Aggravated Fraud via Information Systems and Gross Fault of the Victim (TCK Art. 158/1-f)
CYBERCRIMES AND AGGRAVATED FRAUD
AGGRAVATED FRAUD VIA UTILIZATION OF INFORMATION SYSTEMS, BANKS, OR CREDIT INSTITUTIONS AS AN INSTRUMENT (ART. 158/1-f TCK): A LEGAL ANALYSIS ON THE "GROSS FAULT OF THE VICTIM"
Cybercrimes and fraud types are regulated under Chapter Ten, titled "Offenses Against Property," of the Turkish Penal Code (TCK) No. 5237. The core statutory provisions are codified as follows:
Fraud
ARTICLE 157- (1) Any person who deceives a person with fraudulent behaviors and provides an unfair benefit to themselves or to another to the detriment of the victim or a third party shall be sentenced to imprisonment from one year to five years and a judicial monetary fine up to five thousand days.
Aggravated Fraud
ARTICLE 158- (1) In the event that the offense of fraud is committed:
a) Through the exploitation of religious beliefs and sentiments,
b) By taking advantage of the dangerous situation or difficult circumstances the victim is in,
c) By taking advantage of the weakened perception capacity of the victim,
d) Through the utilization of public institutions and organizations, public professional organizations, political parties, foundations, or associations as an instrument,
e) To the detriment of public institutions and organizations,
f) Through the utilization of information systems, banks, or credit institutions as an instrument,
g) By taking advantage of the facilitation provided by press and broadcasting instruments,
h) During the commercial activities of persons who are merchants or company executives, or who act on behalf of a company; or within the scope of the activities of cooperative executives,
i) By self-employed professionals, through the abuse of trust reposed in them due to their profession,
j) For the purpose of securing the extension of a loan that should not be allocated by a bank or a credit institution,
k) For the purpose of collecting insurance proceeds,
l) (Annexed: 24/11/2016-6763/Art. 14) By a person introducing themselves as a public official or an employee of a bank, insurance, or credit institution, or stating that they are associated with these institutions,
The perpetrator shall be sentenced to imprisonment from three years to ten years and a judicial monetary fine up to five thousand days. (Amended Sentence: 3/4/2013-6456/Art. 40) However, in the circumstances listed in sub-clauses (e), (f), (j), (k), and (l), the lower limit of the imprisonment sentence cannot be less than four years, and the amount of the judicial monetary fine cannot be less than twice the unfair benefit obtained from the offense.
(2) Any person who provides a benefit from another by deceiving them under the assertion that they have relations with public officials or hold a high reputation before them, promising that a certain task will be executed, shall be punished according to the provisions of the paragraph above.
(3) (Annexed: 24/11/2016-6763/Art. 14) In the event that the offenses listed in this article and Article 157 are committed jointly by three or more persons, the penalty to be inflicted shall be increased by half ($50\%$); if committed within the framework of the activities of an organization established to commit crimes, the penalty shall be increased by one fold ($100\%$).
Mitigating Circumstance / Lesser Penalty
ARTICLE 159- (1) In the event that fraud is committed for the purpose of collecting a receivable based on a pre-existing legal relationship, upon complaint, the perpetrator shall be sentenced to imprisonment from six months to one year or a judicial monetary fine.
Disposal of Lost Property or Property Acquired by Mistake
ARTICLE 160- (1) Any person who disposes of property that has left the possession of its owner due to being lost, or that has been acquired by mistake, as if they were the owner, without returning it or notifying the competent authorities, shall be punished, upon complaint, with imprisonment up to one year or a judicial monetary fine.
Effective Repentance (Etkin Pişmanlık)
ARTICLE 168- (Amended: 29/6/2005-5377/Art. 20)
If the perpetrator, instigator, or accomplice demonstrates personal repentance after the completion of offenses such as theft, damage to property, abuse of trust, fraud, or fraudulent bankruptcy, but prior to the initiation of criminal prosecution regarding the matter, and completely remedies the damage sustained by the victim via exact restitution or compensation, the penalty to be inflicted shall be reduced up to two-thirds.
In the event that effective repentance is demonstrated after the initiation of prosecution but prior to the rendering of the judgment, the penalty to be inflicted shall be reduced up to half.
(Paragraphs 3, 4, and 5 contain specific application rules regarding robbery, partial compensation with the victim's consent, and utility theft).
