Fraud Committed Through the Use of Information Systems as a Tool
The offense of fraud is one of the classical types of crimes aimed at protecting individuals’ property and economic security. However, in line with technological developments, its scope of application has continuously expanded and transformed. In particular, the integration of information systems into everyday life has diversified the methods by which fraud is committed, largely replacing traditional face-to-face deception with digital environments.
In response to these developments, the legislator has taken into account the ease provided by information technologies in committing crimes and the increased risk of victimization, and has regulated aggravated forms of fraud under Article 158 of the Turkish Penal Code (TPC). Within this framework, Article 158/1-f constitutes a specific provision that imposes heavier sanctions on fraud committed through the use of information systems as a tool.
1) GENERAL FRAMEWORK OF THE OFFENSE OF FRAUD (TPC Art. 157)
Pursuant to Article 157 of the Turkish Penal Code, the offense of fraud is constituted by the concurrent existence of the following elements:
Deceptive acts,
Deception of a person,
Causing damage to the victim or a third party as a result of such deception,
Obtaining an unjust benefit for the perpetrator or a third party.
Although the primary legal interest protected in the offense of fraud is property, doctrine and the case law of the Court of Cassation also recognize the protection of social trust based on honesty and confidence. In this respect, fraud is not merely a crime causing individual harm but also one that undermines social order.
2) AGGRAVATED FRAUD AND THE SYSTEMATIC STRUCTURE OF TPC ART. 158
Article 158 of the TPC regulates aggravated forms of fraud that require heavier penalties. In determining these aggravated forms, the following factors are taken into account:
The method used by the perpetrator,
The status of the victim,
The tool or environment in which the crime is committed.
Within this context, Article 158/1-f qualifies fraud committed through the use of information systems as an aggravated form.
3) SCOPE AND PURPOSE OF ARTICLE 158/1-f
a. Content of the Provision
According to Article 158/1-f of the TPC, fraud committed through the use of information systems, banks, or credit institutions as a tool constitutes qualified fraud. Although information systems are regulated together with banks and credit institutions, their use as a tool independently constitutes an aggravated circumstance.
b. Legislative Purpose
The objectives of this provision include:
Protecting public trust in information systems,
Deterring fraud offenses committed in digital environments,
Reflecting the increased danger arising from the ease and speed of committing the offense in sanctions.
Information systems enhance the impact of fraud by eliminating the requirement of physical contact between the perpetrator and the victim and enabling access to large audiences.
4) Meaning of Information Systems
An information system refers to a set of technical systems that enable the automatic processing, storage, and transmission of data. This includes:
For the purposes of Article 158/1-f, it is not required that the information system be the direct target of the offense; it suffices that it is used as a tool. A breach of system security or hacking is not necessary.
5) Elements of the Offense
a. Perpetrator and Victim
Anyone may be the perpetrator of this offense. The victim may be a natural or legal person deceived through fraudulent acts carried out via information systems. In practice, it is common for multiple victims to suffer harm through a single act.
b. Material Element
The material element consists of committing deceptive acts through information systems. Examples include:
Establishing fake e-commerce websites to sell products,
Impersonating public officials or company representatives on social media,
Marketing non-existent investments or services via the internet,
Making deceptive statements through e-mail or messaging systems.
c. Mental Element
The offense can only be committed intentionally. The perpetrator must have the intent to deceive the victim and obtain unjust benefit through the use of information systems. Negligent commission is not possible.
6) Attempt, Participation, and Concurrence
Attempt is possible in fraud offenses. If the perpetrator begins deceptive acts but fails to deceive the victim or obtain unjust benefit, provisions on attempt apply. Participation is also possible, and joint perpetration, incitement, and aiding are frequently encountered in practice. If a single act causes harm to multiple victims, provisions on chain offenses may apply.
7) Sanctions and Procedural Rules
The sanctions for qualified fraud under Article 158/1-f include:
Imprisonment from 3 to 10 years,
Judicial fine of up to 5,000 days.
The offense is prosecuted ex officio and is not subject to complaint. The competent court is the High Criminal Court. Confiscation of unlawfully obtained benefits and compensation of the victim’s damage may also be ordered.
8) Approach of the Court of Cassation
The Court of Cassation considers the use of information systems as a factor facilitating the commission of fraud and increasing the risk of victimization. In particular, it is accepted that Article 158/1-f should be applied in deceptive acts committed via the internet and social media.
CONCLUSION
Article 158/1-f of the TPC constitutes a significant criminal law provision introduced in response to new forms of fraud in a digitalized society. Fraud committed through the use of information systems harms not only individual property but also public trust and the digital economic order. Therefore, the provision maintains its relevance and importance both theoretically and in practice.
