Punishment for qualified fraud crime
WHAT IS THE CRIME OF FRAUD?
The crime of fraud is TCK 157-159. It is regulated under the title of crimes against property among its articles. According to Article 157, the crime of fraud is committed by deceiving a person with fraudulent behavior and obtaining a benefit for himself or someone else, at the expense of that person or someone else. As can be understood from the definition, fraud is deceiving someone else. In this respect, fraud is one of the most common types of crimes in daily life.
Any value related to people's assets constitutes the material subject of the crime of fraud. Criminal law considers fraud in taking all kinds of movable and immovable goods that have economic value, as well as items that are morally important to the owner, by deceiving them.
The legal value protected by the crime of fraud is the property right. In addition, freedom of will is also protected in terms of its impact on people's freedom of will.
Perpetrator of the crime of fraud
The crime of fraud is a general crime that can be committed by anyone. No special qualification was required for the perpetrator. However, in some cases, if the perpetrator has certain characteristics, this may cause the punishment to be increased or decreased. For example, it is envisaged that if the perpetrator is a self-employed person, a merchant, or a company manager, the penalty will be increased if other conditions are present. In addition, it is regulated as a reason for impunity if the crime is committed against a descendant or superior, a spouse or a sibling living in the same house.
Another distinction emerges in terms of the crime of extortion. Namely; If the perpetrator has the title of a public official and abuses the trust of his position and provides benefit to himself or others through fraudulent behavior, the crime of extortion, not fraud, will be on the agenda.
In criminal law, the perpetrator of a crime can only be a real person. Criminal sanctions cannot be imposed against legal entities. However, Article 169 of the Turkish Penal Code states: "Specific security measures shall be imposed on legal entities from which unfair advantage is obtained by committing the crimes of theft, breach of trust and fraud." Pursuant to its provision, if a benefit is obtained in favor of a legal entity by committing the crime of fraud, security measures will be taken against the legal entity.
VICTIM OF FRAUD CRIME
The victim of fraud is the person whose property is damaged. It is possible that the people who are deceived and the people whose assets are damaged are different. In such cases, it is checked whether the deceived person has the authority to dispose of his or her property in terms of the occurrence of the crime. If the deceived person has the authority to dispose, the crime of fraud will occur. The absence of savings authority prevents the crime of fraud. In such cases, if the conditions exist, crimes such as theft or abuse of trust will come to the fore.
For the crime of fraud to occur, the victim must be a specific person. If fraudulent acts are directed at a community, this time it is checked whether the victims can be identified. If the victim cannot be identified, it cannot be said that a crime has occurred.
The victim must have the power of discrimination. Since it cannot be said that those who do not have the power of discernment are deceived, there is a deficiency in the legal definition of the crime of fraud. Therefore, no crime occurs.
ELEMENTS OF FRAUD CRIME
Based on the legal definition, it is possible to list the material elements of the crime of fraud as fraudulent behavior, deceiving the victim and obtaining benefits at the expense of the victim. For the crime of fraud to occur;
1- Fraudulent behavior must be exhibited.
2- The victim must have been deceived as a result of fraudulent behavior.
3- A benefit must have been obtained at the expense of the victim.
The moral element of the crime is intent.
CHEATING IN FRAUD
The act that will achieve the result in the crime definition is cheating in terms of the crime of fraud. The concept of cheating is not defined in the law. However, the Supreme Court defined fraud as a qualified lie.
In terms of the crime of fraud, the victim must be deceived by fraudulent behavior. However, not every fraudulent behavior results in a crime. The trick must be sufficient to deceive the victim. Fraudulent acts must have a certain gravity and must be carried out skillfully. The victim must have been harmed as a result of fraudulent behavior. In fact, he must have done something that he would not have done under the influence of fraudulent behavior. As a matter of fact, in a decision of the 15th Criminal Chamber of the Supreme Court of Appeals,"Cheating is a qualified lie. The fraudulent behavior committed by the perpetrator must be severe, intense and masterful to a certain extent, and there must be some actions that will eliminate the victim's ability to be examined in terms of display. The victim must be misled by the fraudulent behavior used, and as a result of this deception, the victim who believes the lies must provide unfair advantage to the defendant or someone else. Whether the deceit is deceptive or not should be evaluated factually, the nature of the event, its relationship with the act, the victim's Its status and, if used, the characteristics of the hidden or altered document should be taken into consideration separately. With his statements, he stated the effects and characteristics of cheating on the formation of the crime.
