Investment Fraud and Continuous Offence: Court of Cassation 2025/6875

First a renewable energy investment is described and money is taken. The relationship with the same people continues; this time it is the turn of a real estate project, then a healthcare investment, then a hotel project. Each stage brings a new story and a new payment. The question asked in the criminal proceedings looks simple, but its answer directly affects the sentence: when money is taken from the same victim on different dates under different investment pretexts, is it a single fraud, or does it amount to a continuous offence?

In its decision of 10.06.2025 (Docket No. E.2025/1610, Decision No. K.2025/6875), the 11th Criminal Chamber of the Court of Cassation upheld in part, and unanimously quashed in part as to certain convictions, the decision of the 31st Criminal Chamber of the Istanbul Regional Court of Appeal, which had dismissed the appeals on the merits. One of the grounds for quashing was that the provisions on continuous offences were not applied even though benefits had been obtained on different dates under different investment pretexts.

🔋 Investment pretexts and the scope of the trial

The text of the decision sets out the events not in a detailed narrative but through the judgments and the grounds for quashing. As far as can be understood from the reasoning, the defendants obtained money from the intervening parties in the name of different projects. The pretexts mentioned in the text are as follows:

As regards one intervening party, it is stated that a joint-stock company was additionally set up to facilitate the acts of fraud and that a "loan facilitation agreement" was signed with that company. In the case the defendants were tried not only for fraud but also for establishing and directing an organisation for the purpose of committing offences, membership of an organisation, aiding an organisation, forgery of an official document and forgery of a private document. Some of the defendants were bankers, and the intervening parties alleged that they acted in unity of intent and action with the other defendants.

🏛️ First instance and regional appeal stage

By its decision of 20.12.2023 (2023/253 Merits, 2023/558 Decision), the Istanbul 8th High Criminal Court acquitted the defendants of the organisation and forgery offences, and sentenced five defendants separately for each intervening party or group of intervening parties under Article 158/1-f (final sentence) and 158/3 TCK. In some of the judgments the effective-repentance reduction under Article 168/1 TCK was also applied. The sentences range, depending on the intervening party, from 1 year 10 months 15 days to 11 years 3 months of imprisonment. In the heaviest judgment, a judicial fine of TL 216,482,600.00 was imposed in addition to 11 years 3 months of imprisonment. The recidivism provisions were also applied with regard to some defendants.

Article 158/1-f TCK treats fraud committed by using information systems, or banks or credit institutions, as a tool as an aggravated form. According to the last sentence of the same paragraph, under this sub-paragraph the minimum prison term cannot be less than four years, and the judicial fine cannot be less than twice the benefit obtained from the offence. Article 158/3 TCK provides that where the offence is committed jointly by three or more persons, the penalty is increased by one half.

The 31st Criminal Chamber of the Istanbul Regional Court of Appeal, by its decision of 02.05.2024 (2024/1595 Merits, 2024/1600 Decision), reviewed the case without holding a hearing and dismissed the appeals on the merits under Article 280/1-a of the Code of Criminal Procedure (CMK). The judgments were appealed on points of law by the intervening parties' counsel and the defendants' defence counsel.

🚧 Which judgments could not be appealed?

The first part of the decision works as a filter. Under Article 286/2-g CMK, decisions dismissing on the merits an appeal against acquittals for offences requiring ten years' imprisonment or less, or a judicial fine, cannot be appealed on points of law. Article 286/2-a CMK excludes from appeal decisions dismissing on the merits sentences of five years' imprisonment or less given by the court of first instance.

Applying these two provisions, the Chamber rejected, under Article 298/1 CMK, the appeal requests directed at the acquittals for the organisation and forgery offences and at a group of convictions for fraud committed by using banks as a tool. It also noted that the offences in dispute are not among the exceptions in Article 286/3 CMK. As a result, the intervening parties' objections concerning the organisation offences were not examined on the merits.

