I. What is the Crime of Fraud and its Penalty?
The crime of fraud is regulated in Article 157 of the Turkish Penal Code as follows: “A person who deceives someone by fraudulent conduct, causing harm to themselves or others, and thereby obtaining a benefit for themselves or another, shall be sentenced to imprisonment for a term of one to five years and to a judicial fine of up to five thousand days.”
This crime aims to protect the property rights and freedom of will of individuals. Fraud occurs when a person is deceived by a qualified lie and, as a result, gives money or movable or immovable property of economic value to the person who deceived them.
A person who commits the crime of fraud is subject to imprisonment for a term ranging from one to five years. Additionally, a judicial fine of up to five thousand days may be imposed.
II. Who is the Victim of the Crime of Fraud and What Should They Do?
The victim of the crime of fraud is the person who has been deceived, transferred their property, and suffered harm. Anyone can be a victim of this crime. The person who has been defrauded should report the crime to the police station or the public prosecutor’s office. Fraud is not a crime that requires a complaint, so there is no time limit for filing a complaint six months after being defrauded.
When making a complaint, it is important to present your evidence and prove that you have been defrauded. Otherwise, the perpetrator may not be punished. Therefore, we recommend submitting your complaint petition with a lawyer.
III. The Act of Fraud
1. Deception of the Victim through Fraudulent Conduct
The first element of the crime of fraud is the deception of the victim. Fraud does not occur solely due to the ignorance of the victim. The victim must transfer their property due to being deceived. If the victim does not willingly transfer their property, then theft or robbery offenses will arise.
The victim must be deceived by the perpetrator through fraud. According to the Supreme Court, fraud is a qualified lie. The lie must be sufficiently serious, intense, and cunning to eliminate the victim’s ability to control and verify. The deception must lead the victim into error.
The fraud should not be a simple lie. It must have the ability to deceive. Whether the fraud has deceptive potential is evaluated separately for each specific case. The nature of the incident, its relationship with the act, the victim’s situation, and the characteristics of any concealed or altered documents used are evaluated individually.
If the victim already has concrete suspicions about the existence of fraud, then the crime of fraud does not occur. The person must be deceived. The Supreme Court has ruled that individuals who are deceived while attempting to achieve criminal purposes are also considered victims and that the perpetrators should be punished. It has been decided that the perpetrator who defrauded the victim for the purpose of engaging in prostitution should be punished.
2. The Existence of Damage to the Victim’s Assets
For the crime of fraud to occur, there must be damage to the victim’s assets. According to the Supreme Court, this damage must necessarily be economic in nature. If there is only emotional or psychological harm, the crime of fraud does not occur.
According to established jurisprudence of the Supreme Court, if a fake check is issued due to a pre-existing debt or if fraudulent conduct is carried out for a debt that has already arisen, the crime of fraud does not occur. This is because even if a person is deceived by fraudulent conduct, the Supreme Court rules that there is no damage to the assets.
Furthermore, if a person is deceived into obligating themselves with a contract that has no legal value due to being deceived, there is no damage to their assets, and therefore, the crime of fraud does not occur.
3. Increase in the Perpetrator’s Assets and Obtaining Benefit
In the crime of fraud, while the victim suffers damage, the perpetrator must also obtain a benefit for themselves or another person. There must be an economic increase in the perpetrator’s assets.
Fraud is a dependent offense. The damage to the victim’s assets and the benefit obtained by the perpetrator must result from deceiving the victim through fraudulent conduct. If the damage and benefit arise from another cause, the crime of fraud does not occur.
According to the Supreme Court, if the victim suffers damage but the perpetrator does not obtain a benefit, the crime is not considered to have occurred. In a decision dated 09.07.2014 by the 15th Criminal Chamber of the Supreme Court; “… In the case where the defendant, while working as a pianist at a hotel, deceived his friends, the participants, by saying that he made a very good profit by trading shares on the Istanbul Stock Exchange and that he would make a profit if they gave him money, initially distributing small amounts of money monthly to make it convincing that he made a profit, thereby encouraging more people to give money, distributing some of the money he received from the later ones back to the first ones as profit share, strengthening his credibility, the defendant received 159,150 TL from participant J.T., 56,000 TL from participant M.B.Ş., 40,000 TL from participant P.Ş., 35,830 TL from participant B.B., and 45,000 TL from participant P.D., and then disappeared with the money he received, in the event where the defendant is alleged to have committed the crime, it has been decided that if it is determined without any doubt that the defendant incurred losses during the transaction by depositing the money received from the participants in the stock market and if it is determined that the money received was not traded on the stock exchange, then the crime of fraud will be deemed to have occurred, and the verdict was quashed due to the incomplete examination in the written form.”
IV. Aggravated Fraud Offense
1 Exploitation of Religious Beliefs and Sentiments for Fraud
For this aggravating factor to apply, religion must be used as a means of deception. In order for the offense to occur, unjust gain must be obtained through the exploitation of religious beliefs and sentiments. In this aggravated form, the perpetrator is sentenced to imprisonment for a term ranging from three to ten years and to a judicial fine of up to five thousand days.