Fraud can be committed by act or omission. The perpetrator's silence in order to hide the truth will also be interpreted as cheating. An example of cheating through negligent behavior is a person eating at a restaurant even though he knows he has no money. In such cases, the perpetrator will be punished for fraud because he knew the truth but hid it from the victim.
Again, beggars falsely presenting themselves as sick constitutes the crime of fraud.
The law stipulates punishment only if certain conditions are met. Therefore, the abstract act of lying is not sufficient to constitute the crime of fraud. However, abstract lies combined with some other factors can also lead to the crime of fraud.
For the crime of fraud to occur, the victim must be deceived. If the victim cannot be deceived despite fraudulent behavior, then a crime will not occur. If the perpetrator makes a mistake on his own, the crime will not occur again. Fraudulent behavior must have caused the victim to be deceived.
Obtaining a benefit at the expense of the victim as a result of fraudulent behavior is also among the elements of the crime. The crime of fraud is a crime of damage. If there is no harm, no crime will occur. Loss means a decrease in assets. A causal link is sought between damage and fraudulent behavior. In addition, the perpetrator must receive a benefit in return for the victim's harm. The amount of benefit is not important for the occurrence of the crime. Engaging in fraudulent behavior for the purpose of moral pleasure does not constitute the crime of fraud.
INTENTION IN FRAUD CRIME
Intent constitutes the moral element of the crime. The existence of general intent has been deemed sufficient for the formation of the crime of fraud. As a matter of fact, the justification of Article 157 of the Turkish Penal Code is "The crime of fraud is a crime that can be committed deliberately. The intent in question here means that all the material elements of the crime of fraud are known by the perpetrator. In other words, the perpetrator must know that the behavior he commits constitutes fraud and is deceptive to someone else. In addition, the perpetrator must know that, as a result of these fraudulent behaviors, there is a decrease in the assets of the person exposed to fraud or someone else's property, he is damaged, and in turn, he or he or she "He must know that there has been an increase in the property of another person. In this respect, the perpetrator must know that the decrease in the property of the victim and the damage suffered by the victim are the result of his own fraudulent behavior; he must be aware of the existence of a causal link between the fraud and the damage. The intent regarding the mentioned issues may be direct intent or possible intent." It is shaped like .
As can be understood from the justification, no special intent was required for the crime. In addition, it was also possible that the crime could be committed with possible intent. If the perpetrator turns a blind eye to the situation even though he knows that the act will deceive the victim, cause harm and benefit him, he will have committed the crime of fraud with possible intent.
QUALIFIED FRAUD CRIME
Article 158 of the Turkish Penal Code regulates the qualified cases of the crime of fraud. If the crime of fraud is committed in the ways listed below, the penalty to the perpetrator will be increased.
Fraud by Exploiting Religious Beliefs and Feelings
The qualified element of the crime will be formed by using religious beliefs and feelings as a means of deception in committing the crime. In cases such as amulet making and witchcraft, which are common in society, the qualified form of the crime of fraud is mentioned. The important point here is that religious beliefs and emotions are used as a means of deception. It is not enough for a crime to occur if a person introduces himself as a religious person and provides different benefits after a certain stage.
Fraud by Taking Advantage of the Dangerous Situation or Difficult Conditions of the Person
People in difficult situations are more likely to be deceived. Considering this situation, the legislator accepted the fact that the crime was committed against someone in a difficult situation as a qualified element. Crimes committed against a person who is under difficult conditions as a result of natural events or illness are within this scope. In order to form a qualified state, it is sufficient to take advantage of the person's difficult situation. Also, there is no need to show fraudulent behavior.
