Definition
Bribery is the act of offering, giving, or receiving a benefit, either directly or through intermediaries, to a public official to influence the performance or non-performance of their duties, either for themselves or for another person they designate. Bribery is a multi-party crime where one party is a public official and the other is a private individual.
This crime is regulated under Article 252 of the Turkish Penal Code, under the section “Crimes Against the Reliability and Functioning of Public Administration.” The relevant article is as follows:
(1) A person who, directly or through intermediaries, provides a benefit to a public official or another person they designate in exchange for the public official performing or refraining from performing a duty related to their position, shall be punished with imprisonment from four to twelve years.
(2) A public official who, directly or through intermediaries, provides a benefit to themselves or another person they designate in exchange for performing or refraining from performing a duty related to their position shall be punished with the same penalty mentioned in the first paragraph.
(3) If an agreement is reached regarding bribery, the crime shall be deemed complete, and the offender shall be sentenced accordingly.
(4) In cases where the public official demands a bribe, but the person does not accept it, or the person offers or promises a benefit to the public official but the public official does not accept it, the penalty for the perpetrator shall be reduced by half, in accordance with the provisions of the first and second paragraphs.
(5) A person who mediates in transmitting the bribe offer or demand, securing the bribery agreement, or facilitating the provision of the bribe, shall be punished as an accomplice, regardless of whether they hold the status of a public official.
(6) A third person or a legal entity’s authorized representative who indirectly benefits from the bribery shall also be punished as an accomplice, regardless of whether they hold the status of a public official.
(7) If the person receiving or requesting the bribe or reaching an agreement regarding the bribe is a judge, arbitrator, expert, notary, or certified public accountant, the penalty imposed shall be increased by one-third to one-half.
(8) The provisions of this article apply to the following individuals, regardless of whether they hold the status of a public official:
a) Professional organizations with the nature of public institutions,
b) Companies established with the participation of public institutions or organizations or professional organizations with the nature of public institutions,
c) Foundations operating within public institutions or organizations or professional organizations with the nature of public institutions,
d) Associations working for public benefit,
e) Cooperatives,
f) Publicly traded joint-stock companies,
In these cases, if benefits are provided, offered, or promised directly or through intermediaries to perform or refrain from performing a task related to their duties, or if such requests are made or accepted by these individuals, or if intermediation occurs in relation to this, or if benefits are provided to another party due to this relationship, the provisions of this article also apply.
(9) The provisions of this article apply to the following individuals:
a) Public officials who are elected or appointed in a foreign country,
b) Judges, jury members, or other officials serving in international or supranational courts or foreign state courts,
c) Members of international or supranational parliaments,
d) Individuals engaged in public activities for a foreign country, including public institutions or public enterprises,
e) Citizens or foreign arbitrators appointed within the framework of arbitration procedures for resolving a legal dispute,
f) Officials or representatives of international or supranational organizations established based on an international agreement,
In cases where benefits are provided, offered, or promised directly or through intermediaries to perform or refrain from performing a task related to their duties, or if a task is carried out or an unjust benefit is obtained or preserved due to international commercial transactions, or if such benefits are requested or accepted by them, the provisions of this article also apply.
(10) In cases where the bribery offense under the scope of the ninth paragraph is committed by a foreigner abroad, but:
a) Turkey,
b) A public institution in Turkey,
c) A private law legal entity established according to Turkish laws,
d) A Turkish citizen,
is involved in a dispute or if an action is carried out or refrained from regarding these institutions or individuals, and the bribery is committed to influence such action or decision, the briber, the person offering or promising the bribe; the person receiving, requesting, or accepting the bribe; those who facilitate the bribe; and the individuals who indirectly benefit from the bribery, if they are found in Turkey, shall be subject to prosecution and investigation ex officio.
The acts committed within the scope of the bribery offense must be related to the public official’s duties. The retirement, resignation, or dismissal of the public official after the act does not change their status as the perpetrator. After the termination of the public duty, the offense may still be subject to investigation and prosecution.
Is Bribery a Complaint-Based Offense?
