Legal Definition of the Crime
The crime of a public official failing to report a crime is regulated under Article 279 of the Turkish Penal Code, titled “Crimes Against the Judiciary.” The relevant provisions of the law are as follows:
TPC Article 279:
- A public official who, in connection with their duty, becomes aware of the commission of a crime that requires investigation and prosecution on behalf of the public but neglects or delays to notify the competent authorities shall be punished with imprisonment from six months to two years.
- If the crime is committed by a person performing judicial law enforcement duties, the penalty to be imposed pursuant to the above paragraph shall be increased by half.
These provisions state that a public official is obligated to notify the competent authorities if they become aware of a crime committed during the performance of their duties or in connection with their official function.
Conditions of the Crime
The formation of the crime under Article 279 of the Turkish Penal Code depends on certain conditions. These conditions are:
The reporting obligation must be violated or delayed:
It is not sufficient for the public official to merely become aware of the crime in connection with their duty; they must also fail to notify the competent authorities or delay in doing so for the crime to be considered committed.
The perpetrator must be a public official:
This is a specific crime, and the perpetrator can only be a public official. According to Article 6/1-c of the Turkish Penal Code, a public official is defined as “a person who participates in the execution of public activity through appointment or election, either permanently, temporarily, or for a limited period.” Accordingly, a doctor, teacher, or law enforcement officer working in a state hospital is considered a public official and may be held criminally liable under Article 279 for negligent acts. One important distinction between this crime and the crime of “failure to report a crime by a healthcare professional” regulated under Article 280 is that a doctor working in a private hospital is not considered a public official, so their negligent acts fall under Article 280, not Article 279. Conversely, a doctor working in a state hospital, as a public official, is accountable under Article 279.
The perpetrator must become aware of the crime in connection with their duty:
Under Article 279, for the crime to occur, the public official must learn of the criminal act while performing their duties or in connection with their official function. If the public official learns of the crime in their private life, unrelated to their duty, they are not liable under this article. For example, if a social worker notices a case of child abuse during a home visit and fails to report it to the authorities, the crime is committed. On the other hand, if the same public official learns of a crime at a social gathering or through social media, there is no reporting obligation under Article 279.
Elements of the Crime
When the crime of a public official failing to report a crime is evaluated with both its objective and subjective elements, it has the following fundamental components:
1.Mental Element (Mens Rea): The crime can only be committed intentionally; it cannot be committed negligently under the law.
2.Perpetrator: Under Article 279 of the Turkish Penal Code, the perpetrator of the crime is a public official who becomes aware of a crime committed in connection with their duty but fails to notify the competent authorities or delays in doing so.
3.Victim: In relation to this crime, the victim is the society as a whole.
4.Act (Actus Reus): Under Article 279, the act element consists of either failing to report or delaying the report to the competent authorities after learning of a crime in connection with one’s official duties. This is an alternative act crime, meaning that committing either of the two actions is sufficient for the crime to occur.
5.Legal Value Protected: The crime is regulated under the heading “Crimes Against the Judiciary,” and the legal value protected by this offense is the maintenance of order in judicial processes and social cooperation.
Aggravating Circumstances of the Crime
The crime of a public official failing to report a crime, as regulated under Article 279 of the Turkish Penal Code, includes certain aggravated circumstances that require harsher penalties in specific cases. According to Article 279/2, if this crime is committed by a judicial law enforcement officer, the penalty to be imposed is increased by half. Judicial law enforcement officers are units directly involved in the investigation of crimes and have the opportunity to obtain firsthand information about criminal acts. Therefore, harsher criminal sanctions are prescribed if judicial law enforcement officers fail to fulfill their reporting obligations.
Complaint Period, Statute of Limitations, and Competent Court
The crime regulated under Article 279 of the Turkish Penal Code is not subject to a complaint and is investigated ex officio by the public prosecutor. 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.
Judicial Fine, Deferred Pronouncement, and Suspension of Sentence
Pursuant to Article 279 of the Turkish Penal Code, a public official who, in connection with their duty, becomes aware of the commission of a crime requiring investigation and prosecution on behalf of the public but neglects or delays to notify the competent authorities shall be punished with imprisonment from six months to two years. Considering the minimum and maximum limits of the penalty, it is possible to convert the imprisonment into a judicial fine, to defer the pronouncement of the judgment, or to suspend the sentence.
