Evaluations on the New Effective Repentance Provision Regulated in Respect of the Crime of Causing a Check to Bounce

The article 49 of the Law numbered 7226 on Making Amendments to Certain Laws regulates a new effective repentance provision for the ‘Crime of Causing a Check to Bounce’ set out by the article 5 of the Check Law numbered 5941. The relevant provision has entered into force upon the Law numbered 7226 has been published by the President of the Republic on 26.03.2020.

With regard to the Crime of Causing a Check to Bounce, the article 5 of the Check Law dated 14.12.2009 and numbered 5941 regulates the criminal liability and the prohibition to issue checks and open check account.

The first paragraph of the article 5 contained in the Check Law numbered 5941 is regulated as follows:

‘In the submission of a check within the statutory submission period as per the issuance date written on it, the person who caused the bounced check transactions to be carried out shall be punished with a judicial fine up to one thousand five hundred days for each check upon the holder’s complaint. However, the judicial fine to be ordered by the court shall not be less than the bounced amount of the total check amount. In addition, the court shall order the prohibition to issue checks and open check account; or survival of the prohibition to issue checks and open check account in case this prohibition is in effect. These criminal cases shall be heard before the court located at the account holder’s or the complainant’s place of residence or situated at the location of the bank branch where the check has been submitted to the bank for collection or where the check account has been opened.’

Pursuant to the provision contained in the article specified above, the court shall order a judicial fine upon complaint, against the person who caused the check to bounce. Furthermore, the court shall order the prohibition to issue checks and open check account; or survival of the prohibition to issue checks and open check account in case this prohibition is already in force.

In relation to the Crime of Causing a Check to Bounce, the article 6 of the Check Law numbered 5941 introduces provisions regarding effective repentance and revocation of the prohibition.

The article 6 of the Check Law numbered 5941 is regulated as follows:

‘(1) About the person who has fully paid the bounced check amount along with its interest to be calculated on the basis of the default interest rate in commercial affairs in accordance with the Law numbered 3095 and to be charged as from the statutory submission date as per the issuance date written on it;

a) In the investigation phase, the public prosecutor shall render the decision of non-prosecution,

b) In the prosecution phase, the court shall render the decision of dismissal of the criminal case,

c) After the verdict of conviction becomes final, the court shall order that the verdict is hereby revoked along with all the consequences thereof.

(2) The provision of the paragraph (1) shall also apply in case of withdrawal of the complaint.

(3) After three years have elapsed as from the date that the judicial fine, to which the person is sentenced, has been fully executed or that the person has been released from the prison after the person was put into prison since he did not pay this fine; and in any case, after ten years have elapsed as from the date that the prohibition was imposed; this person may request the decreer court to revoke the prohibition to issue checks and open check account; may object to the decision that will be rendered by the court. When the decision regarding the revocation of the prohibition to issue checks and open check account becomes final, the Central Bank of the Republic of Turkey shall be notified that the prohibition has been revoked and the relevant announcement shall be made in accordance with the procedures set out by the eighth paragraph of the article 5.’

With regard to the Crime of Causing a Check to Bounce, the article 49 of the Law numbered 7226 on Making Amendments to Certain Laws introduces a new provision regarding effective repentance, and this provision has been added into the Check Law numbered 5941 as a temporary article.

The article 49 of the Law numbered 7226 on Making Amendments to Certain Laws is regulated as follows:

‘The following temporary article is hereby added into the Check Law dated 14/12/2009 and numbered 5941.

“TEMPORARY ARTICLE 5- (1) The execution of the punishments ordered against those who were sentenced due to a crime defined in the article 5 and committed until 24/3/2020 shall be suspended as of the effective date of this article. The convict has to pay the creditor one-tenth of the unpaid portion of the check amount in no later than three months of the date of release.  In case the convict pays the remaining portion in fifteen equal installments in two months’ intervals as from the expiration of the three months’ period, the court shall order that the criminal conviction is hereby revoked along with all the consequences thereof. In case the convict does not pay one-tenth of the unpaid portion of the check amount in no later than three months of the date that the execution has been suspended; the court shall, upon the creditor’s complaint, order that the execution of the verdict shall resume. In case the convict does not pay one of the installments for the first time in a timely manner, this unpaid installment shall be added to the end of the period as an installment. In case the convict does not pay one of the other remaining installments; the court shall, upon the creditor’s complaint, order that the execution of the verdict shall resume.

