Punishment for extraction crime
Regulations regarding the crime of extortion, which is included under the title of "Crimes against the Reliability of Public Administration" in the fourth chapter of the Turkish Penal Code No. 5237 titled "Crimes Against the Nation and the State", are included in Article 250 of the Law.
According to Article 250 of the Turkish Penal Code, there are three different ways of committing the crime. Accordingly, there are three different ways of committing the crime of extortion: a public official abusing the influence provided by his public office, forcing or persuading someone to benefit himself or someone else or making a promise, or taking something that he should not have received by law by taking advantage of the mistake of his addressee.
Like other crimes regulated in this section, the crime of extortion can be committed by public officials, and the legal value protected by the crime is the reliability of the public administration. Moreover, the fact that the crime is regulated under the heading of crimes against the state is an indicator of this situation. According to the Supreme Court, more than one legal value is protected by the crime of extortion, including the prestige of the public administration, the faith and trust that individuals should have towards public officials, and the benefits of the state in the honesty and good reputation of public officials.
Article 250 of the Turkish Penal Code was significantly amended and finalized in 2012 with Law No. 6352. With the Law No. 6352 of 02.07.2012, an amendment was made to the article and the following sentence was added to the first paragraph: "In the face of unfair attitudes and behaviors of the public official, the existence of coercion is accepted if the person provides a benefit to the public official or the person he will direct, feeling obliged, with the concern that a justified action of the person will not be done properly, at least not on time." "The penalty to be imposed in accordance with the above paragraphs may be reduced by up to half." The 4th paragraph has been added. The final version of the article after the changes is as follows:
TCK 250
- Any public official who forces a person to benefit himself or others by abusing the influence of his position, or to make promises in this regard, is punished with imprisonment from five to ten years. The existence of coercion is accepted if, in the face of the unfair attitude and behavior of the public official, the person feels obliged to provide benefits to the public official or the person he will direct, with the concern that a justified work will not be done properly, at least not on time.
- Any public official who persuades someone to benefit himself or others or to make promises in this regard, through fraudulent behavior by abusing the trust provided by his position, is punished with imprisonment from three to five years.
- If the crime defined in the second paragraph is committed by taking advantage of the person's mistake, a prison sentence of one to three years is imposed.
- Considering the value of the benefit defrauded and the economic situation of the victim, the penalty to be imposed in accordance with the above paragraphs may be reduced by up to half.
ELEMENTS OF THE CRIME OF EXTRACTION
1- LEGAL SUBJECT OF THE CRIME OF EXTRACTION
In the 250th article of the Turkish Penal Code, unlike the Turkish Penal Code numbered 765, the material subject of the crime is stated as "benefit". In the old law, the material subject of the crime was stated as money. According to the justification of the article; For corruption to exist, the public official must benefit himself or others from the persons. However, this benefit phenomenon can occur in various ways. In the text of the article, the crime is defined by taking into account the ways in which this phenomenon of exploitation is carried out.
According to TDK's Turkish dictionary, benefit; It means "good result, benefit, advantage obtained from a job". The Turkish Penal Code has kept the scope of the concept of "Benefit" quite broad. In terms of the crime of extortion, benefit refers to any benefit provided by a public official to himself or others. In this context, not only material interests but also moral interests can cause crimes to occur. Although it is controversial in doctrine, it will be necessary to mention the crime of extortion, especially in cases of moral interests such as sexual satisfaction.
2- PERPETRATOR AND VICTIM IN THE CRIME OF EXTRACTION
As we mentioned above, the crime of extortion is a specific type of crime that can only be committed by public officials. In Article 6 of the Turkish Penal Code, a public official is defined 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. People outside this definition do not have the ability to be perpetrators.
The perpetrator must be a public officer at the time he commits the act of extortion. The fact that the perpetrator loses this title later does not prevent the crime from occurring. In the crime of extortion, persons other than public officials can only be tried as instigators or aiders.
According to the Supreme Court; In the face of the legal benefit protected by the crime of extortion and the fact that the crime is regulated in the section of crimes against society, the victim of this crime is all of the individuals constituting the society, in other words, the public. If the action is committed to the detriment of a specific person, this person will be the one harmed, not the victim.
