In our legal system, the crime of Bid Rigging in Public Tender is regulated under Article 235 of the Turkish Penal Code (TPC). This offense is classified within the section on Crimes Against Society, specifically under the category of Crimes Related to Economy, Industry, and Trade. The legal value protected by this crime is the economic benefit and security of society. Therefore, the broad victim of the crime is society itself. There is no specific condition required regarding the perpetrator of the crime. Accordingly, anyone can be held liable for the crime of Bid Rigging in Public Tender.
Article 235/1 of the Turkish Penal Code (TPC) is regulated as follows: “A person who riggs bids in tenders related to the purchase, sale, or leasing of goods or services made on behalf of public institutions or organizations, as well as construction tenders, shall be punished with imprisonment from three to seven years.”
Article 235/2 of the Turkish Penal Code (TPC) states: “The following situations are considered as bid rigging in tenders:”
a) a) By fraudulent actions;
1. Preventing persons who have the qualifications or conditions to participate in the tender or tender process from participating,
2. Allowing persons who do not have the qualifications or conditions to participate in the tender to take part,
3. Excluding offered goods from evaluation on the grounds that they do not possess the qualities specified in the specifications, despite actually having them,
4. Including offered goods in the evaluation on the grounds that they possess the qualities specified in the specifications, despite actually lacking them.
b) Allowing others to access information related to bids that must be kept confidential according to the tender regulations or specifications.
c) Using force or threats, or other unlawful behaviors, to prevent persons who have the qualifications or conditions to participate in the tender or tender process from participating.
d) Making open or secret agreements among persons who wish to participate or are participating in the tender to influence the tender conditions, especially the price.
These actions explain the ways in which the mentioned crime can be committed.
TCK Article 235/3 The crime of bid rigging (tampering with the tender)
a) If committed by using force or threat, the minimum sentence of the principal penalty cannot be less than five years. However, if the qualified forms of intentional injury or threat that require a heavier penalty occur, additional penalties shall be imposed for these crimes as well.
b) If no damage has occurred to the relevant public institution or organization as a result of the offense, except for the cases specified in paragraph (a) of this article, the offender shall be sentenced to imprisonment from one to three years.
(4) Officials who obtain benefits through bid rigging shall also be punished according to the relevant criminal provision for this offense.
(5) The provisions of the above paragraphs also apply in cases of rigging in auctions or reductions carried out through public institutions or organizations, as well as in cases of rigging in the purchase, sale, or leasing of goods or services made on behalf of professional organizations with public institution status, companies established with the participation of public institutions or organizations or professional organizations with public institution status, foundations operating within them, associations working for the public benefit, or cooperatives.
The crime of Bid Rigging is regulated as an alternative conduct offense under Article 235/2 of the Turkish Penal Code. Alternative conduct offenses are types of crimes where the necessary acts constituting the offense are explicitly listed in the law.
The causal link refers to the connection established between the actus reus (the criminal act) and the resulting crime, which allows attribution of liability to the perpetrator. Therefore, for the perpetrator to be held responsible for the crime resulting from their action, an appropriate causal link is required. If the perpetrator commits acts suitable for the crime through force, fraud, or threats, but the victim does not participate in the tender for another reason, an appropriate causal relationship cannot be established. The perpetrator will be held liable only to the extent of an attempt for the acts they have committed.
COMPLAINT REQUIREMENT FOR THE OFFENSE
Since the offense type is not explicitly stated otherwise in the law, prosecution is not dependent on a complaint. Investigation and prosecution are conducted ex officio. The public prosecutor may conduct an investigation and inquiry ex officio as soon as they become aware of the act.
APPLICABILITY OF RECONCILIATION TO THE OFFENSE
The Turkish Penal Code does not provide for reconciliation in the case of the crime of bid rigging. Moreover, since the investigation and prosecution of bid rigging is not dependent on a complaint and it is not among the catalog crimes listed in Article 253 of the Criminal Procedure Code, reconciliation is not possible for this offense.
