In the first period of the enactment of the TCK no. 5237, the act of benefiting from the banking application, also known as Internet Banking, by making irregular transactions through the accounts of others was evaluated within the scope of 244/4 of the TPC, but later, with the decision of the Yargıtay CGK in 2099, it was qualified as qualified theft. In the same decision, it is seen that the account holder is shown as the victim of the crime, and although there have been some discussions regarding the evaluation of the act as a qualified theft crime, this evaluation regarding the victim of the crime has not been the subject of any discussion. In this study, evaluations will be made regarding who will be the victim of the crime in the case of benefiting by making irregular transactions in Internet banking. In this evaluation, fisrstly, the concept of victim in criminal law will be briefly mentioned, then, in terms of Internet banking, the relationship between the bank and the depositor and the legal nature of this relationship and the rights of the parties in line with this legal nature and the nature of these rights will be briefly explained. In line with these determinations, the person whose legal value is violated in the benefit obtained by making an irregular transaction in Internet banking, namely the victim, will be tried to be determined.
Internet Banking theft victim legally protected interesof the crime
As known, with a bank deposit agreement, a legal relationship is established in which the account holder’s right of receivable arises from the bank, and within the scope of this legal relationship, the ownership and possession of the money passes to the bank, whether it is considered within the scope of a loan contract, an improper deposit, a mixed contract or a unique contract. The account holder, on the other hand, has a contractual right of claim against the bank. In this case, which in essence involves the seizure of money that is the property of the bank through irregular transactions, the bank directly emerges as the holder of the violating legal value (since it is both the owner and in actual possession). The authorization of the user to perform transactions on the account through internet banking is a limited/dependent authority determined by the Bank’s orders, instructions and limitations rather than an independent authority to make disposals. As clearly emphasized by the legal chambers of the Court of Appeals, the account holder’s receivable from the bank continues as it is (and only if there is a defect, the bank can claim a discount in proportion to the defect). The determination of the existence of a legal relationship between the bank and the depositor, which establishes a right to the depositor as a contractual right of receivable (not arising from a right in rem in the form of ownership or possession), enables the question of who is the holder of the legally protected value in terms of the misuse of the deposits in question to be answered. As such, in the event of damage caused by unlawful transactions on the accounts in question, this damage manifests itself as a damage belonging to the bank. As a matter of fact, the ownership of the money, as well as all kinds of benefits and damages, belongs to the bank. The account holder, on the other hand, continues to have a contractual right to claim from the bank, and its liability for the damage, if any, arises in the form of contributory negligence. If the account holder is at fault for the damage caused to the bank, compensation is made according to this fault. Therefore, the account holder, who does not have ownership or possession of the deposited money, can not be in a position to be defined as the victim of the acts committed against the bank. The bank, on the other hand, is the person whose value is actually violated in terms of criminal or other unlawful acts. Therefore, if the view that legal persons can also be victims of the crime is accepted, the bank emerges as the victim of the crime.