Bribery is not a complaint-based offense, as it falls under crimes against the reliability and functioning of public administration. It can be investigated and prosecuted ex officio.
Is Bribery Subject to Mediation?
Bribery is not among the offenses subject to mediation.
The Simple Form of the Offense
According to Article 252/1 of the Turkish Penal Code:
“A person who, directly or through intermediaries, provides a benefit to a public official or another person designated by the official in exchange for performing or refraining from performing an act related to their duties shall be punished with imprisonment from four to twelve years.”
A public official who, directly or through intermediaries, provides a benefit to themselves or another person they designate in exchange for performing or refraining from performing an act related to their duties shall also be punished with the same penalty (TCK, Article 252/2).
Bribery Agreement
“In the case of an agreement regarding bribery, the offense is considered completed, and a penalty shall be imposed.” (TCK, Article 252/3)
For a bribery agreement to be established, two elements must be present:
- The public official performing a duty related to their position,
- And a benefit being provided in return. This agreement can be either written or oral. The side from which the offer originates does not matter in the formation of the crime or the imposition of the penalty. It is sufficient that both parties are aware of the agreement and make it voluntarily. It is enough for the agreement to be established if the benefit to be provided in return is either given immediately or a promise is made to provide it later.
Cases Requiring a Heavier Penalty
According to Article 252/7 of the Turkish Penal Code (TCK), if the person who accepts or requests a bribe, or who reaches an agreement regarding bribery, holds one of the following positions, the penalty imposed will be increased by one-third to one-half:
- Public official performing judicial duties,
- Arbitrator,
- Expert witness,
- Notary,
- Certified public accountant.
Cases Requiring a Lesser Penalty
If a public official requests a bribe, but the request is not accepted by the person, or if the person offers or promises a benefit to the public official, but the public official does not accept it, the penalty imposed on the perpetrator will be reduced by half according to the provisions of the first and second paragraphs (TCK, Article 252/4).
Effective Remorse
The provisions regarding effective remorse in bribery crimes are regulated in Article 254 of the Turkish Penal Code.
- If the person who received the bribe delivers the bribe item to the competent authorities before the situation is learned by official authorities, they will not be sentenced for the bribery crime. Similarly, if a public official who has agreed to take a bribe reports the situation to the competent authorities before the situation is learned by official authorities, they will not be sentenced for this crime.
- If the person who gave the bribe or reached an agreement with the public official, before the situation is learned by official authorities, expresses remorse and informs the competent authorities, they will not be sentenced for the bribery crime.
- If other individuals who participated in the bribery crime, before the situation is learned by official authorities, express remorse and inform the competent authorities, they will not be sentenced for this crime.
However, the provisions of effective remorse do not apply to those who give bribes to foreign public officials.
Mediation in the Bribery Crime
A person who mediates in transmitting the offer or request for bribery, facilitating the bribery agreement, or ensuring the provision of the bribe, regardless of whether they are a public official, will be punished as a joint perpetrator (TCK Article 252/5).
A third person or the authorized representative of a legal entity who indirectly receives benefits in a bribery relationship, regardless of whether they are a public official, will be punished as a joint perpetrator (TCK Article 252/6).
Application of Security Measures for Legal Entities
According to Article 253 of the Turkish Penal Code,
“Legal entities that have obtained unjust benefits through the commission of the bribery crime will be subjected to specific security measures.”
Execution Regime for Bribery Offense
As stated in Article 252 of the Turkish Penal Code, imprisonment is foreseen in case of the commission of the bribery offense. Due to the severity of the penalty for bribery, it is not possible to convert the sentence into a judicial fine.
According to Article 231 of the Criminal Procedure Code, “If the penalty imposed at the end of the trial for the crime charged against the defendant is imprisonment for two years or less, or a judicial fine, the court may decide to defer the pronouncement of the judgment. Provisions related to reconciliation remain reserved. Deferring the pronouncement of the judgment means that the judgment does not result in a legal consequence for the defendant.”