Fraud by Taking Advantage of a Person's Weak Perception Ability
The ability to perceive means acting reasonably. Situations that cause lack of perception ability include underage age, mental illness, mental weakness, drunkenness, etc. are the reasons. Whether the victim has the above-mentioned conditions is evaluated separately depending on the characteristics of each concrete incident. It is out of the question for the very young and the mentally ill to be deceived. Therefore, in such cases, the crime of fraud does not occur.
Committing the Crime of Fraud to the Detriment of Public Institutions and Organizations
Whether an institution or organization is a public institution or organization can be understood by looking at the legal legislation. In order for this qualified situation to occur, the managers of public institutions who have the authority to dispose of their assets must have been deceived. Again, for the crime to occur, a public institution or organization must be damaged. If there is no harm, no crime occurs.
Fraud by Using Public Institutions and Organizations, Public Professional Organizations, Political Parties, Foundations or Associations as Tools
For this qualified situation to occur, the perpetrator must use a actually existing public institution or organization as a tool. The term "use as a tool" means using a phenomenon specific to a public institution. For example, committing the crime of fraud using a lawyer's ID card is considered a qualified case.
Fraud by Using Information Systems, Banks or Credit Institutions as Tools
The justification of Article 243 of the Turkish Penal Code defines the information system as "magnetic systems that allow collecting and placing data and then subjecting them to automatic transactions". The realization of this qualified situation depends on the perpetrator benefiting from deceiving the victim with fraudulent behavior. In this case, the addressee is the victim himself, not the tool considered as the information system. The information system is used as a tool to deceive the victim. In terms of banks, there is no distinction between private and public banks.
The Criminal General Assembly of the Supreme Court stated in a decision"As can be seen, in terms of both the Turkish Penal Code No. 765 and 5237, the legislator has regulated the actions as qualified fraud and subjected them to more severe sanctions, taking into account their deceptive nature, because of the trust in banks or credit institutions, because the fraud occurs more easily in the actions carried out by using these institutions as intermediaries, and because the tendency of the victim or victims to investigate has decreased or disappeared completely.
In order to be able to say that banks or credit institutions are used as a tool, the ordinary activities of the bank or other credit institutions or their subjects carrying out these activities must be used while committing the act of fraud, or the material assets produced by the banks and credit institutions due to their ordinary activities must be used as tools in the crime.
The ordinary activities of banks and other credit institutions are listed in Article 4 of the Banking Law No. 5411 and these include; It is possible to give examples of accepting deposits, granting loans, buying and selling checks and other bills of exchange, issuance of payment instruments such as credit cards, debit cards and traveler's cheques and carrying out related activities.
The tangible assets of banks and other credit institutions are; These are tangible assets that have an effective function in the relevant institution, such as receipts, letters of guarantee, printed documents, identity documents, entry cards, bank books, checks and credit cards belonging to these institutions. "It is not necessary for the material assets used to be in the nature of a document, and there is no difference between being a private document or an official document." He said.
Fraud by Taking Advantage of the Convenience Provided by Press and Publication Tools
"For this qualified situation to occur, press and broadcasting media must facilitate the commission of the crime. The term 'press' mentioned in the clause is defined as the whole of publications published at certain times, such as newspapers and magazines, as press, and the term 'publication' is defined as books that are printed and put up for sale, announcements that are read like newspapers or presented to the public through radio and television, and publications. This qualified situation may occur when an unfair advantage is obtained through fraudulent manipulation actions carried out by using press and broadcasting tools." YCGK. 2013/135 K.
During the Commercial Activities of Persons Who Are Merchants or Company Managers or Acting on Behalf of the Company during the Crime of Fraud; Processing of Cooperative Managers within the Scope of the Cooperative's Activities
"In subparagraph (h) of the 1st paragraph of Article 158 of the Turkish Penal Code numbered 5237; The crime of fraud is committed during the commercial activities of persons who are merchants or company managers or who act on behalf of the company; It has been regulated that if the cooperative managers commit the crime within the scope of the cooperative's activities, the crime of qualified fraud will occur.
