Qualified Fraud and Punishment Under Article 158 of the TCK

Qualified Fraud and Punishment Under Article 158 of the TCK. The offense of fraud constitutes the foundation of Turkish Criminal Law. This offense aims to deceive a person through fraudulent acts. Unfair gain is obtained as a result of the deception. Simultaneously, the victim is caused to suffer damages. The Turkish Penal Code (TCK) regulates this offense as simple in Article 157 and as aggravated in Article 158. Aggravated fraud is the commission of the offense using specific persons, institutions, or tools. The aggravated form of the offense mandates much heavier penalties. This article thoroughly examines the elements of the aggravated fraud offense. The 8 main situations specified in TCK 158 and the legal sanctions are discussed in detail.

I. Basic Structure of the Fraud Offense

Fraud is an offense committed against property. A chain of actions is required for this offense to occur.

• Fraudulent Act: Firstly, the perpetrator uses a fraudulent means to mislead the victim. Unreal situations are presented as real. The victim’s perception ability is affected.
• Deception: The victim is deceived as a result of the fraudulent act. The victim’s will has been impaired.
• Damage and Benefit: The deceived victim performs an action to their own or another person’s detriment. The perpetrator or a third party obtains an unfair benefit from this action. A causal link is established between the damage and the benefit.
• Culpability: The offense must be committed intentionally. The perpetrator previously intended to deceive the victim and obtain an unfair benefit.

II. Aggravated Fraud Circumstances: 8 Main Situations According to TCK 158

Aggravated fraud is considered more dangerous due to the manner in which the offense is committed or the nature of the victim. TCK 158 clearly lists the circumstances that aggravate the offense. The amount of punishment given due to these circumstances is significantly increased.

1. Fraud to the Detriment of Public Institutions and Organizations (TCK 158/1-a): This offense targets the financial assets of public institutions. Institutions serving the public interest are targeted. For example, unfairly obtaining a retirement salary from the Social Security Institution (SGK) with a fake document is included in this scope. This situation seriously disrupts public order.

2. By Exploiting Religious Feelings and Beliefs (TCK 158/1-b): The victim’s religious beliefs are exploited. These beliefs set the stage for easy deception. Financial benefit is obtained using spiritual feelings. For example, a fake shrine or donation campaign is created. The victim’s sincere and pure feelings have been exploited.

3. By Taking Advantage of the Dangerous Situation or Difficult Circumstances the Person is In (TCK 158/1-c):Advantage is taken of a difficulty threatening the victim’s life. Disasters such as fire, flood, or earthquake can be given as examples. The victim’s urgent need is turned into unfair gain. The victim’s helplessness has been misused.

4. By Alleging Having a Relationship with Public Officials (TCK 158/1-d): The perpetrator does not introduce themselves as a public official. However, they claim to be in a close relationship with public officials. The victim is deceived by believing in this network of relationships. For example, money is taken with the promise of winning a tender. This situation has damaged public trust.

5. By Using Information Systems, Banks, or Credit Institutions as Tools (TCK 158/1-f): This is the most common type of fraud in our age. The internet, mobile phones, and banking systems are used as tools. Phishing and fake bank sites are created. ATMs or POS devices are manipulated. The reliability of banks and information systems has been abused. The punishment for this offense is additionally increased by one-third.

6. By Using Press and Broadcast Means (TCK 158/1-g): The victim is deceived through newspapers, television, or internet news sites. The possibility of reaching broad masses makes the offense more dangerous. For example, fake investment news or advertisements are published. The victim may be numerous people.

7. By Abusing the Trust Arising from Being a Merchant or Company Executive (TCK 158/1-h): The perpetrator’s commercial title and company position are used. The trust the victim places in the commercial relationship is abused. Company activities have been turned into a tool for fraud. For example, an advance payment is received with fake orders.

8. By Abusing the Trust Arising from the Profession by Freelance Professionals (TCK 158/1-i): Freelance professionals such as lawyers, doctors, and financial advisors can commit this offense. Professional knowledge and reputation are misused. The trust the victim places in the professional has been damaged. For example, assets are acquired through wrong legal advice.

III. Punishment and Sanctions for Aggravated Fraud

The punishment for the aggravated fraud offense is quite severe. Longer imprisonment is stipulated compared to simple fraud.

• Imprisonment: Imprisonment from three years to ten years is stipulated for the aggravated fraud offense (TCK 158/1).
• Judicial Fine: In addition to the imprisonment, a judicial fine not less than twice the benefit obtained from the commission of the offense is also given. The amount of this fine depends on the magnitude of the unfair gain.
• Circumstances for Increase: The punishment is increased if the offense is committed by making information systems, banks, or credit institutions a tool (TCK 158/1-f). Furthermore, the punishment is increased by half if committed with three or more people or within the framework of the activity of a criminal organization (TCK 158/3).

IV. Trial Process and Legal Details

The investigation and prosecution process for the aggravated fraud offense has its own characteristics.

A. Complaint and Prosecution: Aggravated fraud is generally prosecuted ex officio (automatically). It is not subject to the victim’s complaint. However, simple fraud is subject to complaint in some cases. In the aggravated situation, the initiation of a public prosecution is mandatory.

B. Effective Remorse (TCK 168): The provisions on effective remorse are also applied in the offense of fraud. It is important that the perpetrator compensates the victim’s damage before the trial begins. Significant reductions in punishment are made if the damage is fully compensated. If the damage is compensated during the prosecution stage, a smaller reduction is applied. This situation aims to mitigate the consequences of the offense for the victim.

C. Attempt and Participation: Attempting the offense of fraud is possible. The perpetrator has started the fraudulent act but the act of deception could not be completed. Or the victim’s damage has not occurred. In this case, the punishment is reduced. Those who participate in the offense (aider, instigator) are also held responsible for the aggravated form of the offense.

D. Competent Court: The court competent to hear aggravated fraud offenses is the High Criminal Courts (Ağır Ceza Mahkemeleri). This situation indicates the seriousness of the offense and the severity of the stipulated punishment.

V. Situations Requiring Special Expertise

Fraud committed through information systems, in particular, requires technical expertise. Expert reports are important during the investigation stage. Cybercrime fighting units collect evidence. Banking and finance experts are assigned as expert witnesses.

Severe Sanction, Challenging Process

Qualified Fraud and Punishment Under Article 158 of the TCK. The aggravated fraud offense shakes not only the victim’s assets but also public trust. TCK 158 has therefore increased deterrence by stipulating severe penalties. The aggravated forms of the offense require the perpetrator to serve a longer imprisonment time. The trial process is complex. Effective remorse and proper legal defense can change the outcome of the process. When facing this accusation, obtaining support from a criminal law attorney specialized in the field is vitally important. The full protection of rights is ensured through this way.