Bribery crime and punishment

The crime and punishment of bribery, also known as civil servant crime, are regulated in Article 252 of the Turkish Penal Code under the title "Crimes against the Reliability and Functioning of Public Administration". The reason why the crime of bribery is regulated in the law is stated in the justification of the article: "The trust and belief prevailing in the society that public services are carried out in accordance with the principles of justice in terms of both equality and merit, and that public officials do not accept bribes and cannot be "bought" should not be shaken. The crime definition of bribery aims to protect this trust." It is explained with expressions.

Bribet in the dictionary means "The benefit provided to a person in the form of goods or money in order to facilitate and speed up a job that is intended to be done illegally." In the justification of the article, bribery is defined as providing a benefit within the framework of an agreement reached by a public official with the purpose of doing or not doing something contrary to the requirements of his duty.

The crime of bribery is a type of multi-perpetrator crime in the form of an encounter where one side is the one giving the bribe and the other side is the public official taking the bribe. The reason why the crime is expressed as a civil servant crime is that one party is a public official. Apart from this, with the amendment of Law No. 5377, the act of intermediating bribery has also been included in the scope of crime. Accordingly; Acts such as taking a bribe, giving a bribe, intermediating a bribe, promising a bribe cause the crime of bribery to occur.

BRIBERY CRIME PERPETRATOR

As we mentioned above, the crime of bribery is among the types of crimes with multiple perpetrators. Therefore, for a crime to occur, two different behaviors must occur. Since the perpetrators of this crime act for the same purpose, the crime of bribery is described as a crime of encounter. One of the perpetrators is a public official and the other is a private person. The bribe-taker must be a public official, and the bribe-giver must be a private person. Therefore, performing two actions constitutes a single crime.

Perpetrator in the Crime of Taking Bribes

We stated that the person taking the bribe must be a public official. In this form, the crime of accepting bribes has the characteristics of a specific crime. While the perpetrator must have the title of public officer, it is sufficient for this title to be present at the time the act is committed. The fact that the perpetrator, who was a public official at the time the act was committed, lost this title later does not prevent the crime from occurring. It is mandatory for the crime to be related to the act of taking a bribe with the duty of a public official. As stated in the justification of the article; In order for the crime of bribery to occur, the intended purpose must be a job that falls within the duties of a public official. The crime of bribery does not occur if a public official obtains benefits for the purpose of performing a task that is not within his or her duties.

The fact that the perpetrator who takes the bribe is from certain professions causes the penalty to be increased. As a matter of fact, this issue is stated in Article 252/7 of the Turkish Penal Code. It is regulated in the article. According to the article; The person who receives or requests a bribe or agrees to do so; In case of a judicial officer, arbitrator, expert, notary or certified public accountant, the penalty to be imposed is increased by one-third to one-half.

The case where the crime of taking bribes is committed by those who are responsible for preparing traffic crime and penalty reports is also considered as a qualified situation in accordance with Annex 11 of the Highway Traffic Law No. 2918. In addition, the law states that people who meet the specified qualifications (police personnel, gendarmerie personnel, highway personnel, etc.) will be dismissed from the profession.

Finally, TCK 252/8. According to the article; Persons acting on behalf of professional organizations that are public institutions, companies established with the participation of public institutions or organizations or professional organizations that are public institutions, foundations that operate within public institutions or organizations or professional organizations that are public institutions, associations that work for the public good, cooperatives, publicly-held joint stock companies are considered as public officials, regardless of whether they have the title of public official or not.

Perpetrator in Bribery Crime

No specific characteristics were sought for the perpetrator who gave the bribe. Therefore, anyone can be the perpetrator of bribery.

As we will explain below, it has been regulated that in addition to the person giving a bribe, those who promise or offer a bribe and those who request or receive a bribe will also be tried as perpetrators. This regulation was brought to the Turkish Penal Code by Law No. 5377.

Co-Perpetrator in the Crime of Bribery

TCK's bribery crime policy has resulted in the punishment of the person who mediates the bribe. For this reason, in accordance with TCK 252/5, apart from the public official who takes bribes and the private person who gives bribes; It has been regulated that the person who acts as an intermediary in the transmission of a bribe offer or request to the other party, the establishment of a bribery agreement, or the provision of bribes will be punished as a co-perpetrator, regardless of whether he or she is a public official. It is clearly stated that the person who mediates here will be the joint perpetrator.

Also, TCK 222/6. In the article; It has been regulated that the third person who receives an indirect benefit in the bribery relationship or the official of the legal entity who accepts the benefit will be punished as a co-perpetrator, regardless of whether he or she is a public official. These two changes were added to the law in 2012. Therefore, two separate special cases of joint perpetration have been regulated in terms of the crime of bribery.

ELEMENTS OF BRIBERY CRIME

The crime of bribery aims to protect more than one legal value. These values ​​can be considered as protecting the respect for the administration and protecting the trust in the state because public officials represent the state.