3- HOW IS THE CRIME OF EXTRACTION COMMITTED? – ACTION ELEMENT
We stated above that the crime of extortion is an optional mobile crime and can be committed with 3 different acts. These acts are listed in the law as follows:
a- Force
b- Persuasion
c- Exploiting the error
But before these, another condition was required for the crime to occur, and this condition can be described as the prerequisite for the crime of extortion. Accordingly, in order for the crime of extortion by coercion to occur, the public official must first "abuse the influence of his position". Therefore, while considering whether a crime has occurred or not, it will first be investigated whether the public official abused his influence. If such a situation does not exist in the concrete case, the crime of extortion cannot be mentioned. In the justification of the article; "This compulsion must have been carried out by abusing the influence provided by the task carried out." It is stated as. In order for abuse of influence to be accepted, the act that gives rise to the crime of extortion must be related to a job that falls within the duties of a public official.
As can be understood from our explanations, the crime of extortion is a special type of the crime of abuse of office.
In addition, the prerequisite for the crime of extortion by persuasion regulated in the second paragraph of the article is "abusing the trust provided by one's position". The crime of extortion by taking advantage of a mistake is a special type of extortion by persuasion. Therefore, here too, the perpetrator abuses the trust provided by his public office.
A distinction should be made in terms of two paragraphs: influence and trust. As it is known, influence; It means influence, power, etc. Therefore, in order for the crime in the first paragraph of the article to occur, the perpetrator's coercive action must be accompanied by abuse of influence, and in terms of the second paragraph, behaviors that will deceive the victim must be performed.
All of the above optional movements will be examined under separate headings. In this section, we find it appropriate to provide the definition of the word extortion as well as general information. The word irtikap means "doing evil, doing evil". Extortion in the legal sense: It refers to providing benefits to oneself or others by abusing the influence or trust provided by one's position, or making promises in this regard.
A- EXTRACTION THROUGH CONDUCTION
Extortion by force is defined in Article 250/1 of the Turkish Penal Code. It is regulated in the article. Accordingly; Any public official who forces someone to benefit himself or others by abusing the influence of his position or to make promises in this regard, is punished with imprisonment from five to ten years.
The word coercion means "to force, force". In order for the crime to occur, the public official must have abused the influence of his position to force the person financially or morally. The justification of the article includes the following statements:
"The crime of extortion by coercion is defined in the first paragraph of the article. In order for the crime of extortion by coercion to occur, a public official must force another person to benefit himself or someone else or to make promises in this way. This coercion must be realized by abusing the influence provided by the duty carried out. However, this coercion must not reach the level of force or threat that causes the crime of plunder. Otherwise, the crime committed, "It is not a crime of extortion by force, but a crime of usurpation."
As stated in the decision of the Supreme Court Criminal General Assembly No. 2013/26 K.; The word coercion means spiritual coercion, and the element of coercion will be realized through spiritual pressure. If the crime is committed under the influence of fear created in the victim, it will be considered as coercion, and if material force is used, the action will constitute crime of plunder. As a matter of fact, this issue is clearly stated in the justifications of both Article 209 of the Turkish Penal Code No. 765 and Article 250 of the Turkish Penal Code No. 5237. Again, as stated in the established decisions of the General Criminal Assembly and the Special Chambers, moral coercion must reach a certain level of severity, be serious, and the victim must not be able to easily escape the effects of the pressure. Any coercive act performed directly or indirectly, provided that it is capable of suppressing the will of the victim, is also included in the concept of coercion. It is sufficient for coercion if the actions taken are appropriate and suitable to keep the victim's will under moral pressure, and the victim knows that the benefit promised or sought to be provided is unlawful. For this reason, whether the coercion is suitable for creating moral pressure should be evaluated by the judge, taking into account the characteristics of the concrete case and objective conditions.
As can be seen, both the justification of the article and the Supreme Court decisions required that the compulsion remain at a certain level, otherwise the crime of plunder would occur. In addition, it has been stated that in order to be considered a crime of extortion, the act of coercion must be of a certain intensity. So how will the intensity of coercion be determined? In fact, it is quite difficult to make such a determination. On the other hand, the legislator introduced a presumption of coercion in order to overcome this difficulty. Accordingly; The existence of coercion is accepted if, in the face of the unfair attitude and behavior of the public official, the person feels obliged to provide benefits to the public official or the person he will direct, with the concern that a justified job will not be done properly, at least not on time.
