Legal Definition of the Crime
The crime of influence peddling is regulated under Article 255 in the section of the Turkish Penal Code titled “Crimes Against the Reliability and Functioning of Public Administration.” In general terms, influence peddling occurs when a person who is not a public official acts with the aim of obtaining an undue benefit by promising to have a matter handled through a public official. Pursuant to Article 255 of the Turkish Penal Code (TCK);
Article 255 – (Amended: 2/7/2012-6352/89)
(1) A person who, claiming to have influence over a public official, provides or attempts to provide a benefit to themselves or another person, directly or through intermediaries, in order to have an unlawful act carried out, shall be punished with imprisonment from two to five years and a judicial fine of up to five thousand days. If the person is a public official, the prison sentence shall be increased by half. A person who obtains a benefit in exchange for or in expectation of having the act carried out shall be punished with imprisonment from one to three years.
(2) Even if an agreement is reached regarding the provision of the benefit, the crime shall be deemed completed and punished as such.
(3) If a benefit is requested in accordance with the purpose set out in the first paragraph, but it is not accepted, or if a benefit is offered or promised but not accepted, the penalty to be imposed under the first paragraph shall be reduced by half.
(4) A person who mediates the influence peddling crime shall be punished as a co-perpetrator with the penalty specified in the first paragraph.
(5) In an influence peddling relationship, third parties or legal entities who indirectly receive a benefit and the officials accepting the benefit shall be punished as co-perpetrators with the penalty specified in the first paragraph.
(6)In cases where an attempt to have the act carried out constitutes an independent offense, the individuals shall also be punished for that offense.
(7) The provisions of this article shall also apply in cases where influence peddling is conducted over the persons listed in the ninth paragraph of Article 252. For these persons, investigation and prosecution shall be conducted ex officio in Turkey, regardless of whether they are citizens or foreigners.
Protected Legal Interest
The crime of influence peddling is regulated under the Turkish Penal Code (TCK) and aims to protect individuals’ confidence in public administration. The most fundamental protected legal interest is the preservation of trust in the impartiality and functioning of public administration, as well as safeguarding the reputation of public institutions. The reliability and impartiality of public administration are among the cornerstone principles of a democratic state governed by the rule of law. Therefore, the use of authority by public officials or persons associated with public authority for personal gain undermines public trust.
ELEMENTS OF THE CRIME OF INFLUENCE PEDDLING
PERPETRATOR: The crime of influence peddling is not a specific-type crime. There are no restrictions in our law regarding who may commit this offense. The perpetrator can be any person; being a public official is not a requirement. The perpetrator of the crime may be more than one person, including the one who promises to engage in influence peddling and the one who agrees with that person to have an unfair act carried out. The key element in this crime is that the individual acts through a public official to commit the offense.
VICTIM: In terms of influence peddling, the victim is not the person who gains an unfair benefit. Our law considers the person with whom the agreement is made as a potential perpetrator as well. The actual victim is the public administration, that is, society.
ACT: According to Article 255 of the Turkish Penal Code, the material element of the crime of influence peddling is the existence of an agreement between the perpetrator and the person seeking to have an unfair act carried out. The perpetrator must claim to have influence over a public official, promise that an act will be carried out unfairly through this influence, and a mutually agreed benefit must be arranged in return for the act. The benefit need not be purely material (money, gold, etc.) and may also be non-material (sexual, social, etc.). For the crime to be considered completed, it is sufficient that an agreement has been made between the perpetrator and the person seeking the unfair act. It is not necessary for the act to actually be carried out. The crime is considered a mere conduct crime.
MENTAL ELEMENT: Influence peddling is an intentional crime. There is no provision in the law allowing the crime to be committed through negligence, and therefore, it cannot be committed negligently.
SUBJECT MATTER: The subject of the crime is the benefit obtained by the perpetrator. As stated previously, it is sufficient that the agreement between the perpetrator and the person seeking the unfair act results in either a material or non-material benefit, not only a material one.
AGGRAVATING CIRCUMSTANCES IN THE CRIME OF INFLUENCE PEDDLING
Pursuant to Article 255/1 of the Turkish Penal Code, if the perpetrator claiming to have influence is a public official, the penalty is increased by 50%. The status of the perpetrator as a public official constitutes an aggravated form of the crime.
Circumstances Mitigating or Eliminating the Penalty in the Crime of Influence Peddling
Pursuant to Article 255/3 of the Turkish Penal Code (TCK), if a demand for benefit is made but not accepted, or if a benefit is offered or promised but not accepted, the penalty to be imposed under the first paragraph shall be reduced by half.
Additionally, if any of the lawful justification grounds provided in the TCK (such as executing a legal provision, legitimate defense, etc.) exist in relation to the offense, it may result in no punishment being applied for the crime.
SPECIAL CASES OF THE OFFENSE
ATTEMPT: Regarding the offense of influence peddling, Article 255/3 of the Turkish Penal Code (TCK) provides for a regulation on attempts. Thus, it is possible to attempt the offense of influence peddling. If a demand for benefit is made but not accepted, or if an offer or promise of benefit is made but not accepted, it is considered that the offense remains at the attempt stage, and the penalty imposed is reduced by half.