In order to decide on the deferral of the pronouncement of judgment (HAGB), the following conditions must be met:
a) The defendant must not have been previously convicted of an intentional crime,
b) The court must be convinced, considering the defendant’s personality traits and conduct during the trial, that the defendant will not commit further crimes,
c) The harm caused to the victim or the public by the commission of the crime must be fully remedied through restitution, restoration to the previous state, or compensation,
d) The defendant must accept the deferral of the pronouncement of judgment.
For the application of HAGB in bribery offenses, specific conditions for a reduction in the penalty must be applied. However, with the decision of the Constitutional Court dated 01/08/2023, the regulation on HAGB has been annulled, and this regulation will come into effect on 01/08/2024. Until the effective date, HAGB provisions may be applied if the conditions are met, but after the effective date (01/08/2024), the application of HAGB will no longer be possible.
A person who is sentenced to imprisonment for two years or less for a crime committed during the trial may have their sentence postponed (TCK Art. 51). The maximum duration for this is three years for individuals who were under eighteen or over sixty-five years old at the time the offense was committed.
For a postponement decision to be made, the following conditions must be met:
a. The person must not have been previously sentenced to more than three months of imprisonment for an intentional crime,
b. The court must form the opinion that the person will not commit further crimes due to the remorse demonstrated during the trial.
The institution of sentence postponement cannot be applied in cases of bribery in its basic form. However, if certain conditions for reduction are met, a decision for postponement of the sentence may be made if the relevant conditions are fulfilled.
Relevant Court of Cassation Decisions
“It has been understood that the defendant, who is the director of municipal cleaning services, told the complainant, who worked as a cleaning worker in the same department and was close to retirement, that he would ensure she did not have to come to work in exchange for a certain amount of money. After learning from the complainant’s surroundings that the defendant had been doing certain tasks for money, the complainant went to his office to inquire whether the offer was serious and negotiated the amount of money. Upon realizing that the defendant had made a serious offer, she applied to the public prosecutor’s office to report the crime. On the day of the incident, the serial-numbered money was taken to the defendant’s office and delivered to him, and later, the money was seized from his desk by the officers. There is no dispute between the Special Chamber and the local court regarding the formation of these facts.”
The dispute to be resolved by the General Assembly of the Court of Cassation is related to whether the bribery crime charged to the defendant in the concrete case described above has been completed or if it remained at the attempt stage.
The bribery crime is regulated under Article 252 of the Turkish Penal Code (TPC) No. 5237, and the third paragraph of this article defines it as “the provision of a benefit within the framework of an agreement made with a public official in order to make or refrain from performing an act contrary to the duties of the office.”
As clearly emphasized in the doctrine, the bribery crime is a bilateral offense. Since it is a “confrontational crime,” those involved in the commission of the crime necessarily aim for the same result, but act from different perspectives. The prohibited actions in this crime are bribery for the public official who receives the bribe, and bribery giving for the perpetrator who offers the bribe. Therefore, there is a “bribery agreement” based on free will between the person providing the benefit or making the offer and the public official. (Prof. Dr. Mehmet Emin Artuk – Prof. Dr. Ahmet Gökcen – Assoc. Prof. Dr. A. Caner Yenidünya, Criminal Law Special Provisions, 7th Edition, p. 699 ff.; Prof. Dr. Durmuş Tezcan – Assoc. Prof. Dr. Mustafa Ruhan Erdem – Assoc. Prof. Dr. R. Murat Önok, Theoretical and Practical Criminal Law Special Law, 6th Edition, p. 810 ff.)
In this context, considering the importance of the bribery agreement in the resolution of the dispute, it is beneficial to examine the issue of bribery agreements.
As seen in the established rulings of both the General Assembly of the Court of Cassation and the Special Chambers, and as generally accepted in the doctrine, a bribery agreement is concluded when a public official and a private individual fully agree on obtaining an unjust benefit in exchange for either the performance of an act that the public official should not do or the non-performance of an act that the public official is required to do. It does not matter whether the proposal or offer comes from the private individual or the public official, but it is necessary for both the public official and the private individual to make a direct or implicit request or offer, and for the other party to accept it. In order to recognize the existence of such an agreement, the consent related to the agreement must be a product of free will, meaning it must not be tainted by coercion, threat, deceit, or any other undue influence.
