Legal Definition of the Crime
The crime of Attempting to Influence a Fair Trial is regulated under Article 288 of the Turkish Penal Code (TCK) within the section titled “Crimes Against the Judiciary.”
According to the relevant article:
TCK Article 288 – (1) In an ongoing trial or investigation, any person who publicly makes an oral or written statement with the intention of unlawfully influencing a judge, expert, or witness to make an unlawful decision, take an unlawful action, or make a false statement, shall be punished with a judicial fine of not less than fifty days.
This provision aims to prevent coercive and malicious publications or statements that may unfairly influence the judicial process.
Elements of the Crime
When evaluated together with its objective and subjective elements, the crime of Attempting to Influence a Fair Trial consists of the following key components:
1.Object of the Crime: The subject of this crime is an ongoing trial or investigation.
2.Perpetrator: The relevant law does not require any special condition regarding the offender; therefore, anyone can be the perpetrator of this crime.
3.Victim: In this crime, the victim is the public.
4.Act (Conduct Element): According to Article 288 of the TCK, the act element is making a public oral or written statement. This is a crime of abstract danger, meaning that for the crime to occur, the perpetrator must attempt to influence a judge, expert, or witness. Whether the judicial officer, expert, or witness is actually influenced as a result of the perpetrator’s actions is irrelevant to the formation of the crime. The public nature of the statement is sufficient for the crime to be constituted.
5.Protected Legal Interest: The crime is regulated under the section “Crimes Against the Judiciary”, and the legal interests it protects are the right to a fair trial and the public interest.
6.Mental Element (Mens Rea): The crime can only be committed intentionally. The perpetrator must intend to openly influence the judge, expert, or witness to take an unlawful action or make a false statement regarding an ongoing trial or investigation. Negligence is insufficient for this crime under the law.
Complaint Period, Statute of Limitations, and Competent Court
The crime regulated under Article 288 of the Turkish Penal Code (TCK) is not subject to a complaint, and investigation procedures are carried out ex officio by the public prosecutor’s office. Although there is no complaint period for investigating the crime, the statute of limitations for the case is eight years. The competent court is the Criminal Court of First Instance (Asliye Ceza Mahkemesi).
The prepayment system regulated under Article 75 of the TCK is a legal mechanism whereby, as a result of an investigation, if the perpetrator pays a sum of money determined in connection with the penalty of the committed crime, no public prosecution will be initiated against them, or an ongoing case will be dismissed. This system applies to crimes not covered by reconciliation and punishable by imprisonment of up to six months or a judicial fine. The crime of attempting to influence a fair trial is included among the offenses eligible for prepayment.
Judicial Fine and Postponement of the Pronouncement of the Verdict
Under Article 288 of the Turkish Penal Code (TCK), any person who publicly makes an oral or written statement with the intention of unlawfully influencing a judge, expert, or witness in an ongoing trial or investigation—either to cause them to make an unlawful decision, take an unlawful action, or make a false statement—shall be directly punished with a judicial fine of not less than fifty days.
The postponement of the pronouncement of the verdict (HAGB) refers to the legal mechanism by which the sentence imposed on the defendant is suspended for a specified probationary period and under certain conditions, so that it does not produce any effect if the conditions are met. For this type of crime, it is possible to apply HAGB to the judicial fine imposed.