The legal subject of the crime is the benefit provided, directly or through intermediaries, to a public official or another person designated by him for doing or not doing something related to the performance of his duty, as stated in the text of the article. The concept of benefit is not limited. Therefore, any benefit that will materially or morally change the public official is considered a benefit.

For the crime of bribery to occur, an unfair advantage must be provided.

HOW DOES THE CRIME OF BRIBERY OCCUR?

The action element of the crime of bribery;

1- Performing or not performing an action related to the performance of a public official's duty,

2- Providing an unfair advantage and

3- It constitutes a bribery agreement.

These situations will be examined under separate headings below.

BRIBERY AGREEMENT

Another and most important element of the crime of bribery is a bribery agreement. The existence of a bribery agreement is seen as the most important criterion for proving the crime. In many of its decisions, the Supreme Court has emphasized the necessity of determining whether the crime occurred or whether the benefit was provided within the scope of an agreement.

A bribery agreement refers to an illegal agreement between a public official and another person to do or not to do a job as part of the public duty. The basis of the agreement is the provision of a certain benefit. It does not matter who made the deal offer. It is not required that the benefit be provided at the time of the agreement. The benefit to be obtained later is sufficient to complete the bribery agreement. Bribery agreements can be made in writing or verbally.

In a bribery agreement, the parties must have freely expressed their will. An agreement cannot be made in the presence of reasons such as threats or fraud. Again, in cases where a public official influences the will of the other party by coercion, it will be necessary to talk about the crime of extortion, not the crime of bribery. In cases where one of the parties does not have the will to enter into a bribery agreement, the issue of criminal liability has a different feature. For example, a person who appears to be giving a bribe to get the other party caught will not be punished in such a case. The person opposite him will be punished for attempting to commit bribery. This situation is frequently encountered in practice. As a matter of fact, in the decision numbered 2015/49 of the General Criminal Assembly of the Supreme Court of Appeals, regarding a similar incident; "Since the formal consent (apparent consent-external consent) of a person or a public official who intends or does not intend to give or receive a bribe as if he accepted the offer in order to evade or get caught or to reveal evidence of a crime is not based on free will, it cannot be said that there is a bribery agreement. In such a case, the action of the perpetrator who is caught taking or giving a bribe must be accepted as an attempt to commit the crime of bribery." The provision was made as follows.

If a bribe is offered to a public official and the public official rejects this offer, or if a public official requests a bribe from a private person but this offer is rejected, this time, Article 252/4 of the Turkish Penal Code. The article will be brought to the agenda. According to the relevant article; In cases where a public official requests a bribe but it is not accepted by the person, or if the person makes an offer or promise to provide a benefit to the public official but it is not accepted by the public official, the penalty to be imposed on the perpetrator in accordance with the provisions of the first and second paragraphs is reduced by half.

The crime is considered completed once the bribery agreement is made. As a matter of fact, the 2nd paragraph of Article 252; "If an agreement is reached regarding bribery, the punishment is imposed as if the crime was completed." It is in the form.

UNFAIR BENEFIT IN BRIBERY CRIME

In order to talk about the existence of the crime of bribery, a benefit must be provided or promised to the public official. Whether the benefit is material or moral is not important for the formation of the crime. Any kind of interest has been deemed sufficient for the formation of the crime. It is also possible that the benefit is of a sexual nature.

Unfair advantage must be provided to ensure that an illegal act is done or not done. The crime of bribery does not occur if a benefit is provided to a public official in order to get a legitimate job done. As a matter of fact, in a decision of the 5th Criminal Chamber of the Supreme Court of Appeals dated 2015, "Bribery is the provision of a benefit by a public official within the framework of an agreement reached with a person to do or not do a job contrary to the requirements of his/her duty. It has been regulated that benefiting the public official from doing the job he/she should do or not doing the job he/she should not do, or people providing benefits to the public official for such work, is excluded from the definition of bribery, and in this case, the crime of abuse of power will occur if other conditions are present." It is stated as follows.

The financial amount of the benefit does not matter. There is no difference in punishment between a bribe of 100 TL and a bribe of 10,000 TL. However, in cases of simple interest, the crime of bribery cannot be mentioned. For example, buying tea or food to a public official cannot be considered a bribe. The subject of interest must be precisely determined.

The benefit does not necessarily have to be provided to the public official. A crime also occurs when benefits are provided to relatives.

The benefit provided to the public official must be provided for a job related to the performance of his duty.