Based on the definition in Article 252, paragraph 3 of the Turkish Penal Code No. 5237, bribery crimes are considered completed at the moment the bribery agreement is made or the bribe is received. As accepted in practice and doctrine, this crime is one that is amenable to an attempt (preparation).
Attempt (preparation) is defined in Article 35 of the Turkish Penal Code No. 5237 as follows: “If a person begins to directly commit a crime with actions suitable for its commission, but is unable to complete it due to reasons beyond their control, they shall be held responsible for an attempt.”
According to this definition, for an attempt to be considered in relation to a crime, the person must begin acts that are suitable for committing the intended crime, but the acts must not be completed or the result must not be achieved due to reasons beyond their control.
Regarding the crime of bribery, in order for the attempt provisions to be applied, the execution of the actions described in the legal definition above must have begun, or in other words, actions that are closely related to and in connection with the crime must have been performed. It must be “directly begun.”
In terms of the dispute, when evaluating the attempt for the crime of bribery: If the public official performs actions that are suitable for committing the bribery offense, which is in connection and proximity to the crime, but the intention to obtain benefits is rejected by the private individual or not accepted by the public official, or if the public official’s offer or proposal of bribery is accepted by the individual not intending to benefit from it, and the individual then tries to bypass the public official or make it seem like they accepted it in order to uncover the crime and material evidence (apparent consent – non-consent), then no freely made bribery agreement can be established between the parties. In such a case, an attempt of bribery would be considered.
Indeed, this view has also been accepted in legal doctrine. In the context of the crime of bribery, if a public official requests a bribe and the individual, who does not intend to offer the bribe, appears to have agreed with the public official to apprehend him, there would be no bribery agreement in the sense required by the relevant provision of the crime. In this case, the bribery offense remains at the stage of attempt because the actions, which would otherwise have constituted the crime, could not be completed due to obstacles beyond the perpetrator’s control. (Prof. Dr. Mehmet Emin Artuk – Prof. Dr. Ahmet Gökcen – Assoc. Prof. Dr. A. Caner Yenidünya, Special Provisions of Criminal Law, 7th Edition, pp. 720-731)
In light of these explanations, when the concrete case is evaluated: It is understood that the public official defendant was rumored to have taken bribes and wanted to provide an advantage to the complainant in a job that the complainant should not have done. From the beginning of the incident, the complainant, who did not intend to offer a bribe, recorded the conversations between himself and the defendant on his mobile phone and appeared to have accepted the bribery offer in order to apprehend the defendant and expose the material evidence of the crime. In this case, there was no freely made bribery agreement between the parties. Thus, the defendant began the actions to commit the bribery crime directly but could not complete them due to reasons beyond his control. Therefore, it must be accepted that the defendant’s actions remained at the stage of attempting to receive a bribe.
Therefore, it is incorrect for the local court to have accepted the completion of the crime as a result of misinterpretation of the evidence in the case file. The decision of resistance should be overturned.
CONCLUSION:
For the reasons explained above:
1- The resistance ruling of the Kastamonu High Criminal Court dated 07.04.2008, with decision number 48-173, is OVERTURNED.
2- The case file is SENT to the local court through the Chief Public Prosecutor’s Office of the Court of Cassation. The decision was made unanimously in the meeting held on 26.01.2010, in accordance with the request in the notification. (Court of Cassation Criminal General Assembly 2009/5-150 E., 2010/1 K.)
Our Court’s ruling dated 08/02/2012, with case number 2011/7886 and decision number 2012/325, stated that the Treasury representative’s request for intervention in relation to the bribery offense dated 17/02/2006 was rejected, and it was decided to overturn the ruling. Although the ruling to comply with the overturning decision was made and the Treasury representative was listed as an intervenor in the case title, no ruling was made regarding the intervention. Given that the Treasury representative has the right to join the case as a party affected by the crime, the intervention request is accepted based on the authority granted by Articles 17 and 18 of Law No. 3628, and Articles 237/1-2 and 260/1 of the Criminal Procedure Code (CMK). However, according to the ruling of the Court of Cassation Criminal General Assembly dated 09/07/2013, with case number 2012/5-1339 and decision number 2013/347, the Treasury representative does not have the right to join the case or appeal, as they have not been directly harmed by the crime of forming an organization to commit crimes or being a member of such an organization. Therefore, the Treasury representative’s appeal requests are DENIED in accordance with Article 317 of the Code of Criminal Procedure (CMUK), considering Article 8/1 of Law No. 5320.
