Crime of Fraud - Av. Gökhan Akgül

Definition

The crime of fraud is outlined in Articles 157 and following of the Turkish Penal Code, under the second part titled “Crimes Against Persons,” in the tenth chapter titled “Crimes Against Property.”

According to the relevant article, the crime involves deceiving a person through fraudulent behavior, causing harm to themselves or others, and obtaining a benefit for oneself or others.

Article 157- (1) A person who deceives another through fraudulent behavior, causing harm to them or others, and obtaining a benefit for themselves or others shall be sentenced to imprisonment from one to five years and may also be imposed a judicial fine of up to five thousand days.

Is the Crime of Fraud Subject to Complaint and Reconciliation?

The crime of fraud is not subject to complaint. It can be investigated and prosecuted ex officio. Even if the complaint is withdrawn, the public case continues. Similarly, the simple form of the crime is also not subject to reconciliation. However, the form of the crime that carries a lesser penalty is subject to both complaint and reconciliation. For this, the crime must be committed with the purpose of collecting a debt based on a legal relationship.

Article 159- (1) If fraud is committed with the purpose of collecting a debt based on a legal relationship, upon complaint, the punishment may range from six months to one year of imprisonment or a judicial fine.

Can the Crime of Fraud Be Committed by Negligence?

The crime of fraud is an intentional crime. It cannot be committed through negligence.

The Simple Form of the Crime

According to Article 157 of the Turkish Penal Code:

“A person who deceives someone through fraudulent behavior, causing harm to that person or another, and gaining an advantage for themselves or someone else, shall be sentenced to imprisonment from one to five years and a judicial fine of up to five thousand days.”

Circumstances Requiring a Greater Penalty

Article 158 of the Turkish Penal Code regulates the aggravated form of fraud. If the crime of fraud is committed in the following ways, the penalty will be imprisonment for a term of three to ten years and a judicial fine of up to five thousand days:

By exploiting religious beliefs and sentiments,
By taking advantage of a person’s dangerous situation or difficult conditions,
By exploiting a person’s weakened ability to perceive,
By using public institutions and organizations, public professional associations, political parties, foundations, or associations as tools,
To the detriment of public institutions and organizations,
By using information systems, banks, or credit institutions as tools,
By taking advantage of the convenience provided by the press and media,
By traders or company managers, or persons acting on behalf of a company, during commercial activities; by cooperative managers within the scope of the cooperative’s activities,
By professionals who abuse the trust placed in them due to their profession,
In order to ensure the allocation of a credit that should not be provided by a bank or other credit institutions,
In order to receive insurance compensation,
By a person introducing themselves as a public officer or an employee of a bank, insurance, or credit institution, or claiming to be related to such institutions and organizations.

In the following cases, the lower limit of the prison sentence shall be four years, and the amount of the judicial fine shall not be less than twice the benefit obtained from the crime:

To the detriment of public institutions and organizations,
By using information systems, banks, or credit institutions as a tool,
To secure the opening of a loan that should not be allocated by a bank or other credit institutions,
To receive an insurance payment,
By introducing oneself as a public official or as an employee of a bank, insurance, or credit institution, or by claiming to be associated with these institutions and organizations.

A person who deceives another by claiming to have connections with public officials, asserting that they are respected by them, and promising to have a certain task performed, thereby obtaining a benefit for themselves, shall be sentenced to imprisonment from three to ten years and a judicial fine up to five thousand days.

If the crime is committed by three or more individuals together, the sentence will be reduced by half; if the crime is committed within the scope of an organization formed for the purpose of committing crimes, the sentence will be increased by one-third.

Less Severe Cases

The less severe cases of the crime of fraud are regulated in Article 159 of the Turkish Penal Code. The relevant article is as follows:

“If fraud is committed for the purpose of collecting a receivable based on a legal relationship, upon complaint, the offender shall be sentenced to imprisonment from six months to one year or a judicial fine.”

Effective Remorse

In accordance with the principle of legality, effective remorse can only be applied to the types of crimes for which it is specifically regulated. The provisions regarding effective remorse for the crime of fraud are regulated in Article 168 of the Turkish Penal Code. If, after the crime has been completed but before prosecution begins, the perpetrator, instigator, or accomplice shows remorse by fully compensating the victim for the damage caused by returning or indemnifying the loss, the sentence may be reduced by up to two-thirds. If remorse is shown after prosecution has begun but before a judgment is rendered, the sentence may be reduced by up to one-half. In cases of partial return or indemnification, the provisions of effective remorse can only be applied with the consent of the victim.

