CRIME OF FRAUD (TCK 157-158)
In its simplest form, frauds are crimes that occur when the perpetrator deceives someone through fraudulent behavior and, to the detriment of him or someone else, provides a benefit to him or to someone else. The qualified form of this crime is crimes committed by means of a certain religious, technological, professional or public institution in the case of the law.
In order for the crime of fraud to occur, it is necessary to obtain an unfair advantage or an unjust interest as a result of fraudulent conduct. Fraud crimes are crimes that can be committed intentionally, and it is not possible that these crimes can be committed in installments. In addition, the provisions of attempted fraud may also apply.
The crime of fraud is not characteristic from the point of view of the perpetrator. Anyone can be the perpetrator of this crime. But in the qualifying cases of the crime, the perpetrator must have certain characteristics. In the same way, it does not show characteristics in terms of the victim. In accordance with the general acceptance, only natural persons can be victims of this crime. Legal entities, on the other hand, can only be harmed by the crime. However, in a decision of the Supreme Court of Criminal Appeal, the General Assembly of the Supreme Court ruled that a legal person may also be a victim. The companies involved in the decision were identified as victims of fraud. It is important to note here that the person whose property is damaged does not have to be the same as the person who was deceived. For example, if the bell holder in possession of the property is deceived, the bell will be the victim of the crime, and the owner will be the victim of the crime.
Conditions for the Occurrence of Fraud Crime
TCK 157 “To a person who deceives a person by fraudulent conduct, to the detriment of him or to another, to the detriment of him or to another,” the text of the law establishes two important criteria for the possibility of committing this crime, that is, its occurrence;
How to Cheat on Someone with Deceitful Behavior
· From the word pronounced cheating in the law, which must be understood as cheating, it can be considered as all kinds of actions that deceive, make mistakes, play, intrigue, theater and so on. It must be understood that the perpetrator lies, deceives the other party even with his attitude and actions or, in some cases, with the disguise he is wearing. The lie here must be heavy and dominant in such a way as to objectively deceive the other party. For example, when the perpetrator presents himself as a police officer, gendarmerie, prosecutor, and commits such behavior and actions, the other party must be deceived by it. But when he presents himself as president, prime minister, or someone else to his acquaintance, the other party does not believe the lie here. It is in this case that it is impossible to speak of an objective act of lying or deception. That is, whether the trick is a deceptive lie must be assessed taking into account the specifics of the event. The subjective state of the victim, his education, the form of relationship with the verb, the form of the deception performed, its features should be taken into account separately.
· The perpetrator who commits the act of fraud must engage in fraudulent behavior, influence the other party with these behaviors, eliminate the tendency to examine and control, and violate the will of the person.
· The perpetrator of fraudulent behavior must necessarily deceive the other party with these fraudulent actions. That is, the will of the counterparty must be destroyed as a result of these actions. For example, when he asks someone for money by presenting himself as a police officer, he must be convinced that the other party is a police officer.
A Benefit to the Perpetrator Himself or Someone Else by Harming the Victim
· Another requirement in the law is that it harms the victim and provides a benefit to the perpetrator himself or someone else. This benefit must be a material or economic benefit. Because it is the property of legal value that is protected in the crime of fraud.
· The victim must suffer material or economic damage as a result of this act of deception. Any value related to his property will be able to be the subject of crime. Any movable or immovable property with economic value may be the subject of crime. In addition, a crime will occur if services are obtained unjustly. For example, the existence of a crime of fraud should be recognized if a doctor is unjustly persuaded to perform an operation. However, it is debatable whether things of no material value can be the subject of crime. In one opinion, things of purely spiritual value (letter, photo) are also the subject of crime. In the opposite opinion, only things of economic value can be the subject of crime. In our opinion, the main thing in terms of the crime of fraud is to protect economic value. In order for the crime to occur, the crime will not occur, since damage is sought in the property of the victim and things of spiritual value cannot be evaluated in his property.
Qualified Fraud Statuses and Conditions
The crime of qualified fraud is regulated in Article 158 of the Turkish Criminal Code. Accordingly, the crime of fraud;
a) through the abuse of religious beliefs and feelings,
b) By taking advantage of the dangerous situation or difficult circumstances in which the person is,
c) By taking advantage of the weakness of one's ability to perceive,
d) through the use of public institutions and organizations, public professional bodies, political parties, foundations or associations as instruments,
e) To the detriment of public institutions and organizations,
f) through the use of information systems, banks or credit institutions as tools,
g) By taking advantage of the convenience provided by the means of press and publication,
h) in the course of the business activities of persons who are traders or directors of the company or acting on behalf of the company; within the scope of the activities of the cooperative managers of the cooperative,
i) by self-employed persons, through abuse of the trust placed in them by virtue of their profession,
j) in order to enable the opening of a loan that should not have been allocated by a bank or other credit institution;
k) In order to receive the insurance price,
l) By identifying himself as a public official or an employee of a bank, insurance or credit institution or claiming to be associated with such institutions and organizations;
If it is committed, a crime of qualified fraud will have been committed.
