Misuse of Bank or Credit Cards (Turkish Penal Code Article 245)

The crime of misuse of bank and credit cards is regulated under Article 245 of the Turkish Penal Code, which deals with crimes in the field of information technology. According to this article, this crime is a type of cybercrime that arises from using, allowing the use of, or benefiting from the use of another person's credit or bank card without the owner's consent, or from producing counterfeit bank or credit cards and profiting from them.

Cybercrimes are crimes directed at or committed using information systems as a tool. This type of crime can be committed in either way.

The problems that arose regarding this type of crime were eliminated with the enactment of the Turkish Penal Code No. 5237. The previous Penal Code No. 765 did not contain a provision concerning the crime of misuse of bank or credit cards. This led to many problems regarding this type of crime. The new law clearly defines the conditions under which the crime occurs and how it will be punished, thus resolving these issues.

According to the law, the crime of misuse of bank or credit cards is committed in three ways:

1. According to the first paragraph of the article, transactions made on another person's bank or credit card without their consent constitute a crime. (Turkish Penal Code Article 245/1)
2. Producing, selling, or transferring counterfeit credit or bank cards by associating them with bank accounts belonging to others constitutes a crime. (Turkish Penal Code Article 245/2)
3. It is a crime to benefit from a fraudulently created bank or credit card. (Turkish Penal Code Article 245/3)

 

Every type of crime protects a legal value. These values ​​can be understood from the justifications of the articles. The justification for Article 245 of the Turkish Penal Code is as follows: "In order to prevent hesitations and differences in jurisprudence, it has been deemed appropriate to make these acts, which include all the ratio legis of the crimes of theft, fraud, breach of trust, and forgery, into independent crimes."

The elements of the crime of misuse of a bank or credit card are present. These elements are examined under the headings of material element and mental element.

1. Material Element
2. Verb
3. Unlawful use of bank and credit cards (Turkish Penal Code Article 245/1): Although there are some doctrinal discussions about how the card should be obtained, the decision of the Court of Cassation has ended the discussion on this issue.[1] According to this decision, it is not important how the card is obtained. The condition of obtaining and using the card without the consent of the cardholder is sufficient.
4. Producing, selling, buying, transferring or accepting counterfeit bank cards or credit cards (Turkish Penal Code Article 245/2)

The actions listed here will result in legal consequences. Several techniques exist for creating counterfeit cards. These include printing information onto blank plastic cards, using altered cards, and erasing the magnetic stripe from the original card and printing counterfeit information in its place. It is possible for the cardholder to become aware of these actions only after a certain time.

• Using a counterfeit or falsified bank or credit card (Turkish Penal Code Article 245/3)

There is an important point here. According to the article, if a person merely prints a counterfeit card and does not use it for their own benefit or the benefit of another, it only constitutes an attempt. For this provision to apply, the person must not have committed a crime that carries a more severe penalty.

1. Perpetrator

Criminal acts can be committed by individuals as well as by third parties. In the case of legal entities, security measures may be applied to their rights due to their legal status.

1. victim

Anyone can be a victim. In this crime, the victims are real people. Banks whose bank or credit card information has been leaked are considered the parties harmed by the crime.

 

2. Spiritual Elements

Based on the definition of the crime, we can conclude that the mental element of the crime is intent. This is because the perpetrator knowingly and willingly performs the actions that constitute the crime.

Bank or credit card misuse takes specific forms. Let's examine them under three headings.

1. Attempt

As I explained above, if the perpetrator, while committing the crime of benefiting from a counterfeit card, only produces the counterfeit card and does not benefit from it, the crime remains at the attempted stage and the trial is conducted accordingly.

2. Participation

It does not exhibit any other characteristics in terms of participation. The provisions regarding participation also apply here.

3. Assembly

If the crime of misuse of a bank or credit card is committed against the same person multiple times at different times, the perpetrator is held liable for only one crime under the provisions of continuous crime. For example, if the perpetrator uses a bank card obtained without the victim's consent multiple times, there is only one crime. However, if there are multiple victims, there are as many separate crimes as there are victims. A person who takes someone else's card without their consent is punished for both theft and misuse of a bank or credit card; two separate crimes have been committed.

When examining the first three paragraphs, the law specified the ways in which the crime was committed. The fourth paragraph, however, explains the grounds for personal immunity from punishment. Accordingly:

(4) The crime mentioned in the first paragraph;

1. a) One of the spouses who have not yet been granted a separation decree,
2. b) An ascendant or descendant, or a relative by marriage of the same degree, or a child

adoptive parent or adopted child,

1. c) One of the siblings living together in the same dwelling,

If the offense is committed to the detriment of the other party, no penalty shall be imposed on the related relative.

In fact, the act committed here is a crime and retains its criminal nature. However, according to the law, the perpetrator cannot be punished for this crime.

The last paragraph of the article explains how the concept of effective repentance can be applied in the crime of misuse of bank or credit cards. According to the text of the article, the provisions of the law regarding effective repentance for crimes against property shall apply to acts falling within the scope of the first paragraph. For the perpetrator to benefit from the effective repentance provision, the common elements must be met. These are:

1. The crime is complete

What we should understand from this is: If the crime is incomplete and remains at the attempt stage, the provisions on effective repentance do not apply. If the person fulfills the conditions for voluntary withdrawal after the commission of the crime has begun, the provisions on voluntary withdrawal apply.

1. The perpetrator, instigator, or accomplice must demonstrate remorse and compensate the victim for the damage suffered by returning the full amount or providing monetary compensation; if partial compensation is possible, the victim must consent to this

The phrase "return in kind" refers to the provision of the benefit in the form of goods. In the case of compensation, the damage inflicted on the victim in the crime is reimbursed.

1. Before prosecution begins, or if prosecution has already begun, before a verdict is reached, restitution or compensation must be ensured.

The prosecution phase is the period that begins with the acceptance of the indictment and continues until the judgment becomes final. If the damage suffered by the victim is fully reimbursed or compensated, the provisions on effective repentance cannot be applied.

 

The crime of misuse of a bank or credit card is subject to investigation ex officio by the prosecutor. The jurisdiction to try this type of crime belongs to the criminal court of first instance. The competent court is the court of the victim's place of residence or the court where the crime was committed.

Remember that every event and situation is evaluated and a conclusion is reached within its own context. For more detailed information and to manage the process effectively, you can contact our office.

 

[1] The decision of the 11th Criminal Chamber of the Court of Cassation dated 01.05.2007, numbered 2006/9046, 2007/2945