The concept of trader is defined in Article 14 of the Turkish Commercial Code; "A person who operates a commercial enterprise, even partially, on his own behalf is called a merchant.
Anyone who has notified the public that he has established and opened a commercial enterprise through circulars, newspapers, radio and other announcements, or who has declared his business by registering it in the trade registry, is considered a merchant even if he has not actually started the business.
A person who conducts transactions (as a partner) as if he had opened a commercial enterprise, whether in his own name, an ordinary company or another company that is not legally considered to exist in any way, shall be liable as a merchant to bona fide third parties.
14. According to the second paragraph of the article; Even if a person has not actually started a commercial enterprise, if he has established and opened a commercial enterprise and announced it to the public through circulars, newspapers, radio and other announcements, or if he has registered his business in the trade registry and announced this situation, that person will still be considered a merchant.
If the merchant, as defined in the Commercial Code, commits the crime of fraud during his commercial activities, it will be deemed that the crime of qualified fraud in Article 158/1-h of the Turkish Penal Code No. 5237 has been committed. If the trader commits the crime of fraud while selling his goods, he will have to be punished in accordance with the aforementioned paragraph because he committed this act by abusing the trust placed in him.
If the crime committed is not related to the commercial activities of the merchant; For example, this clause will not be applicable if the merchant commits the crime of fraud while purchasing a car as a wedding gift for his wife.
It is regulated in Article 15 of the said Law that the parent or guardian who operates small and confined sub-commercial enterprises on their behalf cannot be considered as merchants, the title of merchant belongs to the person represented, but the legal representative is liable as a merchant in terms of penal provisions."
Companies, according to the Turkish Commercial Code; They are established as collective, commandite, limited, joint stock and cooperative companies. Again, in subparagraph (h) of the 1st paragraph of Article 158 of the Turkish Penal Code No. 5237; It is regulated as a qualified situation for persons who are company managers or acting on behalf of the company to commit the crime of fraud during their commercial activities. In order for this provision to be implemented, there must first be a company, the perpetrator must be the manager of that company or its representative authorized to act on behalf of the company, the company manager, and the crime must be committed during and in relation to the activity of the company. In order to request that the perpetrator be punished according to this provision, it must first be determined whether there is a company with commercial activities, whether the company has been established and gained legal personality, whether the perpetrator was a company manager or representative at the time the crime was committed, whether the committed act has anything to do with commercial activity, and if these conditions are present, the defendant must be asked to be punished in accordance with Article 158/1-h of the Turkish Penal Code No. 5237.
Since people who are not company managers but work in the company commit the crime of fraud by using the company name, the qualified situation in this paragraph cannot be mentioned, it is mandatory to investigate whether the qualified situations in the other paragraphs of the article are present, if the conditions are met. If these are not available, it is necessary to decide to punish the perpetrator in accordance with Article 157 of the Turkish Penal Code No. 5237, which regulates the simple form of the crime of fraud." Supreme Court of Appeals 11th CD. 2010/4311 K.
Committing the Crime of Fraud with the Purpose of Ensuring the Opening of a Loan That Should Not Be Allotted by a Bank or Other Credit Institutions
If the perpetrator ensures that a loan is opened by fraudulently deceiving the credit officers of institutions authorized to lend money, the existence of a qualified situation will come to the fore. If this act is committed against institutions that do not have the authority to lend money, it will not be a crime. Additionally, the institution must be harmed.
Fraud to Get Insurance Fee
This qualified situation will come to the fore if the perpetrator deceives the person authorized to decide to pay the insurance amount of the insurance company with his fraudulent behavior.
