The crime of fraud occurs when the perpetrator deceives someone with fraudulent behavior, harms the victim or someone else, and consequently benefits himself or someone else. The crime of qualified fraud is the crime committed by using certain religious, social, professional, technological tools or public institutions as a means of crime.
For the crime of fraud to occur, an unfair interest must arise.In the case of fraud, it is necessary to be aware of the criminal law in order to punish the perpetrator and convince the judge.Therefore, it is vital to act together with an Istanbul/Turkey criminal lawyer .
In this article, we will explain in detail what we need to know about fraud crime.
The crime of fraud is not in the category of crimes that depend on the complaint to follow up.As soon as the prosecution learns that the crime has been committed, it has to conduct a investigation and filing a public case if it believes that the crime has been committed.There is no complaint period for a fraud crime.However, in the simplest case of the crime, because the statute of limitations of the case is 8 years, the right to complain must be exercised within 8 years at the latest and the case must be reported to the prosecutor’s office.
A simple fraud offence is one that requires the application of a reconciliation procedure between the parties.First, the reconciliation procedure must be implemented, and if no compromise is reached, the investigation or trial must continue.
Fraud is a crime that can be committed in many different ways.But there are three conditions that constitute the infrastructure of all movements, which can be described as the conditions of the crime of fraud:
i-)Fraudulent acts must be carried out by the perpetrator.Behaviors that would eliminate the victim’s tendency to examine must be exhibited by the perpetrator.
ii-)Fraudulent acts made by the actual perpetrator must be capable of deceiving anyone.
iii-)Harm must occur to the victim or anyone else, and also an unfair benefit must be obtained for the himself(perpetrator) or someone else
If these three conditions come together, the crime of fraud is considered committed.We advise you to contact an Istanbul/Turkey criminal lawyer at this stage.Because if the type of crime is determined incorrectly, it is inevitable that the person will suffer loss of rights.
Cheating, which is one of the elements of the crime of fraud, is a qualified lie.The lie that constitutes cheating must be heavy and intense. Cheating should eliminate the possibility of the victim controlling the cheating.Whether the trick is a deceptive lie or not must be evaluated by taking into account the characteristics of the event. The subjective status of the victim, the training, the manner in which the victim relates to the action, the form of the deception performed, the characteristics of the document that was hidden or altered if the document was used for the cheating must be taken into account separately.At this stage an an Istanbul/Turkey criminal lawyer does serious services.
If there is no qualified lie, the terms of the fraud offence do not occur. A simple lie cannot be considered a fraudulent act, which is the element of a fraud offence.
1-)Abuse of religion,
2-)Taking advantage of the difficult situation the person is in,
3-)Taking advantage of the weakness of one’s perception ability,
4-)Use of public institutions as tools
5-)Processing by taking advantage of the facilities provided by media organizations,
6-)Using information systems, banks or credit institutions as tools,
7-)Processing during commercial activity,
8-)Processing for the purpose of receiving insurance costs.
In these cases there are decisions of the Supreme Court for each element.Therefore, an Istanbul / Turkey criminal lawyer can overcome these issues.
5.1)Simple Fraud Crime
In the case of simple fraud, the perpetrator shall be sentenced to imprisonment from 1 to 5 years and a judicial fine of up to five thousand days.In the text of the article, imprisonment and judicial fine are arranged together as part of the same sanction.In other words, the perpetrator will be given both a prison sentence and a judicial fine at the same time.The amount of the judicial fine to be imposed on the perpetrator will be determined by the magnitude of the damage incurred.
5.2)Punishment For Qualified Fraud Offence
The penalty for a qualified fraud offence committed before 24.11.2016 is imprisonment from 2 years to 7 years.
The penalty for the crime of qualified fraud was increased and reorganized by law No. 6763.Accordingly, the perpetrator who commits a qualified fraud offense shall be sentenced to imprisonment of from 3 to 10 years and a judicial fine of up to five thousand days.Since the crime of qualified fraud appears in a High Criminal Court, it is necessary to contact an an Istanbul/Turkey criminal lawyer
The relevant article of the Criminal Code sought two conditions in order to increase the penalty.
a-)Fraud offences committed by three or more people;
b-)If processed by an established organization
In these two cases, the size of the penalty will be seriously increased.
Effective regret is that the perpetrator regrets a crime he has committed, and tries to eliminate the effects of the crime.The crime of fraud is also a crime of property that can be reduced of penalty with effective regret.
If the perpetrator removes the damage of the victim during the investigation phase, 2/3 of the sentence to be given to the perpetrator can be reduced.
If the damage is compensated after the case has been filed, that is, before the verdict is taken at the prosecution stage, 1/2 of the punishment to the perpetrator may be reduced.
The damage can be eliminated in two ways.
i-)With the return of the asset subject to the crime to the victim
ii-)or by paying the amount of damage to the victim
As a result of effective regret provisions due to fraud offense, those who help or instigate crime can also benefit from penalty reduction.In all these stages an Istanbul/Turkey criminal lawyer can provide vital support.
A judicial fine is a type of sanction that can be imposed in conjunction with or alone with a prison sentence in response to a crime committed. The prison sentence for a simple fraud offence can be converted to a judicial fine in certain circumstances.
The postponement of the sentence is the conditional abandonment of the sentence from execution in prison.if the defendant spends the specified period of supervision in good social life, his sentence is considered to have been executed.