According to the Supreme Court;
- Benefiting from false claims of carrying out charitable deeds,
- Receiving money by falsely claiming to perform magic,
- Charging money for charms or spells,
- Collecting money under the guise of raising funds for a Quran course under an association, even though it does not exist,
- Soliciting funds under the pretext of collecting Fitrah (charitable alms) and Zakat (obligatory alms) or building a mosque,
- Gathering donations for a community center or church,
- Promising to recite the Quran during a funeral, followed by the distribution of alms, reading prayers over valuable possessions, or promising to perform acts of charity for the deceased.
In such cases, where individuals exploit the goodwill and charitable sentiments of others by deception, it is considered aggravated fraud.
2. Exploiting Dangerous Situations or Difficult Circumstances of the Individual for Fraud
Whether the victim is in difficult circumstances is evaluated objectively to make a decision. According to the Supreme Court;
- The victim targeted by the perpetrator is found to be in a state of helplessness,
- They are under psychological pressure and are more vulnerable,
- They must have a greater need for a helping hand than usual.
For example;
- The victim being involved in a traffic accident,
- Requiring urgent and intensive assistance for themselves or a loved one while receiving treatment in the hospital,
- Experiencing mental and physical vulnerability after an earthquake falls within this scope.
In such cases, where the perpetrator exploits the vulnerable state or dire circumstances of the victim, they are sentenced to imprisonment for a term ranging from three to ten years and to a judicial fine of up to five thousand days.
3. Exploiting the Weakness of Perception of the Individual for Fraud
This aggravated form applies when the victim has a weakened perception, suffers from mental illness, or has mental retardation. The perpetrator is sentenced to imprisonment for a term ranging from three to ten years and to a judicial fine of up to five thousand days.
4. Fraud through the Use of Public Institutions and Organizations, Professional Organizations, Political Parties, Foundations, or Associations as Instruments
Merely attempting to gain benefit by claiming to work for a public institution, political party, foundation, or association does not constitute aggravated fraud on its own. Additionally, the individual must use a means of deception related to these organizations, such as symbols, clothing, or documents. The perpetrator is sentenced to imprisonment for a term ranging from three to ten years and to a judicial fine of up to five thousand days.
5. Fraud to the Detriment of Public Institutions and Organizations
For this offense to occur, the crime must be committed with the intention of causing harm to the property of public institutions and organizations. It can involve actions such as obtaining money from public institutions and organizations unlawfully or failing to repay a debt to them. The victims of this crime are public institutions and organizations. When the crime is committed both by using public institutions and organizations as instruments and to the detriment of these entities, the perpetrator incurs liability for two aggravated circumstances. In this aggravated form, the perpetrator is sentenced to imprisonment for a term ranging from four to ten years. Additionally, a judicial fine is imposed, which is not less than twice the income obtained from the crime.
6. Fraud through the Use of Information Systems, Banks, or Credit Institutions as Instruments
The use of information systems or financial institutions such as banks or credit institutions as instruments is considered an aggravated circumstance in the commission of fraud due to facilitating the crime.
The use of systems as instruments typically occurs in online fraud. Deception must occur over the internet. In addition to using information systems as a means of deception, there should be no face-to-face interaction between the victim and the perpetrator.
Sending false news via the internet with links indicating that an item will be sold at a significantly lower price than its actual value and tricking individuals into entering their credit card information after clicking on the link constitutes aggravated fraud. Additionally, impersonating someone else by accessing their email or social media account and deceiving someone to gain unjust benefit constitutes aggravated fraud.
For the recognition of the use of banks and credit institutions as instruments in the commission of fraud, the crime must involve the utilization of the ordinary activities of the bank or other credit institution, or the tangible assets produced by these institutions due to their ordinary activities must be used as a means in the crime. The ordinary activities of banks and credit institutions include:
- Accepting deposits,
- Granting loans,
- Buying and selling checks and other negotiable instruments,
- Issuing payment instruments such as credit cards, bank cards, and travelers’ checks.
The tangible assets of banks and other credit institutions include deposit slips, collateral letters, printed documents, identity cards, access cards, bank passbooks, checks, and credit cards.
The Supreme Court recognizes the occurrence of aggravated fraud when checks are used as instruments in fraudulent conduct. In this aggravated form, the perpetrator is sentenced to imprisonment for a term ranging from four to ten years. Additionally, a judicial fine is imposed, which is not less than twice the income obtained from the crime.
7. Fraud Exploiting the Convenience Provided by Press and Media
Press and media outlets include radio, television, newspapers, online newspapers, magazines, and other mass communication tools. For the crime of fraud to occur through the use of press and media outlets, individuals must not necessarily meet face-to-face. If individuals communicate over the phone or in person after seeing an advertisement in the press or media, and the perpetrator defrauds the victim, this aggravated circumstance will apply. In this case, the perpetrator is sentenced to imprisonment for a term ranging from three to ten years and to a judicial fine of up to five thousand days.
