Those who let others use their IBAN: Guilty or victims?

In recent years, we have been encountering a common pattern in investigations into aggravated fraud. Many individuals who receive money belonging to others in their bank accounts, who allow their accounts to be used for a certain fee, or who open their accounts to third-party use upon someone else's request, suddenly find themselves in the defendant's seat in a high criminal court. Moreover, a significant portion of these individuals claim that they were unaware that the money traffic they were involved in was part of a fraudulent activity. Despite this, in practice, it is observed that the person whose account receives money obtained from a crime is often directly considered the perpetrator of the crime of aggravated fraud.

Especially young people looking for work online, students, or individuals experiencing economic difficulties may encounter promises of commissions in exchange for opening their bank accounts to third-party use for a certain period. These offers are often presented with seemingly innocent phrases such as "e-commerce transaction," "cryptocurrency transfer," or "payment traffic via company account"; however, in reality, they can facilitate the financial circulation of activities such as fraud, illegal betting, or money laundering.

Afterward, the same defense is repeated: "Money came into my account, I sent it to another account. I didn't know exactly what I was doing." This phenomenon, known in the public eye as "IBAN lending," has become one of the most controversial topics in criminal proceedings in recent years.

Framework of the Regulation

The 12th Judicial Package provides for a new assessment regarding individuals known in the public eye as "IBAN victims," who allow their bank account, IBAN, credit card, and payment system information to be used by third parties for reasons such as finding a job, financial gain, or social relationships. Accordingly, it is aimed to reduce the heavy sentences these individuals face within the scope of the crime of aggravated fraud by certain rates and to implement a more proportionate sanction system.

With the proposal accepted by the TBMM (Grand National Assembly of Turkey) Justice Commission, it is envisaged to add a new paragraph to Article 158 of the Turkish Penal Code, which regulates aggravated fraud. With this regulation, an approach is adopted that the criminal liability of individuals who allow others to use their accounts or payment instruments in exchange for a certain benefit should not be equated with merely being part of a money transfer chain. If the regulation is enacted, its effect will not be limited only to investigations and lawsuits to be opened from now on; it may also have significant legal consequences for files currently at the appellate and supreme court stages.

The Source of the Problem: The Boundary Between Participation and Perpetrator

One of the most fundamental principles of criminal law is liability based on fault. No one can be held directly responsible for a crime committed by someone else. Therefore, for a person to be punished, they must not only be part of a material act but also know and intend that this act constitutes a crime. However, in practice, especially in aggravated fraud investigations, it is observed that the owner of the first account where the money obtained from the crime arrives is often evaluated directly as the perpetrator. Yet, the fundamental question that must be answered in every file is: Did the person know that this money flow originated from a crime?

Accepting account movements alone as sufficient for the status of perpetrator creates a result that pushes the boundaries of participation provisions and blurs the distinction between the perpetrator and the accomplice.

How Sufficient is the "I Just Gave My Account" Defense?

Of course, it is not possible to accept this defense in every case. The responsibility of individuals who knowingly mediate unusual money flows in exchange for a certain benefit may come to the fore, at least within the scope of possible intent or aiding and abetting. Therefore, the issue is not a debate of absolute innocence or absolute guilt. The main issue is whether the subjective element can be demonstrated in each concrete case.

The regulation introduced with the 12th Judicial Package tends to limit the approach that equates the act of allowing account use directly with being a perpetrator of aggravated fraud. A new framework is being drawn up, stating that not every money movement should be evaluated with the same legal and criminal weight. In this respect, the regulation aims to prevent individuals who are involved in these structures unconsciously or with limited will from being automatically evaluated as perpetrators of serious crimes, while continuing the fight against organized crime structures.

Conditions for Implementation of the Regulation

The scope of the regulation is not a general amnesty covering everyone who allows their bank account to be used. For a person to benefit from this regulation, it will need to be demonstrated, according to the characteristics of the concrete case, that they did not allow their account to be used with the intent to commit a crime and that their role in the execution of the aggravated fraud crime was limited. In this context, courts will evaluate the nature of the account movements, the account holder's authority to dispose of the money, the scope of the benefit obtained, the frequency and amount of money transfers, the relationship between the account holder and other perpetrators, communication records, and behaviors exhibited immediately after the event together. In other words, just as it is not possible for an abstract defense such as "my account was used" to eliminate criminal liability on its own, it is also not possible for the mere fact that money has arrived in an account to show that the person is the perpetrator of the crime of aggravated fraud.

Essentially, the fundamental issue that criminal procedure must resolve is determining whether the person was aware of the money movements that constitute a crime and to what extent they participated in the execution of this crime.

Conclusion

Not everyone who lets others use their IBAN is innocent. However, it cannot be said that everyone who lets others use their IBAN is a perpetrator of an organized fraud activity. If a person has knowingly and willingly made their account available for use by third parties, knowing that it would be used for fraud, illegal betting, or the transfer of proceeds from crime, it is indisputable that criminal liability will arise. However, likewise, it is not compatible with the principles of fault and personality of criminal law for individuals who do not know for what purpose they allowed their account to be used, who do not have the intent regarding the commission of the crime, and who are unaware of the criminal activity to be sentenced to heavy penalties solely on the grounds that money came into their accounts or they mediated a money transfer.

The problem is precisely how the line between these two extreme approaches is determined. In Europe, similar events are not seen only as a criminal law problem; efforts are made to prevent individuals from becoming part of these criminal networks through awareness campaigns conducted by the banking sector, educational institutions, and public authorities. Because in some cases, the issue is a matter of lack of awareness before it is a matter of complicity. The regulation made with the 12th Judicial Package essentially brings the same question back to the agenda: Does a person allowing their bank account to be used make them directly a perpetrator of the crime of aggravated fraud?

The judicial decisions to be made in the coming period will not only answer this question; they will also show to what extent the principle of liability based on fault, one of the most fundamental principles of criminal law, can be protected against the new types of crimes of the digital age.

Attorney Deniz Ali İlkem Demir