A postponement of a prison sentence for a fraud offence is also possible under certain circumstances.At this stage you can also consult the criminal lawyer in Istanbul/Turkey.
The revocation of the announcement of the provision is that the sentence against the defendant does not produce results within a certain period of supervision.If the perpetrator does not commit a deliberate offence during the period of supervision and acts in accordance with the obligations,the penalty decision shall be eliminated.
Within the crime of fraud it is possible to revocation of the provision under certain circumstances.Istanbul / Turkey criminal lawyer can assist seriously in these matters.
The crime of fraud occurs when the perpetrator deceives someone through fraudulent acts, benefiting himself or someone else to the detriment of the victim or someone else. The crime of qualified fraud is the commission of the crime by using certain religious, social, professional, technological tools or public institutions as tools.
An unfair advantage must be established for the crime of fraud to occur. In order for it to be accepted that the crime of fraud remains at the stage of attempt, the preparatory actions must be finished and enforcement actions aimed at obtaining unfair advantage must be started.
The crime of fraud is not in the category of crimes whose follow-up depends on the complaint. As soon as the prosecutor learns that the crime has been committed, it is obliged to make an investigation on its own and to open a public case if it is of the opinion that the crime has been committed. There is no complaint period for the crime of fraud. However, since the statute of limitations for the case in the simplest case of the crime is 8 years, the incident must be reported to the prosecutor's office within 8 years at the latest by using the right to complain.
The crime of simple fraud (Article 157 of the Turkish Penal Code) is one of the crimes that require the application of the conciliation procedure between the parties. In the case of crimes within the scope of reconciliation, both at the investigation and prosecution stage, first of all, the conciliation procedure should be applied, and if reconciliation is not achieved, the investigation or trial should be continued.
Since the crime of fraud is a free-moving crime, it is a crime that can be committed with many different modes of action. However, there are three conditions that constitute the common infrastructure of all movements and can be characterized as the conditions of the crime of fraud:
1. Fraudulent Act: Fraudulent acts must be executed by the person who committed the act. Fraudulent acts that would eliminate the victim's ability to investigate must be exhibited by the perpetrator. The main feature that distinguishes the crime of fraud from other property crimes is the use of fraud as a tool. Not every lie told to the victim can be considered cheating. Cheating, which is an element of the crime of fraud, is a qualified lie and must be displayed intensely and skillfully in such a way as to eliminate the victim's ability to judge.
2. Deception: Fraudulent behavior must be capable of deceiving the victim. In each concrete case, it must be determined separately whether the fraudulent act is of such a magnitude as to deceive the victim. Which act is conducive to deception should be determined according to the concrete case and the situation of the victim. It is not possible to establish a criterion in advance in this regard (Veli Özer Özbek/M.Nihat Kanbur/Koray Doğan/Pınar Bacaksız/İlker Tepe, Turkish Criminal Law Special Provisions, Seçkin Publishing House, p.696). It is sufficient that the deception is of such a nature as to lead the victim to error; it is not required to be of a quality that will lead the average person to error. Therefore, whether the behavior constitutes fraud or not should be evaluated according to the addressee and the case (Nur Centel/Hamide Zafer/Özlem Çakmut, Crimes Against Persons, Istanbul 2011, Beta Publishing House, 2. Press, Vol. I. p.462).
3. Harm: In order for the crime of fraud to be embodied, a loss must arise due to the criminal act. The perpetrator of the crime must obtain an unfair advantage for himself or someone else, to the detriment of the victim or someone else. The person committing the act must knowingly and willfully commit fraudulent acts in order to obtain benefits for himself or someone else, and there must be an appropriate nexus between the harm caused to the victim and the act of the perpetrator. In the crime of fraud, the damage is the economic damage to be determined by taking into account objective measures.
Cheating, which is one of the elements of the crime of fraud, is a qualified lie. The fraudulent lie must be weighty and intense to a certain extent, skillfully displayed and not allow the victim to control the lie. In order for the conditions of the crime of fraud to occur, the perpetrator must mislead the victim with the deception he uses and obtain unfair advantage from the victim who gives credence to deceptive behavior and lies. Whether the fraud is a deceptive lie or not should be evaluated by considering the specifics of the case. The subjective situation of the victim, his education, the way of relating to the verb, the form of the deception committed, the characteristics of the document that was hidden or altered if the document was used for cheating should be taken into account separately.
If there is no qualified lie, the conditions for the crime of fraud do not occur. The fraudulent act must be of such a nature as to deceive the perpetrator. A simple lie cannot be considered a fraudulent act, which is an element of the crime of fraud. During the trial, it should be revealed what the fraudulent act is, it should be investigated whether it is deceptive in terms of its effect on the victim, and attention should be paid to whether the victim's goodwill and trust feelings are abused.
Cheating can be considered as any kind of action that deceives the other person by intangible means, misleads the other person, schemes, schemes, games, intrigues and so on. These actions can be in the form of a show, or they can be manifested as hidden behaviors. In show, the perpetrator declares that he has the means and title that he does not possess, while in the secret behavior he hides his own status or attribute. However, simply lying is not enough to ensure that the fraudulent element of the crime of fraud is realized. The legislator punishes lying in cases where it is done in a certain way and is of a nature to disturb public order. As such, in legal proceedings and contracts, if one person has deceived another by lying profusely, this simple deception will not be sufficient for the formation of the crime of fraud. In order for the false statements made to constitute the fraudulent behavior element of the crime of fraud, they must be of such intensity and power that they can establish the truth of these statements, thus rendering the interlocutor's tendency to examine ineffective, and if necessary, some external movements must have been added to the lie (YCGK- K.2015/1).
