Producing fake debit or credit cards and benefiting from these cards has become increasingly complex in recent years due to both technological developments and organized crime. While the provisions of TCK Article 245/2 and Article 245/3 specifically regulate these acts, they are often evaluated together with TCK Article 158/1-f qualified fraud. In this article, the relationship between the two types of crimes and the trial process are discussed.
Reminder: For informational purposes only; Which type of crime will be applied in the concrete case, the amount of punishment and the result are at the discretion of the judge.
TCK article 245/2 — Fake Card Production
According to the legislation, the penalty range for "anyone who produces, sells, transfers, purchases or accepts fake bank or credit cards by associating them with bank accounts belonging to others" is imprisonment from 3 to 7 years and a judicial fine of up to 10,000 days.
Material Elements of the Crime
There are five separate optional actions that fall within the scope of the article:
- Producing: The counterfeit card must be physically manufactured.
- To sell:To transfer to someone else for a fee.
- To transfer: To put it in the possession of someone else, even if it is free of charge.
- To buy:To accept by paying a price.
- To accept: To take possession even if free of charge.
The element "Association with someone else's bank account" is sought; The card, which is completely fictitious and not linked to any account number, does not constitute a crime (but may bring up other types of crimes).
TCK art.245/3 — Gaining Benefits with a Fake Card
According to the legislation, the penalty range for "a person who benefits himself or others by using a fake or forged bank or credit card" is imprisonment from 4 to 8 years and a judicial fine of up to 5,000 days.
Two Types of This Provision
Fraud on the Internet — TCK art.158/1-f
Online purchases made with fake card information are often considered as qualified fraud within the scope of TCK Article 158/1-f. This paragraph; It regulates fraud committed "by using information systems, banks or credit institutions as a tool". The penalty range prescribed by the legislation is imprisonment from 3 to 10 years and a judicial fine of up to 5,000 days.
Competition of Crime Types (Community)
The acts of producing and using fake cards usually fall into two or more types of crimes. In this case:
1) Apparent Consistency (Lex Specialis)
The specific-general norm relationship between TCK Article 245/3 and Article 158/1-f is controversial. The Supreme Court of Appeals has accepted that in some of its decisions, Article 245/3 takes priority as a special norm, and in some of its decisions, two separate crimes occur. In this regard, a file-specific evaluation is made.
2) True Social Discussion (TCK Article 42 et seq.)
Producing fake cards (Art. 245/2) + using them (Art. 245/3) constitute separate crimes and can be punished through real assembly. If the same defendant committed both the act of production and use, there may be two separate penalties.
3) Chain Crime (TCK article 43)
In case the same crime is committed with more than one victim, the chain crime provisions of TCK Article 43 may be applied; The penalty is increased to a certain extent, but there is no separate penalty equal to the number of victims.
Investigation and Trial
Investigation Phase
- Suspicious transaction reporting to MASAK by the bank
- Complaint of the victim card holder to the Chief Public Prosecutor's Office
- Requesting bank log records through judicial proceedings
- Requesting POS/ATM location and camera records where the transaction was made
- IP, MAC, device fingerprint traces in online transactions
- When a suspicious person is detected, device forensic computer examination (CMK art. 116-127)
- Seizure of counterfeit card production devices (printing machine, magnetic stripe encoder, embosser, chip printer)
Court in Charge
TCK Articles 245/2 (upper limit 7 years), Article 245/3 (upper limit 8 years) and Article 158 (upper limit 10 years) crimes fall within the jurisdiction of the High Criminal Court (ÇKK Article 6).
Victim (Card Holder) Rights
For Suspicious/Defendants
Points to be considered in terms of defense for people who are suspects/defendants of these crimes:
- Prefer not to testify without a lawyer (CMK article 150). There is mandatory defense in these crimes (CMK article 150/3, maximum penalty of more than 5 years).
- The right to object to digital forensic reports should be exercised.
- The distinction between "production of fake cards" and "mere possession of fake cards" is important.
- IP matching alone is not sufficient for online transactions; For details, you can see our article Is IP Address Alone Sufficient for Conviction?.
- Manipulation, chain of custody and hash control should be carefully evaluated in device forensic examination.
Supreme Court Approach
- Seizing the devices used for the production of fake cards is not considered sufficient on its own; it is an established practice to seek additional evidence that the defendant used these devices for production purposes.
- The chain crime provisions (TCK Article 43) are strictly applied in the use of fake cards committed with more than one victim.
- Fake card production (Art. 245/2) and online fraud (Art. 158/1-f) have often been considered separate crimes; real assembly rules were applied.
- In cases where card information is known but there is no physical fake card production, applications of m.245/3 or m.158 instead of m.245/2 have been seen more frequently.
Timeout
- TCK Article 245/2 (3-7 years): The statute of limitations for lawsuits is 15 years (TCK Article 66/1-d).
- TCK Article 245/3 (4-8 years): The statute of limitations for lawsuits is 15 years.
- TCK Article 158 (3-10 years): The statute of limitations for lawsuits is 15 years.
Frequently Encountered Legal Questions
The person using my card was caught; Will my money be refunded?
Bank chargeback and compensation claims in the case are continued. Refund; It depends on factors such as the defendant's assets, the ability to trace the money, and the progress of the file. The result is file specific; Exact refund cannot be promised.
It was used on the site where I purchased my card online; Is the site responsible?
Factors such as whether the member business (online site) complies with security procedures, use of 3D Secure, and registration information are important in assessing liability. In parallel with the bank chargeback, legal remedies may be considered against the site.
I was caught with a fake card, is it enough if I say "someone I know gave it to me"?
Mere claim is not enough; It must be revealed with concrete evidence who the "acquaintance" is, how the card was obtained, whether it was used or not. In this regard, legal support must be sought; Statements at the statement stage affect the course of the file.
Conclusion
The production and use of fake cards is a type of crime that can be evaluated within the scope of both TCK Article 245 and TCK Article 158, with high penalty ranges. Although the penalty ranges stipulated in the legislation are high, the decision to be made in the concrete case; It varies depending on the evidence, the defendant's intent, the number of victims and the court's discretion. It is of great importance that both victims and defendants receive expert legal support from the beginning of the process.