The Relationship Between The Offence Of Misuse Of Debit Or Credit Card And The Offence Of Fraud
Fraud is the obtaining of unfair advantage in favour of oneself or a third party by means of fraudulent acts, and Article 158/1-f of the TPC regulates the offence of fraud “by using information systems, banks or credit institutions as a tool”, and Article 158/1-j of the TPC regulates the offence of fraud “with the aim of ensuring the opening of a credit that should not be allocated by banks or other credit institutions”. In this respect, the offence of fraud and the offence of misuse of a bank or credit card should be examined.
If the debit or credit card has been obtained through fraudulent behaviour, there is fraud in terms of this act, while the crime under Article 245/1 occurs if the card obtained in this way is used. The Court of Cassation has stated that the acts considered by some first instance courts within the scope of Article 158/1-f or Article 158/1-j of the TCC should actually be considered within the scope of misuse of debit or credit cards. The Court of Cassation expressed this point in a judgement rendered in 2007 as follows: ,”….
In the face of the allegation and acceptance that the convicted T….P…. provided benefits to the detriment of the bank and for his own benefit by using the cards he produced fraudulently by copying the information on the credit cards belonging to the credit cards of the participating bank customers who appealed the verdict; without considering that the act constitutes the offence of “misuse of bank or credit cards” defined in Article 245 of the Turkish Criminal Code No. 5237, which entered into force on 01.06.2005, in line with the provision of Article 9 of the Law No. 5252, the comparison was made by taking into account Article 158/1-f instead of the said article…”
The 11th Criminal Chamber of the Court of Cassation, until the decision of the Criminal General Assembly in 2008, stated that Article 245 of the TPC is a special regulation that requires a heavier penalty in terms of Article 158/1-j, and after this decision in 2008, it evaluated the cases in question within the scope of Article 245 of the TPC. However, the Court of Cassation changed its opinion in a decision dated 2019 and stated in its decision that the action constituted a qualified fraud crime; “On the date of the crime, the defendant called the participant by phone and said that he was a Yapı Kredi Individual Life Health Service employee, and said “you wanted your health service to be cancelled, we will restore your money to your card” and took the card information and 2. 000 TL money was withdrawn from the card; in the event that the defendant introduced himself as an insurance employee, it was obligatory to make a decision of non-jurisdiction, considering that the appreciation of the evidence regarding whether the action would constitute the qualified fraud crime stipulated in Article 158/1-L of the Turkish Criminal Code No. 5237 belongs to the higher-ranking Assize Court, and since the defendant’s appeals were deemed appropriate in this respect, the judgement, whose other aspects were not examined, was therefore reversed, Pursuant to Article 321 of the Code of Criminal Procedure No. 1412, which must be applied in accordance with Article 8/1 of the Law No. 5320, it was decided by majority of votes on 20/06/2019 to reserve the vested rights in terms of the amount of the penalty in accordance with Article 326/last of the same Law”.
In another decision of the Court of Cassation in the same direction, it is stated as follows “According to the facts, the statement of the participant, the defence of the defendant and the scope of the whole file; in the case where it is alleged that a person who called from the mobile phone 0850 … number of the mobile phone used by the participant on the date of the crime, introduced as a subsidiary of Finansbank, said that they provide health services, shared the credit card information of the participant with the card number 54….. belonging to İş bank, and when the participant checked his account upon receipt of a health services contract by … Group Health and Consultancy Services on behalf of the participant, a withdrawal of 911.45 TL was made from his credit card, in the defence of the defendant, the defendant stated in his defence that the insurance company N…. .which is approved by the Ministry of Health, and that the participant gave all the requested information about the credit card of İş Bank with his consent, that the transaction was made with 3D security system and that the 3D password was sent to the participant’s phone was fixed with the letter of İş Bank dated 06.04.2016, in the face of the fact that the defendant and N…. company is authorised to provide insurance and Check-Up services by asking the Undersecretariat of Treasury General Directorate of Insurance, and after investigating whether there is a contract between the defendant’s company and N… company, if the defendant has the aforementioned authority, the defendant’s action will not constitute a crime, and if there is no such authority, the defendant’s action will constitute the crime of fraud by using information systems, banks or credit institutions as a tool regulated in Article 158/1-f of the Turkish Penal Code. It was decided unanimously on 10.02.2020 to overturn the verdict in accordance with Article 302/2 of the Code of Criminal Procedure for this reason, since it is contrary to the law and the defendant’s appeals are deemed appropriate in this respect.”
In order to talk about the existence of the crime of fraud, a real person must be deceived by fraudulent behaviour. Therefore, fraudulent behaviours must be directed towards human beings. The Court of Cassation expressed this issue in a decision dated 2009 as follows: “In order for the crime of fraud to occur, it is necessary to deceive the real person by directing the deception to the real person and as a result of these transactions, it is necessary to provide unfair benefit in favour of the defendant or someone else to the detriment of him or someone else, and in the concrete case; in the face of the allegation and acceptance that the defendant made transactions with fake credit cards from POS devices belonging to him, since there is no fraud and deception directed to the real person, since there is no fraud and deception directed to the real person, without considering that the act charged constitutes the IT crime stipulated in Article 525 / b-2 (245 / 3 of the Law No. 5237) of the TPC No. 765 in force at the date of the crime…”
In the qualified cases regulated under Article 158 of the TPC, the fraudulent behaviours are directed towards the information system. It is not possible to talk about the deception of the information system, i.e. the machine. On the other hand, if the perpetrator obtains benefits by misusing debit or credit cards without deceiving a real person who is the addressee, Article 245 of the TPC shall be applicable. In other words, without confronting a real person, the benefit is obtained directly by using only the information system.
As stated in the decision of the Criminal General Assembly of the Court of Cassation dated 30.03.2010, numbered 2010/17-65 main-decision and dated 04.03.2014, numbered 1439/104, considering the way the crime of misuse of bank or credit cards is regulated in the law, the perpetrator must be punished separately for each crime by applying the real cumulative rule between the crimes such as theft, plunder, abuse of trust, fraud that may occur in case of unlawful seizure of a bank or credit card and the crime of misuse of bank or credit cards. In practice, in order to commit the offence of misuse of debit or credit cards, it is confused whether the first offence for obtaining the card is fraud or theft. As a matter of fact, in a decision of the Court of Cassation in the same direction, it is stated as follows “Since the expression “by any means whatsoever” in Article 245/1 of the Turkish Criminal Code No. 5237 covers the seizure of debit or credit cards only through lawful means, the complainant who came to the ATM where the defendants were on the date of the offence gave his card to the defendants to help him withdraw money, and the defendants pretended to insert the card into the ATM with sleight of hand and told the complainant that the ATM had swallowed the card, In the action that took place in the form of withdrawing money from the complainant’s account with the card in their hands upon the complainant’s departure from the ATM, the elements of the offence of fraud did not occur, but the decision in the written manner, without considering that the actions of the defendants taking the credit card of the participant, which is a movable property that has no doubt that it has economic value, without the consent of the owner, constitutes the offence of theft, is contrary to the law.”
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