Offense of Fraud

THE OFFENSE OF FRAUD

Under Article 157 of the Turkish Penal Code, the offense of fraud is committed by deceiving a person through fraudulent acts and thereby obtaining a benefit for oneself or another to the detriment of that person or a third party. In its basic form, the offense is punishable by imprisonment from one to five years and a judicial fine of up to five thousand days.

For the offense of fraud to be established, four essential elements must be present:

• The perpetrator must engage in fraudulent conduct,
• Such conduct must be capable of deceiving the victim (capacity to deceive),
• The victim or a third party must suffer damage as a result,
• The perpetrator must obtain an unjust benefit for himself or another.

These elements constitute the legal framework of the offense.

The Criminal General Assembly of the Court of Cassation has provided the following definition of fraud. According to the Assembly, fraud consists of a set of skillfully executed acts that impair the victim’s free will and eliminate the possibility of discovering the truth. In one of its decisions, this was expressed as follows:

“Fraud is a ‘qualified lie’ and must be of a certain degree of seriousness, intensity, and sophistication; it must involve acts which, by their manner of execution, eliminate the victim’s ability to examine or verify the truth.”

(Court of Cassation, Criminal General Assembly, Decision No. 2012/1353)

Penalty for the Offense of Fraud

• Simple Fraud (Article 157 TPC):
• The penalty for the basic form of the offense is consistently stated in judicial decisions as imprisonment from one to five years and a judicial fine of up to five thousand days.
• Aggravated Fraud (Article 158 TPC):
• Where aggravating circumstances are present, the penalty is substantially increased. Following legislative amendments, the current penalty is imprisonment from three to ten years and a judicial fine of up to five thousand days (Court of Cassation CGA 2017/31; Constitutional Court 2022/100).
• More Severely Aggravated Forms:
• In cases listed under subparagraphs (e), (f), (j), (k), and (l) of Article 158—such as offenses committed to the detriment of public institutions, through the use of information systems, or by impersonating a public official—the penalty is further aggravated. In such cases, the minimum term of imprisonment cannot be less than four years, and the amount of the judicial fine cannot be less than twice the benefit obtained from the offense (Constitutional Court 2022/100; Court of Cassation CGA 2022/628).

Aggravating Circumstances Increasing the Penalty (Article 158 TPC)

Judicial decisions have addressed numerous aggravating circumstances regulated under Article 158 of the Turkish Penal Code. The principal ones include:

• Exploiting religious beliefs or sentiments (Art. 158/1-a),
• Taking advantage of a person’s perilous situation or difficult circumstances (Art. 158/1-b),
• Committing the offense to the detriment of public institutions or organizations (Art. 158/1-e),
• Using information systems, banks, or credit institutions as instruments of the offense (Art. 158/1-f),
• Benefiting from the facilities provided by mass media or press outlets (Art. 158/1-g),
• Committing the offense during commercial activities by merchants, company managers, or persons acting on behalf of a company (Art. 158/1-h),
• Abuse of trust arising from professional status by self-employed professionals (Art. 158/1-i),
• Impersonating a public official or an employee of a bank, insurance company, or credit institution (Art. 158/1-l).

In addition, pursuant to paragraph 3 of Article 158, where the offense is committed jointly by three or more persons, the imposed penalty is increased by half; where it is committed within the framework of an organized criminal group, the penalty is doubled.

Mitigating Circumstances and Grounds for Non-Punishment

Legislation and case law recognize various mitigating factors and grounds for non-punishment specific to fraud or applicable under general provisions:

• Effective Remorse (Article 168 TPC):
• This is the most frequently invoked mitigating ground. It applies where the victim’s damage is fully compensated. If the damage is remedied before the initiation of prosecution, the penalty may be reduced by up to two-thirds; if remedied after prosecution has commenced but before judgment, the reduction may be up to one-half (Court of Cassation CGA 2015/309; Court of Cassation 2nd Criminal Chamber 2019/13882).
• Attempt (Article 35 TPC):
• Where the offense cannot be completed due to reasons beyond the perpetrator’s control, provisions on attempt apply, allowing for a reduction of the penalty from one-quarter to three-quarters (Constitutional Court 21.09.2022; Court of Cassation 23rd Criminal Chamber 2016/5259).
• Personal Grounds for Impunity or Reduction (Article 167 TPC):
• This special provision applies where the offense is committed between relatives of a specified degree, allowing either for exemption from punishment or a reduction in penalty. However, the Court of Cassation has limited its application by holding that where the injured party is a legal entity, a kinship relationship within the meaning of Article 167 cannot exist (Court of Cassation CGA 2016/753).
• Fraud Committed for the Purpose of Collecting a Legal Claim (Article 159 TPC):
• The law regulates the commission of fraud for the purpose of collecting a claim arising from a legal relationship as a less severely punishable form. In such cases, prosecution is subject to complaint, and the penalty is set at imprisonment from six months to one year or a judicial fine.
• Discretionary Mitigation (Article 62 TPC):
• Based on factors such as the perpetrator’s conduct during trial, social relations, or the anticipated effects of the penalty on the future, courts may apply a discretionary reduction, generally at a rate of one-sixth.
• Mediation (Article 253 of the Criminal Procedure Code):
• Following amendments introduced by Law No. 6763, the offense of simple fraud under Article 157 has been brought within the scope of mediation. Where aggravated forms are absent, mediation may result in the termination of the investigation or prosecution upon agreement of the parties, directly affecting the legal status of the suspect or defendant (Court of Cassation 2nd Criminal Chamber 2019/13882; Court of Cassation 17th Criminal Chamber 2017/14611).

Conclusion

In conclusion, fraud is one of the offenses against property that most severely undermines social trust. For the offense to be established, the fraudulent conduct must genuinely impair the victim’s free will, the unjust benefit must have economic value, and the perpetrator must act with intent. In aggravated forms, penalties are significantly increased, and offenses committed through banking channels or information systems represent the most frequently encountered examples in contemporary practice.