Crime of abuse of office

The crime of abuse of office is included in the first chapter titled "Crimes against the Reliability and Functioning of Public Administration" of the fourth part of the second book of the Turkish Penal Code titled "Crimes Against the Nation and the State". Article 257 of the Turkish Penal Code titled "Abuse of Office";

"Except for the cases also defined as a crime in the law, any public official who causes victimization of persons or harm to the public or provides an unfair advantage to people by acting contrary to the requirements of his duty, is punished with a prison sentence of six months to two years. Except for the cases also defined as a crime in the law, a public official who causes the victimization of persons or harm to the public or provides an unfair advantage to people by showing negligence or delay in performing the requirements of his duty, is punished with a prison sentence of three months to one year." It is in the form.

Although the Turkish Penal Code numbered 765 included separate types of crimes such as arbitrary treatment, abuse of office and neglect of duty, these distinctions were terminated with the Turkish Penal Code numbered 5237.

Again, in the Turkish Penal Code No. 5237, the crimes of neglect of duty and abuse of duty are combined under a single crime type. Although this distinction is still preserved, it has been combined. As a matter of fact, the following statements regarding the subject are included in the justification of the article:

"In order for the crime of abuse of office to occur, the behavior contrary to the requirements of the duty does not necessarily have to be executive behavior. If the behavior contrary to the requirements of the duty is a negligent act, the crime of abuse of office may occur. Committing the crime of abuse of office with executive or negligent behavior can only have an effect on the amount of the penalty.

With this regulation, the distinction between the crimes of arbitrary treatment, abuse of office and neglect of duty included in the Turkish Penal Code No. 765 has been abandoned."

As stated in the justification of the article; A person assigned to a public duty must act in accordance with the obligations required by his/her duty during the execution of this public activity. So that; The prevailing trust and belief in society that public activities are carried out in accordance with the principles of justice in terms of both equality and merit should not be shaken.

Behaviours that are incompatible with this obligation are defined as crimes under certain conditions. In this respect, the crime of abuse of office has been defined as a general, secondary and complementary crime.

As can be seen, the legal value protected by crime is the trust and belief in society towards public officials.

PERPERSON AND VICTIM IN THE CRIME OF ABUSE OF OFFICE

The article of the law clearly states that the crime can be committed by public officials. In this form, the crime falls into the category of specific crimes. The definition of public officer is made in Article 6 of the Turkish Penal Code. Accordingly; The term public official is understood as a person who participates in the execution of public activities on a permanent, temporary or temporary basis, through appointment or election or in any other way. Although persons who are not public officials cannot be the perpetrators of these crimes on their own, they can participate in the crimes in question. According to the Supreme Court, it is against the law to try those who are not public officials as the perpetrators of the crime.

The victim of the crime is the public. However, it should not be forgotten that the person harmed by the crime may be considered a victim in some cases. In this respect, real persons have the ability to become victims of this crime.

HOW IS THE CRIME OF ABUSE OF OFFICE COMMITTED? - ACTION ELEMENT

As we stated above, the crime of abuse of office is a type of crime suitable for committing executive and negligent behavior. In the 1st paragraph of Article 257 of the Turkish Penal Code, the crime is regulated by executive action, and in the 2nd paragraph, the crime is committed by negligent behavior. In order for the crime of abuse of office to occur, behavior contrary to the requirements of the duty does not necessarily have to be executive behavior. If the behavior contrary to the requirements of the duty is an act of negligence, the crime of abuse of office may occur. Committing the crime of abuse of office through executive or negligent behavior may only have an effect on the amount of the penalty.

Our explanations will be made within this framework, based on the above distinction.

1- CRIME OF ABUSE OF OFFICE BY EXECUTIVE ACTS (ACTING CONTRARY TO THE REQUIREMENTS OF THE DUTY)

TCK 257/1. According to the article; Except for cases defined as crimes in the law, a public official who causes victimization to people or harm to the public, or provides an unfair "benefit" to people, by acting contrary to the requirements of his/her duty, is punished with a prison sentence of "six months to two years".

Movement

According to the article of the law; The crime of abuse of power through executive behavior occurs when a public official acts contrary to the requirements of his duty and, due to this contrary behavior, causes victimization to individuals or harm to the public or provides unfair advantage.