The crime of qualified fraud is defined in Article 158 of the Turkish Penal Code. It is regulated in the article. The offence of qualified fraud occurs when the act constituting fraud is committed in the following ways:
Qualifying fraud offenses are described separately below:
Crime of Qualified Fraud by Exploitation of Religion (TCK 158/1-a)
Religion is a belief system; Religious belief can be defined as the feelings of a person who believes in a religion and is a member of that religion. In order for the crime of qualified fraud to be committed through the abuse of religion, religion must be used as a means of deception. The values, religious beliefs and feelings that are cared about by people subject to religious rules should be abused as an occasion for deception, and an unfair advantage should be obtained by such deception.
In the subparagraph (a) of the first paragraph of Article 158 of the Turkish Penal Code, while the crime of fraud is considered to be committed by exploiting religious beliefs and feelings, the use of religion, religious beliefs and feelings or feelings of doing good for others as a means of deception is sought. What is important is the deception of people through the abuse of religious beliefs and feelings, and it does not matter which religion or sect is the religion or sect used as a means of deception. For example, collecting money with a bet that a fitrah or zakat will be given, collecting aid without permission on the bet that a person who does not intend to build a mosque will build a mosque or finish the unfinished mosque, or asking for money with a notice of help to a cemevi or a church, or collecting money to create the infrastructure for the return of Jesus to the world, that the Holy Quran will be read for the funeral and then zakat will be given, or that the reading in question will be a valuable ornament In cases such as collecting aid with a bet on it, it can be said that some religious beliefs and feelings are abused (CGK-K.2021/111).
“... Since the accused collaborated with an imaginary creature, that the money given to him was given to Allah, and that he deceived the victims with lies such as the pursuit of foreign intelligence units, the crime of qualified fraud occurred by exploiting the religious beliefs and feelings regulated in Article 158/1-a of the Turkish Penal Code (Court of Cassation 15. Criminal Division - decision 2012/39544).
Crime of Qualified Fraud by Taking Advantage of the Dangerous Situation or Difficult Conditions in which the Person Is Involved (TCK 158/1-b)
As stated in the justification of the article; The dangerous situation or difficult circumstances that a person is in are the moments when they need to trust others the most. It is easier to be deceived, for example, by taking advantage of the exposure to a natural disaster or a traffic accident, or by the helplessness into which the person has fallen because of his illness. Therefore, in subparagraph (b) of the first paragraph, the commission of the crime of fraud by taking advantage of the dangerous situation or difficult conditions in which the person is in is considered to be a situation that requires a heavier penalty than the basic form of this crime.
In order for Article 158/1 (b) of the Turkish Penal Code to be applicable, the situation of the victim must be taken into consideration. The expression "difficult conditions" in Article 158/1-b of the Turkish Penal Code should be evaluated on the basis of the victim of the crime, and whether the victim was in difficult conditions or not should be explained incidentally and subjectively. In incidents of this nature, the victim targeted by the accused is in despair according to the circumstances of the case, is more vulnerable under this psychological pressure and needs a helping hand to reach out to him in this sense more than ever. In this context; The fact that the victim or a relative is exposed to a traffic accident, that he needs urgent and intensive help for himself or a relative while receiving treatment in the hospital for different reasons, and that he falls into a mentally and physically needy situation after the earthquake disaster can be considered as examples that can be considered as difficult conditions. However, it should not be accepted that every person is under difficult conditions in every traffic accident or every disease. Issues such as the time period in which the incident occurred, the extent of the illness or injury, the economic and social situation of the person exposed to the incident, the degree of being affected by the incident, the development process of the incident, the style and timing of the defendant's intervention in the incident should be considered as criteria in determining whether the person is in a difficult situation (CGK-K.2017/31).
The Crime of Qualified Fraud by Taking Advantage of the Weakness of the Person's Perceptive Ability (Article 158/1-c of the Turkish Penal Code)
The victim's perceptive ability may have been weakened due to old age, drunkenness, mental weakness, mental illness, or at the time of an accident in which he or she was in shock. Likewise, the victim's ability to perceive may be weakened due to his or her underage. Defrauding the victim by taking advantage of the weakness of his ability to perceive leads to the fulfillment of the conditions of the crime of qualified fraud regulated in TCK 158/1-c.
... After convincing the victim that on the date of the crime, he had come to the victim, who was previously acquainted, had poor perceptive abilities and was 99% disabled, and that he was a widow named Selma and that he could marry this lady to herself and that they should buy a ring in it, he received the disabled salary deposited by the Ministry on behalf of the victim by withdrawing it from the PTT branch, and that the defendant had taken advantage of the victim's weakness of perception by fraudulent acts in this way. The crime of qualified fraud was established because it was understood from the defendant's defense containing a confessional statement, the statement of the participant, the victim and the witnesses, the report, the camera recordings and the entire file that he provided (Court of Cassation 23. Criminal Division - Decision :2016/11042).
