Legal Definition of the Offense
The offense of unlawfully assuming a public office is regulated under Article 262 of the Turkish Penal Code, within the section titled “Offenses Against the Reliability and Functioning of Public Administration.” The relevant legal provision states:
Article 262 of the Turkish Penal Code:
(1) Any person who attempts to perform a public duty in violation of laws and regulations, or who continues to perform such duty despite having been notified of an order to cease, shall be sentenced to imprisonment from three months to two years.
These provisions are set forth in the said article.
Elements of the Offense
The offense of unlawfully assuming a public office, when evaluated together with its objective and subjective elements, is based on the following core components:
1- Act (Conduct Element):
Article 262 of the Turkish Penal Code provides:
“Any person who attempts to perform a public duty in violation of laws and regulations, or who continues to perform such duty despite having been notified of an order to cease, shall be sentenced to imprisonment from three months to two years.”
Accordingly, two alternative acts are предусмотрі used for the commission of the offense.
a) Attempting to perform a public duty in violation of laws and regulations:
For this form of conduct to constitute the offense, the person must present himself/herself as a public official and must have begun affirmative acts that amount to the unlawful assumption of a public duty. Therefore, the mere fact that a person who is not a public official introduces himself/herself as one does not automatically result in the commission of the offense. It is also necessary that the offender has started performing executive acts.
Furthermore, for the offense to occur, the perpetrator must carry out an act or transaction related to that duty. If a person who identifies himself/herself as a public official performs an act that the claimed official is not legally authorized to perform, or performs an act that falls within the duties of another public official, the offense in question cannot be deemed to have occurred. The act must be directly connected to the duty assumed.
Likewise, this is an attempt-based offense; therefore, it is not necessary for the act to be completed. It is sufficient that the offender’s actions reach the stage of attempt. Whether the offender gained any benefit from the act or caused actual damage is irrelevant to the establishment of the offense.
b) Continuing to perform the duty despite being notified of an order to cease:
The second alternative act regulated by the law is continuing to perform the duty after having been notified of an order to cease. For this form of the offense to occur, the order to cease must have been communicated to the offender, and despite this, the offender must continue to perform acts within the scope of the authority of that duty.
2- Offender:
Under Article 262 of the Turkish Penal Code, the offender varies depending on the form of the act.
- For the first alternative act, anyone, regardless of whether they are a public official or not, who attempts to perform a public duty in violation of laws and regulations may be the offender.
- For the second alternative act, only the person who has been notified of an order to cease yet continues to perform the duty may be the offender.
3- Victim:
In this offense, the victim is society. However, persons who suffer adverse consequences as a result of the offense may also be considered victims.
4- Legal Interest Protected by the Offense:
The offense of unlawfully assuming a public office is regulated under “Offenses Against the Reliability and Functioning of Public Administration.” The legal interest protected is public trust and the proper functioning of public administration.
5- Mental Element:
This offense can only be committed intentionally; it is not legally possible to commit it through negligence.
Complaint Period, Statute of Limitations, and Competent Court
The offense regulated under Article 262 of the Turkish Penal Code is not subject to complaint, and investigations are conducted ex officio by the public prosecutor’s office. Although there is no limitation period for filing a complaint, the statute of limitations for prosecution is eight years. The competent court is the Criminal Court of First Instance.
Judicial Fine, Decision to Defer the Announcement of Judgment, and Suspension of Sentence
Pursuant to Article 262 of the Turkish Penal Code, any person who attempts to perform a public duty in violation of laws and regulations, or who continues to perform such duty despite having been notified of an order to cease, shall be sentenced to imprisonment from three months to two years. Considering the minimum and maximum limits of the penalty, it is possible to convert the imprisonment sentence into a judicial fine, to issue a decision to defer the announcement of the judgment, and to suspend the sentence.
