What Is the Crime of Disclosure of Duty-Related Confidential Information?
The offence of “Disclosure of Confidential Information Related to Duty,” regulated under Article 258 of the Turkish Penal Code, is set out in the relevant statutory provision as follows:
“(1) Any public official who discloses or publishes documents, decisions, orders, and other notifications that were given to them by virtue of their duty or that they learned of for the same reason and that are required to remain confidential, or who in any manner facilitates others’ access to such information, shall be sentenced to imprisonment for a term of one to four years.
(2) The same penalty shall be imposed on any person who commits the acts specified in the first paragraph after their status as a public official has ended.”
Accordingly, the offence of disclosure of confidential information related to duty is committed when a public official presents to others—i.e., discloses—information, documents, decisions, orders, and other notifications obtained due to their official duty.
Punishment for the Crime of Disclosure of Duty-Related Confidential Information
As regulated under Article 258 of the Turkish Penal Code, the penalty for the offence of disclosure of confidential information related to duty is imprisonment for a term of one to four years. Moreover, it should be noted that the same penalty shall be imposed on the offender who commits the relevant acts even after their status as a public official has ended.
Limitation Period for the Crime of Disclosure of Duty-Related Confidential Information
The statute of limitations is a legal concept that leads to the dismissal of a case if a lawsuit is not filed within a specified period or if a filed lawsuit is not concluded within the legally prescribed time. Accordingly, the limitation period applicable to the offence of disclosure of confidential information related to duty is предусмотрed as eight years.
Court with Jurisdiction and Competence in the Offence of Disclosure of Confidential Information Related to Official Duty
In criminal cases concerning the offence of disclosure of confidential information related to duty, the court having territorial jurisdiction is the court of the place where the offence was committed (Article 12 of the Criminal Procedure Code), while the court with subject-matter jurisdiction is the Criminal Court of First Instance. In this regard, the parties may require the assistance of a criminal defense lawyer, specifically a criminal lawyer in Antalya, to file and pursue the relevant case.
Frequently Asked Questions
1. Can a Decision on the Deferral of the Announcement of the Verdict Be Rendered in the Offence of Disclosure of Confidential Information Related to Duty?
The deferral of the announcement of the verdict (HAGB) essentially aims to ensure that, provided the defendant meets certain conditions, no legal judgment or consequences arise from the sentence imposed, and that the penalty is eliminated. Consequently, it should be noted that a decision on the deferral of the announcement of the verdict may be rendered for the perpetrator of the offence of disclosure of confidential information related to duty, provided that the other statutory conditions are also met.
2. Can the Offence of Disclosure of Confidential Information Related to Duty Be Converted into a Judicial Fine?
A judicial fine is a type of sanction that may be imposed either in conjunction with imprisonment or as a standalone penalty, depending on whether the offence was committed intentionally and whether the sentence imposed on the offender is less than one year. Accordingly, considering that the statutory minimum sentence for the offence of disclosure of confidential information related to duty is set at one year, it may be stated that the imposed term of imprisonment may be converted into a judicial fine, provided that the sentence is exactly one year.
3. Is the Offence of Disclosure of Confidential Information Related to Duty Subject to Complaint?
The offence of disclosure of confidential information related to duty is not among the offences subject to complaint; therefore, it is investigated ex officio by the public prosecutor, and no complaint period applies. Accordingly, withdrawal of a complaint does not result in the dismissal of a criminal case concerning the offence of disclosure of confidential information related to duty.
4. Is Mediation (Reconciliation) Applicable in the Offence of Disclosure of Confidential Information Related to Duty?
In Turkish criminal law, mediation (reconciliation) refers to the process by which the defendant and the victim reach an agreement through an intermediary. However, it should be noted that the offence of disclosure of confidential information related to duty is not among the offences subject to mediation.
