The Problem of Characterizing Deceptive Conduct in the Offense of Fraud: The Intensity of Deceit and the Victim’s Ability to Verify

In the offense of fraud, the loss that occurs is not, on its own, proof of deceptive conduct or of criminal intent. For the purposes of TCK Articles 157 and 158, it should be determined separately by what conduct, when and how the perpetrator carried out the deception; whether this conduct influenced the will of the specific addressee; and whether the loss and the unjust benefit arose as a result of this deception. Distinguishing breach of contract from fraud is as important as not treating the victim’s opportunity to investigate as an automatic ground for acquittal. Regarding letting others use bank accounts, TCK Article 158/4, which entered into force on July 31, 2026, and the related transitional provisions should also be assessed separately. [1] [2]

Introduction: Deceit cannot be presumed from the loss

Article 157 of the Turkish Penal Code No. 5237 regulates the basic form of the offense of fraud, and Article 158 its aggravated forms. The common feature of both provisions is the deceiving of a person through deceptive conduct and, as a result of this deception, the obtaining of an unjust benefit for the perpetrator or a third party to the detriment of that person or another. Fraud is an offense directed not only at property but also at the deceived person’s ability to make decisions freely and on the basis of accurate information. [1] [4]

In practice, the difficulty usually lies not in whether the loss actually occurred but in determining whether the conduct alleged to have caused that loss constitutes deceit in the criminal-law sense. Automatically treating a simple lie, a commercial failure, an unpaid debt or an undelivered product as fraud blurs the line between a legal dispute and an offense. On the other hand, the existence of a genuine contractual relationship does not remove criminal liability where one of the parties carries out a deceptive plan under the appearance of a contract.

Incorrect characterization may lead to consequences such as investigation, judicial control (adli kontrol), pretrial detention, lengthy proceedings, loss of professional reputation and disruption of economic activities. For this reason, the starting point of the legal review is not only the loss suffered by the complainant but the specific act of deception, intent, the causal link and the individual liability of each suspect. [1] [3]

The constituent elements of the offense of fraud must be present together

Deceptive conduct, deception and disposition of property

For TCK Article 157 to apply, there must be deceptive conduct by the perpetrator, this conduct must be capable of deceiving the addressee, the addressee’s mistaken belief must influence the relevant disposition of property, and loss and unjust benefit must arise as a result. Establishing a causal link between the deceit and the loss is as essential as proving the existence of deceit. A payment initially made on the basis of accurate information does not become deceptive retroactively merely because the debt was later not paid. However, if separate deceptive conduct was carried out at a later stage in order to obtain a new payment, that disposition is assessed under its own conditions. [1] [4]

In criminal law, the mental element cannot be disregarded either. Deception carried out knowingly and willingly with the aim of obtaining an unjust benefit is not the same as a difficulty in performance that arises later. The perpetrator’s intent may be inferred not only from their own statement or from the economic outcome that occurred, but from an overall assessment of their preparations before the incident, their explanations during the transaction, documents and correspondence, their ability to pay or deliver, and the facts after the transaction.

Aggravated fraud should be separately reasoned

For an aggravated form under TCK Article 158 to apply, the basic elements of the offense of fraud should first be established; it should then be explained which aggravated form was realized through which specific conduct. The existence of a bank transfer, the fact that the transaction was carried out over the internet or the fact that the parties engage in commercial activity does not, in every case, by itself mean that a particular aggravated form has been realized. The difference between an information system or a bank or credit institution being merely a means of payment and its use as a tool that facilitates the deception in committing the offense should be discussed on the basis of how the specific case actually unfolded. [1]

The nature of deceptive conduct: The line between a simple lie and qualified deception

The intensity of deceit is measured not by the number of words but by the power to deceive

In the assessments of the Criminal General Assembly of the Court of Cassation (Yargıtay Ceza Genel Kurulu), a simple untrue statement is distinguished from intense and convincing deceptive conduct capable of affecting the addressee’s inclination to examine. The intensity of deceit cannot be explained solely by the number of words used or the size of the lie told. What matters is whether the act as a whole is capable of leading the addressee into error. [4]

Using a professional status or authority of representation that one does not actually have, supporting a statement with a fake document, creating the impression of a commercial activity that does not exist, several persons maintaining the same misleading account in a prearranged manner, or setting up an artificial transaction structure to dispel the addressee’s suspicions are conduct that may strengthen the deceit in a specific case. However, the use of a document does not automatically lead to a finding of guilt either: the fake or misleading nature of the document, its connection with the perpetrator and its effect on the victim’s decision should be established separately.

