The Offence of Fraud

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The conditions that must be met for an offence to exist are called the elements of the offence. The elements of the offence of fraud can be examined under three headings: material (objective), mental (subjective), and unlawfulness elements.

Material elements include the perpetrator, the victim, the subject matter of the offence, and the actus reus (conduct). The perpetrator is the person who commits the act defined as an offence. Any natural person can be the perpetrator of the offence of fraud. The victim is the person or persons whose rights are infringed upon by the said act. The victims of the offence of fraud are living natural persons. By its nature, legal entities can only be aggrieved parties, not direct victims. The subject matter of the offence of fraud consists of property values.

The offence of fraud, in terms of conduct, has a structure that can be committed through multiple acts. However, these acts must meet certain conditions. In the offence of fraud, the act must be committed through deceptive conduct, and as a result of this deceptive conduct, the victim must be deceived and suffer detriment. Furthermore, in addition to the victim's detriment, the perpetrator must obtain a benefit for themselves or another person from this act. Deceptive conduct is not defined in the law.

Therefore, it is necessary to determine whether the conduct is deceptive in each concrete case. In determining deceptive conduct, factors such as the victim's educational background, age, social environment, etc., are taken into consideration.

Regarding the offence of fraud, the element of unlawfulness is the deception and detriment caused to a person through deceptive acts.

As for the mental element, the offence can only be committed with intent (dolus). As can be understood from the definition of the offence, it requires the perpetrator to deceive a person through deceptive acts and cause detriment, thereby obtaining a benefit for themselves or another. Since deceptive acts and deception cannot occur without intent, it is not possible to commit the offence by negligence (culpa). Intent must exist at the latest at the time the act is committed.

Aggravated Forms of the Offence of Fraud

The offence of fraud is regulated between Articles 157-159 of the Turkish Penal Code (TPC). The aggravated forms of the offence of fraud are regulated under Article 158 of the Turkish Penal Code. Aggravated forms occur when, in addition to the conditions required for the basic form of the offence, certain circumstances specified by the legislator are also present. Aggravated forms are divided into two categories: those requiring a heavier penalty and those requiring a lighter penalty. This section will examine some of the aggravated forms that require a heavier penalty.

The first aggravated form is defrauding individuals by exploiting their religious beliefs and sentiments. The condition here is that the victim's religious belief or sentiment must have been used by the perpetrator as a means of deception. Another form is committing the offence by exploiting the difficult or dangerous situation in which individuals find themselves.

Committing the offence by exploiting the victim's diminished capacity for perception is also within the scope of aggravated forms. In this case, while the victim's capacity for perception is not entirely absent, it is at a lower level compared to that of a normal person.

Using public institutions, public professional organizations, political parties, foundations, or associations as a means is also included in this scope. With this clause, the legislator has regulated the use of public institutions, which are trusted by society, by the perpetrator in committing the offence of fraud as an aggravated form requiring a heavier penalty than the basic form. Thus, the legislator aims to prevent the discrediting of respected institutions or organizations in society. Furthermore, committing the offence to the detriment of public institutions and organizations is also among the aggravated forms.

Common Aggravated Forms of Fraud

The most common form of fraud encountered today is its commission through banks or credit institutions. Fraud committed in this context is also listed among the aggravated forms by the legislator. It should be noted that the situation where the perpetrator impersonates an official of a public institution, bank, or credit institution and commits the offence in this manner does not fall under this clause. This specific situation is separately regulated in the section on aggravated forms. An example of a person impersonating an employee of a public institution, bank, or credit institution and committing the offence in this manner is the perpetrator introducing themselves as a public prosecutor, police officer, or bank employee.

Another frequently observed aggravated form in practice is the perpetrator committing the offence by claiming to know public officials or by promising to resolve a matter for the victim. For example, a court usher promising a father, whose son is on trial in a criminal case, that he knows the judge and that his son will not be penalized in exchange for a certain amount, and defrauding the father in this way, falls within this scope. Committing the offence of fraud by three or more persons or within the framework of an organized criminal activity is also an aggravated form.

Circumstances Requiring a Lighter Penalty

In addition to the aggravated forms that increase the penalty for the offence of fraud, there are also circumstances that require a lighter penalty. The offence of fraud is regulated under the section on offences against property in the Turkish Penal Code. Articles 167-169, which contain common provisions for offences included in this section, provide for circumstances that reduce the penalty. Article 167, paragraph 1 of the TPC regulates personal impunity, while Article 167, paragraph 2 regulates personal grounds for a reduction in penalty.

Another common provision is effective repentance (active regret). For the provisions on effective repentance to be applied, the offence must have been completed. After this condition is met, the relevant article determines the rates of reduction according to the stage of the investigation or prosecution at which effective repentance is applied.

Competent and Authorized Court for the Offence of Fraud

Except for cases where the offence of fraud is committed for the purpose of collecting a receivable based on a legal relationship as stipulated in Article 159 of the Turkish Penal Code, its prosecution is ex officio. Another specific situation is the personal impunity regulated in Article 167 of the Turkish Penal Code. If the offence of fraud is committed against persons listed in TPC Article 167/1, no penalty is imposed on the perpetrator. If the offence is committed against persons listed in TPC Article 167/2, the investigation and prosecution of the offence are subject to complaint.

For the basic form of the offence of fraud, the competent court is the Criminal Court of First Instance. For aggravated forms, the High Criminal Court is competent.

The authorized court to hear the case is the court of the place where the offence was committed. In the context of the offence of fraud, since the offence is completed when the perpetrator obtains a benefit for themselves or a third party, the authorized court is the court of the place where the benefit was obtained.

Statute of Limitations and Conciliation

The statute of limitations for prosecution for the basic form of the offence of fraud is eight years. If an aggravated form is involved, the statute of limitations for prosecution will be fifteen years.

The conciliation institution was established to reduce the burden on courts and prevent parties from suffering loss of rights due to lengthy litigation processes. Conciliation has added a new alternative path to the investigation and prosecution stages. The purpose of the conciliation institution is for the victim or aggrieved party and the perpetrator to meet, mediated by a conciliator appointed by the conciliation office, and resolve the dispute. However, conciliation provisions are not applicable to the offence of fraud because effective repentance is regulated for it.

Therefore, even if the conditions for conciliation were met and the aggrieved party or victim wished to conciliate, conciliation cannot be applied due to the nature of the offence and its subjection to effective repentance provisions.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy