What is the Crime of Aggravated Fraud?
The crime of aggravated fraud is defined as the perpetrator committing fraud by using certain religious, social, technological, or professional means, or public institutions, as a tool to deceive. The distinguishing element of aggravated fraud is that the offender must have obtained an unjust gain for the crime to be considered complete. However, in cases where the crime of aggravated fraud remains at the attempt stage, it is taken into account whether the perpetrator has completed the preparatory acts and has begun the execution acts aimed at obtaining the unjust gain.
Conditions of the Crime of Aggravated Fraud
As stated in Article 158 of the Turkish Penal Code under the heading “Aggravated Fraud,” for the offense of fraud to be committed in the form of aggravated fraud, the following conditions must be met:
a) By exploiting religious beliefs and sentiments,
b) By taking advantage of a person’s dangerous situation or difficult conditions,
c) By taking advantage of a person’s weakened ability to perceive,
d) By using public institutions and organizations, public professional organizations, political parties, foundations, or associations as instruments,
e) To the detriment of public institutions and organizations,
f) By using information systems, banks, or credit institutions as instruments,
g) By taking advantage of the convenience provided by mass media and broadcast tools,
h) During commercial activities of merchants or company executives, or of persons acting on behalf of companies; or by cooperative managers within the scope of cooperative activities,
i) By professionals abusing the trust placed in them due to their profession,
j) With the intent of securing a loan that should not be granted by a bank or other credit institution,
k) With the intent of collecting insurance compensation,
l) By introducing oneself as a public official or as an employee of a bank, insurance, or credit institution, or by claiming to have connections with such institutions.
The Offense of Aggravated Fraud Committed by Using Information Systems, Banks, or Credit Institutions as a Means
The perpetrator committing the crime of fraud by using private or public banking institutions, or their material assets such as checks, credit cards, and receipts as tools, renders the crime aggravated. Examples related to this matter include;
a. Fraud committed by promising the sale of betting coupons,
b. Fraud committed by promising that a gift was won in a lottery,
c. Fraud involving obscenity or sexual accusations (which can also be considered as blackmail),
d. Fraud committed by promising subscription renewal,
e. Fraud committed by gaining access to electronic devices such as phones or computers,
They can be listed as follows.
The Penalty for the Crime of Qualified Fraud
It is observed that the legislator has made two different distinctions regarding the penalty for the crime of qualified fraud:
a. For qualified fraud offenses committed before November 24, 2016, the prison sentence to be imposed on the perpetrator was set between 2 and 7 years;
b. For qualified fraud offenses committed after November 24, 2016, this prison sentence was regulated to range from 3 to 10 years (Turkish Penal Code, Article 158).
Fraud in the Crime of Qualified Fraud
In the crime of qualified fraud, deceit essentially involves a sophisticated lie created by the perpetrator and used with the intent to mislead the victim. Therefore, the perpetrator tries to gain an unfair advantage through fraudulent, deceptive lies and misleading behavior. Additionally, the concepts of “unfair advantage” and “fraudulent deceptive lie” are assessed by the judge on a case-by-case basis; factors such as the victim’s subjective condition, education, the form of deceit, and the characteristics of any forged document involved are taken into consideration.
Aggravating Circumstances in the Crime of Qualified Fraud
If the qualified fraud offense regulated in Article 158 of the Turkish Penal Code (TCK) cited above is committed jointly by at least 3 people, the penalty to be imposed is reduced by half; however, if the same crimes are committed within the scope of an organization established for committing crimes, the penalty is increased by one full amount.
Effective Remorse in the Crime of Qualified Fraud
In Turkish criminal law, the procedure of effective remorse is defined as the offender feeling regret for the committed crime and attempting to eliminate the effects of the crime. Accordingly, the provisions of effective remorse due to the crime of qualified fraud can be applied for sentence reduction both to the offender and to accomplices or instigators.
The provisions of effective remorse are regulated in Article 168 of the Turkish Penal Code as follows:
“(1) If, after the completion of crimes such as theft, damage to property, abuse of trust, fraud, fraudulent bankruptcy, negligent bankruptcy (…) but before prosecution begins, the offender, instigator, or aider personally shows remorse and completely eliminates the damage suffered by the victim by returning or compensating for it, the penalty to be imposed shall be reduced by up to two-thirds.
