Türk Ceza Kanunu'nda Banka ve Kredi Kartlarının Kötüye Kullanılması Suçu

This study examines, from the legal and doctrinal standpoints, the offence of "misuse of bank and credit cards" regulated in Article 245 of the Turkish Criminal Code. The article opens by questioning the correctness of the offence's placement in the Code and analyses separately the offence types regulated in the article's three paragraphs.

Legal Nature and Place in the Code

Although Article 245 stands in the chapter "Offences in the Field of Informatics", the author argues that this placement is systematically erroneous. That the offence is directed essentially at persons' assets, and that provisions peculiar to property offences — effective remorse and personal impunity — were later made applicable to it, show that the interest protected is predominantly economic. The offence should therefore be regulated in the chapter "Offences against Property".

The article regulates three distinct offence types:

• obtaining benefit by using, without consent, a genuine bank or credit card belonging to another (Art. 245/1);
• producing, selling, transferring, purchasing or accepting counterfeit bank or credit cards linked to the accounts of others (Art. 245/2);
• obtaining benefit by using a counterfeit bank or credit card (Art. 245/3).

1. Misuse of a Genuine Card (Art. 245/1)

This offence consists in obtaining an unjust benefit by using — or causing another to use — a genuine, lawfully produced card belonging to another without the holder's consent. How the card was obtained (theft, finding, receipt with consent followed by unauthorised use) is immaterial. Anyone may be the offender; the victims are the cardholder, the person to whom the card should have been delivered, and the issuing bank or financial institution. The offence is complete when the offender, having obtained another's card, uses it without consent and secures a material benefit for themselves or another; if no benefit is obtained, the act remains at the stage of attempt. Where the offence is committed between certain relatives (spouse, ascendants, descendants, etc.), no penalty is imposed (Art. 245/4); and the effective-remorse provisions applicable to property offences (Art. 168) apply.

2. Producing or Trading in Counterfeit Cards (Art. 245/2)

This offence consists in producing, selling, transferring, purchasing or accepting a counterfeit card linked to the bank accounts of others. It is an offence of danger: performance of the act suffices, and no benefit or damage is further required. Linkage of the card to a real bank account is a precondition; absent such linkage, this paragraph cannot apply.

3. Obtaining Benefit by Use of a Counterfeit Card (Art. 245/3)

This paragraph punishes the obtaining of an unjust benefit by using a counterfeited or altered card. Unlike the second paragraph, linkage to a bank account is not required here; but a benefit must actually be secured for the offence to be complete — otherwise the act remains at attempt. If the act constitutes another offence carrying a heavier penalty (aggravated fraud, for instance), that offence's penalty, not this paragraph, applies.

Concurrence and Relation to Other Statutes

The article examines in detail the relationship of these offences with theft, fraud and abuse of trust. The general rule: where the card is obtained by unlawful means, separate penalties must be imposed both for the offence of obtaining it (theft, for example) and under Article 245. This is not a compound offence, it is argued, because the obtaining of the card is not expressly stated in the statute as an element of the offence of use. Attention is also drawn to the special offence types in the Bank Cards and Credit Cards Law, explaining in which situations the Criminal Code and in which that special law is to be applied.