The crime of fraud is among the crimes against assets regulated in Articles 157 and 158 of the Turkish Penal Code. The crime of fraud can be defined as deceiving a person by fraudulent acts and benefiting oneself or a third party. The crime of fraud is a crime that can only be committed intentionally and it is not legally possible to commit it with negligence.
In order for the crime of fraud to occur, the perpetrator or someone else must benefit, and the crime is considered completed when the benefit is provided. In the event that the benefit is not realized, the offense is considered to be at the attempt stage and the perpetrator will be held responsible for the attempt of the relevant crime in accordance with Article 35 of the TPC, not the relevant penal provision.
If the crime of fraud is committed by using tools such as religious beliefs and feelings, professional trust, information systems and public institutions, etc., the crime of qualified fraud will come into existence. Consequently, the punishment will be more severe than for simple fraud. The penalty for the simple form is imprisonment from one to five years and a judicial fine of up to five thousand days, while the qualified form is imprisonment from three to ten years and a judicial fine of up to five thousand days. If the act is committed jointly by three or more persons, the penalty to be imposed is increased by half; if the act is committed within the framework of the activities of an organization formed to commit a crime, the penalty to be imposed is increased by one times.
While the simple form of the crime of fraud regulated in Article 157 of the TPC is within the scope of reconciliation; the qualified form regulated in Article 158 of the TPC is not within the scope of reconciliation. In order to proceed to the prosecution phase for crimes within the scope of reconciliation, the parties conduct a reconciliation meeting under the supervision of an impartial conciliator. If a settlement is reached between the parties at this stage, the criminal proceedings will not proceed. In the crime of qualified fraud, this stage is not in question, and the prosecution phase is started directly with the preparation of the indictment.
One of the common provisions in crimes against assets is the effective remorse provisions. The provision of effective remorse is the situation where the perpetrator regrets the criminal act that he/she has committed in accordance with the type of crime he/she has committed, and the penalty is reduced depending on the compensation of the damage suffered by the victim
Article 157- (1) Whoever deceives a person by fraudulent behavior and obtains a benefit for himself or another person to the detriment of him or another person, shall be sentenced to imprisonment from one year to five years and to a judicial fine up to five thousand days.
Article 158- (1) The offence of fraud is ;
If committed, imprisonment from three to ten years and a judicial fine of up to five thousand days shall be imposed. (Additional sentence: 29/6/2005 – 5377/19 art.; Amended: 3/4/2013-6456/40 art.) However, In the cases listed in subparagraphs (e), (f), (j), (k) and (l), the lower limit of imprisonment shall not be less than four years and the amount of the judicial fine shall not be less than twice the amount of the benefit obtained from the crime. [61]
(2) A person who obtains benefit from another person by deceiving him with the promise that he has a relationship with public officials, that he is respected by them and that a certain work will be performed, shall be punished according to the provision of the above paragraph.
Cryptocurrency fraud constitutes a qualified form of the crime of fraud as seen in the context of the Turkish Criminal Code. (TPC Article 158/f) However, due to the fact that the type of crime varies from case to case, from method to method, as a result of the type of crime being considered as simple fraud or abuse of trust, we frequently encounter cases where public cases are opened for these crimes. For this reason, it is absolutely necessary to seek legal assistance in the legal process. This is because the different characterization of the type of crime affects many issues such as the duration of the complaint, the reasons for increasing or mitigating the punishment and whether it is included in the scope of reconciliation.
While the complaint of the victim is required for criminal investigation and prosecution in relation to some crimes in the Turkish Penal Code; for some crimes, the prosecutor’s office takes action on behalf of the public ex officio without anyone’s complaint. The crime of fraud under Article 157 of the TPC and the qualified cases under Article 158 of the TPC are crimes whose prosecution is not subject to complaint. Therefore, no complaint is required for the investigation and prosecution of these offenses. However, a complaint is required for the fraud regulated under Article 159 of the TPC, which is a less punishable form of the crime of fraud, to be committed for the purpose of collecting a receivable based on a legal relationship.
As I mentioned above, when the nature of the crime is considered as a crime of abuse of trust, a complaint is required for criminal investigation and prosecution. For crimes whose prosecution is subject to complaint, there is a 6-month complaint period.
Since there is no complaint in fraud, reporting the crime to the necessary units is not subject to any period of forfeiture; however, there is an 8-year statute of limitations for the crime of fraud. This means that the legal process must have taken place within 8 years, which is the statute of limitations for fraud. Otherwise, no further criminal investigation or prosecution can be carried out for that act.
The prolongation of the complaint process in cybercrimes such as cryptocurrency fraud will negatively affect the successful outcome of the legal process, namely, evidence of criminal acts in cybercrimes should be collected and documented as soon as possible without the opportunity to be darkened. As it is known, the element of crime is a digital data, and it is just as possible for this data to be easily changed, deleted and lost trace. As a matter of fact, it is important to take immediate reaction for this reason, and realizing the legal process as quickly as possible will bring successful results.