The commission of the crime of extortion requires the public official to abuse his/her influence. Influence is the power and effectiveness that a public official has due to the authority and opportunities granted by his position; Abuse of this means that the official benefits himself or others by taking advantage of the privileged superior position provided by the authority and opportunities, and the public official uses the power he has in accordance with his duty to gain unfair advantage.
In one of its decisions, the 5th Criminal Chamber of the Supreme Court of Appeals defined the crime of extortion by coercion as coercive extortion and used the following expressions:
"The crime of coercive extortion begins with the public official abusing the person's title and duty and putting pressure on the person, and in the face of this pressure, the individual feels obliged to prevent the official's unfair actions and provides and promises benefits to the victim. The public official puts the victim under moral pressure by saying that he will not do his job if the demands he expresses are not fulfilled. The victim, who is faced with such an unfair situation and is worried that his rightful work will not be done by the public official or will be delayed or will be subjected to an unfair treatment, has reached a certain level of moral violence. Under the influence of force and the necessity of obtaining his rights, the individual gives or promises money and other benefits to the public official, which he knows are unfairly requested." K. 2021/77
The coercion of the perpetrator must be aimed at benefiting himself or others or making promises to the victim in this way. The existence of the promise of benefit is sufficient for a crime to occur. It does not matter when the promise is fulfilled.
In the crime of forced extortion, whether the victim has the opportunity to escape from the effects of force is very important in terms of punishment. If the perpetrator has the opportunity to escape the influence of force, the crime of extortion can no longer be mentioned. This situation should be carefully evaluated on a case-by-case basis. Some sample decisions of the Supreme Court on the subject are shared below:
"In the crime of extortion by coercion, the dispute is related to the determination of whether the crime of attempted extortion by coercion is proven against the defendant. The actions of the defendant, who served as a public prosecutor at the time of the crime and was the most authorized person regarding the investigation documents he carried out according to the division of work, told the suspects that the investigation would result in a decision of not prosecuting, that the complainant was wrong, but that if he wrote an instruction, it could cause the detention to last for nearly a year, moral pressure and pressure from the detained suspects "Since it is behavior aimed at obtaining benefits through coercion and constitutes coercion, it is appropriate for the Special Chamber to describe the action as the crime of extortion through coercion." YCGK 2013/26 K.
"In the case regarding the crime of extortion by coercion, the defendant, who is a doctor, received money from the victim who was going to have an operation at the state hospital, for his private practice. The defendant's behavior did not reach the level of coercion. It is understood that the defendant's action was a crime of gaining advantage in order to act in accordance with the requirements of his duty, and that the defendant's action turned into the crime of bribery as amended by Article 87 of Law No. 6352, and it should be taken into consideration that the favorable legal evaluation should be made among these crimes." Y5CD. 2013/10
"Although the complainant's wife had lymph node cancer, there was no allegation or evidence in the file that she needed urgent intervention, and although she had the opportunity to apply to another doctor or health institution and complain to eliminate the negativities she encountered, she continued her husband's treatment for approximately four months by benefiting the defendant, even though he knew it was not legal. Since it is not possible to talk about coercion reaching the level of coercion, the coercive element of the crime of extortion does not occur in the sense accepted by law, doctrine and practice, and what is established is obtaining benefit to do the job that he was obliged to do." "It should be taken into consideration that the act constitutes the crime of abuse of power in accordance with Article 257/1 of the Turkish Penal Code numbered 5237." Y5CD. 2012/1861
B- CONTRACT THROUGH PERSUASION
Extortion by persuasion is defined in Article 250/2 of the Turkish Penal Code. It is defined in the article as "providing benefits for oneself or others, or making promises in this regard, through fraudulent behavior by abusing the trust provided by one's position."
In order for this form of crime to occur, the perpetrator must first abuse the trust provided by his position and then persuade someone to benefit himself or someone else or make promises in this way through fraudulent behavior. This form of crime can be committed more easily because individuals living in society believe that public officials will act in accordance with their duties.