The discrepancy between the apparent transaction and the real purpose

Deceit may be carried out through an explicit statement, but it may also occur by presenting non-existent conditions as if they existed or by setting up a transaction structure in a misleading way. In allegations of silence and concealment of information, however, fraud cannot be inferred directly from every failure to share information without assessing the features of the incident and the basis of the duty of disclosure. The decisive point is that the specific conduct creates a belief contrary to the truth in the victim and that this causes the disposition of property.

In its decision of February 26, 2019, the Criminal General Assembly of the Court of Cassation examined, together with all the circumstances of the case, multi-stage stalling and misleading conduct aimed at influencing the buyer’s will within the appearance of a commercial transaction. The decision is important in showing that the existence of a relationship resembling a contract does not by itself eliminate deceit. [4]

How is the victim’s ability to verify assessed with regard to the capacity to deceive?

The assessment cannot be detached from the circumstances of the specific addressee

What information and means the victim had to reach the truth, how much time they had for the transaction, which elements of trust the perpetrator used, and which information the addressee accepted as true and why should be examined together. In Court of Cassation practice, particular importance is attached to deceptive conduct strong enough to neutralize the addressee’s inclination to examine. Nevertheless, the fact that the victim did not investigate does not by itself eliminate the perpetrator’s deceit. Criminal law does not protect only skeptical or commercially experienced persons. [4]

There are two different questions here: Could the addressee have reached the truth through an ordinary investigation? Did the perpetrator’s conduct neutralize the inclination to carry out this investigation or the ability to correctly assess the information obtained? The answer to the second question may change the consequences of the first. When assessing the capacity to deceive, the context of the incident and the victim’s specific situation should be taken as the basis, rather than clinging to a uniform and hypothetical “average person” standard.

Assessment in social media and low-price sales

Offering a product on social media at a price below market value, the buyer’s ability to check the seller’s account, or access to reviews of the product may be examined with regard to the intensity of deceit. Nevertheless, a low price neither proves deceit by itself nor does the argument that the buyer should have been more careful lead by itself to an acquittal. It should be investigated whether there was other conduct, such as a fake store account, a hijacked corporate account, a misleading delivery document, stock information that does not actually exist or concealment of identity, and how such conduct affected the payment.

This distinction is important both for protecting the genuine victim of crime and for ensuring that no criminal accusation is made merely on the basis of a failed purchase.

The legal line between breach of contract and fraud

Non-performance should be distinguished from an aim to deceive from the outset

The failure to deliver a product despite receipt of the sale price; incomplete provision of a service despite payment of the service fee; failure to pay a debt when due; delays in construction; or failure to fulfill an undertaking because of economic conditions does not by itself constitute the offense of fraud. By contrast, where the perpetrator, in order to obtain the payment, presents an authority they do not actually have as if it existed, offers a fake assurance or devises an untrue transaction from the very beginning, the case should be examined from a criminal-law perspective.

In its decision of May 14, 2024, the 11th Criminal Chamber of the Court of Cassation (Yargıtay 11. Ceza Dairesi) reversed the judgment of conviction in a case in which a service paid for in advance was performed only to a limited extent and the remaining service was not provided, stating that the dispute remained within the scope of performance of the contract because there was insufficient concrete evidence of criminal intent. In its decision of June 27, 2018, the 15th Criminal Chamber of the Court of Cassation (Yargıtay 15. Ceza Dairesi) likewise assessed the failure to deliver in a construction project that had actually begun and the existence of a genuine legal dispute between the parties, together with the absence of concrete evidence of deceit, and upheld the judgment of acquittal. These decisions show that the facts of payment and non-performance cannot take the place of criminal intent. [5] [6]

The existence of a contract does not leave genuine deceit unpunished

In the opposite direction, the decision of the 11th Criminal Chamber of the Court of Cassation dated November 4, 2025 is noteworthy. The decision assessed the facts that the defendant, concealing their true identity and situation, built trust with a different name, profession and social standing and obtained money by using this trust; it concluded that the deception could not be absorbed into a simple debt relationship. The Chamber reversed the acquittal decision and also pointed to a procedural problem regarding the judgment being rendered at the appellate stage (istinaf) without the necessary hearing being held. This decision shows that the victim’s ability to verify must be considered not in isolation but together with all of the perpetrator’s deceptive conduct. [7]

These precedents do not necessarily contradict each other. The different outcomes stem from different circumstances regarding the existence and intensity of the deceptive conduct established in the file, its effect on the disposition of property and the level of proof of intent. Accordingly, both automatic conclusions, “if there is a contract, there is no offense” and “if money was taken and no delivery was made, there is an offense,” are incorrect.