Security Measures for Legal Entities

According to Article 169 of the Turkish Penal Code:

“…Security measures specific to legal entities shall be imposed on legal entities that gain unjust benefits as a result of the commission of the crime of fraud.”

Attempt

The crime of fraud is a crime that is suitable for attempt. The crime of fraud becomes susceptible to attempt when the perpetrator begins to deceive someone through fraudulent actions. If the perpetrator abandons the intention to gain benefit after engaging in fraudulent behavior or is caught during this process, an attempt to commit the crime occurs.

The Execution Regime for the Crime of Fraud

As stated in Article 157 of the Turkish Penal Code, in the event of the commission of the crime of fraud, both imprisonment and judicial fines are imposed together. The imprisonment sentence for the simple form of the crime can be converted into a judicial fine.

In order to decide on the postponement of the announcement of the verdict:

a) The defendant must not have been previously convicted of an intentional crime.

b) The court must be convinced, considering the defendant’s personality traits and their attitude and behavior during the trial, that they will not commit another crime.

c) The harm caused to the victim or the public by the commission of the crime must be fully remedied through restitution, restoration to the previous state, or compensation.

d) The defendant must accept the postponement of the announcement of the verdict.

In order for a deferred sentence (HAGB) decision to be made, the sentence must be a prison sentence of 2 years or less. In the case of fraud, if the duration conditions are met, HAGB can be applied. For a judicial fine, it can be applied directly to the imposed fine; however, if the prison sentence is converted into a judicial fine, HAGB cannot be applied. However, with the decision of the Constitutional Court dated 01/08/2023, the regulation on HAGB has been canceled, and this regulation will be applicable from 01/08/2024. Until the effective date, HAGB provisions can be applied if the conditions are met, but starting from the effective date (01/08/2024), HAGB will no longer be applicable.

A person who has been sentenced to a prison sentence of two years or less for a crime committed during the trial may have their sentence postponed (Turkish Penal Code, Article 51). The upper limit of this period is three years for individuals who were under eighteen or over sixty-five years old at the time of committing the offense.

In order for a deferral decision to be made, the person must:

The person must not have been previously convicted of an intentional crime with a prison sentence of more than three months,
and the court must form the opinion that the person will not commit another crime due to the remorse shown during the trial process after committing the crime.

The sentence suspension provision can be applied in cases of fraud.

Relevant Court of Cassation Rulings

“Regarding the attempted fraud charge, due to the repeated case, the decision to dismiss the case, and the acquittal verdict for the defendant regarding the charges of attempted fraud, threat, and insult, was appealed by the plaintiff. After reviewing the file, the following was considered:

The defendant allegedly called the plaintiff, who was the Deputy Governor of Çanakkale, using the phone number 0286 213 81 40, which belonged to the Çanakkale Governorate, and said that 230 TL was needed for the transportation of the deceased who grew up in the Çanakkale Orphanage and died in Ankara at the age of 28. The defendant further stated that the plaintiff needed to call the owner of the … Bus Company. When the plaintiff responded, saying, “Please send us an email or a fax for the person you want us to help,” the defendant allegedly threatened and insulted the plaintiff, saying, “I will inform the Governor of Çanakkale about this situation, I will come after you for not fulfilling the task I gave, shame on you, you are behaving inhumanely.”

In this case, where the defendant was accused of attempting to commit fraud, insult, and threat, based on the defendant’s defense, the plaintiff’s statements, and the file contents, it was found that there was insufficient and unconvincing evidence to convict the defendant of attempted fraud, insult, and threat. Additionally, it was noted that the defendant was already facing a fraud case opened by the Çanakkale Chief Public Prosecutor’s Office with investigation and indictment number 2010/3719-2658 dated 16/09/2010. Therefore, no error was found in the court’s decision to dismiss the repeated case on the grounds of fraud, as well as the acquittal verdicts on the charges of fraud, threat, and insult, based on the same reasons.”