(2) If effective remorse is shown after prosecution has started but before judgment is given, the penalty to be imposed shall be reduced by up to half.
(3) For the crime of extortion, the penalty imposed on a person showing effective remorse shall be reduced by up to half in cases covered by paragraph one, and by up to one-third in cases covered by paragraph two.
(4) In cases of partial return or compensation, the victim’s consent is also required for the application of effective remorse provisions.
(5) In the crime of unjust enrichment, if the offender, instigator, or aider shows remorse and fully compensates the damage suffered by the victim, the public, or a private legal entity before the investigation is completed, a public lawsuit shall not be initiated; if the damage is fully compensated before the judgment is given, the penalty to be imposed shall be reduced by up to one-third. However, a person cannot benefit from this paragraph more than twice.”
Attempted Qualified Fraud Crime
Attempted qualified fraud refers to the situation where the act constituting the crime is interrupted or, despite the completion of the execution steps, the result has not yet occurred due to obstacles beyond the perpetrator’s control. Therefore, if the qualified fraud offense remains at the attempt stage, the penalty imposed on the perpetrator is reduced by between one-quarter and three-quarters.
Additionally, in the case of an attempt to commit qualified fraud, even if the victim does not suffer any damage despite the perpetrator’s deceitful actions, the perpetrator will still be punished under the attempt provisions. However, if the perpetrator has not yet begun the preparatory acts related to the crime, it should be noted that the fraud offense will not be considered, and attempt provisions will not apply.
Procedure for the Prosecution of Qualified Fraud Crime
In cases of qualified fraud, the competent court is the heavy penal court, while the authorized court is the court of the place where the crime was committed. In the attempt of qualified fraud, the authorized court is the court of the place where the last act of execution was carried out. In this regard, the parties may need a criminal lawyer, specifically a criminal lawyer in Antalya, to file and pursue the relevant case.
Frequently Asked Questions
1.Is the Crime of Qualified Fraud Dependent on a Complaint?
Generally, fraud crimes are not dependent on a complaint and are investigated ex officio by the prosecution. Therefore, withdrawing a complaint does not result in the dismissal of the related case.
2.Is Reconciliation Possible in the Crime of Qualified Fraud?
According to Article 253/1 of the Criminal Procedure Code, reconciliation is a process that helps resolve disputes between parties through a neutral mediator during the criminal investigation and trial. It should be noted that, unlike simple fraud, the crime of qualified fraud is not subject to reconciliation and the provisions of reconciliation do not apply.
3.Can a Decision of Postponement of the Announcement of the Judgment (HAGB) Be Given in the Crime of Qualified Fraud?
The decision of postponement of the announcement of the judgment essentially ensures that the sentence given to the defendant does not result in a conviction or legal consequences within a certain probation period. If the defendant, who has been granted HAGB, fulfills certain conditions during this probation period, the imposed sentence is nullified, and consequently, the case is dismissed. In this regard, an HAGB decision can also be issued in cases of qualified fraud.
4.Can the Crime of Qualified Fraud Be Converted to a Judicial Fine?
A judicial fine is a type of sanction that can be applied either together with or instead of a prison sentence for a committed crime. However, since the penalty imposed on the offender for the crime of qualified fraud is more than one year, the prison sentence cannot be converted into a judicial fine.
5.I Was Defrauded Over the Internet, Can I Get My Money Back?
In cases of qualified fraud committed via the internet or information systems, to recover the money, one can file a criminal complaint with the prosecutor’s office, initiate a claim lawsuit, request a precautionary attachment, or start a non-judicial enforcement procedure.
6.My Bank Account Card Was Used in Fraud, Will I Be Punished?
If bank and credit cards are used in the commission of qualified fraud, severe penalties are imposed on the perpetrator. Accordingly, the prison sentence ranges from a minimum of 3 years to a maximum of 6 years. However, if the actual owner of the bank or credit card is the victim and is not accused of involvement in the crime, no penalty is imposed.
7.My Phone Line Was Used in Fraud, Will I Be Punished?
In cases of qualified fraud committed through a phone line, methods such as filing a criminal complaint with the prosecutor’s office, filing a claim lawsuit, initiating precautionary attachment, and non-judicial enforcement proceedings can be used to recover the money. However, if the actual owner of the phone line is the victim and is not accused of involvement in the crime, no penalty is imposed.