Public Institutions and Organizations Qualified Fraud Crime by Making Vehicles (158 / 1-d)
If the crime of fraud is committed by using a public institution as a tool, the crime of qualified fraud regulated in Article 158/1-d of the Turkish Penal Code occurs.
TCK 158/1-d is also applied in case of committing fraud by using professional organizations in the nature of public institutions, for example, bar associations, chambers, unions as tools. In case of committing a qualified fraud crime by using political parties, associations or foundations as tools, Article 158/1-d of the Turkish Penal Code is also applied. The use of these institutions or organizations as tools is not possible in the form of using their names, but in the form of using the material assets of these organizations or institutions such as printed paper, documents, identification cards, clothes, etc. The crime under Article 158/1-d of the Turkish Penal Code can only be committed by using these "material assets" of the institutions in question.
“... The accused presented a fake identity card belonging to the victim in order to withdraw money from the victim's account, and when the bank officer who took the photocopy became suspicious and received confirmation from the relevant branch, the identity card turned out to be fake. The defendant was sentenced for forgery of official documents and qualified fraud. The part of the judgment relating to the punishment of the accused for the offence of forgery of official documents is proper. However, the sentence imposed on the accused under Article 158/1-f of the Turkish Penal Code for the crime of qualified fraud by using the bank or credit institution as a tool is not appropriate. The defendant did not use the bank's material assets, but the identity card, which was the material asset of the registry office. For this reason, the defendant should be punished for the crime of qualified fraud by making vehicles of public institutions and organizations in accordance with Article 158/1-d of the Turkish Penal Code (Y15CD- K.2014/13241).
In the face of the fact that the defendants committed the fraudulent act by using the forged identity card, which is the material asset of the registry office, and the title deed document, which is the material asset of the land registry office, the conviction is made by the written article without considering that the defendants' act constitutes the crime of qualified fraud provided for in Article 158/1-d (Y14. CD-K.2014/15973).
Crime of Qualified Fraud at the Expense of Public Institutions and Organizations (TCK 158/1-e)
While committing the crime of fraud, although sometimes public institutions and organizations are not used as tools, public harm may arise as a result of the crime. If the crime of qualified fraud is committed to the detriment of public institutions and organizations, Article 158/1-e of the Turkish Penal Code is applied.
In order for the crime of fraud to occur at the expense of public institutions and organizations, the act must be committed with the intention of damaging the assets of public institutions and organizations. Causing harm can be in the form of taking money from a public institution that is not entitled to it or not returning a debt. The victim of such a qualified fraud crime is the legal entity of the public institution and organization.
The commission of the crime of fraud at the expense of public institutions and organizations, specified in Article 158/1-e of the Turkish Penal Code, has been accepted as a qualified condition. Which institutions and organizations have a public nature is determined according to the legislation regulating the situation to which that institution is affiliated in terms of staff. In order for this qualified situation to occur, the act must be committed with the aim of damaging the property of public institutions and organizations. Causing damage may be in the form of taking money from public institutions and organizations that is not entitled to it or not returning a debt. The victim of this crime is the legal entity of the public institution and organization. If there is no harm to public institutions and organizations, this crime will not occur. The commission of the crime of fraud to the detriment of charities working in the public interest is not covered by the article (Y15CD-2014/15897 K.).
“... In order to benefit from social security, the defendant pretended to work in a workplace where he did not actually work, but he did not apply to the institution to benefit from the health care provided by the social security sand (SSI). Since no harm has been caused to the institution, the accused should not be punished for the crime of qualified fraud, but for the crime of forgery of private documents (Court of Cassation 23. Criminal Division - 2015/149 decision).
Crime of Qualified Fraud by Using Information Systems (TCK 158/1-f)
In case of committing a fraud crime using information systems, the perpetrator is punished in accordance with Article 158/1-f of the Turkish Penal Code. The use of information systems means the use of tools such as computers and the Internet. For example, the provision of unfair advantage through social media tools such as facebook, twitter, etc. by deceiving the victim with fraudulent behaviors and requesting money, credit constitutes the crime of qualified fraud by using information systems.
Today, audio-video communication with information systems, acceptance of electronic signatures, new commercial relations, money transfers with internet banking service and many innovations such as these have entered social life, informatics has reached an important point that cannot be abandoned in both business and daily life, and information technologies have become more preferred than classical methods due to their faster and cheaper nature. The safe use of these systems has been considered a qualified state because it can reach many people quickly and easily at the same time and reduce the possibility of control of the perpetrator on the other side. Since it is not possible to talk about the deception of the information system, only if a person is deceived by using this system as a tool, in other words, if he is defrauded, a qualified fraud crime will occur in accordance with this TCK 158/1-f. Otherwise, if a person is not deceived by entering the system and benefits are obtained by taking advantage of the system, there will be an information crime or a qualified theft crime by using the information system (CGK-K.2022/506).
“... The defendant advertised for the sale of the vehicle on a website, first deposited some money into his account under the name of deposit when the victim called as a buyer, then took money from the victim again by saying that he needed urgent money because his wife was in the hospital, but then disappeared. The defendant's act constitutes the crime of qualified fraud through the use of information systems as a tool... (Supreme Court 15. Criminal Division - decision 2012/31436).