Fraud committed to collect a legal receivable is a separate provision

TCK Article 159 regulates the commission of fraud for the purpose of collecting a receivable based on a legal relationship as a special case requiring a lesser penalty. This provision neither turns every dispute arising from a debt relationship into an offense nor means that, where genuine deceptive conduct exists, the offense is entirely excluded merely because the receivable arises from a legal relationship. Whether the relevant act was deceptive, the genuineness of the receivable, the purpose of collection and the article to be applied should be assessed under their own conditions. [1]

Digital transactions, bank accounts and participation: Proof of deceit should be individualized

A bank transfer does not by itself show who committed the act of fraud

Money being deposited into a person’s bank account may show the movement of assets and to whom the account belongs. However, account ownership does not in itself mean that the perpetrator contacted the victim, carried out the deceit or knowingly participated in the offense. Telephone calls, the person who published the advertisement, the management of the social media account, IP and device records, the withdrawal transaction, ATM or branch footage, the ultimate beneficiary of the money, instructions after the transfer and the actual contact between the parties should be examined.

In its decisions of May 18, 2022 and June 13, 2024, the 11th Criminal Chamber of the Court of Cassation reversed the judgments of conviction against defendants who were found to have let another person use their accounts, on the grounds that there was insufficient concrete evidence of intent to commit fraud. The common point of the decisions is that the existence of a material movement of money does not remove the need to separately prove knowing participation. This does not mean that every account holder is automatically free of liability. [8] [9]

The July 31, 2026 amendment: Letting others use accounts under TCK Article 158/4

The fourth paragraph added to TCK Article 158 by Article 13 of Law No. 7589 provides for the penalty to be reduced by half where participation in the offenses under TCK Articles 157 or 158 is limited only to giving another person certain payment instruments or the mandatory information or tools that enable the use of accounts, and the aim of unjust gain set out in the provision exists. The provision entered into force on July 31, 2026. [2]

The critical distinction here is this: this provision is not a presumption that everyone who gives account information will be considered guilty, but a special reduction provision that may apply when participation in the offense and the purpose element in the provision are separately proven. If the specific act goes beyond letting an account be used and, for example, deceiving the victim or directing the offense is also alleged, the nature of the person’s contribution should be investigated separately. On the other hand, under TCK Article 7, an assessment of the more favorable law in terms of time should be made; the special transitional provisions on legal remedies and the enforcement stage in the sixth and seventh paragraphs of Transitional Article 1 of Law No. 7589 should be taken into account. [1] [2]

The transitional provisions do not automatically produce the same procedural outcome in every file. The nature of the participation, the stage of the judgment, whether effective repentance has previously been applied and the relevant conditions should be determined on the basis of the specific file. For this reason, the 2026 amendment should be examined separately, especially in earlier files on letting others use bank accounts.

Burden of proof, assessment of evidence and individual criminal liability

A separate assessment of the specific act and intent is required for each suspect

The fact that a deceptive act actually exists in a file does not lead to the conclusion that all persons who appear connected with that act acted with the same intent. The distinction between perpetrator, joint perpetrator, aider and a person with no criminal connection whatsoever to the act should be made by establishing which person knew what, did what, and with what will joined the specific criminal plan. Mere acquaintance, an account relationship or the fact of receiving payment cannot by itself take the place of the will to participate.

