The crime of allowing the use of/renting out a bank account

The title can be read in two ways: as a call for readers not to allow third parties to use their bank accounts, and as the name of an intermediary act in the commission of a fraud crime. 

With the development of communication tools, people's opportunities to create trust, intimidate third parties, and deceive others have also increased. 

Fraud cases have reached terrifying proportions. It is almost impossible to calculate the actual number of victims of this crime. People are being defrauded. Citizens are terrorized by the anxiety of being defrauded.  

There are many types of fraud, from the simplest to the most sophisticated. 

No matter how varied they are, in most of the fraud cases we encounter, the victim transfers money to the IBAN of a third party. The owner of this IBAN is either unaware of the fraudulent act or it is impossible to prove that they were aware. Consequently, the actual perpetrators cannot be reached. The person who allowed their IBAN to be used and the victim come face to face. At this exact point, it is possible to seek the return of the money through private law on the grounds of unjust gain or unjust enrichment. However, since there is usually no significant asset in the accounts of those who allow their IBANs to be used, the victim returns empty-handed from there as well. 

Let's come to criminal proceedings... Even if we identify the person who allowed their IBAN to be used, since the purpose of the person who allowed their account to be used was not to defraud the victim in the formation of the fraud crime, our courts do not issue a conviction for fraud against the person who allowed their account to be used, based on the absence of the mental element of the crime. In other words, due to the difficulty of proving that the person who allowed their account to be used had the intent to commit fraud, the malicious person who allowed their account to be used gets away with it. Since fraudsters and the malicious people who allow their accounts to be used know this, fraudulent activities continue unabated. 

In essence, the act of allowing the use of a bank account can be handled within the scope of the crime of aggravated fraud. However, it is necessary to prove that there is a unity of opinion, action, and purpose between the perpetrators who deceive the victim and the people who allow their bank accounts to be used to ensure payment from the victim. Since this cannot be proven, even if the person who allowed their account to be used is reached through account information in a criminal investigation, if the ones who deceived the victim cannot be reached, both the person who allowed their account to be used and those who deceived the victim escape punishment. 

It seems difficult to cope with this problem without changing the principle of the presumption of innocence and the conditions of proof in criminal proceedings. However, the damage to the defrauded victims, the erosion of trust in society, and the disruptions that may occur in banking activities and today's online commercial activities also constitute a serious problem. So, what should be done? 

First of all, a specific crime and penalty should be determined regarding the act of allowing the use of a bank account. As is known, due to the principle of legality in crime and punishment, citizens cannot be investigated or prosecuted, and no punishment can be executed based on a crime or penalty not regulated by law. It is also not possible in a state of law to consider an act that is not a crime by law as a crime through forced methods or by eroding the principles that dominate criminal law. For this reason, it is necessary to legally regulate the crime of allowing the use of a bank account in a way that both determines the penalty as a deterrent and facilitates the punishment of the act in terms of proving the existence of the crime. 

Otherwise, anyone who can deceive a citizen while maintaining their anonymity can rob the citizen through a "naive" and "penniless" third party who allows their account to be used. Banks, the legislation regulating banking activities, and the state's crime policy should not remain spectators to the citizen becoming an easy target for malicious gangs and the erosion of the sense of trust in society.