Relevant Court Decisions
“… As regards the appellate review of the judgments rendered against the defendant for the offenses of deprivation of liberty and unlawfully assuming a public office; according to the findings consistent with the facts of the case:
It is understood from the entire case file that on the date of the incident, the victims had been spending the night at entertainment venues with the defendants, and when they wished to go home in the early morning hours, the defendants began driving around under the pretext of going to eat soup; that one of the defendants, Atakan, stopped the vehicle in front of a workplace located in an industrial area, claiming that he needed to use the restroom; that during this time they forcibly took the victims into the workplace together with the other defendant …, for whom a decision to defer the announcement of judgment had been issued for the offenses of intentional injury (twice) and deprivation of liberty; that the victim Gizem sent a message to her sister Özlem, giving her the address and informing her that they were in trouble; that Atakan obtained the phone number of the victim Gizem’s father, Vedat, and called him to come and pick up his daughters; and that in the argument that ensued with Vedat, who arrived at the scene and asked for the police to be called, Atakan responded by saying, “We are the police ourselves.”
In its present form, given that Atakan, together with more than one person, unlawfully and forcibly detained the victims, it should have been decided to convict him, pursuant to Articles 109/2 and 109/3-b of the Turkish Penal Code No. 5237, separately for each victim; however, an incorrect legal characterization of the offense was made and judgment was rendered as written.
Furthermore, although there was no conclusive, clear, and convincing evidence, free from any doubt, that the defendant committed the act with sexual intent, the sentence was increased pursuant to Article 109/5 of the Turkish Penal Code No. 5237; additionally, it was not taken into account that Article 53 of the Turkish Penal Code No. 5237 should have been applied to the defendant who was sentenced to imprisonment.
For the offense of unlawfully assuming a public office, as regulated in the first sentence of Article 262 of the Turkish Penal Code No. 5237, to occur, there must be a public duty to be performed, and the offender must unlawfully assume and attempt to perform that duty. It is not necessary for the act of performing the public duty to be completed; remaining at the stage of attempt is sufficient for the offense to be completed. For this offense, the offender must not be a public official, or must be a public official who is not authorized or competent to perform the duty he or she attempts to assume.
The offense arises not from assuming the status of a civil servant, but from attempting to assume (perform) a public duty. In other words, it is not sufficient for the offender merely to present himself as a public official; he must also attempt to perform the duty assumed.
When the specific case is evaluated, it is understood that the defendant’s act of claiming to be a police officer in order to extricate himself from a difficult situation when the complainant … requested that the police be called did not involve an attempt to perform any duty related to the assumed office. Therefore, convicting him in writing for an offense whose statutory elements were not established, instead of acquitting him, is contrary to the law…”
(Court of Cassation, 14th Criminal Chamber, 2015/2478 E., 2018/2399 K., dated 02.04.2018)
“… Since the convictions rendered against the defendant … for fraud, and against the defendant … for unlawfully assuming a public office, were appealed by the defendants, the case file was examined and the necessary assessment was made;
It was determined that the defendant … fraudulently transferred the vehicle into his name at the notary public’s office without paying for it, but was unable to physically take possession of it from the complainant; that he arranged a meeting with the complainants under the pretext that he would make the payment in order to receive the vehicle; that when the defendant … went to the meeting place and introduced himself to the complainants as a police officer, the complainants became suspicious, causing Mustafa to flee; and that the joint actions of the defendants, after the judgments were rendered, raised the issue of whether they constituted the offense of qualified (aggravated) fraud as provided under subparagraph (l), added to Article 158/1 of the Turkish Penal Code No. 5237 by Article 14 of Law No. 6763, which was published in the Official Gazette No. 29906 on 02/12/2016 and entered into force on the same date.
Accordingly, since the authority and duty to evaluate and assess the evidence as to whether the offense of qualified fraud had been formed belong to the higher Criminal Court of First Instance with Special Jurisdiction (High Criminal Court / Assize Court), it was mandatory to render a decision of lack of jurisdiction.