After reviewing the appeal petitions, the case will be examined only in relation to the appeals regarding the acquittal decisions for the charges of bribery from the intervenor’s representative and the conviction decision for the charge of giving a bribe made by the defendant’s defense lawyer.
In the appeal review of the acquittal decisions regarding the defendant’s acts of giving bribes three times to …, …, and …, and the acts of …, …, and … receiving bribes from …, it was understood that the bribery charges were not proven. Therefore, since the acquittal decisions are in accordance with procedure and law, the Treasury representative’s appeal objections are rejected, and the decisions are UPHELD.
In the appeal review of the conviction decision regarding the defendant … for the crime of bribing …;
Although the defendant … was convicted in the public case opened for the crime of bribery, it was found that the defendant, who is the owner of … Petrol operating in the district of …, had made a bribery agreement with the non-commissioned officers … and …, who were on duty in the … Gendarmerie Command, and with …, who was serving under the … Provincial Gendarmerie Command, in order to facilitate the passage of tankers carrying smuggled fuel from … province without any legal or administrative action being taken. The agreement included a payment of 200 TL per tanker at the road control and search point under the responsibility of the … District Gendarmerie Command. On 12/06/2005, the defendant gave 450 TL to … in the presence of … and …, and the witness … confirmed that, with the knowledge of his superiors and the public prosecutor, he accepted the agreement and received the money, subsequently allowing several tankers of … to pass through the control and search point without any action being taken.
In this concrete case, since no public case was filed within the statute of limitations for the actions of defendants …, …, and …, who acted as intermediaries for the benefit of the parties, and based on witness statements, event and identification reports, records of communication wiretaps, the report of the METU Petroleum Research Center dated 04/08/2005, and all other case materials, it is understood that prior to the amendment of Law No. 6352, Article 252/3, which defined bribery as “the act of a public officer gaining an advantage through an agreement with a person to do or not do something contrary to his duty,” only qualified bribery was mentioned. The actions of the public officer in doing what they were supposed to do or failing to do what they were not supposed to do in return for a benefit, or the attempts by individuals to provide such benefits to public officers, were not considered bribery. As a result, the public case opened for the defendant for the smuggling crime was examined, and it was concluded that the act of providing a benefit to ensure that a public officer performs or refrains from performing a duty (until 05/07/2012) does not constitute bribery.
Furthermore, although some opposing views exist in the literature, the prevailing opinion, which has been accepted in long-standing practice, is that if the defendant appears to accept the bribe with the intention of having the suspect caught in the act, and the agreement is not a product of free will, the bribery agreement does not come into existence. Therefore, the act remains at the attempt stage. With the amendments made in Law No. 6352, which came into force with the publication in the Official Gazette on 05/07/2012, Article 87 of Law No. 6352 amended Article 252/4 of the Turkish Penal Code (TCK) to state: “If a public officer demands a bribe but the person does not accept it, or if the person offers or promises a benefit to the public officer but it is not accepted by the public officer, the punishment shall be reduced by half according to the first and second paragraphs.” This regulation should be considered when determining whether the defendant’s actions should be classified as attempting to bribe or attempting to gain an advantage to act in accordance with their duty.
It should also be noted that the money subject to the bribery offer should have been confiscated in accordance with Article 55 of the TCK, but no ruling was made in this regard.
Based on the above reasoning, since the defendant’s defense attorney’s appeal objections were deemed valid, the decision was overturned in accordance with Articles 321 and 326/last paragraph of the Criminal Procedure Code (CMUK), considering Law No. 5320 Article 8/1.
The ruling was made unanimously on 27/05/2016.” (Court of Cassation 5th Criminal Chamber 2015/11049 E., 2016/5518 K.)
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