The evidence in favor of the suspect or defendant must be examined as well as the evidence against them. CMK Article 160/2 provides that the public prosecutor, within the scope of investigating the material truth, collects evidence both in favor of and against the suspect; CMK Article 217, in turn, sets out the principle that the judgment is based on evidence discussed at the hearing and lawfully obtained. For a conviction, there must be no unresolved reasonable doubt as to proof of the offense. Where it is not established that the charged offense was committed by the defendant, an acquittal is rendered under CMK Article 223/2-e. [3]

Questions to ask when examining evidence

• What is the specific statement, document, transaction or conduct presented as deceit; on what date did it occur?
• Which person carried out this conduct; how has their connection with the relevant statement, account, device or document been established?
• Has it been explained which statement or appearance misled the victim and how this led to the payment or other disposition?
• Is there evidence of the intent with which the perpetrator acted before the contract was concluded, while it was being concluded or at a later stage when a new payment was requested?
• Have bank records, messages, digital records, footage, witness statements and defense statements been discussed together; have contradictions been addressed with reasons?
• Have counter-facts such as commercial setbacks, genuine attempts at performance, obstacles to delivery, refunds or efforts to compensate the loss been examined as well as the elements supporting the allegation of deceit from the outset?

These checklist items are not a formal requirement to be completed in the abstract. Each of them should be used so that the defendant’s specific act and intent can be explained on the basis of the evidence. Depending on the circumstances of the file, a financial analysis, a technical expert examination or additional witness inquiries may be necessary; however, no examination can be built on a preconceived assumption that would take the place of the defense that no offense exists.

The effect of incorrect legal characterization on personal liberty and legal certainty

Criminal proceedings conducted on an allegation of fraud may have serious consequences, especially in charges based on TCK Article 158. Accepting that a trial before the High Criminal Court is automatically necessary, even though a bank receipt, a complaint statement and unfulfilled undertakings do not by themselves prove all the constituent elements of the offense, is problematic with regard to the principles of the presumption of innocence and proportionality. Pretrial detention, judicial control and other protective measures cannot take the place of the duty to investigate the legal elements of the offense; they should be assessed under their own legal conditions and specific reasons. [3]

The same sensitivity also applies to genuine victims of crime. Closing cases that clearly involve a false identity, fabricated authority or organized deception as legal disputes from the outset, on the grounds that there is a contract between the parties or that the victim could have investigated at some point, may weaken the victim’s opportunity for an effective investigation and legal protection. The fact that criminal law is a last resort does not mean that criminal liability is not investigated where the elements of the offense are present.

Practical criteria emerging from Court of Cassation case law

Read together, these decisions highlight the need to prove separately the causal link between deceit and unjust benefit, the effect of the deceptive conduct on the addressee and the criminal intent of each person. The outcome of each decision is specific to its own facts and evidence; no single decision can be applied mechanically to all contract or bank account disputes.

Related articles: Use of a Bank Account in Fraud: Intent, Participation and the Criminal Liability of the Account Holder; Digital Evidence in Criminal Proceedings: WhatsApp Messages, Screenshots and Their Use as a Basis for a Judgment; Objection to Pretrial Detention and Release Request: Strong Suspicion, Proportionality and Review of Reasoning

Conclusion

Not every lie is deceit, not every loss is fraud and not every breach of contract is an offense. However, the fact that deceptive conduct is carried out under the appearance of a contract, debt or commercial transaction does not prevent the offense from being investigated either.

The correct method in characterizing fraud is not to take the economic loss as the basis and presume deceit retroactively. First, the deceptive conduct should be specified; the intensity of deceit and the capacity to deceive, the victim’s ability to verify, the effect on the disposition of property, the perpetrator’s intent and individual participation should be established separately. In digital transaction and bank account files, TCK Article 158/4, which entered into force on July 31, 2026, and the transitional provisions should not be overlooked either. Such an approach, on the one hand, prevents persons from being punished without the legal elements of the offense being present and, on the other, prevents genuine deceptive acts from being disregarded under the appearance of a legal dispute.

Frequently Asked Questions

Is every lie considered deceit in the offense of fraud?

No. The mere existence of an untrue statement is not sufficient. The statement must be capable of deceiving the addressee in the circumstances of the case, must influence their will and must cause the loss and the unjust benefit. Deceit is assessed taking into account the words and conduct as a whole.

Is taking the price of a product and not delivering it fraud?

Not by itself. Breach of contract or impossibility of performance should be distinguished from deceptive conduct that induces the victim to make a payment. The advertisement, identity, stock, promise of delivery, payment and correspondence are examined within the whole of the specific case.

Does the victim’s failure to investigate the seller eliminate the offense?