The concept of persuasion covers all kinds of fraudulent actions. Therefore, it is not possible to limit these movements. In terms of this crime, the perpetrator is convinced by the fraudulent behavior of the public official and consents to his wishes. However, as we have stated, in this case, the victim is not in a position to know that what is asked of him is unfair due to his trust in the public official. Therefore, the consent given is not legally valid. If the victim knows the injustice of the perpetrator's request, the crime of extortion cannot be mentioned here. The factor that distinguishes this crime from fraud crime comes from the public official's abuse of trust.
According to the decision of the General Criminal Assembly of the Supreme Court of Appeals, dated 17.12.1996, numbered 5–269/286; The crime of extortion (extortion) by persuasion occurs when the civil servant abuses his official title or duty and obtains benefit by persuading a person to give money to himself or others unfairly or to provide other benefits or promises. The victim thinks that the benefit he provides to the officer is legal. He does not know that he is providing illegal benefits. The officer deceives the victim with false statements. The victim believes that the payment must be made in accordance with the laws and regulations, and the consent of the individual is compromised by the persuasion of the perpetrator. Persuasion informs the individual that he has to pay money that he is not obliged to pay.
Another decision of the Supreme Court Criminal General Assembly included the following explanations regarding the type of crime:
The concept of persuasion, defined in the Dictionary of the Turkish Language Association as "to make someone believe in something, to make someone believe, to deceive", is explained in doctrine and practice as "a public official misusing the trust provided by his/her position and convincing anyone through fraudulent behavior of the need to provide or promise an unfair benefit to himself or someone else."
In the justification of the article regarding the crime of extortion by persuasion, it is stated that "… In order for the crime of extortion by persuasion to occur, a public official must persuade a person to benefit himself or someone else by fraudulent behavior or to make promises in this way. The fraudulent behavior that constitutes the crime of extortion by persuasion must be committed by abusing the trust provided by the public duty performed by the person.
It is possible to commit the fraud that constitutes the crime of extortion by persuasion through executive or negligent behavior. In this respect, extortion by taking advantage of a mistake is just one way of committing the crime of extortion by persuasion. According to the third paragraph of the article, in this case, the penalty for the crime of extortion must be reduced by persuasion." explanations are included.
For the existence of persuasion to be accepted, the will of the victim must be influenced. In this respect, mere advice is not considered persuasion. The victim can be persuaded verbally, in writing, or by using both means together. ( Mehmet Emin Artuk-Ahmet Gökcen, Criminal Law Special Provisions, Adalet Publishing House, 16th Edition, Ankara 2017, p. 765 et al. )
What is meant by persuasion through fraudulent behavior is to make the victim believe that a benefit should be provided that he or she does not actually need to provide. In order to convince the victim, the perpetrator claims that the benefit should be given in accordance with the duty and procedure, and the victim is convinced by fraudulent behavior that the benefit requested by the public official should be given in accordance with the law and duty. In this respect, the work done by the public official is actually in accordance with the law, but a benefit that does not need to be provided for this work is provided. (Durmuş Tezcan-Mustafa Ruhan Erdem-R. Murat Önok, Theory and Practical Criminal Private Law, Seçkin Publishing House, 9th Edition, Ankara 2013, p. 867 et al.)
As explained in the justification of the article, extortion by persuasion is a crime that can be committed through executive action. If the act is carried out negligently, it will constitute the crime of extortion by taking advantage of the mistake.
In the crime of extortion by persuasion, the benefit is obtained as a result of the deceptive behavior of the perpetrator. In this sense, if the victim knows that he does not have to provide the benefit, but is forced to provide this benefit as a result of the moral pressure of the perpetrator, it is called extortion by coercion; on the other hand, if he does not know that the benefit he provides is unjust, it is extortion by persuasion. For example, the action of the clerk of the courthouse who falsely tells the citizen who comes to the court office to get a copy of the verdict, "You need to pay 150 TL judgment fee first" constitutes the crime of extortion by persuasion. ( Tezcan-Erdem-Önok, p. 868 )
The crime of extortion by persuasion is similar to the crime of fraud in that the perpetrator misleads the victim with his fraudulent behavior and obtains unfair advantage. However, the fact that the perpetrator is a public official and commits the crime by abusing the trust provided by his actual position distinguishes this crime from fraud. (Artuk-Gökcen, p. 744)" 2018/223 K.