PARTICIPATION: It is possible to participate in the offense of influence peddling. Pursuant to Articles 255/4 and 255/5 of the TCK, a person who mediates the offense of influence peddling, and officials of a third natural or legal person who indirectly receive benefits in the influence peddling relationship, are considered co-perpetrators and are punished on the basis of committing the offense of influence peddling.
CONCURRENCE OF OFFENSES: When another offense is committed simultaneously with the offense of influence peddling, the rule of real concurrence applies. According to Article 255/6 of the TCK, “In cases where an attempt to have a task performed constitutes an independent offense, individuals are also punished for this offense.” In this situation, the perpetrator is punished both for the offense of influence peddling and for the other offense committed.
COMPLAINT, SETTLEMENT, STATUTE OF LIMITATIONS, AND COMPETENT COURT
The crime of influence peddling is not classified as a complaint-based offense under the law. It is investigated ex officio by the Public Prosecutor’s Office without the need for any complaint. Therefore, no specific complaint period is prescribed for this crime.
The crime of influence peddling cannot be subject to settlement; there is no provision for settlement in relation to this offense, and settlement is not possible for influence peddling.
A criminal case must be initiated within 8 years from the commission of the influence peddling offense. Accordingly, the statute of limitations for filing a criminal case for influence peddling is 8 years.
Trials for influence peddling offenses are conducted by the courts of first instance (Assize Courts).
Judicial Fine, Postponement, and Suspension of the Pronouncement of the Judgment
Under the provisions of judicial fines, if the penalty to be imposed on the perpetrator for the crime of influence peddling is less than one year, it can, under appropriate conditions, be converted into a judicial fine.
It is also possible to postpone the execution of the sentence imposed on the perpetrator for the crime of influence peddling, meaning that the enforcement of the sentence in correctional institutions can be waived under certain conditions.
Furthermore, it is possible to apply the suspension of the pronouncement of the judgment (SPJ) regarding the sentence to be imposed on the perpetrator for the crime of influence peddling. If the SPJ provisions are applied, and the conditions during the probationary period are met, the sentence will have no legal effect.
RELATIONSHIP OF THE CRIME OF INFLUENCE PEDDLING WITH OTHER CRIMES
The crime of influence peddling, as mentioned, occurs when a person reaches an agreement to have an action carried out improperly based on the claim that they have influence over another public official. If a person takes advantage of being a public official themselves and promises that an action will be carried out improperly in exchange for a benefit, this constitutes the crime of bribery. In influence peddling, what matters is not that the person themselves is a public official, but that the person over whom they claim to have influence is a public official. Individuals who are not public officials may use the influence derived from the public office without the official’s knowledge, and the public official does not participate in the crime.
The difference between influence peddling and fraud lies in the fact that, in fraud, the perpetrator aims to obtain a benefit by deceiving or misleading the victim. In fraud, the victim does not know that the perpetrator is acting unlawfully and believes the perpetrator’s actions to be legal. However, in influence peddling, both parties are aware that the action being taken is unlawful and that it will be carried out improperly. Therefore, the party seeking to have an action carried out improperly is not considered the victim of the crime. If a person who is not a public official claims to be one and promises to handle a matter, this constitutes aggravated fraud.
EXAMPLE SUPREME COURT DECISIONS RELATED TO INFLUENCE PEDDLING
5th Criminal Chamber, Case No: 2020/6746, Decision No: 2023/9477
Case Law Text
COURT: Criminal Court of First Instance
CASE NO: 2015/578 (Main), 2016/470 (Decision)
OFFENSE: Influence Peddling
VERDICT: Conviction
PROSECUTOR’S OPINION: Approval
The judgment rendered against the defendant is appealable under Article 305 of the Code of Criminal Procedure No. 1412 (as in force pursuant to Article 8 of Law No. 5320, as amended by Article 33 of Law No. 6723) as of the date of the decision. According to the first paragraph of Article 260 of the Code of Criminal Procedure No. 5271 in force at the date of the decision, the appellant has the right and authority to appeal the judgment. It was also determined, based on a preliminary review, that the appeal request was submitted within the time limit pursuant to Article 310 of Law No. 1412 and that there were no circumstances requiring the rejection of the appeal request under Article 317 of the same Law. Accordingly, the following was considered:
I. LEGAL PROCESS
- A public prosecution was initiated by the Office of the Chief Public Prosecutor with the indictment dated 18.11.2015, numbered 2015/4735 (Investigation), 2015/2067 (Main Case), 2015/1871 (Indictment), requesting that the defendant be punished for the crime of influence peddling under the first paragraph of Article 255 of the Turkish Penal Code No. 5237 (TPC), and that a deprivation of rights be applied pursuant to the first paragraph of Article 53 of the same Code.
- The 3rd Criminal Court of First Instance, by its decision dated 17.05.2016 and numbered 2015/578 (Main Case), 2016/470 (Decision), sentenced the defendant for the crime of influence peddling under the last sentence of the first paragraph of Article 255, and Articles 62, 50, and 52 of TPC No. 5237, imposing a judicial fine of 6,000.00 TL in lieu of 10 months of imprisonment.