As we mentioned above, the benefit does not have to be provided with the agreement. A crime is also considered to have occurred if a promise is made to be fulfilled later. For example, if it is decided that the officer will be appointed after the completion of the job, a crime is deemed to have occurred. The point to be considered here is that for the crime to occur, the benefit must have been decided at the time of the bribery agreement. If such an agreement was not made, but a gift was received as a thank you to the public official after the job was completed, the crime of bribery cannot be considered. As a rule, the crime is completed when the benefit is provided. However, if a bribery agreement is made by promising benefits, the crime is considered completed. As a matter of fact, the General Criminal Assembly of the Supreme Court of Appeals stated in a decision dated 2012, "On the other hand, although it is accepted as a principle that the crime of bribery is completed as soon as the benefit is provided by the public official, in accordance with the criminal policy followed, it is stipulated in the third paragraph of the article that the crime of bribery will be punished as if the crime of bribery has been completed, even if an agreement is made between the public official and the business owner, which envisages the provision of benefit for the purpose of fulfilling or not fulfilling a job related to the performance of his duty." He ruled as follows.

PERFORMING OR NOT DOING AN WORK RELATED TO THE PERFORMANCE OF THE DUTY

In order to be considered a crime of bribery, the action requested to be done or not done must be within the scope of duty of the public official. If a job is done outside of one's duty, the crime of bribery cannot be considered. As a matter of fact, according to a decision of the 5th Criminal Chamber of the Supreme Court of Appeals dated 2012;

"It is against the law to make judgments by making a mistake about the characteristics of the crime, without considering that the proven action of the defendant, who does not act contrary to the requirements of his duty in a matter within his authority, constitutes abuse of office, and the action of the other defendant constitutes the act of abetment of this crime."

PUNISHMENT FOR BRIBERY

Punishment for Bribery

Any person who provides benefits, directly or through intermediaries, to a public official or another person designated by him for doing or not doing a job related to the performance of his duty, is punished with imprisonment from four to twelve years.

Punishment for Taking Bribes

A public official who directly or through intermediaries provides benefits to himself or another person designated by him for doing or not doing a job related to the performance of his duty is also punished with imprisonment from 4 to 12 years.

Punishment for the Crime of Intermediating Bribery

The person who acts as an intermediary in the transmission of a bribe offer or request to the other party, the establishment of a bribery agreement, or the provision of bribes is punished as a co-perpetrator, regardless of whether he or she is a public official.

A third party who indirectly benefits from a bribery relationship or an official of a legal entity who accepts the benefit is punished as a "joint perpetrator", regardless of whether he/she is a public official or not.

The Crime of Qualified Bribery

The person who receives or requests a bribe or agrees to it; In case of a judicial officer, arbitrator, expert, notary or certified public accountant, the penalty to be imposed is increased from one thirdto one half.

The case where the crime of taking bribes is committed by those who are responsible for preparing traffic crime and penalty reports is also considered as a qualified case in accordance with Annex 11 of the Highway Traffic Law No. 2918.

Safety Precautions

Specific security measures are imposed on legal entities from which unfair advantage is obtained by committing the crime of bribery.

Attempted BRIBERY CRIME

As we stated above, the crime of bribery is considered to be completed with the conclusion of the bribery agreement. Even if no benefit is obtained after the agreement is made, a crime is considered to have occurred and the perpetrator is punished for bribery.

In some cases, it is seen that even though a bribe offer is made, the other party rejects the offer. In such situations, the crime of bribery is a type of crime that can be attempted. However, special provisions have been determined regarding the attempt in this crime. 252/4 of the Turkish Penal Code. According to the article;

A public official requests a bribe but it is not accepted by the person, or

In cases where a person makes an offer or promise to a public official about providing benefits, but this is not accepted by the public official, the penalty to be imposed on the perpetrator in accordance with the provisions of the first and second paragraphs is reduced by half.

In cases where one party appears to have accepted a bribe offer to get the other party caught, the crime is considered to have remained at the attempt stage.

BRIBERY CRIME ACTIVE REGRET

Effective Regret of the Bribe Taker

TCK 254/1. According to the article, if the person receiving the bribe delivers the thing subject to bribery to the authorities competent for investigation, before the situation becomes known to the official authorities, he will not be punished for the crime of bribery. If a public official who agrees with someone else to take a bribe informs the competent authorities about the situation before the situation becomes known to the official authorities, he will not be punished for this crime.

"It is wrong not to discuss whether the defendant should benefit from effective remorse provisions or not, considering that the defendant made a sincere statement at this stage, where there was no bribery accusation or investigation against him yet, with his statement in the disciplinary investigation made after his brother's notice, and ensured that the incident was revealed in all its aspects." Y5CD. 2019/5038 K.

Effective Regret of the Briber

If the person who gives a bribe or reaches an agreement with a public official on this issue feels remorseful and informs the competent authorities about the situation before the situation becomes known to the official authorities, he will not be punished for the crime of bribery." Failure to comply is against the law." Y5CD. 2006/6306 K.

Effective Remorse of Co-Perpetrators

If other persons who participate in the crime of bribery feel remorse and inform the competent authorities about the situation before the situation becomes known to the official authorities, they will not be punished for this crime. A special regulation has been introduced in terms of effective remorse with the last paragraph 254 of the Turkish Penal Code. Accordingly, people who bribe foreign public officials cannot benefit from effective repentance.