The action part of the crime consists of behaviors that can be considered contrary to the requirements of the duty. What these are is not listed in the law. In this form, crime is a free-moving type of crime. It is necessary to distinguish between this way of committing the crime and the act of negligence. According to the Supreme Court of Appeals CGK; Acting contrary to the requirements of the duty is understood as the public official performing his duty in a way other than the procedures and principles stipulated by the law, administrative regulations or instructions. In this sense, acts such as exceeding the legal authority of the public official in any way, not complying with the formal conditions required by the law, using his discretionary power for purposes other than its intended purpose, acting contrary to the prerequisites required for the action ordered and permitted by the law, and improperly using the goods handed over to him and which he has to use due to his duty, fall within the scope of violation of the requirements of his duty. Some example situations from the application are:

• Exceeding the powers exercised due to duty.
• Failure to comply with the procedure and form established by regulatory procedures or administrative procedures and traditions.
• Exercise of discretion clearly contrary to purpose.
• Failure to comply with judicial decisions.
• Failure to comply with the prerequisites required by the task.
• Illegal use of items required for duty.

Another of the conditions required for a crime to occur is that the public official has a duty that falls within his scope of duty. If the perpetrator commits an act of violation that is not within his scope of duty, the crime of abuse of office cannot be mentioned. The opinion of the Supreme Court CGK on the subject is as follows:

"The first condition for the occurrence of this crime is that the perpetrator, who is a public official, has a duty arising from the law or other administrative regulations regarding the job he performs and is authorized due to this duty. If a person is a public official but does not have a duty or authority related to that job, his unlawful behavior that does not constitute another crime may require disciplinary punishment, but it will not constitute the crime of abuse of office. Because, abuse of an authority that is not legally possessed cannot be mentioned." YCGK. 2013/347K.

Conclusion

Conduct contrary to the norm is not sufficient for the crime of abuse of office regulated in Article 257 of the Turkish Penal Code No. 5237 to occur. In addition, among the objective punishment conditions, one of the elements of personal victimization, public harm, and providing unfair benefit (gain) to individuals must also be present. In the justification of the law, this situation is stated as follows: "Putting every act that is contrary to the requirements of public duty under criminal sanction is incompatible with the principles of crime and punishment policy. For this reason, it has been accepted that if the behavior contrary to the requirements of the duty meets certain conditions, it may constitute the crime of abuse of office. Accordingly, if the behavior contrary to the requirements of the public duty results in the victimization of individuals or causes economic damage to the public or provides an unfair gain to individuals, the crime of abuse of office may occur." Expressions were used.

In the following decision of the CGK to the Supreme Court, the crime was described as a crime of harm and the following expressions were used:

"In order for the crime in Article 257 of Law No. 5237 to occur, behavior contrary to the norm is not enough; due to this behavior, it is necessary to "cause people's victimization or harm to the public or provide an unfair gain to people", in other words, this crime, which is regulated as a crime of danger in Article 240 of Law No. 765, has become a crime of damage in Law No. 5237." 2005/118 K.

There are variations in the Supreme Court's practices on the subject. As can be seen from the decision below, the realization of the result has been accepted as an objective punishment condition this time. According to the relevant decision:

"The defendants' actions such as "assigning 18 non-civil servants to the police department for more than 6 months in violation of Article 41 of the Municipal Police Regulation", which is considered to constitute the crime of abuse of office, are understood to be working in the municipal workers' staff according to the scope of the file, and considering that there is no determination that they received an increase in their salaries or any other benefit due to this assignment, "Public harm", which is the objective punishment conditions of the crime of abuse of office, "Deciding to convict the defendants on faulty grounds that do not comply with the scope of the file, such as recruiting police officers causing a decrease in public resources, without considering that one of the conditions of "personal victimization" or "providing unfair advantage to individuals" was not met and that the defendants should be acquitted," Y9CD. 2020/267 K.