The appeals against the acquittals for qualified fraud, on the other hand, were examined on the merits and, as no error was found in the court's discretion regarding offences that were not proven, they were upheld.

🔗 Continuous offence: different pretext, different date

Under Article 43/1 TCK, where the same offence is committed more than once against one person at different times in execution of a single decision to commit an offence, a single penalty is imposed, increased by between one quarter and three quarters. In the decision, the continuous-offence issue appears with three different outcomes:

1. The group where the judgment was quashed: The defendants first obtained benefits from some intervening parties under an energy investment pretext, and while the relationship continued, took money again on different dates under real estate, healthcare and hotel project pretexts. From another intervening couple, after money was taken under a pretext of investment in an energy company, benefits were obtained on different dates with a promise that a loan would be extended. The Chamber stated that these acts were carried out in a continuous manner and that an increase under Article 43/1 TCK should have been made, and made the inadequate sentence a ground for quashing.
2. The judgment upheld with a criticism: From one intervening party, benefits were obtained on different dates through separate fraudulent acts, one for an investment loan and another for a renewable energy investment. Here too the Chamber found that the continuous-offence provisions should have been applied; however, because the intervening party's counsel had not appealed against the defendant, it did not make this a ground for quashing.
3. The judgment where a continuous offence was rejected: In the acts directed at one intervening party, the benefit was obtained under a loan facilitation agreement signed with the company that had been set up, through the same fraudulent acts and on the same dates. The Chamber did not agree with the prosecutor's opinion that the conditions of a continuous offence were met.

This three-way picture shows the criterion of the distinction clearly: what is decisive is whether the benefit was obtained at different times and through different fraudulent acts, or within a single agreement through the same deception and on the same dates. Different investment stories and different payment dates point to a continuous offence; a single agreement and simultaneous payment point to a single offence.

In the decision a separate judgment was given for each intervening party or group of intervening parties. A defence counsel argued that imposing a separate penalty for each complainant was unlawful and that the continuous-offence provisions should be applied. The Chamber did not accept this objection; it assessed continuity only with regard to acts on different dates directed at the same victim. A similar approach, in which different victims are assessed separately, appears in the decision on this site each victim assessed separately in a Ponzi schemeTR; repeated acts against the same victim are discussed in the article on a continuous offence at a currency exchange officeTR.

🧩 The same act, more than one aggravating circumstance

The Chamber found that the defendants' acts constituted two further sub-paragraphs in addition to Article 158/1-f TCK:

It was not taken into account that a judgment should also have been given under these sub-paragraphs. The result, however, differs between the two groups. In one group, because the base penalty had already been set above the minimum, this omission was not seen as affecting the outcome and was not made a ground for quashing. In the group where the judgment was quashed, the same omission was counted as an unlawfulness together with the errors on continuous offence and recidivism.

A procedural consequence of the increase linked to commission by three or more persons is examined in the decision on this site on mandatory defence counsel under the Article 158/3 increaseTR.

📅 Chronological order in recidivism

Under Article 58/1 TCK, the recidivism provisions apply where a new offence is committed after the judgment given for an earlier offence has become final. In the case, a judgment that became final on 04.12.2020, after the dates of the offences, had been used as the basis for recidivism with regard to one defendant.

The Chamber corrected this error in two different ways. For one group of intervening parties it corrected the unlawfulness itself under Article 303 CMK and upheld the judgment as corrected by removing the paragraphs on recidivism from the first-instance judgment. For the other group, because the recidivism error was assessed together with the deficiencies concerning the continuous offence and the sub-paragraphs, the judgment was quashed and the case was sent back to the court of first instance under Article 304/2-a CMK.

🆕 A change introduced after the decision

The fourth paragraph added to Article 158 TCK by Law No. 7589 after the date of the decision provides that where participation in these offences is limited to giving another person information or tools that allow a bank or payment account to be used, the penalty is reduced by one half. The decision examined contains no assessment of this provision.

❓ Frequently asked questions

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