The crime of abuse of office, by definition, is a specific type of offense committed by a public official who uses the opportunities and advantages provided by their position to cause harm to individuals or the public or to provide unjust benefits to others. This crime is regulated under Article 257 of the Turkish Penal Code, and its perpetrator can be any public official, while the victim can be any individual. The crime of abuse of office is regulated in the section titled “Crimes Against the Trustworthiness and Operation of Public Administration” in the part of the Turkish Penal Code dealing with “Crimes Against the Nation and the State.” It is a crime committed against public administration, and the legal value protected by the crime of abuse of office is the respect and trustworthiness of public administration.
Article 257/1 of the Turkish Penal Code states: “Unless otherwise defined as a crime in the law, a public official who causes harm to individuals or the public, or provides an unjust benefit to individuals by acting contrary to the requirements of their duty, shall be punished with imprisonment from one to three years.”
Article 257/2 of the Turkish Penal Code continues: “Unless otherwise defined as a crime in the law, a public official who causes harm to individuals or the public, or provides an unjust benefit to individuals by neglecting or delaying the fulfillment of the requirements of their duty, shall be punished with imprisonment from six months to two years.”
Article 257/3 of the Turkish Penal Code states: “Unless it constitutes the crime of bribery, a public official who benefits themselves or another person by acting in accordance with the requirements of their duty, shall be punished according to the provisions of the first paragraph.”
The crime of abuse of office is considered a crime if it occurs in one of the three forms listed below.
- The abuse of office crime in the form of a public official deliberately and knowingly failing to perform their assigned duty,
- The abuse of office crime in the form of a public official failing to perform their duty as required by law,
- The abuse of office crime in the form of a public official showing neglect or delay in performing their duties, i.e., the crime of neglecting the duty.
For this type of crime to be considered completed, it is sufficient for it to result in one of the three outcomes listed below. It is not necessary for all the outcomes to occur.
For this crime to occur, it is not enough for the public official to merely show negligence or take an action.
- At the same time, the public official’s actions must cause harm to individuals.
- As a result of this crime, the public must suffer damage.
- The final result required for the commission of this crime is that individuals must gain unjust benefits due to the act that constitutes this crime.
The Offense of Misuse of Duty regulated in Article 257 of the Turkish Penal Code should not be confused with the Offense of Embezzlement regulated in Article 247, the Offense of Extortion regulated in Article 250, and the Offense of Bribery regulated in Article 252.
- The offense of embezzlement occurs when a public official, due to their duty, makes an improper use of property that has been entrusted to them or that they are responsible for overseeing.
- The offense of extortion is a type of crime that occurs when a public official uses their influence to exert pressure or engage in fraudulent behavior.
- The offense of bribery, on the other hand, is a multi-party crime that involves a mutual agreement where one party is the public official receiving the bribe, and the other party is the individual offering the bribe, in order to achieve a specific outcome.
THE COMPLAINT-DEPENDENCY STATUS OF THE OFFENSE
Since the offense is not specifically mentioned in the law, its prosecution is not dependent on a complaint. The investigation and prosecution are conducted ex officio. The public prosecutor can initiate an investigation and prosecution as soon as they become aware of the offense.
THE POSSIBILITY OF MEDIATION FOR THE OFFENSE
The Turkish Penal Code does not provide for the possibility of mediation for the offense of abuse of office. Since the offense of abuse of office is not a crime whose investigation and prosecution are dependent on a complaint, and it is not listed among the catalog offenses in Article 253 of the Code of Criminal Procedure (CMK), it is not possible to pursue mediation in relation to this offense.
THE MANNER OF COMMITTING THE OFFENSE OF ABUSE OF OFFICE
The offense of abuse of office can only be committed intentionally, and general intent is sufficient for the commission of the crime. The offense can be committed with either probable intent (recklessness) or direct intent. It is sufficient for the public official to be aware that they are neglecting their duties or delaying their performance and to carry out this act willingly. Indeed, the offense of abuse of office through neglect is not a negligent crime, but an intentionally committed one.
QUALIFIED CIRCUMSTANCES THAT REQUIRE LESS OR MORE SEVERE PUNISHMENT IN THE OFFENSE OF ABUSE OF OFFICE
In the Turkish Penal Code, no specific qualified circumstances that require more or less severe punishment for the offense of abuse of office are regulated. However, it is worth noting that if the act committed by the public official is classified as a specific crime under the Turkish Penal Code, the defendant will be punished according to the penalty for that specific offense. In such cases, the defendant cannot be separately punished for the offense of abuse of office.
THE INSTITUTION OF EFFECTIVE REMORSE
The institution of effective remorse is not a provision established for every type of crime in the law. It is only applicable to those crime types for which a provision exists. There is no provision for effective remorse for the offense of abuse of office in the law.
THE EXECUTION REGIME OF THE CRIME
For the crime of abuse of office, the competent court is the Criminal Court of First Instance, and the competent court is the court where the crime was committed. However, in cases of real concurrence, where bribery, extortion, forgery of official documents, and other crimes listed in Article 12 of Law No. 5235 are also present, the competent court is the Heavy Criminal Court.
The penalty for the crime of abuse of office is, according to Article 257/1 of the Turkish Penal Code (TCK), imprisonment for a term of 6 months to 2 years. In cases of neglect, meaning failure to perform duties or delay in performance, the penalty for the crime of abuse of office is imprisonment for a term of 3 months to 1 year.
The crime of abuse of office is not one of the crimes that require a complaint for prosecution. Therefore, there is no time limit for filing a complaint for the prosecution of the crime. The crime can always be investigated and prosecuted, as long as it is within the statute of limitations. The statute of limitations for the crime of abuse of office is 8 years. If the perpetrator is sentenced to imprisonment, the statute of limitations for the sentence is 10 years.