No. The opportunity to investigate and verify may be important in assessing the capacity of the deceit to deceive; however, the fact that the victim did not act carefully enough does not by itself show that the offense did not occur. The deceptive scheme set up by the perpetrator and the circumstances of the specific addressee are considered together.

If there is a contract between the parties, is a criminal investigation ruled out?

No. The existence of a genuine contract does not by itself remove criminal liability. What matters is whether the disposition of property was obtained through deceptive conduct. Conversely, the mere non-payment of a debt or non-fulfillment of an undertaking is not by itself fraud either.

Does money arriving in my bank account make me a perpetrator of fraud?

No. To whom the account belongs, who carried out the deceit and with what intent the account holder participated in the offense are separate matters. The money transfer, withdrawal records, communications and other evidence are assessed together. Different criminal consequences may arise depending on the nature of the transaction.

Does TCK Article 158/4 provide a penalty reduction for everyone who lets their account be used?

No. This provision concerns the situation in which participation in the offense, committed for the purpose of unjust gain specified in the law, is limited only to giving the information or tools that enable the use of a payment instrument or account. First, the conditions of participation should be specifically proven. In addition, the transitional provisions of Law No. 7589 should be examined according to the stage of the specific file.

Is every fraud committed via social media aggravated fraud?

No. The way the information system was used in the offense and the aggravated forms listed in TCK Article 158 are assessed on the basis of the specific case. Communicating over the internet or sending money by bank transfer does not by itself prove the existence of a particular aggravated form.

Which evidence is important for the offense of fraud?

The relevant contract and advertisements, payment records, messages, actual communication and device records, delivery documents, suspect and witness statements and, where available, expert examinations may be important. The evidence must be obtained in accordance with procedure and discussed in the file, and its connection with each person must be explained.

Under what conditions does an acquittal come into question in a fraud charge?

If any of deceit, deception, causation, intent or the commission of the charged act by the defendant cannot be established in the manner required by law, an acquittal may be necessary depending on the nature of the case. In particular, the situation where it is not established that the charged offense was committed by the defendant is regulated under CMK Article 223/2-e.

Sources and legal bases

1. Law No. 5237, Turkish Penal Code (Türk Ceza Kanunu), in particular Articles 7, 21, 37–39, 157–159. Ministry of Justice of the Republic of Türkiye (T.C. Adalet Bakanlığı), UYAP Legislation and Case Law Program (UYAP Mevzuat ve İçtihat Programı). mevzuat.adalet.gov.tr
2. Law No. 7589, Article 13, Transitional Article 1/6–7 and Article 26 (TCK Article 158/4 amendment and transitional provisions). Grand National Assembly of Türkiye (TBMM), adopted July 16, 2026; Official Gazette (Resmî Gazete) No. 33326 of July 31, 2026. cdn.tbmm.gov.tr
3. Law No. 5271, Code of Criminal Procedure (Ceza Muhakemesi Kanunu), in particular Articles 100, 109, 160, 217, 223. Ministry of Justice of the Republic of Türkiye, UYAP Legislation and Case Law Program. mevzuat.adalet.gov.tr
4. Criminal General Assembly of the Court of Cassation (Yargıtay Ceza Genel Kurulu), February 26, 2019, E. 2015/838, K. 2019/136. Full-text review: app.dejure.ai (an application session may be required for access).
5. 11th Criminal Chamber of the Court of Cassation (Yargıtay 11. Ceza Dairesi), May 14, 2024, E. 2021/15819, K. 2024/6593. Full text: www.sonkarar.com; app.dejure.ai
6. 15th Criminal Chamber of the Court of Cassation (Yargıtay 15. Ceza Dairesi), June 27, 2018, E. 2017/11513, K. 2018/4728. Full text: www.ictihatlar.com.tr
7. 11th Criminal Chamber of the Court of Cassation, November 4, 2025, E. 2022/138, K. 2025/13962. Full text: app.dejure.ai (an application session may be required for access).
8. 11th Criminal Chamber of the Court of Cassation, May 18, 2022, E. 2022/1227, K. 2022/9122. Full text: app.dejure.ai
9. 11th Criminal Chamber of the Court of Cassation, June 13, 2024, E. 2021/27858, K. 2024/8214. Full text: www.sonkarar.com; app.dejure.ai