Qualified Conditions Of The Offence Of Fraud
Committing the Offence of Fraud by Exploitation of Religious Beliefs and Emotions (158/1-a)
It is the use of religion, religious beliefs and feelings, and feelings of doing good deeds as a means of deception. It does not matter which religion or sect is used as a means of deception.
In the decision of the Criminal General Assembly dated 02/04/2013 and numbered 2012/6-1556-2013/109; it was accepted that the issue of “praying for the funeral or reading the Holy Quran and then paying the zakat debts of the deceased”, which was used as a means of deception, was related to religious beliefs and feelings and that the victim was deceived in this direction and was effective in benefiting the perpetrator, and it was accepted that the act constituted the crime of fraud by exploiting religious beliefs and feelings. Again, the Court of Cassation considers the act of taking money by introducing himself as a hodja and writing an amulet, the act of taking money to break the spell by informing that he has been bewitched, the act of taking money on the pretext of magic and fortune telling, and the act of taking money in the face of prayer readings on the pretext of healing within the scope of this paragraph.
Committing the Offence of Fraud by Taking Advantage of a Dangerous Situation or Difficult Circumstances (158/1-b)
The dangerous situation or difficult conditions in which the person is in are the times when they need to trust others the most, and are also the times when they are most susceptible to deception. The Court of Cassation points out that in order for this qualified form of the offence to be applied, the situation in which the victim is in must be of a nature that can be accepted within the scope of “dangerous or difficult conditions” in the real and immediate sense.(15.CD. 23/01/2013, 18168/1054)
“The phrase “difficult conditions” in Article 158/1-b of the TPC is a phrase that should be evaluated on the basis of the victim. Whether the victim is in difficult conditions or not should be evaluated subjectively on a case-by-case basis and on the basis of the victim. Accordingly, although the victim is not actually in a difficult situation, if the victim thinks that he/she is in a difficult situation or the virtual persuasion of the defendant that the victim is in a difficult situation cannot be evaluated within the scope of this article. The victim targeted by the defendant, according to the circumstances of the incident, is in despair, is more vulnerable under this psychological pressure and in this sense needs a helping hand more than ever. In this context; a person being subjected to a traffic accident, needing urgent and intensive assistance for himself or a relative while being treated in a hospital for various reasons, becoming mentally and physically needy after an earthquake disaster can be counted among the examples that can be evaluated within the scope of difficult conditions, but it should not be accepted that a person is under difficult conditions in every traffic accident or every illness. Issues such as the time period when the incident occurred, the extent of the illness or injury, the economic and social status of the person exposed to the incident, the degree of being affected by the incident, the development process of the incident, the defendant’s intervention style and timing should be evaluated as criteria in determining whether the person is in a difficult situation.” (15. CD. 13.02.2017, 15895/5902)
Committing the Offence of Fraud by Taking Advantage of the Person’s Weakness of Perception (158/1-c)
In order for this qualified case to be applied, the victim’s ability to perceive, understand and evaluate must be weak due to reasons such as underage or advanced age, mental illness, deafness and dumbness, intoxication, drug use, and the victim must have been deceived by using deception against this person. It is necessary to investigate whether the aforementioned conditions have weakened the ability to perceive in terms of the concrete event. In cases where it is alleged to have committed the offence of fraud against deaf and dumb persons, it is necessary to investigate and determine whether this situation weakens the victim’s ability to perceive. The “weakness of the ability to perceive” mentioned in the article should be determined by the court in the concrete case according to the report to be obtained from a specialist physician or forensic medicine specialist.
Committing the crime of fraud by using public institutions and organisations, public professional organisations, political parties, foundations or associations as an instrument
When we think of a public institution, we think of the state legal entity, special provincial administrations, municipalities, villages, universities, SEEs, Higher Education Institution, Turkish Radio and Television Institution, Atatürk Culture, Language and History Institution and organisations with annexed budgets. However, although notary offices and lawyers’ offices perform public services, they are not public institutions.
For the application of this qualified case, it is necessary to use the listed institutions as a tool, and it is not necessary that the fraud is carried out to their detriment. What is important here is the use of these organisations as a tool, as an intermediary. In fact, if the act is carried out to the detriment of public institutions, the provisions of subparagraph e shall apply, not the provisions of subparagraph d.