Technical Legal Assessment: The Impact of the "Gross Fault of the Victim" on the Causal Link
A recurring factual reality in digital fraud cases involves perpetrators establishing fake social media accounts (e.g., on Instagram) or illegal virtual betting and gambling interfaces. They post fraudulent success content—such as manipulated betting slips displaying massive winnings—to entice victims. Blinded by the desire to acquire large sums of money quickly and effortlessly, victims voluntarily contact these fraudulent accounts and transfer substantial funds to the bank accounts provided by the suspects.
In many concrete case files, complainants openly admit and declare that they succumbed to the greed of "making easy and massive profits" through unauthorized online betting platforms. This choice represents a conscious preference exercised by the complainant's own free will. It is an undeniable, objective reality of social life that online gambling networks carry severe risks of massive financial loss just as they promise gains.
Every ordinary individual, whether possessed of a gambling addiction or not, is legally presumed to command the cognitive level necessary to foresee these fundamental risks. Engaging in unauthorized online betting to make easy profits constitutes an illegal form of gambling under Law No. 7258.
[Diagram illustrating the breakdown of the Causal Link between the Suspect's Fraudulent Trick and the Final Damage due to the Complainant's Gross Fault]
The Contradiction with the Doctrine of Clean Hands (Nemo Auditur...)
In our legal assessment, complainants who deliberately step into illegal gambling networks with the greed of extracting unearned, swift financial gains are, to an extent, the primary architects of their own victimization. Under Article 5 of Law No. 7258, participating in illegal betting is a penalized administrative offense. By transferring their funds into these untraceable black markets, complainants directly trigger the financial damage through their own volition.
Legal Fault (Hukuki Kusur): Defined as the legal responsibility and blameworthiness that emerges when an actor executes an act despite knowing that it constitutes a wrong or an illegality. The act of seeking unearned wealth through illegal betting rings is an action highly censured by the legal order.
Capacity for Fault (Kusur Ehliyeti): The cognitive and physiological capacity of an individual to distinguish right from wrong, lawful from unlawful, and to direct their actions accordingly. In law, a rebuttable presumption applies that mentally sound and physiologically mature adults possess full capacity for fault.
A complainant is fully capable of understanding that transferring money to anonymous internet profiles for illegal gambling carries a near-certain risk of loss or fraud. Therefore, the legal system must recognize the existence of the "Gross Fault of the Victim" (Mağdurun Ağır Kusuru) in these scenarios. As prominent economist Prof. Dr. Mahfi Eğilmez famously noted: “Free cheese is found only in a mousetrap.”
Fault of the Injured Party (Zarar Görenin Kusuru): An imprudent, careless, or intentional act executed by a reasonable and rational person who, despite being fully aware of the need to avoid harm to protect their own interests, fails to demonstrate basic care and caution.
A cornerstone of universal jurisprudence dictates the maxim: "No one can rely on their own fault or turpitude to claim a right before a court of law" (Nemo auditur propriam turpitudinem allegans / Kimse kendi kanunsuzluğundan faydalanamaz). This standard is heavily mirrored in the jurisprudence of the Court of Cassation (Yargıtay 11. Hukuk Dairesi, 28/11/2017, Merits No: 2016/6325, Decision No: 2017/6651).
Consequently, in siber-fraud trials where the complainant demonstrates such extreme negligence and voluntary participation in an illegal activity, it must be argued that the victim’s gross fault completely severs the appropriate causal link (illiyet bağı) attached to the suspect's criminal intent. If the direct causal link between the suspect’s fraudulent trick (hile) and the resulting damage is severed by the intervening gross negligence of the victim, the statutory elements of the crime fail to materialize, necessitating an Acquittal (Beraat).
The Problem of Effective Repentance and Judicial Discretion
Furthermore, a severe doctrinal controversy arises regarding the implementation of Effective Repentance (TCK Art. 168). If a suspect steps forward to return the funds, the current literal text of Article 168 requires the explicit consent of the complainant for partial restitution to trigger a sentence reduction. However, in cases where the victim's own gross fault and illegal motivations triggered the incident, forcing the suspect to rely on the absolute consent of an illegal gambler represents an asymmetric burden.
We argue that under these specific circumstances, the court should exercise its Judicial Discretionary Mitigation Powers (TCK Art. 62) to lower the sentence without seeking the victim's formal consent, thereby rectifying the statutory gap through progressive interpretation. Regional Courts of Appeal (BAM) and the Court of Cassation must clear this statutory vacuum through clear precedent.