This necessitated reversal of the judgment…”
(Court of Cassation, 15th Criminal Chamber, 2017/2828 E., 2017/24055 K., dated 21.11.2017)
“… It is understood that the actions of the defendant, consisting of failing to comply with the court decision between 17/01/2012 and 17/04/2012 — following service of the judgment of the Denizli Administrative Court dated 23/09/2011, Case No. 2010/1426, Decision No. 2011/720 — and continuing to serve as نائب chairman (Deputy Chairman), as well as performing the duty of principal chairman of the Union between 30/01/2012 and 17/04/2012, to which he had been appointed through an unlawful election, did not constitute the elements of the offense of unlawfully assuming a public office; that since he was a public official, if established, the act would constitute the offense of abuse of office through positive conduct; however, according to the case file, contrary to the defense, there was insufficient evidence to convict him that he acted with criminal intent.
Accordingly, by rejecting the appeals of the complainants as unfounded, and despite the reasoning not being appropriate, the judgment, which was procedurally and legally correct in its result, was UPHELD…”
(Court of Cassation, 5th Criminal Chamber, 2014/5808 E., 2016/6053 K., dated 08.06.2016)
“… For the offense of ‘attempting to perform a public duty in violation of laws and regulations’ to occur, merely assuming a public office is not sufficient. In addition, it is necessary to perform, or attempt to perform, an act or transaction related to the assumed public duty. In the present case, the defendant’s conduct was limited to telling certain tradesmen in the Adana Egyptian Bazaar that he was a police officer in the hope of purchasing a television at a cheaper price. Since he did not perform or attempt to perform any act related to the public duty he allegedly assumed, his conduct does not constitute the offense of unlawfully assuming a public office. Therefore, rendering a conviction instead of acquittal without considering this is contrary to law…”
(Court of Cassation, 4th Criminal Chamber, 2015/7076 E., 2015/30705 K., dated 08.06.2015)
“… 1- As regards the defendant …: In the examination of the appeals filed against the judgment of acquittal rendered for the offense of unlawfully assuming a public office, the judgment of conviction rendered for the offense of insult, and the judgments of acquittal rendered in favor of defendants …, … and … for the offenses of threat and destruction of evidence against the victim …:
It is understood that the complainants’ attorneys, who filed an appeal against the judgment rendered against defendant … for the offense of unlawfully assuming a public office, did not suffer direct harm from the alleged offense; therefore, the decision to admit them as intervening parties lacks legal value, and it is also understood that an unjustified decision of intervention does not confer the right to appeal against the judgment…”
(Court of Cassation …th Criminal Chamber, 2014/24609 E., 2017/17918 K., dated 10.07.2017)
“… In the examination of the acquittal rendered for the offense of unlawfully assuming a public office:
Considering the occurrence and the contents of the file, it is deemed legally possible, within the statute of limitations, to initiate proceedings against the defendant for the offense of deprivation of liberty.
In the concrete case, the defendant …, acting together with an unidentified person named … at nighttime, stopped the complainants … and … on the street, claimed to be police officers, showed a white-colored identity card bearing a police emblem, examined the complainants’ identity documents, and stated that they would take them to the police station. They then forced the complainants into a commercial taxi. While sitting next to the complainants in the back seat, the defendant’s accomplice frightened them by displaying a black firearm with a metallic barrel. Afterwards, they got out of the taxi in a dark side street, having the fare paid by the complainants, pushed them against a wall, and conducted a search; they slapped complainant … who objected, and subsequently took a mobile phone of brand … from …’s pocket, a mobile phone of brand …, his identity card, bank card, and 20 TL in cash from …, and then left the scene telling them to wait.
Given that they used the capacity of a public office by presenting an ID with a police emblem and pretending to conduct a GBT check using a Turkish ID number, and by this means took the victims to a deserted location and robbed them, it was necessary to convict the defendant. Therefore, rendering a decision of acquittal on insufficient grounds required reversal…”
(Court of Cassation, 6th Criminal Chamber, 2015/6185 E., 2016/958 K., dated 18.02.2016)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