Showing the identity document belonging to these institutions, using printed documents, receipts, vehicles will create an idea on the victim that he/she has come from the institution and will make it easier for him/her to be deceived. According to the ongoing practice of the Court of Cassation, in cases where the perpetrator puts the negotiable instrument into execution after it is forged, it is accepted that the act constitutes the offence of fraud by mediating the enforcement office, which is a public institution, with the forged document.
In the case of the Court of Cassation, the provisions of this subparagraph will be applied if fraud is committed by using the identity card, using the traffic registration certificate, using the vehicle registration plate, using the lawyer’s identity.
Committing the Crime of Fraud to the Damage of Public Institutions and Organisations
In order for this aggravating circumstance to be in question, the act of fraud must be committed with the aim of damaging the assets of public institutions and organisations. The damage to the assets of public institutions and organisations may be in the form of taking money from that institution that it is not entitled to, or in the form of not paying a debt that actually exists to the institution.
The offence of fraud to the detriment of public institutions and organisations may be committed by persons who are public officials or by persons who are not public officials. In the crime of fraud committed to the detriment of public institutions and organisations, the victim of the crime is the employee of the institution who has been deceived and whose will has been crippled, while the victim of the crime is the legal entity of the public institution and organisation.
After a divorce with a legally valid decision, the cohabitation of the spouses cannot be evidence that the divorce was made for the purpose of receiving a salary and fraudulent behaviour, as a matter of fact, in Article 56 of the Law No. 5560. Article 56 of the Law No. 5560 states that the income and pension of those who are detected in this situation will be cut off and the amounts paid will be recovered, there is no criminal regulation in this regard, the action of the perpetrators is in the nature of a legal dispute, therefore the legal elements of the crime of fraud do not occur, for the person who tries to be examined with someone else’s health card, when the doctor who checks it understands the situation at first glance, the element of fraud does not occur, therefore the crime does not occur.
Committing the Offence of Fraud by Using Information Systems, Bank or Credit Institutions as a Tool
In fraud through the information system, since the system cannot be deceived, it is possible to deceive the other people who use this system through this system. For this reason, finding some vulnerabilities of the system and benefiting by entering the system as if there are some things in the system may constitute the offence of theft, not the offence of fraud, since the fraudulent act is not committed against a person.
Generally, this subparagraph is applied in cases where an advertisement is made to sell something on the internet and the product is not sent although the money is sent. In the use of a bank or credit institution as a tool, it is not the bank or credit institution that is damaged, but third parties are harmed by using these institutions. In cases where banks are not used as a means in fraudulent acts where banks are only a means of payment and have no effect on deception, that is, in the act of sending the money to the defendant through the bank after the use of the fraud, which is an element in the crime of fraud, it is accepted that the act constitutes the crime of fraud stipulated in Article 157 of the TPC No. 5237, taking into account that the bank, which is a means of payment, has no role in the realisation of the fraud.
Committing the Offence of Fraud by Taking Advantage of the Facility Provided by the Press and Publication Tools
Pursuant to Article 158/1-g of the TCC, committing the offence of fraud by taking advantage of the convenience provided by the press and broadcasting tools is determined as a qualified case. In order for this qualified case to be applied, the means of press and broadcasting must have provided a special convenience in committing the offence of fraud. Press and broadcasting tools may be used by members of the press to commit this offence, as well as by persons who are not members of the press.
In order for this qualification to be applied, the means of the press and broadcasting must have provided a special convenience in the commission of the offence of fraud. Press and broadcasting tools may be used by persons who are members of the press to commit this offence, as well as by persons who are not members of the press. For example, in the case of collecting donations by placing an advertisement in newspapers saying “this much money is needed to save the life of a person with cancer” or broadcasting on television saying “we are building a school in this village” or deceiving people by making an advertisement that a hospital will be built, this qualified form must be applied. As an example of the application of this subparagraph, “the act of the newspaper owner, who announced that he would give TVs in exchange for coupons, constantly increasing the prices of newspapers, not making any agreements regarding the TVs he said he would distribute and not distributing the TVs he promised when the day came” is given as an example.
