LEGAL REMEDIES AGAINST DISHONOURED CHEQUES (NOVEMBER 2016)

Issuing a dishonoured cheque under the Cheque Law Nr. 5941 was not a crime under Cheque Law entered into force in 2012. Thus a person issued a dishonoured cheque, would be subjected to administrative penalty instead of being sentenced to imprisonment until 2016 August.

In this respect, the decision of the 10th Penal Chamber of Supreme Court dated 19.09.2012 and numbered 2012/19278 (file number), 2012/14144 (decision number) confirms the above understanding as follows;

“The crime originated from “issuing a dishonoured cheque” under the Article 5 of The Code numbered 5941 has turned into “misdemeanour”. According to 5th paragraph of the Article 27 of the Law numbered 5326, if the court decides on administrative sanction, this decision shall be subjected to only opposition.

”According to many Supreme Court decisions issued following the Law Nr. 5941, we can say that a consensus has been established regarding objection right to administrative sanctions rather than the appeal right in the light of the above mentioned provision of Cheque Law.

Recently, article 5 of Cheque Law has been amended via the Law on Alteration of Series of Laws with the aim of Development of Investment Milieu, which enter into force on the date of publication in August 2016, whereas the objection right foreseen under Law of Misdemeanour numbered 5326 has not been properly implemented. Consequently, issuing a dishonoured cheque is categorized as crime within the scope of Turkish Criminal Code again. Accordingly, each dishonoured cheque shall be subjected to a judicial fine up to onethousandfivehundreddays. However, the amount of the judicial fine due to dishonoured cheque shall not be less than the dishonoured part of the cheque with the addition of the commercial interest rate applied for debts under default based on the Law No: 3095 which should be calculated from the date of presentation of the cheque with regard to date of issuance on cheque. The related costs of litigation and pursuance shall be included to judicial fine.  

Due to article 5 of Cheque Law; in case of failure of payment of the mentioned judicial fine, the judicial fine shall be converted into imprisonment directly and mandatorily. In such a case no other remedy shall substitute the imprisonment.

According to Criminal Procedure Law, legal remedies are classified as ordinary legal remedies and extraordinary legal remedies. Ordinary legal remedies are; opposition, appellate and appeal. Merits of the case are re-examined by appellate courts and in case unlawfulness is detected, the decision of the court of first instance shall be reversed and the appellate court shall render a new decision. On the other hand, the Supreme Court shall not make a decision regarding merits of the case during its inspection. In other words, facts are not judged again by the Supreme Court, the file shall be forwarded to the court of the first instance and the court of first instance shall render a new decision. During appeal process, the Supreme Court decides whether there is a mistake in application of rules by examining the whole file.  The procedure of appellate foreseen by Criminal Procedure Law has entered into force on 20.07.2016 since the Regional Courts of Appeal (Appellate Courts) started to operate at the aforementioned date.

Pursuant to article 272 of Criminal Procedure Law numbered 5271, following court decisions are exempted from the appeal procedure;

  • Court decisions recognizing final judicial fines up to three thousand Liras (three thousand included); except admonition of the imprisonment into a judicial fine,
  • Decisions of acquittal rendered for crimes that require a judicial fine not exceeding five hundred days as the upper level of the punishment,
  • Final decisions.

Article 286 of Criminal Procedure Law specifies appealable judgments. Except decisions of reversal, decisions rendered by Penal Chambers of the Regional Court of Appeal are appealable. However, the following decisions are not appealable:

  • Decisions of Regional Court of Appeal regarding the rejection of the merits of application of appellate against the decisions rendered by criminal courts of first instance on imprisonment penalties up to five years and on judicial fines regardless of the amount,
  • Decisions of Regional Court of Appeal that do not increase the imprisonment penalties up to five years or less rendered by the criminal courts of first instance,
  • All kind of decisions of the Regional Court of Appeal, that are related to the crimes within the jurisdiction of the court of first instance and requiring imprisonment up to two years (two years included) and judicial fine related to the crimes,
  • All kind of decisions of the Regional Court of Appeal  regarding decisions rendered by the criminal court of first instance, which only require a judicial fine,
  • Decisions of Regional Court of Appeal regarding the rejection of the merits of application of appellate against the decisions rendered by criminal courts of first instance on confiscation of property or income or on rejection of demands for confiscation,
  • Decisions of Regional Court of Appeal regarding the rejection of the merits of application of appellate against the decisions of acquittal rendered by criminal courts of first instance regarding offences that require imprisonment up to ten years or judicial fine,
  • Decisions of Regional Court of Appeal regarding decisions of criminal court of first instance on the dismissal of the case, non-punishment, security measures and rejection of merits of application of appellate against such decisions,
  • Decisions of the Regional Court of Appeal that contain more than one sentencing and decision, as long as such decisions stay within the limits of the above mentioned paragraphs.

Finally, we would like to note that it is necessary to evaluate each case within its own boundaries to determine the legal remedy to be applied against the judicial fine sanction due to dishonoured cheque.