THE OFFENSE OF BID RIGGING IN TERMS OF MODE OF COMMISSION
The crime of bid rigging can only be committed intentionally, and general intent is sufficient for its commission. The offense can be committed with either direct intent or conditional (possible) intent. In terms of the nature of the act, bid rigging is a crime with alternative actions, and in terms of the number of acts, it is a crime with optional acts. If multiple alternative acts are committed, it does not result in multiple offenses.
QUALIFIED CIRCUMSTANCES REQUIRING LESSER PENALTY IN THE CRIME OF BID RIGGING
Article 235/3(b) of the Turkish Penal Code regulates the qualified circumstance of the crime of bid rigging that requires a lesser penalty. According to the article, if no damage has occurred to the relevant public institution or organization as a result of the offense, except for the cases specified in paragraph (a) of the same clause, the offender shall be sentenced to imprisonment from one to three years.
QUALIFIED CIRCUMSTANCES REQUIRING A HEAVIER PENALTY IN THE CRIME OF BID RIGGING
Article 235/3(a) of the Turkish Penal Code regulates the aggravated form of the crime of bid rigging that requires a heavier penalty. Accordingly, if the offense is committed by using threat or force, the minimum sentence cannot be less than five years. However, if the qualified forms of intentional injury or threat offenses that require a heavier penalty occur, the perpetrator shall also be sentenced for these offenses separately.
The Institution of Effective Remorse
The institution of effective remorse is not regulated for every type of crime in the law. It can only be applied to the crime types for which it is specifically provided. There is no provision for effective remorse regarding the crime of bid rigging in the law.
The Enforcement Regime Applicable to the Crime
The competent court for the crime of bid rigging is the Criminal Court of First Instance, and the authorized court is the court of the place where the crime was committed. However, in cases of real concurrency (concurrence of offenses), if offenses such as bribery, embezzlement, forgery of official documents, or other crimes listed in Article 12 of Law No. 5235 are also present, the competent court is the Heavy Penal Court.
A person who rigs bids related to procurement or sales or leasing of goods or services on behalf of public institutions or organizations, or construction tenders, shall be punished with imprisonment from three to seven years (Turkish Penal Code, Article 235/1).
The minimum sentence for the basic penalty of the crime of bid rigging cannot be less than five years. However, if qualified circumstances of intentional injury or threat requiring a heavier penalty occur, the offender shall also be sentenced for these crimes separately.
If no damage has occurred to the relevant public institution or organization due to the bid rigging crime committed in the following manner, the offender shall be punished with imprisonment from one to three years (Turkish Penal Code, Article 235/3(b)):
- Allowing others to access information related to bids that must be kept confidential according to tender legislation or specifications.
- Preventing persons who have the qualifications or conditions to participate in the tender from taking part in the tender or the tender process by using force, threats, or other unlawful acts.
The crime of bid rigging is not among the offenses that require a complaint for prosecution. Therefore, there is no complaint period for initiating prosecution of this crime. The crime can be investigated and prosecuted at any time within the statute of limitations. The statute of limitations for the crime of bid rigging is 15 years.
According to the Turkish Penal Code, judicial fines are imposed in place of imprisonment sentences of one year or less, effectively converting the prison sentence into a fine. Pursuant to Article 235/3-b of the Turkish Penal Code, if no damage has occurred to the public institution or organization, the imposed prison sentence may be converted into a judicial fine based on its amount. However, prison sentences imposed for all other acts of bid rigging outside the scope of Article 235/3-b cannot be converted into judicial fines.
The decision to postpone the announcement of the verdict (suspended sentence) regulated in the Turkish Penal Code is given for prison sentences of 2 years or less, and if no damage has occurred to the public institution or organization, this decision can be applied to the defendant based on the amount of the imposed prison sentence. However, for prison sentences imposed due to bid rigging offenses other than those specified in Article 235/3(b) of the Turkish Penal Code, the decision to postpone the announcement of the verdict cannot be granted.
According to the Turkish Penal Code, the postponement of imprisonment means that the convicted person is conditionally exempted from serving the prison sentence. Pursuant to Article 235/3(b), if no damage has occurred to the public institution or organization, postponement of the prison sentence imposed on the defendant is possible. However, postponement of prison sentences imposed for all other bid rigging offenses outside the scope of Article 235/3(b) is not possible.