· Committing the Crime of Fraud by Abuse of Religious Beliefs and Feelings: It is the commission of the crime of fraud by exploiting their feelings, abusing their beliefs because of the religion to which the person belongs. For example; If the perpetrator says that he will start a charity collection campaign for the poor and the poor, he will have committed a crime of qualified fraud if he says that he will start a charity collection campaign and benefit from the benefits he has collected.
· Committing a Crime by Taking Advantage of the Dangerous Situation or Difficult Conditions in which the Person is: It is the case that the crime is more easily committed due to the difficult situation in which the person is in. Therefore, it is regulated as a qualified form of the crime of fraud. A situation of deception can occur more easily by taking advantage of the victimization of the person or loved one in a difficult situation. For example, if a relative is seriously ill, the perpetrator sells a drug that is not actually relevant to the victim at a high price, it constitutes a crime of qualified fraud. However, the fact that a person is in dangerous or difficult circumstances varies according to each concrete event and situation. The assessment of the situation according to the concrete event will be appreciated by the judge.
· Committing the Crime of Fraud by Taking Advantage of the Weakness of the Person's Sensing Ability: It is simpler to exhibit fraudulent behavior and deceive the person with the weak ability to perceive. Situations in which it is easier to commit a crime are considered qualified. Here, the reason that must be understood from the weakness of the ability to perceive is reasons such as mental illness, mental weakness, and young age. For example, if an 80-year-old mentally ill person is obtained by deceiving a mentally ill person, a qualified fraud offense will be committed against the mentally ill person.
· Committing the Crime of Fraud by Using Vehicles in Public Institutions and Organizations, Public Professional Organizations, Political Parties, Foundations or Associations: The commission of a crime of fraud by using the means of institutions to which persons belong or trust is associated with a heavier criminal sanction. For example; This type of crime will be committed if the perpetrator, who claims to be collecting benefits using the name of the association to which the person is affiliated, receives money from the victim.
· Committing the Crime of Fraud by Using Information Systems, Banks or Credit Institutions as Tools: Today, it has also become easier to commit fraud crimes through the information system. A person commits a crime of fraud by using an information system or trust in a bank or credit institution. For example, if they say they call from the bank, take your bank card, account information, withdraw money from your accounts, this crime will be committed.
· Committing the Crime of Fraud by Taking Advantage of the Convenience Provided by the Press and Publication Media: Qualified status is also provided for in the case of committing the crime of fraud using the means of press and publication. Therefore, it is foreseen as qualified fraud.
· Transactions of Merchants or Company Managers or Acting on behalf of the Company in the course of their Business Activities and within the scope of the Cooperative Activities of Cooperative Managers: Fraudulent behavior takes place in accordance with the trust placed in the company or cooperative if the offense is qualified. Not everyone can be the perpetrator in this qualified state. This qualified state is peculiar. It must have a certain quality. For example, if a cooperative manager goes abroad by collecting money under the name of cooperative activity, he will have committed a qualified fraud offense.
· Committing the Crime of Fraud by Self-Employed Persons by Abuse of Trust in Them Due to Their Profession: This qualified form of the crime of fraud cannot be committed by everyone. It is a specific crime and can be committed by self-employed persons. For example; if he receives money from his client with the promise to file a lawsuit and does not open the case, this state of qualified fraud will have been committed.
· Committing a Fraud Offense to Ensure the Opening of a Loan That Should Not Be Allocated by a Bank or Other Credit Institutions: It is the commission of fraudulent behavior in the name of obtaining loans from banks or credit institutions. It is the creditor organization that is the victim of fraudulent behavior in which the person is engaged in with the purpose of obtaining a loan. If the bank is deceived in order to obtain a loan, the perpetrator will have committed a crime of qualified fraud. For example, when the perpetrator receives a loan from the victim bank by showing his salary as high, saying that he has property.
· Committing the Crime of Fraud to Receive the Insurance Price: It is the case when the person who commits fraudulent behavior in order to receive the insurance price and provides unfair benefits is guilty of qualified fraud. In this qualified state, it is the employee of the insurance company who is the victim. For example, when the perpetrator, who insures his home for a high price, receives money from the insurance company, giving the decoration that the theft was committed.