Now, it is necessary to mention that there are three different results sought in terms of the formation of the crime. The occurrence of a crime depends on the occurrence of one of the following: victimization of individuals, public harm or unfair benefit to individuals. According to the decision of the 9th CD of the Supreme Court No. 2021/2517 K., the perpetrator cannot be punished in cases where objective elements such as public harm, personal victimization or unfair benefit are not met. The relevant decision is as follows:

"The defendants' actions such as "assigning 18 non-civil servants to the police department for more than 6 months in violation of Article 41 of the Municipal Police Regulation", which is considered to constitute the crime of abuse of office, are understood to be working in the municipal workers' staff according to the scope of the file, and considering that there is no determination that they received an increase in their salaries or any other benefit due to this assignment, "Public harm", which is the objective punishment conditions of the crime of abuse of office, "The decision to convict the defendants on an erroneous basis that does not comply with the scope of the file, such as recruiting police officers causing a decrease in public resources, without considering that one of the conditions of "personal victimization" or "providing unfair advantage to individuals" is not met and that the defendants should be acquitted.

a-Causing Victimization of Persons

Behavior contrary to the requirements of the duty must cause the person to suffer. This grievance does not only refer to the economic damage suffered. The concept of victimization has a broader meaning than the concept of harm. For example, although the person was successful in the exam, he or she may have been shown to have failed. In a development plan application, a certain parcel may be shown as a green area, contrary to the plan technique, due to hostility towards its owner. Even though a person meets the necessary conditions to benefit from a public financial resource, he or she may be prevented from benefiting from it. Even though a person meets the necessary permit conditions for a certain industrial or commercial activity, this activity may be blocked. (article 257 justification)

The Supreme Court CGK, in a decision dated 2005, stated regarding the criterion of victimization: "The concept of victimization is not limited to economic damage, but also refers to any behavior that results in the violation of individual rights." He used his expressions.

Taking advantage of people after the rightful work has been done also constitutes the crime of abuse of office. Because this benefit is provided to the person because he is a public official and has done the job. In such cases, people act with at least some concern about ensuring their rights are delivered. Even if providing benefits to a public official is apparently consensual; Due to the concern that public duties are carried out on the basis of equality and merit, it is necessary to accept the existence of a grievance here as well.

b-Public Harm

Another consequence sought in terms of the occurrence of the crime is public harm. Public damage is defined in Article 71 of the "Public Financial Management and Control Law No. 5018" as preventing an increase or causing a decrease in public resources as a result of a decision, transaction, action or negligence contrary to the legislation. As stated in the justification of the article, there must be an economic damage in order to talk about public damage. No distinction has been made in terms of the measure of material value. It cannot be said that a crime has been committed due to non-pecuniary damage to the public. The following example is included in the justification of the article:

"Due to behavior contrary to the requirements of the duty, a harm may have occurred to the public. For example, by providing infrastructure services such as electricity, water, gas, telephone and roads to workplaces or residences built in forest areas or by occupying public land, the requirements of the duty may have been acted against."

The Supreme Court CGK used the following statements regarding the public damage result:

"As for the issue of public damage; in the article 71 of the "Public Financial Management and Control Law No. 5018", which includes legal regulation regarding the said concept, which is emphasized in the justification of the article as "an economic damage"; Public damage, defined as preventing an increase or causing a decrease in public resources as a result of a decision, transaction, action or negligence contrary to the legislation, must be determined by the judge in each concrete case, taking into account whether the work, goods or service was purchased at a price higher than the market price or whether it was commissioned in the same way, and the specific characteristics of the concrete case. This determination; It does not mean the exact determination of the amount of public damage suffered, and even if the amount is not determined, the existence of public damage should be accepted if it is understood that the purchase or construction has been carried out at a price higher than the current value, taking into account the nature of the work or service. However, when making this determination, one should not act with the assumption that every behavior contrary to the norm undermines public trust and therefore causes public harm or reveals the possibility of suffering harm." YCGK 2005/118 K.

Unfair gain may be provided to people by acting contrary to the requirements of the duty. For example, a person may have benefited from a public financial resource even though he/she does not meet the necessary conditions. Even though a person does not meet the necessary permit conditions for a certain industrial or commercial activity, permission may be given to carry out this activity. In a zoning plan application, construction may be possible on a certain parcel, contrary to the plan technique or zoning plan.

c-Providing Unfair Benefits to Individuals

The last consequence sought by the law for the crime to occur is that people are provided with an unfair advantage. In the pre-2010 period of the law, the word "earnings" was used instead of the concept of interest. However, with the amendment made in 2010, the phrase "earnings" was changed to "benefit". Thus, a broader concept was developed that included earnings.