Crime of Qualified Fraud by Using a Bank or Credit Institution as a Tool (TCK 158/1-f)
Banks or credit institutions are indispensable elements of economic life. Banking and credit institution activities are carried out within the framework of a special trust relationship. Article 158/1-f of the Turkish Penal Code punishes the crime of qualified fraud by using banks and credit institutions as tools.
There is no difference whether the bank used as a tool for the crime of fraud is a public bank or a private bank. The important thing is to commit the crime of fraud by taking advantage of the corporate reliability of the bank.
In this form of qualified fraud, the point to be considered is the use of the bank as a direct tool. Otherwise, if the perpetrator uses the bank only as a means of payment after committing fraudulent acts, the crime of fraud cannot be punished according to this article. For example, if money is deposited into the bank account of the person who deceives himself by introducing himself as a sales representative of a well-known brand and saying that he will provide cheap goods to the victim, it is not a crime of qualified fraud, but Article 157 of the Turkish Penal Code. The crime of simple fraud in the article occurs.
If the perpetrator uses the bank as a means of payment after committing the act constituting deception, the crime of qualified fraud does not occur by using the bank or credit institution as a tool. For example, the perpetrator who deceives the victim by saying "if you send me 1000 TL, I will send you an iPhone phone" to the victim reached through social media applications such as facebook, twitter, instagram, etc., after convincing the victim, to send the money to him through the bank, does not occur by using the bank or credit institution as a tool. Because the bank was not used as a means of deception, it was only used as a means of payment.
In the defendant's act of taking money from the participant who called him on the phone by placing a sale advertisement in the newspaper and making a transfer to his bank account under the name of a deposit, the act was determined by establishing an excessive penalty by establishing a verdict under Article 158/1-f of the Turkish Penal Code No. 5237, without taking into account that the act consisted of the crime of fraud described in Article 157/1 of the Turkish Penal Code No. 5237, since the bank was only a means of payment and had no effect on the deception of the participant, is the cause of disruption (. Y15CD-K.2014/361).
The unjustified seizure of someone else's bank or credit card and the withdrawal of money from the accounts is not a crime of qualified fraud, but the crime of Unauthorized Use of a Debit or Credit Card regulated in Article 245 of the Turkish Penal Code .
The elements of the crime of fraud do not arise if a loan is opened or the bank is damaged for any reason due to the negligence, defect or failure of the bank officer to follow the procedure required to be applied within the scope of his duty:
“... In order for the crime of qualified fraud to occur by using the bank or credit institution as a tool, the borrower must fraudulently deceive the bank or other credit institution official. If there is no deceptive act of the person receiving the loan, but a loan is opened simply because the bank officer did not perform his duties properly, the crime of qualified fraud does not occur. The defendant gave the unrequited cheques subject to the offence as security for the loan. If the accused had given the cheques to the bank as collateral after the loan agreement was signed, he should be acquitted as the fraudulent element of the qualifying fraud offence had not occurred (Y15CD-K.2015/22518).
In order to be able to say that banks or credit institutions are used as tools, it is necessary to make use of the ordinary activities of banks or other credit institutions or their subjects carrying out these activities while committing fraud, or to use the material assets produced by banks and credit institutions due to their habitual activities as tools in crime. The ordinary activities of banks and other credit institutions are listed in Article 4 of the Banking Law No. 5411 and these include; accepting deposits, issuing loans, issuing cheques and other bills of exchange, trading, issuance of payment instruments such as credit cards, debit cards and traveler's cheques and carrying out activities related to them. The material assets of banks and other credit institutions are; are the material assets that have an effective function in the relevant institution such as receipts, letters of guarantee, printed documents, identity documents, entrance cards, bank wallets, checks, credit cards belonging to these institutions. The material asset used does not have to be in the nature of a document, and there is no difference between the fact that the documents have the quality of private documents and the ones that are in the nature of official documents (YCGK-K.2014/434).
Qualified Fraud by Taking Advantage of the Convenience Provided by the Press and Broadcasting Tools (TCK 158/1-g)
As stated in the justification of the article, the commission of the crime of fraud by taking advantage of the facilities provided by the press and broadcasting tools was accepted as a qualifying element in terms of this crime. In the article justification; "The definition of the term 'by means of press and publication' has been amended to include only the mass media. In order to eliminate the drawback of the definition expressed in the bill to include individual communication, the definition has been amended and the expression 'mass media' has been emphasized."
According to the definition in subparagraph (g) of the first paragraph of Article 6 of the Turkish Penal Code, the expression "by means of press and publication"; written, visual, auditory and electronic publications with all kinds of mass media and individual communication tools are excluded from this scope. Mass media are tools that can distribute messages on a mass scale, and tools such as radio, television, newspapers and the Internet are among the most widely used mass media. Considering the important role of the press and broadcasting tools in reaching many people at the same time, directing the society and interacting between individuals, it is arranged as a qualified condition to commit the crime of fraud by taking advantage of the convenience provided by the press and broadcasting tools, considering that it facilitates the execution of the crime and increases the deception of the act. In order for this qualified state of affairs to be applied, it is not sufficient that the press and broadcasting tools have been used. The use of the press and broadcasting media should facilitate the commission of the crime, be effective in carrying out fraudulent acts and deceiving the victim. In addition, it does not matter who used the press and broadcasting media in the commission of the crime (CGK-K.2021/68).