According to the Turkish Penal Code, a judicial fine is imposed for imprisonment sentences of 1 year or less, and it is the conversion of a prison sentence into a monetary fine. In certain circumstances, the prison sentence for the crime of abuse of office may be converted into a judicial fine.
The decision to postpone the announcement of the judgment, as regulated in the Turkish Penal Code, is given for imprisonment sentences of 2 years or less, provided that no harm has been caused to public institutions or organizations. In such cases, a decision to postpone the announcement of the judgment may be given based on the amount of the prison sentence. It is possible to issue a decision to postpone the announcement of the judgment (HAGB) for the sentence imposed due to the crime of abuse of office.
According to the Turkish Penal Code, the decision to postpone imprisonment is the conditional decision to waive the execution of the sentence in prison. The postponement of the imprisonment sentence imposed for the crime of abuse of office is also possible.
According to the Law on the Execution of Sentences No. 5275, for crimes committed after March 30, 2020, in order for a convict to benefit from probation, they must be in an open prison facility, have the right to be transferred to this facility, and must be of good behavior. The crime of abuse of office is also eligible for probation. For those with 1 year or less remaining in their conditional release period, probation will be applied. With the amendment made by Law No. 5275 on March 30, 2020, the conditional release rate for the crime of abuse of trust, which was not included in the list of exceptional crimes, was reduced from 2/3 to 1/2. The probation period is regulated as 3 years for crimes committed before March 30, 2020, and 1 year for crimes committed after this date.
If the crime of abuse of trust is committed after March 30, 2020, the release rate will be applied as 1/2, and the probation period will be 1 year.
However, with the Constitutional Court’s decision on August 1, 2023, the regulation regarding the postponement of the announcement of the judgment (HAGB) was annulled, and this regulation will be applicable from August 1, 2024. Until the effective date, the provisions of HAGB can still be applied if the conditions are met, but after the effective date (August 1, 2024), HAGB will no longer be applicable.
EXAMPLES OF COURT OF CASSATION DECISIONS ON THE CRIME OF ABUSE OF OFFICE
1- The Crime of Neglecting the Attorney’s Power of Attorney Duty
In the case where the victim, …, who was tried as the accused for theft, entrusted the defendant as his attorney with a power of attorney and paid the attorney’s fee in advance, but the defendant failed to attend the hearings after the defendant’s interrogation and decision of release, including the crucial session held on 20/04/2010, in which the prosecutor presented the opinion on the merits of the case, without providing any excuse, and even though the defendant was properly notified of the judgment rendered in absentia on 03/08/2010 regarding the victim’s 2 years and 4 months prison sentence, the defendant failed to inform the accused about the reasoned decision, and failed to file an appeal within the legal period, depriving the victim of his right to defense and legal assistance, leading to his victimization. The victim, upon being informed of the decision when he was taken into the penal institution, appealed the judgment and after his request was rejected, he appealed this rejection decision as well. The accused lawyer, who was later complained about, stopped pursuing his appeal after the sentence was executed. In this case, the defendant’s actions led to the formation of the crime of abuse of office under Article 257 of the Turkish Penal Code. The victim’s waiver of the appeal would not eliminate the legal harm that the legislator intended to protect by this provision. The defendant’s negligent actions and the crime of abuse of office occurred with all elements. The judgment of acquittal, contrary to the facts, was made with an erroneous justification and evaluation instead of a conviction, which is grounds for reversal (5th Criminal Chamber – 2019/10465 K.).
2- The State Official Collecting Money Under the Name of a Donation, Accepting Gifts
“In the incident, which took place when K… was acting as the Deputy Land Registry Director and I… and other co-defendants were working at the same place, the defendants, after completing real estate transactions that were apparently conducted in accordance with the regulations, took money under the name of a donation and shared it among themselves without applying any coercion on the property owners, as specified by law. It was found that there was no prior agreement between the parties regarding obtaining any benefit in exchange for the performance of a specific task, and the benefit was provided to the public officials after the work had been completed, as the work that was required was already done. Considering that Article 105 of the Law No. 6352, which came into effect on 05/07/2012, repealed Article 257/3 of the Turkish Penal Code, the actions attributed to the defendants, which could be considered as ‘acceptance of a gift,’ would not have a criminal sanction. However, it should be noted that the behavior of the defendants falls within the scope of disciplinary action under Articles 29 and 125 of the Civil Servants Law No. 657. The decision to convict the defendants without considering this and without applying disciplinary measures is in violation of the law” (Court of Cassation, 5th Criminal Chamber – 2014/196 K.).
3- Association Officials Cannot Commit Embezzlement, but May Commit the Crime of Abuse of Trust Due to Their Service
“According to the provision of the second paragraph of Article 2, titled ‘Scope,’ of the Law on Fundraising, which states that ‘The fundraising activities of the Turkish Armed Forces within its own structure, as well as donations and aid made by members and other individuals to associations, trade unions, their higher organizations, sports clubs, professional organizations, and foundations authorized to accept donations, as well as the income they generate from their own resources, are outside the scope of this law,’ associations are outside the scope of this law, and considering that the regulation in Article 28 of the Law on Fundraising does not cover association officials, it was incorrect to classify the actions of the defendants, which were proven in accordance with the facts, as embezzlement, rather than abuse of trust due to their service. The mistake in the classification of the crime and the subsequent written judgments are erroneous” (Court of Cassation, 5th Criminal Chamber, K. 2020/9712).
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