Fraud Crimes

Counterfeiting can generally be defined as any trick or method used to deceive another person or persons. Many sectors produce counterfeit products today. Counterfeit credit cards, IDs, software, or machine spare parts are examples of this. This type of crime is also regulated in the Turkish Penal Code. Counterfeiting has certain unique characteristics. These are:

• Deception is an ever-present element in fraud.
• Fraud is a tool used to obtain an unfair advantage.
• With technological advancements, fraud crimes are also on the rise.
• In forgery crimes, the fact that the documents in question fall under the category of negotiable instruments results in financial losses for the state, and these are some of the characteristics of forgery.

According to the Turkish Penal Code, forgery can be classified according to its subject matter. Accordingly, forgery is:

• Counterfeiting of money and valuable stamps
• Forgery of the seal
• Forgery of documents (official/private)

• Counterfeiting of money and valuable stamps is regulated in Articles 197, 198, 199, 200, and 201 of the law. According to Article 197, a person who produces, imports, transports, stores, puts into circulation, or knowingly accepts counterfeit money is subject to both imprisonment and a fine. The last paragraph of the article stipulates imprisonment for a person who unknowingly accepts counterfeit money but knowingly puts it into circulation. Article 198 lists what is considered equivalent to money (such as shares, bonds, and coupons). Article 199 examines the aspects of money counterfeiting individually, and also addresses the issue of counterfeiting valuable stamps. According to Article 200 of the law, not only the counterfeiting of money and valuable stamps, but also the production, importation, purchase, or possession of tools used to commit these crimes is punishable by both imprisonment and a fine. Article 201 of the law examines effective repentance in this type of crime. According to this provision, if a person informs the authorities after the commission of the crime and, as a result of the information provided, enables the apprehension of accomplices and the seizure of the counterfeit goods, the person will not be punished.
• The forgery and alteration of seals are regulated in Articles 202 and 203 of the Turkish Penal Code. According to these provisions, individuals who forge or produce seals used by the Presidency, the Grand National Assembly of Turkey, or other public administrations are subject to imprisonment. Those who act contrary to the purpose of the seal are also subject to imprisonment or a fine, as stipulated in Article 203 of the Turkish Penal Code.
• Crimes of forgery of documents are regulated in Articles 204-212 of the Turkish Penal Code (TCK). According to Article 204, a person who forges, alters, or uses an official document is punishable by imprisonment. According to the second paragraph of the same article, the penalty is increased if the crime is committed by a public official. Furthermore, according to the third paragraph of the same article, the penalty is also increased if the document is valid by its nature until its forgery is determined. According to Article 205, a person who damages, destroys, or conceals an official document is punishable by imprisonment, and the penalty is increased if the perpetrator is a public official. Articles 207 and 208 specify the situation where the official document in question is a private document. In Article 210, the legislator has specified a limited number of documents that qualify as official documents. The second paragraph of the same article addresses the situation where the perpetrator is a healthcare professional. According to Article 211 of the law, a reduction in punishment should be applied when the crime of forgery is committed for the purpose of proving a claim based on a legal relationship or documenting a factual situation. Article 212, the final provision on this matter, addresses the issue of concurrence of crimes. According to this provision, if a forged document is used in the commission of another crime, punishment should be given for both crimes.

We previously described the situation where the crime of forgery of official documents is committed by a public official, as outlined in Article 204, paragraph 2 of the Turkish Penal Code. For this type of crime to be punishable, the perpetrator must be a public official. However, there are some crimes where, for a person to be punished, the crime must have been committed only by the person specified in the definition of the crime. This definition is called a 'specific crime'. In specific crimes, punishment can only be imposed on individuals other than those specified in the definition if they were involved in the crime as an instigator or accomplice. To better understand this, it would be helpful to show a Supreme Court decision. A part of the Supreme Court decision is as follows:[1]

The crime of "falsifying an official document which one is authorized to prepare in the course of duty," as defined in Article 204, paragraph 2 of the Turkish Penal Code, is a "specific crime" that can only be committed by a public official; therefore, according to Article 40, paragraph 2 of the same law, other persons who participated in the commission of this crime can only be held responsible as instigators or accomplices. For defendants who are not public officials to be held responsible for the forgery crime allegedly committed by public officials against whom a criminal complaint has been filed, it must be determined that they instigated or aided the public officials in committing the said crime; ..

In cases of forgery of official documents, if the crime is committed by a person who is not a public official, as defined in Article 204, paragraph 1 of the Turkish Penal Code, the case is heard in the Magistrates' Criminal Court. If the crime is committed by a public official, as defined in paragraph 2 of the same article, the case is heard in the High Criminal Court. Furthermore, this crime is not subject to complaint; the prosecutor can initiate an investigation ex officio.

[1] Supreme Court 15th Criminal Chamber / Case No. 2019/7938E. / Decision No. 2020/11547K. / Decision dated 18.11.2020