Relevant Court Decisions
“…I- Regarding the examination of the appeal objections of the complainants’ representatives, … and …;
Since the complainants did not suffer direct harm from the crime of a public official failing to report a crime, they have no right to participate in the case. Therefore, there is no error in the decision to reject the appeal request in accordance with Article 317 of the CMUK No. 1412, as applied pursuant to Article 8/1 of Law No. 5320. Accordingly, the additional decision rejecting the complainants’ representative’s appeal objections and upholding the appeal request as procedurally and legally appropriate is AFFIRMED.
II- Regarding the examination of the appeal objections of the defendant …;
According to the facts and the file, following the incident of firing shots into the air at a wedding, a death occurred and the murder was immediately reported to the Public Prosecutor’s Office. Despite this, the elements of the crime of a public official failing to report a crime were not established. Without considering this, convicting the defendant instead of acquitting him constitutes a violation of the law. Since the defendant’s appeal objections are thus justified, the verdict is REVERSED on this basis pursuant to Article 321 of the CMUK No. 1412, as applied pursuant to Article 8/1 of Law No. 5320.
The decision was made unanimously on 25.09.2017…”
(Supreme Court of Appeals, 8th Criminal Chamber, 2017/10889 E., 2017/10264 K., 25.09.2017)
“…Regarding the examination of the defendant … in terms of the crime of a public official failing to report a crime:
According to the information and documents in the file, the collection of taxes and monetary fines arising from the missing items in the case by the defendant, the completion of the necessary investigation under the Anti-Smuggling Law, and the decision of non-prosecution, and yet convicting the defendant instead of acquitting him, is contrary to the law. The appeal objections of the Public Prosecutor, the representative of the injured administration, and the defendant’s counsel are therefore found justified, and the verdict is REVERSED on this basis pursuant to Article 321 of CMUK No. 1412, as applied pursuant to Article 8/1 of Law No. 5320. The decision was made unanimously on 01.02.2018…”
(Supreme Court of Appeals, 8th Criminal Chamber, 2017/10549 E., 2018/960 K., 01.02.2018)
“…It is understood that the alleged crime of embezzlement due to neglect of supervision assigned to the defendant …, and the crime of a public official failing to report a crime assigned to the defendants … and …, are subject to the statute of limitations of 8 years for the principal action as stated in Article 66/1-e of the same Law, considering the maximum penalties foreseen in Articles 251/2 and 279/1 of the Turkish Penal Code No. 5237. The period between the last procedural acts interrupting the statute of limitations on 06/06/2013 and 19/12/2013 and the day of review has been completed, and there is no other reason to interrupt the statute. Therefore, the verdicts are REVERSED pursuant to Article 321 of CMUK, taking Article 8/1 of Law No. 5320 into account; however, since this does not require a retrial, the public prosecutions against the defendants are DISMISSED due to the statute of limitations in accordance with Articles 322/1 of CMUK and 223/8 of the Criminal Procedure Code No. 5271…”
(Supreme Court of Appeals, 5th Criminal Chamber, 2019/3773 E., 2023/1171 K., 15.02.2023)
“…As a result of the investigation phase conducted regarding the suspects …, …, and … in relation to the crime of a public official failing to report a crime, and in connection with the case file including the indictment prepared by the Erciş Chief Public Prosecutor’s Office on 25.08.2017 (Investigation No. 2017/3043, Main No. 2017/1031, Indictment No. 2017/825), the decision of the 2nd Criminal Court of First Instance of Erciş dated 25.09.2017 (Indictment Evaluation No. 2017/280) rejecting the objection to the return of the indictment, and the decision of the Erciş High Criminal Court dated 05.10.2017 (Case No. 2017/542) regarding the rejection of the objection, the following legal provisions are relevant:
Article 279 of the Turkish Penal Code No. 5237, titled “Failure of a Public Official to Report a Crime,” states:
“(1) A public official who, in connection with their duty, learns of a crime requiring investigation and prosecution on behalf of the public but fails to notify the competent authorities or delays in doing so shall be punished with imprisonment from six months to two years.”
Article 161 of the Code of Criminal Procedure No. 5271 states:
“(5) Public officials who abuse or neglect their duties related to judicial tasks assigned or requested under the law, as well as law enforcement supervisors and officers who abuse or neglect verbal or written orders of the Public Prosecutor, shall be investigated directly by the Public Prosecutor. Provisions of Law No. 4483 dated 02.12.1999 on the Trial of Civil Servants and Other Public Officials shall apply to governors and district governors, and the trial procedure applicable to judges shall apply to the highest-ranking law enforcement officers.”