Article 158/1-g of the Turkish Penal Code states that the offense; Its processing "by taking advantage of the convenience provided by the press and broadcasting tools" is regulated as a qualified state. For the application of this qualifying condition, the press and broadcasting must have provided a special facility for the commission of the crime of fraud. If the perpetrator publishes an unreal situation as news or advertisement in the press organ in order to benefit and uses it to deceive the victim, the crime of fraud will be committed by taking advantage of the convenience provided by the press and broadcasting tools. In the concrete case subject to the crime; The fact that the act took place with the advertisement given to the newspaper and that the parties did not come together, instead of the crime of qualified fraud regulated in Article 158/1-g of the Turkish Penal Code, was convicted of the crime of simple fraud is the reason for overturning (Y15CD-2021/1896).
Qualified Fraud Offence of Persons Who Are Merchants or Directors of the Company or Persons Acting on Behalf of the Company, Cooperative Directors (158/1-h)
Pursuant to the subparagraph (h) of the first paragraph of Article 158 of the Turkish Penal Code, it is stipulated that during the commercial activities of persons who are merchants or company directors or acting on behalf of the company, cooperative managers also commit the crime of fraud within the scope of the cooperative's activity. This crime is a specific crime. This crime can only be committed by persons who are merchants or directors of the company or who act on behalf of the company or the managers of cooperatives. Others have no means of committing this crime. For example, natural persons who do not have the characteristics of tradesmen or merchants, company directors or persons acting on behalf of the company, auditors and members of cooperatives cannot commit this crime. It is not enough for the perpetrator to be a merchant or a director of the company or a person acting on behalf of the company for this qualification to occur. At the same time, the act of deceptive nature must have been committed in the course of its commercial activities (CGK-K.2021/110).
Crime of Qualified Fraud Committed by Self-Employed Persons (158/1-i)
In the event that the crime of fraud is committed by self-employed persons by abusing the trust placed in them due to their profession, the crime of qualified fraud regulated by Article 158/1-I of the Turkish Penal Code occurs. Self-employed people are meant by professional groups such as lawyers, doctors, accountants, engineers, etc. For example, real estate agents, gallerists, contractors, those who perform land registry or traffic license work are not considered self-employed.
Article 158/1-i of the Turkish Penal Code No. 5237 states that the processing of self-employed persons by abusing the trust placed in them due to their profession is considered as qualified fraud, and Article 65/2 of the Income Tax Law No. 193 states that "self-employment activity is based on personal overtime science or professional knowledge or expertise rather than capital and is not of a commercial nature. is to be carried out in his own name and on his own account under personal responsibility without being subject to the employer", Article 66 of the same Law states that "those who perform self-employment activities as a habitual profession are self-employed persons", and in Article 37, paragraph 4 of the same Law, it is stated that the earnings arising from these works of those engaged in the purchase, sale and construction of real estate shall be considered as commercial earnings in the application of this Law, and the law states that the ethics required by the profession in their own name and account Although it is regulated as qualified fraud when persons who are required to work in accordance with the rules commit the crime of fraud by abusing the trust placed in them in society, in order for this paragraph to apply, the perpetrator must be self-employed and commit the crime of fraud by abusing the trust placed in him by virtue of his profession (Y11CD-K.2021/6578).
Qualified Fraud Crime for the Purpose of Opening a Loan (TCK 158/1-j)
Certain procedures must be followed in order to obtain a loan from banks or credit institutions. In order to open a loan, banks require many documents from the customer. The bank must be provided with accurate information about identity and address information, as well as financial information. In case of withdrawal of credit from the bank by issuing false documents about the financial situation or other information in order to ensure the opening of a loan, the Qualified Fraud Offense for the Purpose of Providing for the Opening of Credit regulated in TCK 158/1-j occurs.
In practice, it is seen that fake identity cards, driver's licenses or other valid identity documents are first produced as forgeries, and then banks are applied to obtain loans with these documents. In the same way, some companies issue books or documents that they have assets that are not available in their assets in order to obtain large amounts of credit, and apply for loans by issuing fake balance sheets. All these situations lead to the formation of the qualified state of the crime regulated in Article 158/1-j of the Turkish Penal Code.
"... On 11/06/2013, the defendant applied to the ING Bank Karşıyaka Bostanlı branch and requested a consumer loan of TL 20,000 by pasting his photograph on the identity card of the participant Ünal İbrahim Ölmez, and upon the acceptance of the application by the bank, he signed the consumer loan usage agreement, application form and attached documents issued in the name of the participant and withdrew the loan, and also the credit card in the name of the participant in relation to the account opened pursuant to this loan agreement. that the respondent was informed of the incident when the credit card issued was sent to the respondent's MERNIS address; There was no inaccuracy in the admission that the defendant's act constituted the crime of fraud with the intent to secure the opening of a loan that should not have been allocated as provided for in Article 158/1-j of the Turkish Penal Code. " (Y15CD-K.2017/11558).
Crime of Qualified Fraud for the Purpose of Obtaining the Insurance Amount (TCK 158/1-k)
Insurance companies are organizations that pay to the persons who are entitled to the insurance policy in case of certain risks. A person who claims to be the rightful owner and acts with the aim of obtaining the insurance amount from the insurance company with fraudulent behaviors and documents commits the crime of qualified fraud regulated in Article 158/1-k of the Turkish Penal Code.