Relevant Case Decisions
“…Pursuant to our Chamber’s assignment decision dated 15.11.2017, during the review conducted regarding the appeal filed by the plaintiff’s attorney against the acquittal ruling for the crime of attempting to influence a fair trial, and based on the additional opinion prepared by the Office of the Chief Public Prosecutor of the Court of Cassation, it was determined that:
Concerning the news reports made by the defendant … about an ongoing judicial investigation conducted by the Gebze Chief Public Prosecutor’s Office regarding the complainant Adnan, who serves as Mayor, and within the scope of the case filed against the defendant for the crimes of attempting to influence a fair trial and violating confidentiality;
Considering the legal benefit protected by the offenses against the judiciary and their nature, the complainant was not a direct victim of the crimes attributed to the defendant and did not suffer direct harm from the crime. Therefore, allowing the complainant to participate in the case was legally invalid and the ruling does not grant the right to appeal. Accordingly, the complainant’s attorney’s appeal request was REJECTED contrary to the request, pursuant to Article 8 of Law No. 5320 and Article 317 of the currently applicable CMUK No. 1412, and the decision was made unanimously on 08.05.2018…”
(Court of Cassation, 12th Criminal Chamber, 2018/264 E., 2018/5255 K., 08.05.2018)
“…The crime of attempting to influence a fair trial, as regulated in Article 288/1 of the Turkish Penal Code No. 5237, originally stated:
‘A person who publicly makes oral or written statements to influence a prosecutor, judge, court, expert, or witnesses regarding an ongoing investigation or prosecution until it is concluded with a final verdict shall be punished with imprisonment from six months to three years.’
However, pursuant to Article 93 of Law No. 6352, published in the Official Gazette on 05.07.2012, titled “Amendments to Certain Laws to Enhance the Efficiency of Judicial Services and the Postponement of Trials and Penalties for Crimes Committed Through the Press and Media”, the provision was amended as follows:
‘A person who publicly makes oral or written statements with the intention of unlawfully influencing a judge, expert, or witness in an ongoing trial or investigation—either to cause them to make an unlawful decision, take an unlawful action, or make a false statement—shall be punished with a judicial fine of not less than fifty days.’
For the crime of attempting to influence a fair trial to occur, the oral or written statement intended to influence a judge, expert, or witness must be “public”, meaning it can be perceived by an indefinite number of people.
In light of these explanations, according to the file under review; the act allegedly committed by the defendant, lawyer …, in the Marmaris Chief Public Prosecutor’s Office investigation file no. 2011/2991—by exerting pressure on the complainant …, who was called as a witness in connection with a fight between … and lawyer … Aytan, in order to alter …’s statement—is considered proven. However, this act does not satisfy the “public oral or written statement” element of the crime of attempting to influence a fair trial under Article 288/1 of the Turkish Penal Code. Consequently, since the legal elements of the alleged crime were not established, a verdict of acquittal should have been rendered for the defendant. Therefore, issuing a written conviction was inappropriate…”
(Court of Cassation, 12th Criminal Chamber, 2019/1090 E., 2019/5889 K., 08.05.2019)
“…In the appeal review of the verdict regarding the crime of attempting to influence a fair trial;
Since the complainant has not suffered direct harm from the crime of attempting to influence a fair trial, the decision to allow the complainant to join the case for this crime is legally invalid and null. As the ruling does not grant the right to appeal, the complainant’s attorney’s appeal against the verdict regarding this crime is REJECTED pursuant to Article 317 of the CMUK…”
(Court of Cassation, 9th Criminal Chamber, 2014/1054 E., 2014/6875 K., 04.06.2014)
“…According to the consistent practice maintained by the Board of Presidents of the Criminal Chambers of the Court of Cassation, when determining the competent criminal chamber for the review of appeals, any changes in the penalties between the date of the offense and the date of the notification report must be taken into account, and the penalty amounts as of the notification date should be considered. When determining the most severe case among multiple offenses, the case with the higher maximum imprisonment for the main form of the offense should be considered more severe. If the maximum penalties are equal, the case requiring a higher minimum imprisonment is considered more severe. Fines associated with imprisonment are taken into account only when the minimum and maximum imprisonment limits of both offenses are equal.
In the specific case, as of the notification date of 03.12.2015, among the offenses subject to reversal for the benefit of the law, the offense of attempting to influence a fair trial carries a penalty of a judicial fine of no less than fifty days under Article 288 of the Turkish Penal Code (TCK), while the offense of insulting a public official due to their duty carries imprisonment from one to two years under Article 125/3-a of the same Code. Since the penalty for insulting a public official is more severe, the review for the benefit of the law falls under the jurisdiction of the 18th Criminal Chamber of the Court of Cassation, which handles appeals for the offense of insulting a public official. Accordingly, the decision of the 16th Criminal Chamber declaring lack of jurisdiction is correct, and the decision of the 18th Criminal Chamber declaring lack of jurisdiction must be annulled and the file sent to that Chamber.