Doctrinal Definitions and Criminal Causal Analysis
In both Civil Tort Law and Criminal Law, a defendant can only be held responsible if an appropriate causal link connects their act to the prohibited outcome. Causation requires a direct, uninterrupted causal pipeline. If the independent intent or gross negligence of the victim intervenes to such a degree that it overrides the original act, the chain of causation is broken, and criminal liability dissolves.
The Good Faith Basis (TMK Art. 2) and Contributory Negligence
The requirement that an injured party must share the burden of a loss if they contributed to it via careless or reckless behavior is rooted in the Principle of Good Faith (Dürüstlük Kuralı) codified in Article 2 of the Turkish Civil Code (TMK). The rule of Contributory Negligence (Müterafik Kusur) under Article 52, paragraph 1 of the Turkish Obligations Code (TBK) is a specialized manifestation of good faith in liability law.
Demanding full compensation for a loss that an individual could easily have avoided by demonstrating basic, ordinary human care represents a direct violation of the Prohibition of Contradictory Behavior (Çelişkili Davranma Yasağı / Venire contra factum proprium).
As beautifully articulated by the 4th Civil Chamber of the Court of Cassation (26.02.1979, Merits No: 1978/5666, Decision No: 1979/2516):
“This phenomenon, generally classified as contributory negligence, is defined as an imprudent or thoughtless act that a reasonable, clear-minded individual would systematically avoid to protect their own interests. A person who fails to demonstrate the necessary care to avoid harm, or who voluntarily invites harm, must bear the consequences of their own behavioral patterns. They must absorb the loss partially or in its entirety, proportionate to the role, effect, and degree their behavior played in the materialization of the damage. Demanding full compensation for a loss that an actor caused or aggravated through their own fault explicitly violates the Principle of Good Faith codified in Article 2 of the TMK.”
Under Article 63 of the TBK, the informed consent of an injured party acts as a justification that removes unlawfulness. Conversely, Article 52 of the TBK regulates circumstances where a victim consents to a risk without creating a formal justification. If a victim voluntarily exposes themselves to a known criminal trap, a high degree of contributory fault is established, breaking the liability chain.
LANDMARK JURISPRUDENCE OF THE COURT OF CASSATION
T.C. COURT OF CASSATION – 2nd Criminal Chamber
Merits No: 2016/6021
Decision No: 2016/11619
Decision Date: 20/06/2016
Headnotes:
THE ABSENCE OF CRIMINAL INTENT IN REMOTE BANK TRANSFERS: Where a student suspect is targeted online by foreign actors who claim they sell software to Turkish firms but face payment processing issues, offering him a job as a bilingual dispute coordinator, and directing him to receive incoming transfers and forward them abroad via money transfer services; given that the suspect requested a formal employment contract and was told to process the transfers first to build trust, the suspect acted without criminal intent (suç işleme kastı) and must be acquitted.
SUBSTANTIVE TEXT OF THE JUDGMENT:
A review of the complete file layout manifests that the suspect was a university student residing in Sinop. He met certain anonymous individuals from the Russian Federation via the online communication application 'ICQ'. These foreign actors extended a remote job offer to the suspect, claiming that their company engineered computer software and sold it to commercial entities in Turkey but faced payment bottlenecks, and that they required a fluent English-speaking representative to manage client relations and transfer funds.
The suspect, seeking to earn a student allowance, accepted the offer. The foreign actors transferred certain illicitly acquired funds into the suspect's bank account and instructed him to immediately wire those amounts abroad via international money transfer networks. When the suspect demanded a formal, signed employment contract before processing further transactions, the actors stated, "Process these wire transfers first to prove your loyalty and trust, then we shall deliver the contract."
The suspect complied with the instruction. The Court of Cassation rules that there is no direct, concrete, or convincing evidence in the file proving that the suspect acted with fraudulent criminal intent or held common purpose with the cyber-fraud ring. The suspect's defense is consistent with the objective timeline. Therefore, instead of entering a conviction, the Lower Court executed a reversible error by failing to issue an Acquittal. The judgment is REVERSED.
T.C. COURT OF CASSATION – 15th Criminal Chamber
Merits No: 2013/20381
Decision No: 2015/32325
Decision Date: 16.12.2015
Summary of Judgment:
“The suspect operates as a legitimate agricultural middleman (kabzımal) at the Antalya Vegetable Market. The other co-suspect, R.D., purchased various agricultural goods from complainants and subsequently sold a portion of those items to the suspect's business enterprise.
Aside from the abstract assertion that suspect F.Y. participated in the co-suspect's overarching fraud scheme, no concrete, clear, or convincing evidence free from judicial doubt was uncovered to prove criminal complicity. A conviction cannot be built upon abstract suspicion. The judgment of conviction rendered by the Lower Court is REVERSED.”
