12th Judicial Reform Package: Sentence Reduction under Article 158(4) TPC for Participation in Fraud Offences

What Has Changed with Law No. 7589?

The new paragraph reads verbatim as follows:

"Where participation in the offences set out in this Article and in Article 157 is limited to the act of giving to another person, for the purpose of obtaining an unjust benefit for oneself or for another, payment instruments such as bank or credit cards belonging to oneself or to another, or the mandatory information or instruments enabling the use of an account held with banks, intermediary institutions, payment service providers or crypto-asset service providers, the penalty to be imposed shall be reduced by one half."

The legislator's aim is clear: to prevent the grievances suffered by persons who transfer their account or card details in return for a commission and who face, in the case files, penalties as severe as those of the principal offenders. The aim is sound; however, the way the provision has been drafted is as likely to create problems as to solve them.

The provision, which has recently come to public attention under headlines such as "an amnesty is coming for card victims", is in fact a paragraph added to Article 158 of the Turkish Penal Code, which governs aggravated (qualified) fraud, within the scope of the Law on Amendments to Certain Laws for the Effective and Efficient Functioning of the Judiciary (known to the public as the 12th Judicial Reform Package). In this article, it is important to explain the scope of the provision, who may benefit from it, the transitional provisions introduced for those whose cases are before the Regional Court of Appeal (istinaf) or the Court of Cassation or at the enforcement stage, and its connection with IBAN fraud investigations.

What Changes in the 12th Judicial Reform Package Regarding Participation in the Offence of Fraud?

According to the paragraph added to Article 158 TPC on aggravated fraud, where participation in the offences of fraud and aggravated fraud, for the purpose of obtaining an unjust benefit for oneself or for another, in respect of

• own or another person's payment instruments such as bank or credit cards, or
• the mandatory information or instruments enabling the use of an account held with banks, intermediary institutions, payment service providers or crypto-asset service providers,

is limited to the act of giving them to another person, the penalty to be imposed shall be reduced by one half. This provision aims to make proportionate to the gravity of the act the liability of persons — frequently encountered in the operation of fraud networks — who allow others to use their own bank account or card in return for payment or for the purpose of obtaining an unjust benefit, but who do not personally plan or carry out the act of fraud. A person who did not know that his or her account was being used in an offence, by contrast, should not be punished, since he or she lacks intent; for such a person, the issue is not a reduction but an acquittal.

Is the Claim that "An Amnesty Is Coming for Card Victims" True?

No. Although frequently referred to as an "amnesty" in the press and on social media, the provision is technically not an amnesty but a limited reduction of sentence. To benefit from the reduction, the offender's participation must be limited solely to the act of giving card/account information or instruments; offenders who actually withdraw the money, organise, or personally carry out the act of fraud fall outside the scope of this reduction. This distinction is of great importance depending on the nature of the imputed act; therefore, if you face such an accusation, the correct determination of the specific form of participation in your case file is decisive.

How Is the Offence of Fraud Constituted? What Does the Decision of the Criminal General Assembly of the Court of Cassation Say?

According to the decision of the Criminal General Assembly of the Court of Cassation, E. 2018/139, K. 2021/317, 29.06.2021, for the offence of fraud — which protects freedom of will in addition to assets — to be constituted, the following elements must be present together:

"1) the offender must engage in certain deceitful conduct; 2) the deceitful conduct must be capable of deceiving the victim; 3) as a result of the deceitful conduct, the offender must obtain an unjust benefit for himself or for another to the detriment of the victim or of another person; these conditions must be fulfilled together. The offender must knowingly and willingly engage in deceitful conduct for the purpose of obtaining a benefit for himself or for another, must cause damage to another person by such conduct, there must be an adequate causal link between the damage caused and the act, and the damage must be an economic damage to be determined by taking objective criteria into account."

How these elements are specifically assessed in your case file directly affects both the base penalty and whether or not you can benefit from the new provision.

What Will Happen to Those Whose Cases Are on Appeal (Istinaf) or before the Court of Cassation?

The situation of defendants who were sentenced under the fraud or aggravated fraud provisions before the date on which the provision entered into force, whose cases are under review by way of legal remedy, and to whom the added paragraph is to be applied, will be handled as follows:

• For those whose cases are before a criminal chamber of the Regional Court of Appeal (BAM), a reversal decision will be rendered and the case file will be sent to the court of first instance.
• Those whose cases are before the Chief Public Prosecutor's Office at the Court of Cassation will be forwarded to the courts of first instance in accordance with the procedure by which they arrived.

Effective Repentance (etkin pişmanlık, Article 168 TPC) Opportunity for Convicts at the Enforcement Stage

Convicts who were sentenced for fraud or aggravated fraud before the date on which the provision entered into force, whose cases are at the enforcement stage, to whom Article 168 TPC on effective repentance has not been applied and to whom the added paragraph is to be applied may benefit from the effective repentance reduction under Article 168(2) TPC if they fully compensate the victim's damage, by way of restitution in kind or indemnification, within six months of the warning to be given by the court (Provisional Article 1(7) of Law No. 7589).

Within this six-month period, until the victim's damage has been fully compensated, no decision may be rendered pursuant to the paragraph to postpone or suspend the enforcement. These provisions shall also apply to judgments that had been rendered as of the date on which the law entered into force and that became final after the law entered into force because no legal remedy was sought.