The decisions of the Court of Cassation regarding the application of this qualification varies. In some of the decisions, it is accepted that the act constitutes the crime of “simple fraud” regulated in Article 157 of the Turkish Penal Code No. 5327, since the advertisement given by the perpetrator to the newspaper or the internet only helps the victim to reach the victim and does not provide any convenience in performing fraudulent acts and deceiving the victim, and in some decisions, it is accepted that the act constitutes Article 158/1-g of the Turkish Penal Code No. 5237.
Committing the Offence of Fraud during the Commercial Activities of Persons Who are Merchants or Company Managers or Acting on Behalf of the Company or Cooperative Managers within the Scope of the Activities of the Cooperative (158/1-h)
Two types of offences are foreseen in the aforementioned article. One of them is fraud in the course of commercial activity; the other is fraud within the scope of the activity of a co-operative. This offence is a specific offence. This offence can only be committed by company managers who are merchants or persons acting on behalf of the company or cooperative managers. Those other than these do not have the ability to commit this offence.
For this qualified offence to occur, it is not enough for the perpetrator to be a merchant or a company manager or a person acting on behalf of the company. At the same time, the deceptive act must have been carried out during commercial activities. Cooperatives are partnerships with variable partners and variable capital established by real and legal persons in order to provide and protect the certain economic interests of their members, especially the needs of their profession or livelihood, through mutual assistance, solidarity and surety with their labour and monetary contributions.
The Offence of Fraud Committed by Self-Employed Persons by Abusing the Confidence in Their Profession (158/1-i)
The perpetrators of this offence can only be self-employed persons. Therefore, persons who are not actually self-employed cannot be the perpetrators of this offence. Independent physicians, financial advisors, architects and engineers who work without being dependent on others are self-employed. Merchants and tradesmen are not self-employed.
However, even if a person is a self-employed person, if he/she deceives someone by fraudulent behaviour without bringing his/her profession to the forefront and without using the trust placed in him/her due to his/her profession, in this case, the crime of simple fraud will occur and this qualified case will not be applied.
Committing the Offence of Fraud with the Intention of Ensuring the Opening of a Loan that should not be Allocated by Banks or Other Credit Institutions (158/1-j)
Defrauding the bank for all kinds of transactions does not require the application of this qualification. This qualification shall apply only if the bank or other credit institution is defrauded in order to obtain the allocation of a credit.
For the application of this qualification, it is not sufficient to commit fraud in order to obtain the allocation of a loan from a bank or credit institution. It is necessary to commit fraud in order to allocate a loan that should not be allocated. This qualification will not be applied if the perpetrator obtains a loan to a person who is actually in the perpetrator’s conditions, while it is normally possible to allocate a loan, but the perpetrator obtains the loan by showing his conditions higher.
In order for this qualified case to be applied, the person obtaining the loan must have deceived the officials of banks and other credit institutions. Otherwise, this qualified case shall not be applied in case of credit allocation as a result of the mistake of the officials without any fraud.
Committing the Offence of Fraud with the Intention of Obtaining the Insurance Fee (158/1-k)
In order for this qualified offence to be applied, the insurer must have been defrauded and the insurance company must have partially or completely received an insurance amount to which it is not entitled. Here, the deceived is the employee of the insurance company who will decide on the payment of the insurance amount, and the victim of the offence is the insurance company that will make the payment.
In order for the offence to occur, in order to receive the insurance amount, they must claim that the loss has occurred and receive or attempt to receive this amount with false transactions and documents. Unless the documents related to the incident are submitted to the insurance institution, the execution of the offence does not start. If the perpetrator destroys, burns, spoils or destroys the insured property in order to receive the insurance amount, it is a serious lie and fraud to deceive. If the insurance amount is taken in this way, the offence of fraud occurs.
Committing the Offence of Fraud by Introducing oneself as a Public Official or an Employee of a Bank, Insurance or Credit Institution (158/1-l)
This qualified state was added to the paragraph with Article 14 of the Law dated 24.11.2016 and numbered 6763. It should be noted that the acts before this date will be evaluated within the scope of Article 157 of the TPC and the reconciliation provisions will be applied. With the regulation, it is aimed to punish the acts of telephone fraud, which have been widely seen recently and reflected in the media, more severely. In order for this qualified case to be applied, the person must introduce himself/herself as a person with the qualifications listed or say that he/she is associated with the listed institutions or organisations and thus be used as a means of deception.
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