If a person sentenced to imprisonment is determined to have good behavior and to be able to adapt to social life during the time spent in prison, conditional release is granted, allowing the remainder of the sentence to be served outside of prison under certain conditions. This is also known as parole. Conditional release is possible for the crime of bid rigging, provided that the convict has served approximately half of the sentence in a penal institution.
According to the Execution Law No. 5275, for crimes committed after March 30, 2020, in order for the convict to benefit from probation, they must be in an open penal institution or be eligible for transfer to such an institution and exhibit good behavior. The crime of bid rigging is also eligible for probation. It is stipulated that probation will be applied to those who have one year or less remaining until their conditional release. The legislator has also specified certain exceptions regarding this period. Female convicts with children aged 0-6 who commit crimes after March 30, 2020, are subject to a two-year probation period. If the convict is over 65 years old and cannot live independently due to illness, disability, or old age, the required probation period is set at three years.
Sample Supreme Court Decisions on the Crime of Bid Rigging
- Bid Rigging at the Enforcement Office
As a result of enforcement proceedings initiated due to Defendant A.’s debt, during the public auction of the immovable properties put up for sale at the enforcement office, the defendant directed statements such as “If you participate in the tender, I won’t let you get to Kırıkhan, you won’t get out of here, the consequences will be severe, you are a mafia lawyer, you have already acted as a mafia lawyer, rude” towards the attorney present as the creditor’s representative who was bidding. However, the defendant was later removed from the scene by the police, and the participant entered the auction. In this case, the act should be considered as an attempt to commit the offense regulated under Article 235/2(c) of the Turkish Penal Code by reference to Article 235/5, defined as “using force or threat or other unlawful behavior to prevent persons who have the qualification or conditions to participate in the tender from participating in the tender or the procedures during the tender” (Supreme Court of Appeals 5th Criminal Chamber – Decision: 2013/878).
- Concurrence with the Crime of Intentional Injury
It is regulated that in cases where the qualified forms of intentional injury requiring heavier penalties occur, the defendant shall also be sentenced for these offenses. In practice, there is no hesitation that an aggravated intentional injury due to its result within the scope of Article 87 of the Turkish Penal Code (TCK) does not fall under the scope of the compound crime of coercion. Furthermore, considering that in the doctrine it is predominantly stated that the injury act, which would fall under Article 87 of the TCK, cannot be accepted as an element of coercion crime under Article 235/2-c of the TCK, it was disregarded that the defendant’s acts constituted both the crime of rigging the tender and aggravated intentional injury due to the consequence. Therefore, the judgment convicting the defendant solely for rigging the tender crime, and deciding that no penalty be imposed for intentional injury, is contrary to the law. The appeals of the defendant’s counsel, the public prosecutor of that place, and the complainant have been found justified accordingly. Considering Article 8/1 of Law No. 5320, the judgments are hereby REVERSED pursuant to Article 321 of the Code of Criminal Procedure by unanimous decision dated 31/12/2013. (Court of Cassation 5th Criminal Chamber – Decision No: 2013/12664).
- Preventing Participation in a Tender by Coercion and Threat
A cleaning tender was organized by the State Hospital. It was alleged that the interveners who wanted to participate in the cleaning tender were prevented by the defendants through coercion and threats. A trial was held at the Heavy Penal Court for the crime of rigging the tender, and a conviction was issued. An appeal petition seeking annulment of the conviction was filed.
According to the institution’s letter dated 02/05/2014, it was understood that the cleaning tender was not held on 28/06/2005, the date accepted as the date of the crime, but rather on 28/12/2004. The Supreme Court noted that no copies of the 344 tender documents related to this tender were found in the file. For this reason, the Supreme Court decided that certified copies of the tender documents should be added to the file for inspection, and then the file should be sent back to the chamber for re-examination regarding the determination of the crime and the statute of limitations.
(Supreme Court 5th Criminal Chamber Decision 2018/8117)
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