- The Supreme Public Prosecutor’s Office, in summary, submitted the case file to the Chamber along with the notification containing the opinion that the defendant’s appeal grounds were unfounded and that the judgment should be upheld.
II. GROUNDS FOR APPEAL
The defendant’s appeal petition relates to the fact that he could not make his defense because he was in prison, that he has repaid the entire borrowed amount, that he is innocent, and other reasons to be considered ex officio.
III. FACTS AND CIRCUMSTANCES
It was alleged and accepted that the defendant, being a civil servant, received money from the victim by stating that he could have the victim employed in return for 5,000.00 TL, and he was consequently sentenced for the crime of influence peddling.
IV. REASONS
On 17.05.2016, the date the judgment was pronounced, the defendant was serving a sentence for another crime at … Open Penal Institution, and there was no request for exemption from the hearing. The judgment was rendered in his absence without his being present, thereby restricting his right of defense contrary to Article 196 of TPC No. 5237.
It is accepted that the crime of influence peddling, regulated in Article 255 of TPC No. 5237 as amended by Article 89 of Law No. 6352, constitutes a linked, active-type offense. Since the act element in this crime is restricted, it constitutes a special provision compared to the crime of fraud. For influence peddling to occur, the act to be executed must necessarily be an unlawful act, the perpetrator must have influence over a public official, and the specific public official who will execute the act must be identifiable. In the fraud offense regulated in Article 157 of TPC No. 5237, the perpetrator does not need to have influence over a public official. In the present case, the defendant did not have influence over any public officials; therefore, his act does not constitute influence peddling but should be considered simple fraud.
Pursuant to Article 34 of Law No. 6763, amending Article 253 of TPC No. 5271, which came into force on 02.12.2016 as published in the Official Gazette, reconciliation procedures were restructured, and the crime of fraud under the first paragraph of Article 157 of TPC No. 5237 was included within the reconciliation scope. Considering Article 7, paragraph 2 of TPC No. 5237, “If the provisions of the law in force at the time the crime was committed and of the law subsequently enacted differ, the law favorable to the perpetrator shall apply and be enforced,” and pursuant to Article 35 of Law No. 6763 amending Article 254 of TPC No. 5271, reconciliation procedures were to be carried out according to the principles and procedures stated in Article 253 of the same Code. The judgment was issued without proper consideration of the defendant’s legal status and with incomplete examination.
Furthermore, when converting the short-term imprisonment sentence to a judicial fine, the total number of days forming the basis of the fine was not indicated in the operative part of the judgment, contrary to Article 52, paragraph 3 of TPC No. 5237 and Article 232, paragraph 6 of TPC No. 5271.
Prior to the judgment, in violation of Article 106, paragraph 3 of Law No. 5275 as amended by Article 81 of Law No. 6545 published in the Official Gazette on 28.06.2014, the decision to execute the imprisonment in full if alternative measures were not implemented or continued unlawfully restricted the execution authority.
These actions were therefore deemed unlawful.
V. DECISION
For the reasons explained in the rationale section, the Supreme Court found the defendant’s appeal against the decision of the 3rd Criminal Court of First Instance dated 17.05.2016 and numbered 2015/578 (Main Case), 2016/470 (Decision) to be justified. Accordingly, pursuant to Articles 321 and the last paragraph of 326 of Law No. 1412, and contrary to the Notification, it was unanimously decided to REVERSE THE JUDGMENT.
The case file was REMITTED to the Office of the Chief Public Prosecutor of the Supreme Court for transmission to the relevant Court on 05.10.2023.
Supreme Court 15th Criminal Chamber
Case No.: 2018/3442
Decision No.: 2019/4360
“In the crime of influence peddling, the perpetrator obtains an undue benefit by claiming to have influence over a public official in order to initiate an action to have an unlawful act carried out. In contrast, in fraud, the perpetrator obtains a benefit for any reason without claiming to have influence over public officials.
Anyone can be the perpetrator of influence peddling; if the perpetrator is a public official, the penalty is increased. Anyone can also commit fraud; however, being a public official is not an aggravating factor.
In influence peddling, as in bribery, the crime is completed through the agreement of the parties. Obtaining the benefit is not necessary. If a benefit is offered but no agreement is reached, a penalty reduction may apply. In fraud, agreement alone is not sufficient. To complete the crime, the benefit must actually be obtained. If the benefit is not obtained and the execution is interrupted for some reason, the act remains at the attempt stage.
In influence peddling, the perpetrator must actually have influence over the relevant persons. If the perpetrator does not have influence but obtains a benefit by lying to the victim, the act constitutes fraud, as the perpetrator’s intent is impaired. For example, if the defendant says, ‘I can make public official X perform this unlawful act,’ and the person obtains a benefit, and both parties know that the act is unlawful, the act falls under Article 255. If the perpetrator is a public official, the penalty is increased. Both parties will be punished, and agreement between them is sufficient for the crime to be considered complete.”