8.What is the Statute of Limitations for Qualified Fraud?
The statute of limitations for qualified fraud is 15 years. Accordingly, the competent authority has the right to initiate an investigation within 15 years from the time it learns of the perpetrator and the act.
Some Supreme Court Decisions Regarding the Crime of Qualified Fraud
- According to the second paragraph of Article 158 of the Turkish Penal Code (TCK), it is considered qualified fraud when the perpetrator deceives another person by claiming to have connections with public officials, being respected by them, and promising that a certain task will be carried out, thereby obtaining benefits unlawfully. The material element of the crime consists of claiming to be respected by public officials and having relations with them, and receiving or accepting money or other benefits to be given to the public official in return for mediation. The term “public official” is defined and explained in Article 6 of the TCK. For this crime to occur, the subject of the offense must be an official matter, and the perpetrator must carry out the fraud by referring to relations with public officials. The moral depravity of the perpetrator, not only deceiving others but also casting doubt on public officials, aggravates the severity of the crime, thus constituting qualified fraud. (Yargıtay 15th Criminal Chamber, dated 29.09.2014, Case No. 2013/1041, Decision No. 2014/15729)
- In document forgery crimes, since there is no criminal intent when signing on behalf of the debtor with prior consent, in the present case, given that expert reports determined the signatures on the rental contract in question belong to the defendant, it should have been asked whether the defendant’s mother, …, had previously consented to her son signing the rental contract in her place. Since the rental contract in question is dated 05.02.2010, the sale date of the mentioned house should have been requested from the land registry, and it should have been asked from the parties on what date (written or verbal) the rental contract was actually made. After evaluating all the collected evidence together and based on the result, it should have been explained and discussed whether the elements of the crimes of forgery of a private document and fraud were legally constituted. Instead, convicting the defendant of both crimes with an incomplete investigation as written is contrary to the law. Therefore, the defendant’s appeal objections are found justified in this respect… (Yargıtay Criminal Chamber, dated 19.11.2015, Case No. 2015/3898, Decision No. 2015/5333)
- For the qualified fraud offense under Article 158, paragraph 2 of the Turkish Penal Code No. 5237 to be established, the perpetrator must deceive the victim by referring to public officials whose position, rank, title, or nickname is known or respected, in a way that the other party understands whom is being referred to, even if not explicitly named, and by claiming that these officials will help get the work done. In the concrete case, since the defendant, without mentioning being respected by or having a relationship with any specific public official, only claimed to have influence over the Gendarmerie and thereby unlawfully obtained money, it was overlooked that the defendant’s act constituted fraud under Article 157/1 of the Turkish Penal Code No. 5237. Consequently, the court erred in convicting the defendant for qualified fraud under Article 158/2 by misclassifying the offense, which necessitated annulment. For this reason, the defendant’s appeal objections were found justified… (Yargıtay 23rd Criminal Chamber, dated 10.11.2015, Case No. 2015/3538, Decision No. 2015/6377)
- In the review of the appeal request filed by the complainant’s representative regarding the acquittal rulings for the defendants … and … on the charges of qualified fraud and forgery of private documents, and the acquittal rulings for the defendants İlhan and … on the charge of qualified fraud; considering the defendants’ defenses, the statements of the complainant’s representative, institutional letters, and the case file, it has been determined that there was no loss to the complainant institution regarding defendants İlhan and …, and since the workplace in question is an actual business, no error was found in the acquittal rulings based on the court’s reasoning that there was no sufficient and definitive evidence to convict the defendants of the alleged crimes. (Yargıtay 15th Criminal Chamber, dated 18.02.2019, Case No. 2017/8524, Decision No. 2019/838)
- It has been alleged and accepted that the defendants … and … received 96 goats from the complainant by using a completely forged check without a specified place of issuance on 23.09.2008. The date of the crime is the date the check was given to the complainant’s son, witness Mürsel, which is 23.09.2008. There is no evidence in the file indicating that the defendants committed the alleged crime at a later date. An indictment was prepared against the defendants on 16.01.2012, and the statute of limitations was last interrupted by the conviction decision dated 20.06.2019 against the defendants. This has been understood. (Yargıtay Criminal General Assembly, dated 28.04.2022, Case No. 2020/367, Decision No. 2022/308)
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