· Committing a Fraud Offense by Identifying Himself as a Public Official or as an Employee of a Bank, Insurance or Credit Institutions, or Claiming to Have an Affair with Such Institution or Organizations: Establishing trust by introducing the victim as a public official or stating that he has a relationship with a public official and making it easier for the perpetrator to commit a fraud crime has been defined as a fraud crime.
Cases that Increase the Penalty in the Crime of Fraud (TCK 158/3)
Qualified fraud in TCK md.158 and simple fraud offences in TCK md.157, by half the penalty to be committed jointly by three or more persons; the penalty to be committed within the framework of the activity of an organization constituted to commit a crime shall be increased by one fold.
Fraud Offence and Effective Repentance Penalty Reduction
Effective remorse, remorse for a crime committed by the perpetrator can be described as trying to eliminate the specifics of the crime, for example, reducing victimization by eliminating the damage caused. The crime of fraud is also a crime of possession of property that can be reduced due to effective remorse.
Up to 2/3 of the penalty to be imposed on the perpetrator can be reduced if the perpetrator compensates the victim before the trial is brought, that is, during the investigation phase. If the damage is paid after the lawsuit is filed, that is, before the verdict is made at the stage of the prosecution, then 1/2 of the penalty to be imposed on the perpetrator can be reduced.
The damage caused by the crime of fraud can be compensated by returning to the victim or paying its price exactly what was the subject of the crime.
Those aiding or abetting the crime may also benefit from the penalty reduction under the provisions of effective remorse for the crime of fraud.
Fraud Crime Settlement
Settlement is an assessment of whether the parties will reconcile by sending the file to the conciliation office by the prosecutor's office during the investigation phase and in the prosecution phase by sending the file to the conciliation office. However, for every crime, settlement provisions are not enforced.In the crime of fraud, the crime of simple fraud is also subject to settlement. In the crime of simple fraud, he asks whether the conciliatory parties can conciliate.If the parties agree, the file will end due to the settlement.
Qualified Fraud Compromise
The qualified state of the crime of fraud is not subject to compromise. For this reason, files with a qualified fraud offense will not be sent by the prosecutor's office or the court to the settlement office. In addition, it will not have any effect on the judicial stage, even if the parties have agreed externally. That is, even if the parties agree, reconciliation is not possible in qualified situations.
Is the Crime of Fraud Subject to Complaint?
The offenses that are subject to the complaint are specified in the Turkish Criminal Code. In the text of the law, it is clearly indicated which crimes are subject to complaint. However, neither the simple nor the qualified form of the crime of fraud is a crime subject to complaint. An investigation can be initiated even in case of notification or detection of re 'sen. Therefore, a re-'sen (spontaneous) investigation will be initiated by the prosecutor's office. Even if the person who is the victim of the crime has indicated that he is not a complainant at the trial stage, he will not have any effect on the case or the perpetrator.
However, the situation that applies in Article 159 of the TCK and requires less punishment is subject to complaint. In the event that the person commits the crime of fraud, since the person cannot collect what he receives based on the legal relationship, the complaint is considered a condition of the case.
Complicity of Fraud Offense with Forgery of Official or Private Documents
Crime of counterfeiting in private documentsis one of the crimes that can be committed in conjunction with the crime of simple or qualified fraud.
Crime of forgery in official documents but it is one of the crimes that can only be committed in conjunction with the crime of qualified fraud.
Whether it is a crime of forgery in an official document or a crime of forgery in a private document, when these crimes 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 the only one. For example, if he deceives the counterparty with a fake police identity and gains benefits, he is punished both for the crime of forgery of official documents and for the crime of qualified fraud.
Responsible and Competent Court in Fraud
The court in charge of the crime of fraud is simple, while the ordinary criminal courts are in qualified cases, while the heavy criminal courts are the courts of severe punishment. The competent court is the court where the crime was committed.
It is advisable to contact our Law Office for support in resolving your disputes arising from the Criminal Law and for detailed information about your legal rights.
Fraud Lawyer
It will certainly be in your favor to file your defense together with a criminal lawyer as they are serious criminal offenses as they are crimes of fraud and the penalties imposed are high. It does not matter where the lawyer who handles the fraud cases in which you are going to work is or where the crime was committed. The case in Bakırköy, Çağlayan, Kartal, Ankara or İzmir courthouses does not make any difference. The important criterion here is that the lawyer with whom you are going to work effectively defends. That is why you do not need to search for fraud lawyer Istanbul, fraud lawyer Bakırköy, fraud lawyer Çağlayan, fraud lawyer Kartal.