Why Are Those Who Give Account/Card Information Held Liable in IBAN Fraud?

In IBAN fraud investigations, fraud networks generally direct the money obtained from the victim not directly to their own accounts but to bank accounts or cards belonging to others. For this reason, the investigating authorities examine who the real user of the account to which the money was transferred is, and whether the account holder provided information/instruments for this use. Persons who knowingly, or in return for a benefit, allow others to use their account or card may be held liable for participation in fraud — just as in cases concerning the use in an offence of unregistered lines or lines registered in one's name.

It is precisely the persons fitting this profile — that is, those who do not organise the fraud but merely give their account/card information — whose sentence the new paragraph in the 12th Judicial Reform Package aims to reduce by one half.

In such cases, the point on which the defence must focus is the correct determination of which act the offender specifically committed; that is, whether he merely gave account/card information or whether he participated more actively in the act of fraud.

Problematic Aspects of the New Provision

1. The phrase "for the purpose of obtaining an unjust benefit" is vague

By which criterion will a distinction be drawn between the actual offender who receives this information and actually uses it in the offence and the account or card holder who transfers his details? A provision that places such weight on a subjective element of purpose may pave the way for assessments that vary from case to case and for seriously arbitrary decisions. The principle of certainty (belirlilik ilkesi) in criminal law (Article 2 TPC) requires that the limits of a ground for reduction be foreseeable.

2. The provision conflicts with the system of participation (Articles 37-39 TPC)

A person who obtains an unjust benefit is, theoretically, already in the position of a participant in the offence. While the penalty of an aider is already regulated within the system of perpetration and complicity established by Articles 37(2) and 39 TPC, this paragraph, which attaches a special consequence to participation being "limited to a specific act", creates a contradiction with the content of the Code itself. Moreover, under Article 39(1) TPC, the penalty imposed on an aider is already reduced by one half in cases requiring a fixed-term imprisonment. In that case, under which provision will the same contribution be reduced: Article 39, Article 158(4), or both together? The answers to these questions will once again be provided by case law.

3. The real problem of distinction lies in proof

By which objective criterion will a distinction be drawn between a person who allows his information to be used without any intention of committing an offence and a person who personally commits an offence using his own card and account information? Will saying "I gave my card details to X" in the case files be accepted as sufficient for all defendants? If this defence becomes a stock formula, the provision risks turning into a ready-made gateway to reduction even for offenders who personally commit the offence.

What Does This Mean for Those Who Allow Others to Use Their Account or Card?

For persons whose contribution consists solely of giving information or instruments, the penalty to be imposed will be reduced by one half. Under the principle of the more favourable law (Article 7(2) TPC), the assessment of this provision in pending proceedings and in finalised cases at the enforcement stage by way of adaptation proceedings will also come onto the agenda. However, since to whom the reduction will be applied will be determined according to the evidentiary situation of each case, the process must necessarily be assessed on the basis of the specific facts.

In Our Opinion, the Real Solution: The Element of Capacity to Deceive

The solution lies in boldly addressing the elements of the offence. In many such incidents brought before the judicial authorities, it is observed that no assessment is made as to whether the deceitful conduct — the constituent element of the offence of fraud under Article 157 TPC — has the capacity to deceive. Yet according to settled case law of the Court of Cassation, the deceit must be of a nature capable of misleading the victim and of a deceptive intensity. We are of the opinion that, if the elements of the offence are boldly addressed within legal frameworks, a decision of non-prosecution (KYOK) would very likely be rendered in many investigation files. Accordingly, it would be fair to say that the solution in fact lies in the elements of the offence set out in Article 157 TPC.

In conclusion, the new provision is not only internally inconsistent with the Code, but is also focused on remedying certain grievances seen in society rather than achieving the fundamental purpose of criminal proceedings, while its application has been left entirely to the discretion of the judicial authorities. As it stands, the provision gives the impression of a "workshop exercise" released without sufficient reflection.

Frequently Asked Questions

What is Article 158(4) TPC?

It is the paragraph added to Article 158 TPC by Law No. 7589, providing that the sentence of persons whose participation in fraud offences consists solely of giving card/account information or instruments shall be reduced by one half.

Is it an offence to allow another person to use my bank account or card?

If your information has been used in an act of fraud, an investigation may be conducted against you within the scope of participation in the offence. Under the new provision, the penalty is reduced by one half for those whose contribution consists solely of giving information; however, each specific case is assessed within its own evidentiary situation.

Does the new provision affect past cases?

Under the principle of the more favourable law (Article 7(2) TPC), the provision applies directly in pending proceedings and by way of adaptation proceedings (uyarlama yargılaması) in finalised cases at the enforcement stage; Provisional Article 1(6) of Law No. 7589 additionally lays down a procedure for cases pending before the Regional Court of Appeal (istinaf) or the Court of Cassation (temyiz).

Is it sufficient to say "I gave my card details to someone else"?

On its own, it is not sufficient; it must be supported by the evidence in the case file that the participation was limited solely to giving information. Case law will show by which objective criterion the distinction will be made.

Is a decision of non-prosecution (KYOK) possible in these cases?

For the offence of fraud to be constituted, the deceit must have the capacity to deceive. If this element is absent in the specific case, a decision of non-prosecution may be rendered at the investigation phase.