Complicity in Fraud

1. Introduction

In criminal justice systems, it is common for multiple individuals to act together in committing a crime. When a crime is committed by more than one person, the extent to which each individual is held criminally responsible, and their legal status as perpetrator, instigator, or accomplice, is assessed within the framework of the concept of "participation in a crime.".

In the Turkish Penal Code (TCK) fraudis classified as a crime against property and can be committed both individually and in an organized manner. Therefore, of complicity in fraud gives rise to significant debates in practice, both theoretically and practically.

This article will examine the forms and elements of complicity in fraud, the regulations in the Turkish Penal Code, the precedents set by the Supreme Court, and the problems encountered in practice.

2. The Concept of Participation in a Crime and the Fundamental Principles in the Turkish Penal Code

2.1. General Description

Participation in a crime is when more than one person commits the crime together or in independent roles. With the 2005 reform of the Turkish Penal Code, the distinction between perpetrator, instigator, and accomplice was adopted.

2.2. Legal Basis

Articles 37-39 of the Turkish Penal Code regulate the types of complicity in a crime as follows:

• Article 37 – Perpetrator: Those who commit the crime together are joint perpetrators.

• Article 38 – Instigator: A person who incites another to commit a crime shall be held responsible as an instigator.

• Article 39 – Aider: A person who facilitates the commission of a crime is considered an accomplice.

3. Characteristics of the Crime of Fraud and Suitability for Participation

The crime of fraud occurs when a person is deceived through fraudulent conduct, resulting in damage to their property and the perpetrator obtaining a benefit. The methods of committing this crime can vary, organized crime, of information systems , or the abuse of authority .

Why is participation easy?

• Crime is a planned crime.

• Fraudulent schemes can be easily organized.

• Roles can be assigned (persuader, document forger, money collector, etc.).

4. Fraud Crimes in Terms of Types of Participation

4.1. Joint Offender (Turkish Penal Code Article 37)

This is a situation where more than one person decides to commit a crime together and carries it out jointly. For example:

• Two people collaborated to create a fake real estate listing and defrauded the victim of their money.

In this case, both individuals will be punished as perpetrators.

4.2. Incitement (Turkish Penal Code Article 38)

It is when one person incites another, who does not yet have the idea of ​​committing a crime, to commit the crime of fraud.

Example: A person who says, "Trick this person and take their money, I'll protect you," is the one who instigated the act.

Those who instigate crimes are punished just like the perpetrators.

4.3. Providing Assistance (Turkish Penal Code Article 39)

A person who facilitates the commission of a crime is punished as an accomplice. Assistance can take two forms:

• Financial assistance: Providing forged documents, supplying equipment to be used in the crime.

• Spiritual support: Providing encouragement and guidance.

The accomplice receives a lesser sentence than the perpetrator (a 1/2 reduction).

5. Participation in Qualified Fraud

If there is complicity in the aggravating circumstances listed in Article 158 of the Turkish Penal Code, this may lead to an increase in the penalty. In particular:

• In fraud committed through information systems, the person providing technical support may be an accomplice.

• In fraud committed using the authority of a public official, the person who is not an official but directs the official is considered the instigator.

6. Distinction Between Organized Crime and Complicity in Crime

The concepts of complicity and organized crime are often confused. The difference between them is as follows:

If the crime of fraud is committed in an organized and continuous manner, then as an organized crime .

7. Problems Encountered in Practice

7.1. Caste Distinction

The extent to which an accomplice was aware of the crime is a determining factor in their punishment. A person who merely provided technical support without the intention of assisting may be exempt from criminal liability.

7.2. Passive Roles and Failure Definition

The mere fact that a person owns the vehicle or was present at the scene of the crime does not automatically make them a co-perpetrator. All the specific elements of the case must be considered in the assessment.

8. The Effect of Provisions Regarding Participation in Crime on Punishment

Courts may apply a discretionary reduction in sentence, taking into account the perpetrator's contribution to the act and the intensity of their intent.

9. Evaluation and Conclusion

Fraud is a crime that is quite flexible and widespread in terms of complicity. The involvement of multiple individuals in the commission of the crime necessitates a careful analysis of each individual's role and capacity.

In this context, courts must assess the defendants' intent, degree of contribution to the act, and role in the fraudulent scheme on a case-by-case basis. Otherwise, the principles of justice and proportionality in criminal responsibility may be compromised.

Correct interpretation of the provisions regarding complicity in crime is of great importance both for the effectiveness of combating crime and for justice in individual punishment