Selected Court of Cassation Decisions on the Offence of Disclosure of Confidential Information Related to Duty
- “Upon the appeal filed by the public prosecutor, the case file was examined and the necessary consideration was made: In the incident in which it is alleged that the defendant, who was serving as the District Gendarmerie Commander, caused the suspects to become aware of the investigation against them and to conceal evidence of the offence by making statements to certain members of the district public whom he met at a restaurant serving alcohol, regarding the contents of decisions on the interception of communications concerning suspects who were under investigation for the offence of smuggling firearms and ammunition;
According to the content of the case file, since there is no definite, clear, and convincing evidence free from any degree of doubt sufficient to convict the defendant, no error was found in the local court’s acceptance of the acquittal decision rendered in favor of the defendant. Although the act, which was characterized in the indictment and in the decision to open the final investigation replacing the indictment as the offence of disclosure of confidential information related to duty under Article 258 of the Turkish Penal Code, should in fact be evaluated within the scope of the offence of violation of confidentiality under Article 285 of the Turkish Penal Code, taking into account the description in the indictment and in the decision to open the final investigation replacing the indictment, it was understood that the legal characterization did not affect the outcome; therefore, this matter was not accepted as a ground for reversal.”
(Court of Cassation, 2nd Criminal Chamber, decision dated 28.03.2018, File No. 2018/797, Decision No. 2018/3590) - “In the incident that was alleged and accepted, where …, whose communications were ordered to be intercepted, monitored, and recorded pursuant to Article 135 of the Criminal Procedure Code (CMK) within the scope of another investigation, requested information during a telephone conversation with the defendant …, who was serving as the Head of the Provincial Police Protection Branch, as to whether there was an outstanding search warrant or record concerning his relative …; the defendant … then called …, a police officer, and requested that a GBT (General Information Gathering) inquiry be conducted. After learning from … that … was not among wanted persons, the defendant called … and conveyed this information to him.
In this context, since … did not have any search record at the time of the offence, it would have been possible for him to obtain this information directly by personally applying to the police units or through his lawyer. Therefore, the information indicating that there was no search record cannot be regarded as a “document, decision, order, or other notification that is required to remain confidential” as listed under Article 258 of the Turkish Penal Code. Accordingly, the constituent elements of the offence of disclosure of confidential information related to duty did not materialize in the concrete case.
However, taking into consideration that, pursuant to Article 21(f) of the Information Collection Directive, the defendant had the authority, by virtue of his duty, to obtain information from the police officer …, it was necessary to examine— in a manner allowing judicial review— whether any of the objective conditions for punishment, such as causing public damage, victimization of individuals, or providing unjust benefit to persons, occurred by conveying information by telephone to a third party other than … or his lawyer, and whether the act constituted the offence of abuse of office by an active act under Article 257/1 of the Turkish Penal Code.
Nevertheless, while the legal status of the defendant should have been determined and assessed after such discussion, a conviction was rendered in writing for the offence of disclosure of confidential information related to duty. This was found to be contrary to the law, and since the appeal objections of the defense counsel were deemed justified for this reason, it was unanimously decided on 10/01/2018 to REVERSE the judgment pursuant to Articles 321 and 326/last of the Code of Criminal Procedure (CMUK), also taking into account Article 8/1 of Law No. 5320.”
(Court of Cassation, 5th Criminal Chamber, decision dated 10.01.2018, File No. 2014/10023, Decision No. 2018/90) - “In the concrete case in which it is alleged that, within the scope of another investigation, … Yanık, whose communications were ordered to be intercepted, monitored, and recorded pursuant to Article 135 of Law No. 5271, requested information during a telephone conversation with the defendant … as to whether there was an outstanding search record; that … Yanık then contacted … … Ongan, who was serving as a police officer at the Bursa Provincial Police Department, and the defendant requested that a GBT (General Information Gathering) inquiry be conducted; that upon learning that the person was among those with an active search record, this information was conveyed to … Yanık; and that the defendant, by failing to take the necessary steps for the execution of the apprehension and by merely informing him that there was an apprehension decision against him, rendered the execution of the apprehension ineffective and thereby instigated the offence of abuse of office;
In this concrete case, the Court decided to punish the defendant pursuant to the first paragraph of Article 258 of Law No. 5237, in accordance with the changed legal characterization of the offence.