T.C. COURT OF CASSATION – Criminal General Board (Ceza Genel Kurulu)
Merits No: 2022/204
Decision No: 2022/749
Decision Date: 29.11.2022
Summary of Judgment:
“For a court to rule that banks or credit institutions were utilized as an instrument in a fraud scheme (TCK Art. 158/1-f), the fraudulent trick must explicitly exploit the core, ordinary banking operations of the institution, leverage its official human agents, or directly deploy the physical/digital assets and security protocols generated by the bank to execute the deception. If the bank acts merely as a passive, blind repository where funds are dropped after the deception has already been completed independently, the aggravating element of information systems does not apply.”
T.C. COURT OF CASSATION – 11th Criminal Chamber
Merits No: 2021/16966
Decision No: 2024/7470
Decision Date: 04.06.2024
Summary of Judgment on "Mule Accounts" (Hesap Kullandırma):
“This landmark precedent directly clarifies the criminal status of an individual who permits a friend to utilize their bank account. The suspect permitted a friend to access their bank account based on interpersonal trust, after the friend claimed their own bank card was blocked. The prosecution failed to uncover any evidence showing that the suspect received a commission, premium, percentage, or any unfair financial benefit from the illicit funds routed through the account.
The Court of Cassation rules that lending a bank account based purely on a pre-existing friendship or relationship of trust, without extracting any personal benefit or commission from the incoming fraudulent funds, demonstrates an absolute absence of criminal intent (suç kastı yoktur). In the absence of solid, undeniable evidence proving fraudulent intent, the suspect must be granted an Acquittal. The Lower Court's conviction is REVERSED.”
T.C. COURT OF CASSATION – 15th Criminal Chamber
Decision No: K.2014/361
Summary of Judgment:
“The suspect placed a commercial sale advertisement in a newspaper. The complainant called the number and voluntarily wired a cash deposit (kapora) into the suspect's bank account, after which the suspect disappeared. In this scenario, the bank acted as a mere passive vehicle for payment transmission; it held no active structural role or deceptive influence in misleading the victim's mind. Thus, the offense constitutes standard fraud under TCK Article 157/1, rather than aggravated fraud under Article 158/1-f. Penalizing the suspect under the aggravated clause represents a reversible error.”
The Rule of Destination / Interlocution (Muhatabiyet Kuralı) and the Presumption of Innocence
In siber-fraud doctrine, an important structural rule known as the "Rule of Interlocution" (Muhatabiyet Kuralı) applies:
“If Suspect X deceives Victim A online, and Victim A extracts the required money from a third party (Victim B) to wire it to the suspect, the crime of fraud is committed exclusively against Victim A—whose mind was directly targeted by the fraudulent trick and whose volition was corrupted—rather than against the third party from whom the funds were sourced.”
In instances where a suspect holds no ownership, physical control, or disposal rights over an incoming bank transfer, and reaped no unfair financial benefit because the account was hijacked or controlled by third parties, the Presumption of Innocence (Masumiyet Karinesi) must be executed to its fullest extent.
The universal, constitutional pillar of criminal procedure dictates the rule: "The defendant benefits from the doubt" (In dubio pro reo / Şüpheden sanık yararlanır). A conviction cannot be sustained based on probabilities, or by selecting a portion of the evidence while ignoring contradictory facts. Criminal verification requires absolute, clear, and unmitigated certainty.
Doctrinal Closing Warning: “In a constitutional state, the primary objective of criminal procedure is not to secure a conviction at all costs, but to investigate whether a suspect executed the alleged act under the guidance of universal principles of law. Truth can only be established through legally compliant evidence. Investigations built upon pre-formulated, rigid templates that view account owners as automatic enemies threaten the core tenets of Legal Certainty (Hukuk Güvenliği) and trigger severe judicial errors. Protecting individual liberty under the light of pure law is a prerequisite for systemic societal trust.” — Assoc. Prof. Dr. Cengiz Apaydın, Istanbul Anatolian Public Prosecutor
REFERENCES:
5237 Sayılı Türk Ceza Kanunu ve İlgili Mevzuat (The Turkish Penal Code No. 5237)
5271 Sayılı Ceza Muhakemesi Kanunu Hükümleri (The Civil Procedure Code No. 5271)
Jurisprudence of the Criminal Chambers and the General Board of the Court of Cassation (Yargıtay)
Precedents of the Regional Courts of Appeal (Bölge Adliye Mahkemeleri - BAM)