documents directly threatens the functioning of the economic system, commercial relations, and the legal order.

Documents used in commerce, especially negotiable instruments, regulate debt relationships on the one hand and ensure the liquidity of financial markets on the other. Forgery in these documents affects not only the parties involved but also third parties in the market.

1.2. The Role of Negotiable Instruments in Commercial Life

The most distinctive feature of negotiable instruments is that the right is tied to the instrument itself. The person holding the instrument is considered the owner of the right. Therefore, the reliability of negotiable instruments is vital for the economic system.

• Check: A means of payment that replaces cash.

• A promissory note is a document that acknowledges a debt and is subject to strict formal requirements.

• A promissory note is a document that facilitates commercial credit and contains a payment order.

The reliability of these documents allows them to function as credit in the market. However, the risk of forgery directly undermines this function.

1.3. Why is Forgery of Negotiable Instruments More Dangerous?

Forgery in ordinary written documents often only affects the parties involved. However, with negotiable instruments:

• It is tradable

• Third parties may acquire the promissory note in good faith,

• These individuals are also directly affected by the fraud.

Therefore, forgery of negotiable instruments multi-faceted harm . The holder, the debtor, and the economic system all suffer.

1.4. Historical Perspective

The concepts of negotiable instruments and forgery have a long history, stretching from Roman law to the present day. Problems with forgery emerged with the first bills of exchange in the Middle Ages, and with the development of modern commercial law, forgery of negotiable instruments became a distinct type of crime

In Turkish law, the issue of forgery became institutionalized with the inclusion of forgery offenses in the Turkish Penal Code during the Republican era and the detailed regulation of negotiable instruments in the Commercial Code of 1926. Today, the Turkish Commercial Code No. 6102 and the Turkish Penal Code No. 5237 are considered and applied together.

Chapter 2: General Framework of Forgery Crimes

Forgery crimes are regulated under the heading "Crimes Against Public Trust" in the Turkish Penal Code. This choice indicates that forgery damages not only relationships between individuals but also the trust placed in documents . Since negotiable instruments are central to trust in commercial life, they constitute one of the most debated areas of application for forgery crimes.

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2.1. Elements of Forgery Crimes

Forgery crimes are structured around three basic acts:

1. Forgery: Creating a document that does not actually exist or forging a signature that does not belong to anyone.

2. Falsifying Documents: Documenting a real legal relationship in a way that is not accurate in terms of its content.

3. Using a Forged Document: Using a document that has been forged or altered in a way that produces legal effects.

These three actions are directly applicable to forgery of negotiable instruments. For example;

• Forging the issuer's signature on a check constitutes creating a forged document.

• Altering the amount field on a promissory note is considered falsifying the terms of a document.

• Using a forged insurance policy in debt collection proceedings constitutes the act of using a forged document.

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2.2. Forgery of Official and Private Documents

In the Turkish Penal Code, forgery is divided into two categories: forgery in official documents and forgery in private documents

• Forgery of official documents (Turkish Penal Code Article 204): Documents prepared by a public official in the course of their duties or documents they are authorized to prepare. For example, notarized negotiable instruments or checks issued by a bank can be considered official documents.

• Forgery of private documents (Turkish Penal Code Article 207): Documents issued by natural or legal persons. Negotiable instruments such as checks, promissory notes, and bills of exchange are generally considered private documents.

📌 The critical point here is that the nature of the document directly affects the penalty for forgery. Forgery of official documents is subject to more severe penalties.

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2.3. The Legal Value Protected by the Crime of Forgery

The legal value protected by forgery crimes is the trust placed in documents . Commercial life functions thanks to this trust. If trust is lost in checks, promissory notes, or bills of exchange, these instruments become negotiable. Therefore, forgery of negotiable instruments can also be considered a crime against the functioning of the economic order

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2.4. Perpetrator and Victim

• Perpetrator: Anyone can be the perpetrator of forgery. However, forgery of negotiable instruments is most often committed by the person who issues the instrument, endorses it, or obtains it with the intention of committing forgery.