The term "interest" refers to all material or moral interests. In other words, only financial gain is not sought. The following examples of interest are given in the justification of the article:

"For example, a person may have benefited from a public financial resource even though he did not meet the necessary conditions. A person may have been given permission to carry out a certain industrial or commercial activity, even though he did not meet the necessary permit conditions. In the application of a zoning plan, construction may have been allowed on a certain parcel, contrary to the plan technique or zoning plan."

2-CRIME OF ABUSE OF OFFICE BY NEGLIGENT ACTION (TCK 257/2)

TCK 257/2. According to the article; Except for cases defined as crimes in the law, any public official who causes victimization or public harm to individuals or provides an unfair "benefit" to individuals by neglecting or delaying in performing the requirements of his/her duty, is punished with a prison sentence of "three months to one year".

As we mentioned above, the crime of neglect of duty, which was regulated as a separate crime during the Turkish Penal Code numbered 765, was included as a form of committing the crime of abuse of office in the Turkish Penal Code numbered 5237.

257. The difference between the 1st and 2nd paragraphs of the article arises from executive and negligent acts. In one case, the perpetrator knowingly violates the requirements of his duty, while in the other case, he shows negligence or delay. According to the Turkish Dictionary of the Turkish Language Association, negligence; It means not doing or neglecting. If the delay is; The job is done after the time it needs to be done has passed.

The explanations we have made above are also valid for this section. In order for a crime to occur, a public official must cause grievance to people or harm to the public, or provide an unfair "benefit" to people, by not doing or delaying a job that falls within his scope of duty.

The crime of abuse of office is a crime committed intentionally, and in order to be mentioned as this crime; The public official must knowingly and willfully neglect or delay his duty.

Delay in performing the duty isthe failure of the public official to perform the duty on time. Determining the concept of time is important for the occurrence of crime. For example, if a civil servant must perform a task within a certain period of time in accordance with a legal regulation, exceeding this period is considered a delay. Like if the lawyer misses the appeal deadline.

In some cases, there is no specified period. In such cases, the decision should be made according to the reasonable time criterion. Some sample Supreme Court decisions on the subject are shared below:

"However, it is necessary to discuss whether the defendant caused victimization to the parties to the files by not showing the necessary sensitivity, attention and care in carrying out the procedures related to the investigation files in a timely manner. It was delayed for the people who were victims of the crimes in the 87 criminal files to obtain their legal rights, and since the investigations were not concluded within the normal period, the legal status of the suspects was kept suspended and the possibility of their immediate acquittal was prevented. For this reason, in accordance with the division of labor, the defendant was responsible for the 87 investigation documents that fell to the public prosecutor. While it is clear that the suspects against whom legal proceedings were initiated were victims of not being given a decision within a reasonable period of time, there is no doubt that the victims of crime in the same investigations were victimized by the act of leaving no action, and accordingly, individual rights were violated and personal victimization occurred.

Accordingly, since the "victimization of persons" element in Article 257 of the Turkish Penal Code No. 5237 was realized in the concrete case, the action that took place in the form of not taking any action in 87 files with a decision to commit a crime and that caused the victimization of persons constituted the crime of abuse of office by negligence in a chain manner, and the T.R.C. No. 5237 of the defendant was amended by Law No. 6086, which was accepted in his favor by the Special Chamber. "It should be accepted that the decision to punish him in accordance with articles 257/2 and 43/1 was appropriate." YCGK

"It is understood that the defendant lawyer acted contrary to his obligations to act in accordance with the integrity and respect and trust required by his title in the Attorneyship Law, caused the judgments to become final by not appealing the convictions given for simple and qualified fraud crimes against the participant of whom he was the defense attorney, and prevented the participant from exercising his freedom to seek his rights guaranteed by Article 36 of the Constitution with his negligent behavior and caused the victimization of the participant. "It should be accepted that the crime of abuse consists of all its elements." YCGK 2019/575 K.