In a decision of the 5th Criminal Chamber of the Supreme Court of Appeals, the following provision was made:
"In the concrete case where it is alleged that the defendant, who was working as a civil registry director at the Population Directorate on the date of the incident, and the defendant who was working as a data preparation and control operator, benefited the victims who applied to the civil registry office for marriage transactions by convincing them to pay more than the amounts they had to pay by taking advantage of the trust placed in them as they were public officials, although acquittal decisions were given for the defendant due to his actions towards the victims; "In view of the fact that the mentioned victims stated in their statements at the stages that they paid more than the amount they should have paid to the defendant, although it is proven that the defendant committed the crime of extortion by persuasion against these victims, it is inappropriate to decide on his acquittal instead of conviction." Y5CD. 2019/8650
C- EMPLOYMENT BY TAKING ADVANTAGE OF MISTAKE
TCK 250/3. According to the article; If the crime defined in the second paragraph is committed by taking advantage of the person's mistake, a prison sentence of one to three years is imposed.
As can be understood from the text of the law; This state of the crime constitutes a special form of extortion by persuasion. This situation is also stated in the justification of the article; "It is possible for the fraud that constitutes the crime of extortion by persuasion to be committed through executive or negligent behavior. In this respect, extortion by taking advantage of a mistake is just one way of committing the crime of extortion by persuasion." It is stated as follows.
Therefore, our explanations above regarding the abuse of trust by a public official will also be valid for this state of committing the crime.
In this case, the victim has made a mistake without any influence of the public official. For example, he acts with the thought that he should pay money that he should not have paid. Even though the perpetrator is aware of this situation, he takes advantage of this mistake by acting negligently.
In this case, where the crime of extortion by persuasion is committed negligently, the penalty to be given to the perpetrator is reduced.
PUNISHMENT FOR EXTRACTION
- The perpetrator who commits the crime of extortion by force is sentenced to imprisonment from five to ten years.
- In the crime of extortion by persuasion, the perpetrator is punished with imprisonment from three to five years.
- If the crime of extortion by persuasion is committed by taking advantage of the person's mistake, a prison sentence of one to three years is imposed.
- Also, TCK 250/4. A special provision is included in the article. Accordingly; Taking into account the value of the benefit defrauded and the economic situation of the victim, the penalty to be imposed in accordance with the above paragraphs may be reduced by up to half.
The investigation and prosecution of the crime of extortion is not subject to complaint.
The statute of limitations for the lawsuit is 15 years.
Attempted Extortion Crime
As we have stated in many places, the crime of extortion is a type of crime that is completed by providing or promising a benefit. Therefore, the mere promise of benefit was deemed sufficient for the formation of the crime. On the other hand, in cases where the benefit is not provided and the commitment is not fulfilled, the initiative may come to the fore. It is necessary to mention that if the other party notices the acts of extortion and files a complaint, the crime remains at the attempt stage. An exemplary decision of the Supreme Court regarding the attempt is shared below:
"The defendant, who is the deputy director of the tax office, demanded money through the other defendant, who was his neighbor and friend, by intimidating the taxpayer, who was a taxpayer, that he would subject him to a financial investigation and impose excessive tax fines. The participant appeared to have accepted the request and applied to the C. Prosecutor's Office and reported the situation. Following the delivery of the money and check by the participant to the other defendant's workplace in order to determine the crime and the perpetrators, the check and money subject to the crime were found hidden in the box in the defendant's workplace. "In the incident, the defendants should be convicted for the crimes that are in the nature of attempting and participating in coercive extortion, which remains at the attempt stage, since the benefit or promise of benefit has not yet been provided and the money and check have been given to reveal the incident." Y5CD. 2011/21609 K.
DIFFERENCE BETWEEN EXTRACTION AND BRIBERY
According to the decision of the Supreme Court Criminal General Assembly No. 2010/70 K., there are the following differences between extortion and crime of bribery:
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