• The victim, legally, is the entire society. However, the person directly harmed is the holder of the forged promissory note or the person appearing as indebted due to the note.

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2.5. Intent and Moral Element

Forgery crimes are crimes that can only be committed intentionally. The perpetrator must:

• Knowing that he had forged the document,

• He must use this document to produce legal consequences.

It is not possible to commit the crime of forgery through negligence.

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2.6. Attempted and Complicit in Forgery Crimes

• Attempt: If the process of forging a promissory note has begun but not been completed, it may constitute an attempt.

• Participation: The provisions regarding participation apply when a crime is committed by more than one person. For example, if one person forges a promissory note and another puts it into circulation, both are considered perpetrators.

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2.7. Sanctions

• Forgery of official documents: 2–5 years imprisonment.

• Forgery of a private document: 1-3 years imprisonment.

• If the subject of the crime is negotiable instruments, the Supreme Court's practice tends to deviate from the lower limit of the sentence. This is because forgery has serious consequences as it undermines the trust in circulation of securities

Chapter 3: The Legal Nature of Negotiable Instruments

Negotiable instruments are special documents regulated in detail in the Turkish Commercial Code (TTK), ensuring the security and functioning of commercial life. Understanding the legal nature of these documents is critical to understanding why forgery crimes have more severe consequences when applied to negotiable instruments.

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3.1. Definition of Negotiable Instruments

According to Article 645 of the Turkish Commercial Code, negotiable instruments are "instruments in which the right contained therein cannot be asserted separately from the instrument itself and cannot be transferred to another party." This definition shows us three fundamental principles:

1. Documentary Requirement for Claiming a Right (Unity of Document and Right): A right can only be claimed by presenting a document.

2. The Principle of Abstraction: As a rule, a promissory note is independent of the underlying debt relationship.

3. Negotiability: The promissory note is transferable and can circulate in the market.

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3.2. Functions of Negotiable Instruments

Negotiable instruments are not only documents proving receivables, but also a means of securing commercial assets. Their functions can be listed as follows:

• Proof Function: No claim can be asserted without presenting the document.

• Trust Function: The document implies trust that the person holding it is the rightful owner.

• Circulation Function: The promissory note can change hands through transfer, which ensures commercial fluidity.

• Credit Function: Checks, promissory notes, and bills of exchange function as credit instruments in commercial life.

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3.3. Types of Negotiable Instruments

(A) Promissory Notes

• Bonds are promissory notes, similar to bills of exchange.

• They are transferred through endorsement and delivery.

(B) Bearer Instruments

• Check, bearer share, bond.

• The right is transferred along with the transfer of possession.

(C) Registered Instruments

• Registered shares.

• The transfer of ownership is completed both by a written declaration of transfer and by physical delivery.

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3.4. Characteristics of Negotiable Instruments in Terms of Counterfeiting

The aforementioned characteristics of negotiable instruments explain why forgery leads to more serious consequences:

1. Trust in the Document: The holder is considered the rightful owner when they present the document. If the document is forged, third parties may also be harmed.

2. Transferability: A forged promissory note can change hands multiple times, leading to a chain reaction of increasing losses.

3. The Principle of Abstraction: The holder is not required to know the underlying debt relationship of the promissory note. This makes it difficult to detect forgery.

4. Formal Requirements: Negotiable instruments are subject to strict formal requirements. Counterfeiting usually occurs through the imitation of these formal elements.

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3.5. The Supreme Court's Approach to the Definition of Negotiable Instruments

The Supreme Court emphasizes the nature of negotiable instruments as follows:

• "In negotiable instruments, the right is inextricably linked to the document itself; forgery undermines the reliability of this link."

• "The fact that one signature is forged does not affect the validity of other signatures; however, the person who forged the signature cannot be held responsible."

These decisions demonstrate that the legal system must provide protection against acts of forgery, placing the trust function of negotiable instruments at its center.