Close Relative Exemption (TCK Article 167) and Its Application in Card Crimes

The Turkish Penal Code stipulates that, in some crimes committed against property, certain kinship relations between the perpetrator and the victim may result in impunity or reduced punishment. TCK Article 167 regulates these exceptions. This provision, which also finds application in the crime of misuse of bank or credit card (TCK Article 245/1), is frequently misunderstood in practice. This article discusses the application of Article 167 in card crimes.

Reminder: For informational purposes only; The verdict and result to be applied in the concrete file are at the discretion of the judge.

TCK Article 167 — Summary of the Law Text

The article stipulates that if certain crimes against property are committed among the persons listed below, the perpetrator will not be sentenced to a penalty or will be given a reduction in the sentence.

Situations of Impunity (Art.167/1)

No punishment is imposed if the crime is committed between the following persons:

• Spouses for whom a separation decision has not been made
• Upper lineage or lower lineage or relatives of this degree in-law
• Adoptor and adopted child
• Siblings living together in the same residence

Cases of Penal Reduction (Art.167/2)

The penalty is reduced if the crime was committed between the following people:

• Spouses for whom a separation decision has been made
• Siblings who do not live together in the same residence
• Uncles, uncles, aunts, nieces, nephews or second-degree relatives-in-law who live together in the same residence

Relationship between TCK Article 245/1 and Article 167

The fourth paragraph of TCK Article 245 clearly states that Article 167 will be applied in terms of first paragraph crimes (using someone else's card). So:

• If the act of Article 245/1 is committed between a spouse, ascendant, descendant and siblings living in the same residence, no penalty will be given.
• In other kinship relationships (siblings, nephews, uncles, etc. living separately), reduction in penalty is applied.

Limits of Exception — In Which Crimes Does It Not Apply?

Important: TCK Article 167 exception is only valid for Article 245/1. The following situations are excluded from the scope of exception:

1) Fake Card Production (TCK article 245/2)

Article 167 exception does not apply in case of production, purchase or transfer of a fake card associated with someone else's account, even if it is a family member.

2) Gaining Benefits with a Fake Card (TCK Article 245/3)

Providing benefits by using a fake card is not subject to exception.

3) Independent Crimes

If the action constitutes not only Article 245/1 but also another crime (e.g. fraud - TCK Article 158, theft - TCK Article 141), Article 167 is evaluated separately in terms of those crimes; While the kinship exception is not applied for some crimes, it is applied for others.

Supreme Court Approach

The General Criminal Assembly of the Supreme Court of Appeals and the relevant Criminal Chambers guide the application of Article 167 with the following principles in their established jurisprudence:

• The exception applies only to kinship relationships clearly listed in the law; cannot be expanded by analogy.
• The condition of "living in the same residence" must be demonstrated with concrete evidence (residence record, invoice, witness statement, etc.); Just kinship is not enough.
• Exception only applies to art.245/1; It does not apply to m.245/2 and m.245/3 files.
• If the action constitutes more than one crime, Article 167 evaluation is made separately for each crime.
• The victim's amnesty is evaluated independently of the article 167 exception; These crimes are not subject to complaint.

Application Scenarios

Scenario 1 — Card Usage Between Spouses

Using the other's card without the consent of a spouse who has not been given a divorce decision falls within the scope of TCK Article 245/1, but there is no penalty in accordance with Article 167/1. Having a divorce case filed or a separation decision changes this result.

Scenario 2 — Siblings Living in the Same House

Article 245/1 is not subject to actual punishment between siblings living together in the same residence. However, if two siblings live in separate houses, the penalty is reduced in accordance with Article 167/2; It is not completely removed.

Scenario 3 — Use of Aunt's Card by Nephew

A penalty reduction is applied in accordance with Article 167/2 between a nephew and an aunt living together in the same residence. If they live separately, Article 167 does not apply at all.

Scenario 4 — A Close Relative Produces a Fake Card

Even if there is a spouse or descendant, the exception of Article 167 does not apply to Article 245/2 (fake card production); The perpetrator is punished. This is one of the most misunderstood topics.

Scenario 5 — Step-Relative

The interpretation of Article 167 for step-sibling or non-adoptive child relationships depends on how the concrete kinship relationship is defined within the scope of the Turkish Civil Code. In case of dispute, court discretion is decisive.

Burden of Proof

The defendant who wants to benefit from the exception must prove the kinship relationship and, when necessary, the condition of "living in the same residence" with concrete evidence:

• Civil registration sample (for kinship relationship)
• Residence registration (for living in the same residence)
• Invoice, rental agreement
• Letter from the neighborhood headman
• Witness statement

The Supreme Court has emphasized in its established jurisprudence that proof on this issue must be sought meticulously.

Domestic Economic Abuse Dimension

The impunity of TCK Article 167 causes domestic financial abuses to mostly go unpunished. There is a social concern about financial exploitation of young people or caregivers, especially in older families. As a legal consequence of this situation:

• Even if criminal liability does not arise, private legal remedies (tort compensation - TCO art. 49) are open.
• Guardianship (TMK article 404 et seq.) may be considered for elderly or sick people.
• The amount and quality of abuse is important.

Practical Tips

Compile documents that can prove your kinship relationship before application.

The condition of "living in the same residence" is often required; Residence registration and other supporting documents are important.

Note that the m.167 exception does not apply to counterfeit card crimes; Claims of kinship should not be used as the basis of defense.

If you are a victim and the perpetrator is a family member, punishment may provide limited results; Consider private legal remedies in parallel.

Working with a lawyer from the investigation stage is important for correct legal qualification.

Conclusion

TCK Article 167, close relative exception, Article 245/1 is an important provision that can lead to impunity or reduced penalty for the crime of using someone else's card. However, the limits of the exception are determined by law and cannot be expanded by analogy. Article 167 does not apply in cases of producing fake cards (Art. 245/2) and obtaining benefits with fake cards (Art. 245/3). The kinship relationship and the condition of "living in the same residence" must be proven with concrete evidence. The outcome is specific to the file and depends on the judge's discretion.