“At the conclusion of the trial, the court accepted and ruled that, due to the repeated case of fraud, there was insufficient and unconvincing evidence to convict the defendant of committing fraud, threat, and insult. The plaintiff’s objections, claiming that the verdict was based on incomplete examination and investigation and that the defendant’s commission of the crime had been established, were rejected. Therefore, the judgment was upheld, and the decision was made unanimously on 01/04/2019.” (Court of Cassation 15th Criminal Chamber 2017/7101 E., 2019/3126 K.)

“With regard to the verdicts of acquittal for the defendant … in relation to the crimes of qualified fraud, simple fraud, and forgery of official documents, as well as the convictions of the defendant … for the crimes of qualified fraud and forgery of official documents, the appeals filed by the plaintiff’s attorney and the defendant …’s defense counsel were examined, and the case was reviewed as follows:

The defendant … and the other defendant …, acting in concert and with a common intention, allegedly prepared fraudulent medical reports and prescriptions in the name of the complainant … and plaintiff … Horuz and obtained numerous medications from .. Pharmacy. These prescriptions were invoiced to the plaintiff …, resulting in an unjust profit of 2,778.55 TL from the institution, thereby committing a chain of acts of qualified fraud. Additionally, the defendants are accused of preparing fraudulent medical reports and prescriptions in the name of complainant … and obtaining medications from Efe Pharmacy; as well as preparing fraudulent medical reports and prescriptions in the name of complainant … and plaintiff … Horuz and obtaining medications from the pharmacy. The fraudulence of these reports and prescriptions was later noticed by the pharmacy staff, and the invoices were not submitted to the institution, causing a financial loss to the pharmacies. As a result, the defendants are alleged to have committed three acts of simple fraud. Furthermore, it is claimed that the defendants, by preparing fraudulent medical reports and prescriptions at different dates and using them, also committed a series of offenses related to the forgery of official documents.

1- Upon examining the appeals regarding the conviction of the defendant … for the crimes of forgery of official documents and qualified fraud:

In light of the defendant’s defense, the statements of the plaintiff and witnesses, and the entire case file, no error was found in the court’s acceptance of the conviction decisions.”

Based on the conducted trial, the evidence presented and indicated at the decision site, the opinion and judgment formed by the court in accordance with the prosecution’s results, and the scope of the case file examined, the appeals of the plaintiff’s attorney and the defendant’s defense attorney are rejected, and the judgment is UPHELD.

2- Regarding the appeals on the convictions of the defendant … for the crime of simple fraud and the acquittals for the defendant … for the crimes of forgery of official documents, qualified fraud, and simple fraud:

a) In the appeal review concerning the conviction of the defendant … for the crime of simple fraud:

It was understood that the defendant fraudulently obtained benefits by using forged medical reports and prescriptions belonging to a public institution and obtaining medication from Efe and other pharmacies. Given this, the defendant should have been convicted three times for the fraud against public institutions as regulated in Article 158/1-d of the Turkish Penal Code. However, due to a misapprehension of the criminal nature of the act, the conviction was made for simple fraud as written in the decision.

In accordance with the acceptance, as indicated in the ruling of the Criminal Chamber of the Court of Cassation dated 19.06.2007, no absolute requirement exists for the imposition of a fine at the lower limit when a prison sentence is determined at the lower limit for crimes where the legislator has also prescribed a judicial fine. However, without sufficient and legal reasoning, the imposition of a judicial fine above the lower limit is inappropriate.

b) In the appeal review regarding the acquittal of the defendant … for the crimes of forgery of official documents, qualified fraud, and simple fraud:

In the statements of the employees of … Pharmacy, it was mentioned that the defendant … fled with the intermediary of the defendant … . In the defense of the defendant …, he stated that he was a relative of the defendant …, that the defendant asked for his help to go to the city center, and that they went to the pharmacy together, but he denied the accusations. In the testimonies of witnesses …, …, and …, it was stated that the medication orders were given by the defendant …, but a male individual came to pick them up. In light of these statements, in order to clarify the truth without leaving any room for doubt, the court should have asked the witnesses whether the person who came to receive the medication was the defendant … and determined this. Based on the results, the legal situation of the defendant should have been determined and assessed. However, the judgment was made with incomplete investigation.

