Trusting an Unlicensed Adviser: Court of Cassation 2026/3004

A person met on social media, who presents himself as a "finance expert", comes with an offer to invest together and share the profit. The complainant sends a total of TL 82,983.00 in instalments on different dates to accounts given to him; after a while he realises he has been defrauded. The investigation, however, is closed within a short time. The reasoning of the non-prosecution decision is striking: under capital markets legislation, investment advice requires a specific capacity; the complainant sent money believing persons who had no such capacity, and so it cannot be said that he was deceived. The question the Court of Cassation answered is this: can the victim's "not being careful enough" justify closing a case without an investigation?

In its decision of 23 March 2026, Docket No. (E.) 2025/5739, Decision No. (K.) 2026/3004, the 11th Criminal Chamber of the Court of Cassation (Yargıtay), at the request of the Ministry of Justice, unanimously reversed in the interest of the law, under Article 309/3 of the Code of Criminal Procedure (CMK), the criminal judgeship of peace decision rejecting the objection to a non-prosecution decision issued on this reasoning.

📲 The Joint Investment Offer and TL 82,983

According to the text of the decision, the complainant's account is as follows: he met a person who presented himself as a finance expert on social media, and contact then continued on messaging apps. This person offered to do business together and make a profit through a joint investment. On this offer, the complainant sent money in instalments, on different dates, to the accounts shown in the receipts.

The total amount sent was TL 82,983.00. The decision shows that the money went not to a single account but to bank accounts belonging to different persons, and that some of the account holders appeared to be legal entities. The complainant filed a complaint, stating that he had suffered financial loss as a result of lies told to him. During the investigation, the complainant's lawyer also submitted a CD with a petition dated 18 April 2024.

🗂️ The Prosecutor's Reasoning: "One Who Believes a Person Without Capacity Is Not Deemed Deceived"

The Ankara Chief Public Prosecutor's Office issued a decision of non-prosecution on 11 March 2024. In summary, the reasoning recounted in the Court of Cassation decision consists of the following elements:

The Ankara 5th Criminal Judgeship of Peace, which examined the complainant's objection, rejected it by its decision of 26 September 2024. As this decision under Article 173 of the CMK is final, it became final on the same date. The Ministry of Justice then requested reversal in the interest of the law under Article 309/1 of the CMK in a document dated 10 November 2025; the Chief Public Prosecutor's Office at the Court of Cassation sent the case to the Chamber with a written opinion dated 24 November 2025.

⚖️ The Court of Cassation's Assessment and Ruling

The Chamber first recalled Articles 160, 172 and 173 of the CMK: as soon as the public prosecutor learns of a situation giving the impression that an offence has been committed, he must begin investigating the truth of the matter and collect the evidence both for and against the suspect. The criminal judgeship of peace examining an objection to a non-prosecution decision may reject the objection if there is not enough evidence, accept it if there is enough evidence, or decide that the investigation be widened because it was incomplete.

Within this framework, the Chamber found that the conclusion was reached without the necessary investigations, and, quoting the statements in the prosecutor's decision, expressly described them as an "erroneous reasoning". In the end, it found it contrary to the Law that the objection was rejected, when a decision to widen the investigation should have been made on the objection against a decision based on erroneous reasoning and an incomplete investigation.

The operative part reads as follows: the request for reversal in the interest of the law is accepted; the decision of the Ankara 5th Criminal Judgeship of Peace dated 26 September 2024 is unanimously reversed in the interest of the law under Article 309/3 of the CMK; and, under Article 309/4-a of the CMK, the case is sent to the Chief Public Prosecutor's Office at the Court of Cassation to be forwarded to the local authority for the necessary steps to be taken.

🧩 Deception, the Ability to Check and the Victim's Care

Fraud is defined in Article 157 of the Turkish Penal Code as deceiving a person by deceptive acts and obtaining a benefit for oneself or another to the detriment of that person or another. It is settled in case law that a simple lie is not enough; the deception must be intense enough to remove the victim's ability to check and question. This is also the thinking on which the prosecutor's decision rests.

What is interesting in this case is that the "ability to check" test is built on the victim's knowledge of the legislation. According to the prosecutor, since capital markets legislation provides that investment advice requires a specific capacity, a complainant who trusted persons without such a capacity did not show the necessary care. The Court of Cassation did not accept this reasoning.

The decision sets out no abstract principle on this point, but the result is clear: without investigating to whom the money transfers went, through which lines the communication was conducted, and whether the companies to which money was sent had any real activity, neither the intensity of the deception nor whether the victim was deceived can be assessed. In other words, a discussion about the victim's care can take place only after the event has been clarified.

Operating in the capital markets without permission is also regulated as an offence under Article 109/2 of Capital Markets Law No. 6362, punishable by two to five years' imprisonment. The perpetrator's lack of authorisation therefore does not appear to be a fact that can in itself be used as the basis for an assessment against the victim. For a similar case dealing with the unauthorised capital markets activity side, see the article on the unauthorised capital markets offenceTR; for another decision assessing the "simple lie" reasoning, see the article on "finance expert" fraudTR.

🔍 The Investigations the Chamber Says Should Be Carried Out

As part of widening the investigation, the Court of Cassation listed the steps to be taken one by one. They offer a concrete framework for how evidence collection may proceed in cases of this kind:

The written opinion containing the request for reversal in the interest of the law likewise stated that records of the money transfers should be requested from the banks, and that the trade registry records of the companies to which transfers were made should be obtained to investigate their fields of activity and whether they continue to operate. The Chamber did not consider it appropriate that the decision was given, without these investigations, on the basis of the complainant's lack of care.

The procedural side of the decision is also worth noting. Under Article 309/4-a of the CMK, where a reversal concerns a decision that does not resolve the merits of the case, the judge who gave the decision issues a new decision after the necessary examination and investigation. In other words, the effect of the reversal is that the criminal judgeship of peace deals with the objection again; the decision itself contains no finding that the offence was committed by the suspects.

🆕 Note on Current Legislation: Article 158/4 of the Turkish Penal Code and Article 173 of the CMK

In the event in the decision, the money was sent to accounts belonging to different persons. In this context, the fourth paragraph added to Article 158 of the Turkish Penal Code by Article 13 of Law No. 7589 of 16 July 2026 is noteworthy. According to the official legislation text, this paragraph provides that where participation in the offences in Articles 157 and 158 is limited to giving another person, in order to obtain an unjust benefit, payment instruments such as one's own or another's bank or credit card, or the information or means that enable use of an account at a bank, brokerage firm, payment service provider or crypto asset service provider, the penalty is reduced by half. Identifying the account holders will from now on matter in cases of this kind, both for the identity of the suspects and for the nature of participation.

In addition, the decision recounts Article 173/1 of the CMK in its earlier wording, which set the objection period as "fifteen days". In the current text of the official legislation, this period is expressed as "two weeks".

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