The legislator has accepted as a qualified circumstance the fraud for the purpose of obtaining the insurance amount without discrimination, no matter what type of insurance. In order for this qualification to apply, an application must have been made to the insurance company to receive the amount to which it is not entitled, and an unentitled insurance amount must have been received in whole or in part. Otherwise, since the transactions made until the company applies to receive the insurance amount are not executive actions but preparatory acts, there will be no crime of fraud in order to obtain the insurance price (YCGK-K.2020/506).
Let us immediately state that; The perpetrator of the crime of qualified fraud for the purpose of obtaining the insurance amount does not have to be only the "insurant". "Anyone" who wants to take unfair advantage of the insuring company can be the perpetrator of this crime. For example; Even if there is no traffic accident, the third person who tries to obtain financial damage coverage from the insurance company by issuing a traffic accident report also commits a qualified fraud crime in order to obtain the insurance amount.
“... The defendant called the police to the scene of the incident on the grounds that he had a traffic accident, and the police did not keep a traffic accident report because they were suspicious about whether the traffic accident had taken place. The defendant then made a declaration with the same content to the insurance company and demanded the damage and the damage was paid to him. The fact that the police did not issue a traffic accident report declaring that the traffic accident was suspicious does not prove that the accused committed the crime of qualified fraud with the sole purpose of obtaining the insurance amount..." (YCGK-K.2015/42).
The Crime of Fraud by Saying that a Public Official Has Contact with a Bank, Insurance or Credit Institutions (Article 158/1-L of the Turkish Penal Code)
Acts committed by a person by presenting himself as a public official or an employee of a bank, insurance or credit institution or by saying that he is associated with these institutions and organizations are considered to be the crime of qualified fraud. For example; All cases known as telephone fraud, in which a person obtains benefits by presenting himself as a police, gendarmerie, mit or prosecutorial officer, are punished under this paragraph.
The provisions of Article 158/1-l of the Turkish Penal Code have become an element of the crime of qualified fraud with the Law No. 6763 and will be applied to the acts committed as of 24.11.2016.
"... The accused called the complainant by phone and introduced himself as a police officer and gave the phone to someone saying "prosecutor sir", radio sounds came from behind, the complainant said "28-29 phones have been opened to your phone number, they are defrauding you, deposit money to the account numbers I will give you to catch the people using these lines, we will catch the individuals while withdrawing the money", and the complainant deposited 15.925 TL and 15.800 TL to the account number in the name of the accused, in the case where the money is alleged to have been withdrawn by the accused; by introducing oneself as a public official or an employee of a bank, insurance or credit institution or by saying that one is associated with these institutions and organizations" the crime of fraud has been added as subparagraph "l" to Article 14 of the Law No. 6763 and Article 158 of the Turkish Penal Code, which entered into force by being published in the Official Gazette dated 02.12.2016, and the duty to hear the case related to the offenses written in this article pursuant to Article 11 of the Law No. 5235 does not belong to the criminal court of first instance and is of the highest level It belongs to the criminal court and in view of the fact that this arrangement is in favour of the accused, a decision of non-jurisdiction must be made. " (Y23CD-K:2016/11250).
The Crime of Qualified Fraud by Betting on Having a Relationship with Public Officials (Article 158/2 of the Turkish Penal Code)
The offence of qualified fraud under this paragraph occurs when the perpetrator provides money or other benefits to be given to the public official in exchange for intermediation with the promise of performing a certain job, saying that he has a relationship with public officials and is respected by public officials. It does not matter whether the public official to whom the perpetrator refers is present or authorized to do the work promised to be done by the perpetrator. Nor is it necessary that the public official is known or recognized by the parties, it is sufficient that the public official is designable as an authority. For example, a perpetrator who says that he will perform a certain job with statements such as "I know the district governor of district X" or "The chief prosecutor of Bakırköy is close to me" is punished within the framework of Article 158/2 of the Turkish Penal Code.
If the perpetrator obtains benefits by saying that he knows civil servants, judges, prosecutors in general; The crime of simple fraud in Article 157 of the Turkish Penal Code does not occur as defined in Article 158/2 of the Turkish Penal Code, but "the crime of qualified fraud with the bet that it has a relationship with public officials, is respected by them and promises to perform a certain job".
If the perpetrator has obtained benefits by saying that he is a civil servant himself, even though he is not a public official; his act should not be characterized as qualified fraud in Article 158/2 of the Turkish Penal Code, but as simple fraud in Article 157 of the Turkish Penal Code.
The Crime of Fraud for the Purpose of Collecting Receivables Based on Legal Relationship (Article 159 of the Turkish Penal Code)
In the event that a crime of fraud is committed for the purpose of collecting any receivables based on a legal relationship, the follow-up of the crime depends on the complaint. In order for this article to be applicable, there must first be a valid legal relationship. The fact that the will of the victim is deceived by fraud and certain legal actions, such as the arrangement of contracts, does not by itself indicate that there is a legal relationship between the victim and the perpetrator. The legal relationship must have been established with the free will of the parties and before the act constituting fraud.
