What is the crime of fraud?

Fraud Crime: Legal Framework, Supreme Court Decisions, and Current Application Issues

Fraud is a crime defined as a set of deceptive behaviors carried out with the aim of obtaining economic gain, thereby undermining public trust. Defined in Articles 157 and 158 of the Turkish Penal Code (TCK), fraud is considered a serious crime targeting both property and public order. With the rise of digital platforms, methods of fraud have diversified, and new types of fraud conducted via the internet and telephone (such as cyberattacks on bank accounts and fake online shopping sites) have become a significant problem.

1. Definition and Elements of the Crime of Fraud

157 of the Turkish Penal Code defines simple fraud as follows:
“A person who, by fraudulent conduct, deceives someone and thereby causes harm to that person or another, thereby gaining benefit for himself or another, shall be punished with imprisonment from one to five years and a judicial fine of up to five thousand days.”

According to this definition, the elements of the crime are as follows:

Fraudulent conduct: The perpetrator makes false statements or performs deceptive acts with the intention of deceiving the victim.
Ability to deceive: The perpetrator's behavior must create a realistic effect of deception on the victim.
Damage: There must be a decrease in the assets of the victim or a third party.
Benefit: The perpetrator or a third party gains a benefit as a result of this fraudulent act.

2. Qualified Fraud (Turkish Penal Code Article 158)

Article 158 of the Turkish Penal Code regulates certain forms of fraud with more severe penalties.
Qualified forms of fraud include the following:

Using public institutions as tools,
The use of banks or credit institutions,
Fraud for the purpose of collecting insurance pay
The use of information systems as a tool,
Fraud committed in the capacity of a trader or company director,
Exploitation of religious feelings,
Fraud by impersonating a public official.

In these cases, the penalty imprisonment for 3 to 10 years and a fine of up to 5,000 days' worth of daily wages.

3. The Concept of Deception in Fraud

Deception is a fundamental element of the crime of fraud. The deception must be so misleading and convincing as to impair the victim's free will. A simple lie alone does not constitute fraud.

For example:

Conducting transactions with forged documents,
Impersonating a public official and accepting money,
Issuing forged checks or promissory notes is considered fraudulent conduct.

4. Fraud in Light of Supreme Court Decisions

The 15th Criminal Chamber of the Supreme Court of Appeals, Case No. 2019/3742, Decision No. 2020/1756, stated:
"The defendant's act of obtaining a loan in the victim's name using a forged identity constitutes the crime of aggravated fraud."

The Supreme Court Criminal General Assembly, Case No. 2018/342, Decision No. 2019/132, stated:
"Emptying a bank account by remotely accessing the victim's computer constitutes the crime of fraud committed through the use of information systems."

The 11th Criminal Chamber of the Supreme Court of Appeals, Case No. 2020/2811, Decision No. 2021/751, stated:
"Deliberately causing an accident for the purpose of collecting insurance money constitutes aggravated fraud."

5. ECHR Case Law

Although the European Court of Human Rights (ECtHR) does not directly focus on the crime of fraud, the right to a fair trial (Article 6 of the ECHR) and the right to property (Article 1 of the Additional Protocol to the ECHR) .

Grifhorst v. France (2009): This case emphasized the need to provide effective legal remedies for victims of fraud to recover their losses.
Oztürk v. Turkey (1999): In criminal proceedings, the violation of the right to gather evidence and the right to defense was considered a violation of the right to a fair trial.

6. Fraud Methods Today

With the advancement of technology, the forms of fraud have also changed:

Telephone Scams: Scams perpetrated by individuals impersonating police officers, prosecutors, or bank employees.
Social Media Fraud: Methods such as promising investments and selling counterfeit products through fake profiles.
Online Shopping Fraud: Fraud perpetrated through fake e-commerce websites or second-hand platforms.
Cryptocurrency Scams: Frauds carried out under the guise of fake cryptocurrency projects or investment advice.
Banking Fraud: Money transfers made by obtaining bank information through phishing and phishing emails.

7. Complaint and Statute of Limitations in Fraud Cases

Fraud offenses are generally not subject to complaint. However, in some minor cases, a complaint may be required.
The statute of limitations is 8 years (Turkish Penal Code Article 66).
The victim's complaint is important for the collection of evidence during the investigation and prosecution process.

8. Criminal Sanctions and Victim's Rights

Simple fraud: 1-5 years imprisonment and a fine.
Aggravated fraud: 3-10 years imprisonment and a fine of up to 5,000 days' worth of daily wages.
The victim's right to compensation: A separate civil lawsuit can be filed to recover material and moral damages suffered as a result of a wrongful act.

9. Problems Encountered in Practice

Evidence Problems in Digital Fraud: Collecting IP addresses and digital evidence is becoming increasingly difficult in online fraud cases.
Global Crimes: International cooperation is needed to track international fraud networks.
Victims' Lack of Awareness: Older individuals and those unfamiliar with technology are particularly vulnerable to scammers.

10. Recommendations for Preventing Fraud Crimes

Public awareness campaigns should be organized.
Banks and e-commerce platformsshould tighten their security protocols.
digital forensics should be increased.
Regulations for cryptocurrencies and digital assetsneed to be clarified to prevent fraud.

11. Comparison of the Perspectives of the Court of Cassation and the European Court of Human Rights

The Supreme Court, interpreting the concept of deception narrowly in fraud cases, considers only acts capable of misleading, not ordinary lies, as falling within the scope of the crime.
The ECHRconsiders the failure to provide effective remedies in property rights violations related to fraud as a violation of rights.
Both courts the right to access to justice and the reliability of evidence .

12. Conclusion

Fraud has become a major social problem today, particularly in the digital realm, due to its diversification. Articles 157 and 158 of the Turkish Penal Codecomprehensively regulate this crime, Supreme Court decisions and ECHR case law provide important guidance in practice.

Suggestion:

The victims should promptly contact the prosecutor's office
Awareness campaigns against internet fraud,
Improving digital evidence collection and analysis processes plays a critical role in preventing fraud.

Gozdenur Turna

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