"The building, which was built by the Site Management in the section allocated as a parking area in the development plan sheet in the public area and about which it was decided to take action in accordance with Article 32 of the Law No. 3194 by the decision of the council, was present on the site and was used as a treatment facility, this treatment plant was established in 2001, and after this date, the Site Management paid the Municipality a fine, therefore, although the defendants knew about the building that was against the zoning in the public area, they did not take any action for the demolition of this structure. Since it was understood that they did not do this, the crime of abuse of office was constituted with the negligent behavior attributed to them in terms of this action," Y5CD.

"It is erroneous to make a decision without considering that the causal link between the actions of the defendant doctors and the outcome could not be clearly established, therefore the defendants cannot be held responsible for the crime of reckless homicide, but from the Forensic Medicine Institute's report and the entire file, the defendants had deficiencies in evaluating the clinical condition of the deceased, they did not fulfill their duties and their actions constituted the crime of neglect of duty in Article 257/2 of the Turkish Penal Code. The verdict was reversed for the stated reasons."

"The Law on Lawyers No. 1136 regulates the rules that must be followed not only for lawyers but also for all relevant interlocutors (including private or public legal entities) and the bank employees' failure to provide the insurance documents of their deceased father to the heir representative who applied with a power of attorney constitutes the crime of abuse of office. The application documents and the bank's written response will need to be considered as evidence that will create sufficient suspicion, and if it is concluded that these cannot be enough to file a public lawsuit, this time, a certified copy of the correspondence documents, such as the original, can be requested from the relevant bank, and if there is a legislation or order that requires the officers to respond in this way, their statements can be taken to investigate this, apart from this, a decision cannot be made stating that there is no need for prosecution on a subjective and unfounded reason such as "the dispute is a legal dispute", in the concrete case. It is understood that the Public Prosecutor's Office, which decided that there was no need for prosecution without taking any action one day after the complaint, did not mention that the evidence presented by the complainant would not create a sufficient suspicion on what grounds constituted the crime charged, and that the authority examining the objection decided to reject the objection without a reason that satisfies the applicant or the society. Therefore, the content of the notice based on the Supreme Court Chief Public Prosecutor's Office's request for reversal in the interest of law was deemed appropriate." Y19CD. 2019/8944 K.

ATTEMPT TO MISUSE OF OFFICE

We have stated above that this type of crime is defined differently in different decisions of the Supreme Court. In some decisions, the crime was seen as a crime of harm and the outcome was required to be realized, while in some decisions, it was stated that the outcome was an objective punishment condition. Different answers will be given to the question of whether an attempt is possible in the crime of abuse of office in line with these distinctions.

If the crime is considered a crime with consequences, it will not be possible to attempt a crime. However, if it is accepted that the result is an objective punishment condition, it will be possible to apply the provisions of attempt.

In our opinion, the crime should be characterized as a crime of harm and it should not be possible to attempt a crime. It is possible to prevent the behavior of public officials that does not cause harm but constitutes breach of duty or negligence by imposing disciplinary penalties. Additionally, criminal proceedings are not required.

CONCUSSION FOR ABUSE OF OFFICE

TCK 257/1. The first sentence of the article begins with the phrase "Except for cases separately defined as crimes by law." There is a reason why this expression was added to the ruling. Again, in the justification of the article, "Behaviors that are incompatible with this obligation are defined as crimes under certain conditions. The crime of abuse of office is defined as a general, secondary and complementary crime in this respect." It has been said.

According to the conclusion here, there is a general norm-specific norm relationship between this crime type and other crime types. In other words, if the actions considered as abuse of power also constitute another crime, the perpetrator is punished for that specific crime.

With the crime of abuse of office, embezzlement, extortion, bribery In cases where crimes such as reckless homicide, reckless injury occur together, the perpetrator is punished with only one of these crimes. Additionally, punishment cannot be given without abuse of office.

PUNISHMENT, COMPLAINT PERIOD AND TRIAL FOR ABUSE OF OFFICE

The basic penalty for the crime of abuse of office is imprisonment from 6 months to 2 years in accordance with Article 257/1 of the Turkish Penal Code. The penalty for abuse of office by negligence, that is, negligence or delay in performing the requirements of one's duty, is imprisonment from 3 months to 1 year.

The crime of abuse of office is not crimes subject to complaint Therefore, there is no complaint period for the investigation of the crime.

The statute of limitations for lawsuits is 8 years and the statute of limitations for penalties is 10 years.

The trial of the crime is carried out by the Criminal Courts of First Instance.