Investment Adviser Took Client Money: Breach of Trust Ruling

An investment adviser promises "high interest" to people he already knows. He takes the money not into the company's account but into his own, moves it to a bank abroad, and then to forex accounts opened in his own name. When the money's owners ask for it back, it is gone. In criminal law this picture raises three separate questions: is the conduct a crime; if so, does the basic form of breach of trust apply, or the aggravated form committed because of a service relationship; and does it change the classification that the adviser acted "independently of the company, on his own account"?

In its decision of 13 May 2025 (Docket No. E.2022/5749, Decision No. K.2025/5932), the 11th Criminal Chamber of the Court of Cassation quashed, unanimously and in line with the Chief Public Prosecutor's opinion, a Regional Court of Appeal judgment that had convicted the defendant of simple breach of trust under Article 155/1 of the Turkish Penal Code (TCK), holding that the conduct amounts to breach of trust because of a service relationship under Article 155/2 TCK.

💸 The path the money took

According to the text of the decision, at the time of the offence the defendant was working as an investment adviser at a limited company operating in investment and management consultancy. The intervening parties (the victims who joined the case) were people the defendant already knew. He took money from them by promising high interest.

The notable point in the Chamber's findings is that the defendant did this "acting individually, separately from the company". The money did not enter the company's accounts; it moved in the following order:

The intervening parties asked for their money back, but the defendant did not return it. The decision gives no information on the result achieved in the forex accounts or on the amount lost, and the amount taken from the intervening parties is not stated in the Court of Cassation judgment either.

⚖️ From acquittal to conviction: two courts, two different results

The prosecution was brought against the defendant for breach of trust under Article 155/2 TCK. The outcomes at first instance and on appeal differ markedly:

The appeal court therefore accepted that the conduct was a crime, but applied the basic form of breach of trust rather than the aggravated form set out in the indictment. The inclusion of Article 43/1 TCK in the judgment shows that the conduct was treated as a continuing offence (one offence committed repeatedly); Article 62/1 points to a discretionary reduction.

📨 An appeal from both sides

Both the defendant and the intervening parties' lawyer appealed the Regional Court of Appeal's judgment to the Court of Cassation. Their grounds point in opposite directions:

In its preliminary review the Court of Cassation found that the judgment could be appealed, that the appellants had standing, and that the requests were filed on time and with reasons. The opinion of the prosecutor's office is also that the appeal should be accepted and the judgment quashed.

🏛️ The Chamber's reasons for quashing

In the reasoning section, the Chamber summed up the events in a single sentence and set out the legal classification clearly. The core of the decision is this: a defendant working as an investment adviser took money from known acquaintances by promising high interest, paid that money, acting individually and separately from the company, through his personal accounts into forex accounts abroad, and did not return it despite being asked. This amounts to breach of trust because of a service relationship under Article 155/2 TCK. Convicting the defendant under the basic form in Article 155/1 was therefore contrary to the law.

Under Article 302/2 CMK the Chamber unanimously quashed the judgment and, under Article 304/2 CMK, decided to send the case file to the Chief Public Prosecutor's Office at the Court of Cassation for transmission to Antalya Regional Court of Appeal, 9th Criminal Chamber. The defendant's ground that "the elements were not met" was not accepted; the Chamber agreed with the Regional Court of Appeal that the conduct is a crime, but differed from it on the classification.

🔎 The gap between the first and second paragraphs

Article 155/1 TCK covers disposing of property whose possession was handed over for safekeeping or for a specific use in a way that departs from the purpose of the handover, or denying that the handover took place. It carries six months to two years of imprisonment and a judicial fine, and the offence is prosecuted only on a complaint. The second paragraph applies where the offence is committed over items entrusted and delivered as a requirement of a profession or trade, a commercial relationship or a service relationship, or of an authority to manage another person's property, whatever its source; it provides one to seven years of imprisonment and a judicial fine of up to three thousand days. The difference between the two paragraphs is not only the size of the penalty; the aggravated form does not depend on a complaint.

What makes this decision interesting is that the aggravated form was applied despite the finding of "individual action". Although the decision does not state a detailed principle, the following assessment can be drawn from the text:

The same Chamber had also applied Article 155/2 in a decision on unauthorised futures tradingTR, where an investment adviser traded derivatives in a client's account without authority. There the transactions took place in an account within the institution; in this case the money was taken outside the institution, into the adviser's personal accounts. For another example of where the line between breach of trust and fraud is drawn, the decision on breach of trust or fraudTR is a useful comparison.

🆕 Article 155 after Law No. 7571, and mediation

The decision was given in May 2025. Article 155 was amended after that date: under the third paragraph added by Article 18 of Law No. 7571 of 24 December 2025, where the subject of the offence is a motor land vehicle, a vessel or an aircraft, the penalty under the first and second paragraphs is increased by one-fold. Values such as money, foreign currency or investment funds fall outside this paragraph, so it does not directly affect the classification in this case.

As for mediation, Article 253/1-b-7 CMK brings breach of trust within the scope of mediation, except for the third paragraph, whether or not the offence depends on a complaint. The aggravated form in Article 155/2 is therefore also subject to mediation, while the vehicle-related form added by Law No. 7571 is excluded. In cases with several victims, Article 253/7 CMK requires all victims to agree to mediation. It is clear from the text of the decision that there is more than one intervening party in this case.

The difference in the penalty range also matters in practice: the upper limit is two years under Article 155/1 but rises to seven years under Article 155/2. At what level the penalty will be set in the retrial, and how the provisions on continuing offences and discretionary reduction will be applied, depend on the Regional Court of Appeal's assessment.

❓ Questions readers may ask

For detailed information and legal support, you can contact Savun Law & Consultancy. The contact details are on the contact page; other decisions on criminal cases arising from investment relationships are listed on the Precedent DecisionsTR page.