This is contrary to the law, and the appeal objections of the defense lawyer and the plaintiff’s attorney are deemed valid. Therefore, in accordance with Article 8/1 of Law No. 5320 and Article 321 of the Code of Criminal Procedure No. 1412, the judgment is REVERSED, while the defendant’s acquired right regarding the penalty amount for the fraud crimes committed against three separate pharmacies is preserved, as per Article 326/last of the same law. The decision was made unanimously on 06/11/2018. (Court of Cassation, 15th Criminal Chamber, 2015/10469 E., 2018/7640 K.)

In the main file numbered 2013/26 E, it is alleged that the defendant …, under the direction of his brother, defendant …, was given a fake driver’s license in the name of … (which could not be seized) for the purpose of renting a vehicle, and rented a truck with plate number … for a month from the business of the plaintiff …, and later used this truck, along with defendants … and …, to obtain transportation work with fake identities and commit fraud. Thus, it is claimed that defendants … and … committed fraud by renting the vehicle with a fake identity, and defendant … committed fraud and the crime of defamation against identity holder ….

In the joined file numbered 2013/3 E, it is claimed that defendants … and … used fake driver’s licenses, which were made by them and could not be seized, to rent a vehicle from the complainant …’s business. The vehicle was not returned within the agreed time, and that defendant … rented the vehicle using a fake driver’s license in the name of …a, while defendant … used a fake driver’s license in the name of … Kurnaz to rent the vehicle as a guarantor and committed the crime of fraud.

1- In the appeal review regarding the acquittal of defendant … for the crime of fraud in the main file numbered 2013/26 E:

It was understood that defendant … was not present at the time of the vehicle rental, and in the later stages, the rented vehicle was used in fraud actions related to other public cases. However, no conclusive and sufficient evidence was obtained to prove that the defendant engaged in the act of vehicle rental with a fake identity. Therefore, the acquittal decision was not found to be erroneous.

In the trial conducted, the evidence presented and shown in the decision-making place, the opinion and judgment formed in accordance with the results of the investigation by the court, and the scope of the reviewed file, it was decided that the appeal objections of the Public Prosecutor regarding the participation of defendant … in the fraudulent act were rejected and the decision was UPHELD.

2- In the main file numbered 2013/26 E, the conviction decisions for fraud and defamation regarding defendant …, and fraud regarding defendant …, and the acquittal decisions for forgery of official documents regarding defendants … and …; in the joined file numbered 2013/3 E, the appeal requests regarding the conviction decisions for fraud regarding defendants … and … were reviewed as follows:

a- Regarding the defamation charge against defendant … in the main file numbered 2013/26 E: The defendant used a fake driver’s license in the name of … to rent a vehicle, which constitutes an element of fraud. Given that the legal elements of the defamation offense were not fulfilled, the defendant should have been acquitted from the charges, but instead, a conviction was rendered with an insufficient reasoning that does not align with the file’s scope.

b- In both the main file numbered 2013/26 E and the joined file numbered 2013/3 E, regarding the decisions for fraud against defendants … and …; in both files, the defendants used fake driver’s licenses to rent vehicles, and in light of the use of driver’s licenses, which are material assets of the traffic registry office, their actions should have constituted fraud under Article 158/1-d of the Turkish Penal Code, which involves the use of public institutions as a vehicle for committing fraud. However, the court mistakenly classified the crime as simple fraud instead of fraud as regulated in the mentioned article.

c- In the main file numbered 2013/26 E, regarding the acquittal decisions for the forgery of official documents for defendants … and …; it was understood that defendant … rented a truck using a fake driver’s license in the name of … with the guidance of another defendant …, and a rental agreement was arranged, which was found to be fake. The defendants should have been convicted under Articles 204/1 and 204/3 of the Turkish Penal Code, but instead, they were acquitted with insufficient reasoning that did not align with the file’s scope.

Since these decisions are contrary to the law, and the appeals of the Public Prosecutor and the defendants are deemed justified, the decisions were annulled under Article 321 of the Code of Criminal Procedure No. 1412, as applicable according to Article 8/1 of Law No. 5320, and it was unanimously decided on 02/10/2018. (Court of Cassation 15th Criminal Chamber, 2015/8948 E., 2018/6177 K.)