8. Fraud by Merchants, Company Directors, or Persons Acting on Behalf of the Company; Fraud by Cooperative Managers within the Scope of Cooperative Activities
The determination of whether the perpetrator is a merchant, whether there is a company or cooperative involved, whether the perpetrator possesses the qualifications specified by law, whether the activity is commercial or cooperative, and finally whether the act was committed during commercial or cooperative activities are considered to decide if this aggravated circumstance applies. In this aggravated form, the perpetrator is sentenced to imprisonment for a term ranging from three to ten years and to a judicial fine of up to five thousand days.
9. Fraud by Exploiting the Trust Placed in Them Due to Their Profession by Freelancers
This aggravated form applies when freelance professionals abuse the justified trust placed in them solely during the performance of their profession and duties to commit acts of fraud. In this aggravated circumstance, the perpetrator is sentenced to imprisonment for a term ranging from three to ten years and to a judicial fine of up to five thousand days.
10.Fraud to Obtain a Loan that Should Not Be Allocated by a Bank or Other Credit Institution
This offense occurs when fraudulent actions are taken to obtain a loan from a bank or credit institution, and a loan is obtained based on these actions. The perpetrator must also commit forgery in the documents to deceive the authorized person of the bank or credit institution authorized to lend money. However, if a loan is allocated due to errors made by bank officials without any fraudulent behavior on the part of the individual, no fraud offense is committed. In this aggravated circumstance, the perpetrator is sentenced to imprisonment for a term ranging from four to ten years. Additionally, a judicial fine is imposed, which is not less than twice the income obtained from the crime.
11. Fraud for the Purpose of Obtaining Insurance Compensation
There must be a legally valid policy between the perpetrator and the insurance company. The perpetrator deceives the insurer with fraudulent behavior to obtain insurance compensation. The type of insurance is not significant; it can be life insurance or non-life insurance. In this aggravated circumstance, the perpetrator is sentenced to imprisonment for a term ranging from four to ten years. Additionally, a judicial fine is imposed, which is not less than twice the income obtained from the crime.
12. Fraud by Presenting Oneself as a Public Official or Employee of Banks, Insurance, or Credit Institutions, or Claiming to Be Affiliated with Such Institutions
If the perpetrator commits fraud by falsely presenting themselves as a public official or having a relationship with trusted institutions such as banks, insurance, or credit institutions, they will be held responsible for this aggravated circumstance. In this aggravated form, the perpetrator is sentenced to imprisonment for a term ranging from four to ten years. Additionally, a judicial fine is imposed, which is not less than twice the income obtained from the crime.
13. Fraud by Deceiving Someone by Claiming to Have Connections with Public Officials, Being Respected by Them, and Promising to Perform a Certain Task
In this aggravated form, the fraudulent behavior includes lying about having connections with public officials and being respected by them. Additionally, there is a false promise of performing a certain task. By deceiving someone with these behaviors and providing false promises, the perpetrator benefits themselves or others, making them liable for aggravated fraud. In this aggravated circumstance, the perpetrator is sentenced to imprisonment for a term ranging from four to ten years. Additionally, a judicial fine is imposed, which is not less than twice the income obtained from the crime.
V. Mitigating Circumstances Reducing the Penalty
Committing fraud for the purpose of collecting a debt based on a legal relationship is regulated as a mitigating circumstance reducing the penalty. In this case, the complaint of the victim is required. The victim must file a complaint within six months. Upon the complaint of the victim, the perpetrator is punished with imprisonment for a term ranging from six months to one year or a judicial fine.
In cases of fraud, whether the benefit obtained by the perpetrator is justified or unjustified is not relevant to the commission of the offense. However, if the benefit obtained by the perpetrator is based on a right and arises from a legal relationship, it constitutes a mitigating circumstance warranting a reduction in the penalty.
VI. What Happens if Multiple Individuals Commit Fraud Together?
Fraud can be committed by multiple individuals working together. Both instigators and accomplices are punished. In cases where the person who benefits from the fraud is different from the one who perpetrates the deceitful act, the person benefiting must have knowledge of the fraud in order to be punished. Both the beneficiary and the perpetrator must have conspired to commit the crime together.
If the crime is committed by three or more people together, the penalty is increased by half. Additionally, if the fraud is committed within the framework of the activities of an organized group formed for the purpose of committing crimes, the penalty for fraud is increased by one fold.
VII. Does a Perpetrator Who Defrauds Multiple People Receive More Punishment?
If a perpetrator deceives multiple individuals with a single deceitful act, causing harm to the person targeted by the act or third parties, the provisions regarding successive offenses apply. Additionally, if the same person is defrauded multiple times at different times, they will be punished according to the provisions for successive offenses. In this case, their sentence will be increased by between 1/4 and 3/4.
If the perpetrator commits fraud against different people at different times, a separate crime is considered to have been committed for each victim. Therefore, they will be punished separately for each offense, and they will receive more punishment for each person they defrauded.
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