Even according to this acceptance, although it had been decided to reverse the conviction judgment dated 08.04.2015 by the 9th Criminal Chamber of the Court of Cassation, with its decision dated 26.05.2021 and numbered 2020/4671 (Merits), 2021/2598 (Decision), while preserving the acquired rights of the defendant, imposing a heavier sentence than the one rendered in the initial judgment on the defendant, in violation of the last paragraph of Article 326 of Law No. 1412, was found to be contrary to law.”
(Court of Cassation, 5th Criminal Chamber, decision dated 08.01.2024, File No. 2022/4752, Decision No. 2024/2) - “From the consistent statements of the defendant and the witness … throughout the proceedings, it is understood that the witness, whose identity was known to the defendant, came to the provincial directorate in order to learn whether there had been any change in the surname of his ascendants and, within this scope, to obtain information from the population registry regarding a surname change; and that there is no doubt that the act accepted by the court as having occurred in accordance with the facts did in fact take place. Moreover, in the statements of the witnesses … and …, who had direct knowledge of the incident and whose statements formed the basis of the judgment, there was no assertion that the defendant and … examined the population registry information of a third person.
When the concrete case is evaluated in the light of all this information, the relevant legal provisions, and the existing evidence in the case file; considering that …, as the owner of the record, was directly authorized to obtain a copy of his population registry record from the population directorate, and that upon his verbal request, the defendant—seeking to assist this person whose identity he knew—took him to the registration office, and due to the absence of the officials, entered the office together with him and jointly examined the population registry records belonging to the individual; it is concluded that this act did not constitute conduct contrary to the purpose of Article 258 of the Turkish Penal Code, that the defendant did not act with criminal intent, and moreover, that the disclosure of documents relating to this information to …, who was at all times authorized to directly obtain a copy of the population registry record, does not amount to the disclosure of information that must be kept confidential as a secret, as explained above. Accordingly, the statutory elements of the offence did not materialize, and it should have been considered that an acquittal should be rendered for the defendant with respect to the charged offence.
Even according to the acceptance; with regard to the defendant, who was found to have committed the imputed offence by abusing the rights and authorities specified in Article 53/1(a) of the Turkish Penal Code and who was sentenced to a judicial fine, the failure to consider that, pursuant to Article 53/5, a decision should also have been rendered to prohibit the exercise of such rights and authorities for a period ranging from one-half to one time the number of days specified in the judgment, was found to be contrary to law.
Therefore, as the appeal objections of the defense counsel were deemed justified for these reasons, it was unanimously decided on 13/04/2022 to REVERSE the judgment pursuant to Article 321 of the Code of Criminal Procedure (CMUK), taking into account Article 8/1 of Law No. 5320.”
(Court of Cassation, 5th Criminal Chamber, decision dated 13.04.2022, File No. 2018/6587, Decision No. 2022/3726) - “In the proceedings conducted upon the allegation that the defendant, who was serving as a specialist gendarmerie, with the intent to harm his station commander due to the impact of a dispute arising from another incident, took the ‘ASAF Annual Evaluation Form for Potential Incidents’ contained in the intelligence file on the day he was on duty; after duplicating it, affixing the name stamp belonging to his commander beneath the commander’s signature, and having his daughter write complaint-like statements at the bottom of the document under a pseudonym so as to create the impression that they were written by villagers, subsequently sending the document by post to the Presidency of the Republic and to various public institutions and organizations, thereby allegedly disclosing a confidential matter related to duty;
Although an action was filed and the trial was continued without obtaining an investigation authorization from the competent authority as required under Law No. 4483 on the Prosecution of Civil Servants and Other Public Officials, and a judgment was rendered in writing; since the acquittal judgment, rendered with an evaluation of the evidence and stated reasoning, was found to be in compliance with procedural law and the law, it was unanimously decided on 20/10/2016 to UPHOLD the judgment by rejecting the unfounded appeal objections of the Public Prosecutor at the court of first instance.”
(Court of Cassation, 5th Criminal Chamber, decision dated 20.10.2016, File No. 2014/6781, Decision No. 2016/8476)