If the victim complains about this act, the perpetrator is sentenced to imprisonment from 6 months to 1 year or a judicial fine. The penalties in this article are optional, i.e. the court must either impose a prison sentence or impose a judicial fine. It is not possible to impose both penalties on the offender at the same time.
"... In the face of the fact that the defendant, in his testimony, which did not change at stages, argued that he had a debt from the respondent because of the work they had done, and that the respondent had stated that they had done joint business with the accused but did not owe any debt, and that the witnesses had declared that the parties had done joint work; In order to establish the truth beyond doubt, it is necessary to determine whether there are civil lawsuits filed by the accused and the participant against each other in relation to the claims for receivables by asking the parties, to investigate whether there are documents and records that confirm the claim of the accused that he is a receivable, and if deemed necessary, to deposit the file with the expert witness with the evidence collected and to ensure that the defendant is the subject of execution proceedings from the participant After the final determination of whether there is a receivable, it is not discussed whether the act constitutes a crime of fraud for the purpose of collecting the receivable based on a legal relationship within the scope of Article 159 of the Turkish Penal Code. " (Y11CD-K:2017/1907).
Punishment for Fraud
Punishment for the Crime of Simple Fraud (Article 157 of the Turkish Penal Code)
The penalty for the crime of simple fraud is regulated in Article 157 of the Turkish Penal Code. Accordingly, in the crime of simple fraud, the perpetrator is punished with imprisonment from 1 year to 5 years and a judicial fine up to five thousand days. In the text of the article, imprisonment and judicial fine are regulated together as part of the same sanction. In other words, both the prison sentence and the judicial fine will be given to the perpetrator at the same time. The amount of the judicial fine to be imposed on the perpetrator will be determined according to the magnitude of the damage caused.
Since the crime of qualified fraud requires the defendant to be tried in a heavy criminal court, the defense must be made in conjunction with a Criminal Lawyer.
When deciding on the judicial fine for the crime of fraud, the fine for the day imposed pursuant to the first paragraph of Article 158 of the Turkish Penal Code shall be converted into a judicial fine in accordance with Article 52 of the same Law after applying discretionary reduction in the presence of conditions, and if the penalty reached is less than twice the benefit obtained from the crime, the judicial fine shall be doubled the benefit obtained from the crime in accordance with the last sentence of the first paragraph of Article 158 of the said Law (YCGK-K.2013/51).
With the Law dated 24.11.2016 and numbered 6763, the penalties given by applying the simple and qualified cases of the crime of fraud will be increased separately if certain conditions are met. Let us immediately state that the aggravated penalty provisions will be applied to the fraud crimes committed from 24.11.2016 onwards.
In the event that the crimes of qualified fraud in Article 158 of the Turkish Penal Code and simple fraud in Article 157 of the Turkish Penal Code are committed jointly by three or more persons, the penalty to be imposed is half the rate; If it is committed within the framework of the activity of an organization established to commit a crime, the punishment to be given is increased by one fold. Accordingly;
Effective remorse can be defined as the perpetrator's remorse for a crime he has committed, trying to eliminate the effects of the crime, for example, reducing victimization by remedying the damage caused. The crime of fraud is also an asset crime for which a penalty can be reduced due to effective remorse.
If the perpetrator compensates the victim before the case is filed, that is, during the investigation phase, 2/3 of the punishment to be given to the perpetrator can be reduced. If the damage is covered after the lawsuit is filed, that is, before the verdict is rendered at the prosecution stage, 1/2 of the penalty to be given to the perpetrator can be reduced.
The damage caused by the crime of fraud can be remedied by returning the same thing that was the subject of the crime to the victim or paying the price.
In accordance with the provisions of effective remorse for the crime of fraud, the person who aided or abetted the crime can also benefit from the reduction of the sentence.
Committing the Crime of Fraud and the Crime of Forgery of Public or Private Documents Together
The crime of forgery of private documents is one of the crimes that can be committed together with the crime of simple or qualified fraud.
The crime of forgery of official documents is one of the crimes that can only be committed together with the crime of qualified fraud.
When these crimes, whether they are crimes of forgery in official documents or forgery of private documents, are committed together with the crime of fraud, the perpetrator is punished separately for each crime, even if the act committed by the perpetrator is single. For example, a person who unlawfully transfers a real estate belonging to someone else to the land registry office by using a fake identity card or driver's license by deceiving the buyer is punished for both the crime of forgery of official documents and the crime of qualified fraud. This legal regulation is one of the important exceptions to the principle of "Non Bis Idem".
Postponement of Sentence, Conversion to Judicial Fine or HAGB
A judicial fine is a type of sanction that can be applied alone or together with a prison sentence for a crime committed. Imprisonment for the crime of simple fraud can be converted into a judicial fine in certain circumstances.
Postponement of Announcement of Sentence (HAGB) is an institution of criminal procedure in which the sentence imposed on the accused does not produce results within a certain period of supervision, and when certain conditions are fulfilled within the supervision period, the penalty decision is dismissed without any result, causing the case to be dropped. It is possible to decide on the postponement of the announcement of the verdict (hagb) on the sentence of imprisonment for the crime of simple or qualified fraud.
The postponement of the sentence, the conditional waiver of the execution of the sentence in prison is an institution of individualization that ensures that the sentence is considered to have been executed if the accused spends the specified period of supervision in good standing in social life. It is also possible to postpone the sentence of imprisonment for the crime of fraud.