Considering the above together, and based on the file, although the suspects, teachers at Erciş Çelebibağı Multi-Program High School, were informed by the victim Pınar about alleged sexual abuse, they did not notify the competent authorities. Therefore, filing a public prosecution against them does not fall within the scope of a public official’s duty, and the act cannot be considered a duty-related crime. Consequently, a public prosecution can be initiated under general provisions, and the objection to the contrary should not have been accepted. Therefore, pursuant to Article 309 of the Code of Criminal Procedure No. 5271, the said decision must be annulled following the request for annulment in favor of the law submitted by the General Directorate of Criminal Affairs of the Ministry of Justice on 08.05.2018 and the notification of the Supreme Court Chief Public Prosecutor dated 16.05.2018 (KYB/2018…41395).
IN THE NAME OF THE TURKISH NATION: After due consideration, according to Article 1 of Law No. 4483 on the Trial of Civil Servants and Other Public Officials, “The purpose of this Law is to designate the competent authorities authorized to permit the prosecution of civil servants and other public officials for crimes committed due to their duties and to regulate the procedure to be followed.” Article 2 of the same Law provides: “This Law applies to crimes committed by civil servants and other public officials performing essential and permanent duties in the public services conducted by the State and other public legal entities according to general administrative principles, arising from their duties.”
In the present case, the suspect teachers allegedly committed the crime of failing to report a crime by not informing the authorities about an alleged sexual abuse incident involving a student at their school. The act cannot be considered related to their duties and does not constitute a duty-related crime. As stated in the Supreme Court Criminal General Assembly decision dated 17.02.2004 (E. 2004/2…10, K. 2004/90), the expression “crimes committed by public officials due to their duties” in Law No. 4483 refers only to crimes that can be committed by public officials in connection with their duties, with the official status being a constitutive element of the crime. Ignoring this is contrary to law.
In light of these explanations, it was concluded that the objection to the return of the indictment based on the lack of investigation permission by the competent administrative authority under Law No. 4483 was not legally justified. The Public Prosecutor’s direct initiation of a case under general provisions was proper and lawful. Therefore, the decision of the Erciş High Criminal Court dated 05.10.2017 (Case No. 2017/542) rejecting the objection is annulled pursuant to Article 309 of the Code of Criminal Procedure, the subsequent procedures are to be carried out locally, and the file is transferred to the Supreme Court Chief Public Prosecutor’s Office to be sent to the Ministry of Justice. The decision was made unanimously on 18.02.2019…”
(Supreme Court of Appeals, 8th Criminal Chamber, 2018/5860 E., 2019/3373 K., 11.03.2019)
“…The case concerns the incident investigated at the Çamlıdere Benliyayla Forest Management Office, where the defendant …, a forest protection officer, was assigned, following a report made to …. The defendant, responsible for stamping standing trees, allegedly stamped trees that had previously been cut without permission, despite being aware of the unauthorized cutting, in order to make them appear as properly cut. This was done through workers who were heard as witnesses within the file. Furthermore, the defendant allegedly failed to prepare the necessary offense reports regarding the illegal logging and did not report it to the judicial authorities, committing the charged crime.
IV. REASONING
- Considering the evidence in the file, including the notification report, the investigation report dated 18.08.2014 prepared by …, the expert report dated 04.08.2014, and the statements of witnesses Ü.Ö., V.P., H.K., and Ş.G., it is understood that the defendant, as a public official, was present at the scene on the date of the incident and committed the charged crime by failing to prepare an offense report regarding the illegal logging. Accordingly, the defendant’s appeal request on this ground has been rejected.
- It has been established that the proceedings during the trial were conducted in accordance with legal procedures. The claims and defenses raised at various stages were shown and discussed in the reasoned judgment along with all collected evidence. It was confirmed that the act was committed by the defendant, and the judicial assessment was based on definitive evidence consistent with the documents and information in the file. The classification of the crime and the sanctions were appropriately determined. Consequently, the other appeal grounds of the defendant’s counsel, which were found to be without merit, have also been rejected.”
(Supreme Court of Appeals, 8th Criminal Chamber, 2021/18277 E., 2023/4479 K., 12.06.2023)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