Fraud through Influence Trading
This qualified situation will come to the fore if the perpetrator deceives a person by stating that they are acquaintances from public institutions. The person the perpetrator claims to know must be a public official. The public official whom the perpetrator claims to know must be present in the area of duty for the job he promised to do. Otherwise, no crime occurs.
REASONS THAT INCREASE THE PUNISHMENT FOR FRAUD CRIME
If the crime of fraud is committed by 3 or more people together, the penalty is increased by half.
If the crime is committed within the scope of organizational activities, the penalty will be increased by one fold.
CASES WHICH REQUIRE LESS PUNISHMENT FOR FRAUD
According to Article 159 of the Turkish Penal Code, if fraud is committed for the purpose of collecting a receivable based on a legal relationship, the penalty is reduced. The prosecution of the crime depends on the complaint. In order for the perpetrator to have his sentence reduced, he must have a claim from the victim based on a legal relationship. There is no ratio requirement between the receivable and the value subject to the crime.
"If the fraud is committed for the purpose of collecting a receivable based on a legal relationship, upon complaint, a prison sentence of six months to one year or a judicial fine is imposed." TCK 159/1
FRAUD PENALTY
The simple crime of fraud requires imprisonment from 1 to 5 years and a judicial fine of up to five thousand days. The perpetrator is sentenced to both imprisonment and a judicial fine.
QUALIFIED FRAUD PUNISHMENT
If the crime of fraud is committed in a qualified manner, the lower limit of the penalty will be 3 years and the upper limit will be 10 years. In addition, the perpetrator is sentenced to a judicial fine of up to 5000 days. Your crime ;
- To the detriment of public institutions and organizations,
- By using information systems, banks or credit institutions as tools,
- In order to enable the opening of a loan that should not be allocated by banks or other credit institutions.
- In order to receive the insurance fee,
- By introducing the person as a public official or employee of banks, insurance or credit institutions, or by saying that he is associated with these institutions and organizations,
- With the promise that he has a relationship with public officials, that he is respected by them, and that he will get a certain job done.
If committed, the lower limit of the prison sentence cannot be less than 4 years, and the amount of the judicial fine cannot be less than twice the benefit obtained from the crime.
If the crime of fraud is committed by 3 or more people together, the penalty is increased by half. If the crime is committed within the scope of organizational activity, the penalty to be imposed is increased by one fold.
ACTIVE REPENTANCE IN FRAUD CRIME
If the perpetrator repairs the damage to the victim during the investigation phase, the penalty may be reduced by 2/3.
If the damage is repaired at the prosecution stage, the penalty may be reduced by ½.
It is also possible for the instigator and the aider to benefit from the provisions of effective remorse. The victim's damage can be compensated in kind by restitution or compensation. For crimes committed together, it is sufficient for one person to compensate for the damage. Others can also benefit from effective repentance by showing remorse. If the damage has been partially remedied, the implementation of effective regret provisions depends on the consent of the victim.
Attempted FRAUD CRIME
If the perpetrator starts the execution of the crime he intends to commit, but cannot complete the crime for reasons beyond his control, the institution of attempt comes to the fore.
Executive actions in the crime of fraud are fraudulent behaviors exhibited by the perpetrator in order to deceive the victim. If the perpetrator was not able to deceive the victim or cause any damage despite fraudulent behavior, he is punished for attempted fraud.
JUDGMENT IN FRAUD CRIME
If the crime of fraud and crime of forgery of documents are committed together, a compound crime does not occur. Therefore, the perpetrator receives two separate punishments for two separate crimes.
If the crime of fraud is committed by interfering with the system or data, the perpetrator will be punished only for the crime of fraud.
If the crime of fraud is committed through information systems, the perpetrator will be punished for both fraud and illegal access to the information system.
THE COURT IN CHARGE OF FRAUD CRIME
Before the Law No. 7571 dated 25.12.2025, the simple and criminal cases of the crime of fraud were within the jurisdiction of the high criminal courts. With the change in the law known as the Fatak 11th judicial package, all cases of fraud are now within the jurisdiction of the criminal courts of first instance.
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