As emphasized in this decision, considering the notification date, the penalty for the offense of insulting a public official under Article 125/3-a of the TCK is more severe than that for the offense of attempting to influence a fair trial under Article 288/1. Pursuant to Article 27 of Law No. 6572 and the temporary Article 14 added to Law No. 2797 on the Court of Cassation, the newly constituted First Presidency Board of the Court of Cassation approved the distribution of cases published in the Official Gazette No. 29961 on 27.01.2017 and effective from 01.02.2017, which must be applied as per the notification date of 14.04.2017. Accordingly, the review of the appealed rulings falls under the 18th Criminal Chamber. Therefore, our Chamber declared LACK OF JURISDICTION and unanimously decided on 18.10.2017 to SEND the file to the Board of Presidents of the Court of Cassation to resolve the jurisdictional conflict…”
(Court of Cassation, 12th Criminal Chamber, 2017/3521 E., 2017/7627 K., 18.10.2017)
“…In the case where it was alleged that the defendant, by presenting himself as a Justice Inspector, attempted to obtain unlawful benefits and exert pressure on judicial officers, thereby committing the crimes of attempted qualified fraud and attempted influence on a fair trial, it was determined that it could not be conclusively established that the person who contacted the complainant was the defendant, that the phone number in question was registered to the defendant, or that the defendant’s voice was recognized by the complainant and other witnesses. Accordingly, it was concluded that there was no sufficient, conclusive, and convincing evidence to convict the defendant of the charged crimes, and the court’s acceptance of this reasoning was found to be correct. Following the trial conducted in accordance with the reversal, the court accepted and ruled that the charged offense was not proven to have been committed by the defendant. Therefore, the complainant’s attorney’s appeal claiming that the acquittal ruling was contrary to law and that the act constituted a crime was REJECTED, and the ruling was UPHELD…”
(Court of Cassation, 15th Criminal Chamber, 2018/678 E., 2018/8509 K., 26.11.2018)
“…According to the case file, the suspect … is a lawyer who handled cases between a company he represented and the complainant. The allegations that he committed fraudulent acts during these cases and attempted to influence a fair trial were considered crimes committed during the performance of his duties. In accordance with Article 58/1 of the Attorneyship Law No. 1136, the file should have been sent to the Ministry of Justice to determine whether an investigation permit should be granted. Instead, the objection was rejected in writing. Consequently, the request for reversal in favor of the law was justified. Accordingly, the final decision of the Criminal Magistrate dated 26/03/2020, file no. 2020/430, was REVERSED pursuant to Article 309, paragraph 3 of the Criminal Procedure Code No. 5271, and subsequent proceedings were to be carried out by the appellate authority in accordance with paragraph 4(a) of the same article. This decision was made unanimously on 15/06/2021…”
(Court of Cassation, 2nd Criminal Chamber, 2021/1875 E., 2021/12170 K., 15.06.2021)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
Fair Trial and Antalya Criminal Lawyer
The crime of attempting to influence a fair trial is an important offense aimed at protecting the independence and impartiality of the judiciary. This crime covers actions that attempt to unjustly interfere with the court’s decision-making process. Exerting pressure on a judge, prosecutor, or witness, trying to influence them, or interfering in the judicial process from outside is considered an attempt to affect a fair trial. In such situations, obtaining legal support is crucial both to prevent victimization and to ensure that the judicial process is conducted fairly. With the assistance of a lawyer in Antalya, you can protect your rights during the investigation and prosecution stages and manage the process in accordance with the law. An experienced criminal lawyer in Antalya can develop an effective defense strategy to ensure that your right to a fair trial is not violated.