(2) The punishment statute of limitations shall not run in case the execution of the verdict is suspended.

(3) About the person in favor of whom the execution of the punishment is suspended pursuant to this article, the court may order the judicial control measure as set out by the subparagraph (a) of the third paragraph contained in the article 109 of the Criminal Procedure Code.

(4) The decreer criminal court for enforcement proceedings has jurisdiction over the decisions that will be rendered pursuant to this article. All the decisions that will be rendered by the court pursuant to this article shall be served on the creditor.

(5) It is possible to apply to the legal remedy “objection” against the decisions that will be rendered pursuant to this article. The objection procedure, determined by the first paragraph of the article 353 in the Enforcement and Bankruptcy Code, shall apply to the review of the objection.

(6) The provisions of this article may apply only once, for each crime.”

The conditions for implementation of the above-mentioned new effective repentance provision are as follows:

• The Crime of Causing a Check to Bounce should be the one that was committed until 24.03.2020. Therefore, the crimes which were committed prior to that date and are being executed or which subsequently became final and reached the execution phase, however, which have not been executed yet, provided that they were committed until 24.03.2020, are included in the scope of the effective repentance.
• The convict should pay the creditor one-tenth of the unpaid portion of the check amount in no later than three months of the release date, or of the date that the verdict has become final in the crimes whose judicial proceedings are ongoing.
• The convict should pay the remaining unpaid portion of the bounced check within thirty months in fifteen equal installments in two months’ intervals as from the expiration of the three months’ period.
• The convict should not delay or interrupt the installments more than once.

In case the debtor:

• has not paid the creditor one-tenth of the unpaid portion of the check amount at the end of the 3 month’s period,
• has delayed or interrupted the installments two times after the debtor delayed or interrupted the installments one time; 

the court shall, upon the creditor’s complaint, order that the execution of the verdict shall resume.

The provisions of this article may apply only once, for each crime whose judicial proceedings have been completed and in respect of which the verdict has been established.

The penalties of imprisonment, which were sentenced due to the crime committed until 24.03.2020 and are being executed, shall be suspended ex-officio without the requirement of existence of payment or the commitment to pay. In the verdicts whose execution phase has started after suspension of the execution or subsequently, in case the payments take place in compliance with the conditions prescribed by the verdict, the criminal conviction shall be revoked along with all the consequences thereof.

In case of suspension of the execution, the statute of limitations shall not run for the execution of the punishment ordered.

Even though the statutory provision states that the court shall order resumption of the execution upon the creditor’s complaint in case the debtor does not fulfill his obligations incumbent on him; the statutory provision does not prescribe a time limitation for the creditor’s complaint. In this case, considering collectively the fact that the court shall not order resumption of the execution of the verdict unless the right complaint is exercised by the creditor and that the statute of limitations shall not run in respect of the ordered punishment as from the suspension of the execution, it is seen that the statutory provision is deficient in this regard and that it is necessary to make a legal arrangement for this matter in the oncoming period.

About the convict in favor of whom the execution of the punishment is suspended, the court may nonetheless order the judicial control measure pursuant to the paragraph 3/a of the article 109 contained in the Criminal Procedure Code numbered 5271.

The Criminal Court for Enforcement Proceedings has jurisdiction over and is competent in the decisions that will be rendered pursuant to the fourth paragraph of the relevant article. The decisions rendered by the court shall be served on the creditor.

It is possible to resort to the legal remedy i.e. objection in respect of the decisions that will be rendered within the scope of the article, and this objection shall be reviewed in accordance with the procedure regulated by the article 353/1 of the Enforcement and Bankruptcy Code.