Turkey: Restrictions Against Providing Benefit To Public Officials İn Turkish Legal System - A Special Case: Health Personnel

Abstract

This contribution aims to set out an overview of the legislative principles for providing benefit to public officials while focusing on the specific rules for health personnel. In this respect, this contribution aims to set out the limits for health personnel to receive gifts and entertainment.

Introduction

Providing benefit to public officials has always been a much-debated subject which should be approached with sensitivity. While all public officials are de facto prohibited from receiving benefit under certain circumstances in criminal context, the necessity to set the line between public officials and health personnel who are deemed public officials has increased upon the enactment of a new legislation in August 2011, which allows health personnel to receive some gifts and entertainment within the framework of some requirements.

While canvassing the general principle for providing benefit to public officials, this contribution aims to scan the specific legislative rules that would apply to health personnel, regardless of them being public officials or not, and set out the limits for health personnel to receive gifts and entertainment.

I. Definition of a Public Official and Restrictions Against Providing Benefit to Public Officials

1. Definition of a Public Official

Before delving into the specific legislation which would apply to health personnel only, it would be efficient to grasp the general legal framework on providing benefit to public officials. To that end, persons who are deemed public officials should be recognized in order to be able to make the distinction between providing benefit to regular employees and to public officials, which might constitute crime under certain circumstances. The Law No. 657 on Public Officials¹ defines public officials as officials assigned to perform fundamental and continuous public service, conducted by the government or other public corporate bodies within the scope of general administrative principles.

The criminal legislation, however, adopted a wider approach on the definition of a public official, which is to be considered during the application of criminal laws. As per Turkish Criminal Code² (hereafter the "Code") number 5237, a public official is defined as a person who permanently or temporarily participates in the conduct of a public activity by way of assignment, election or other manners.

2. Restrictions Against Providing Benefit to Public Officials

a. Criminal Legislation: Bribery, Abuse of Power and Impropriety

The crimes as will be defined below are regulated under the Code and thus would cover public officials who permanently or temporarily participate in the conduct of a public activity by way of assignment, election or other manners.

Bribery

Articles 252 – 254 of the Code regulates the crime of bribery. Article 252, paragraph 3 defines a bribe as any benefit taken by a public official from a person through agreement for any service or compensation in violation of the public official's duty. Paragraph 4 of the same article extends the scope of bribery to persons other than public officials. Following this paragraph, benefits provided during the establishment of legal relations or during established legal relations to persons serving as representatives of certain organizations are deemed bribes. These organizations should be either: professional organizations in the capacity of public institutions, companies established with the association of public institutions or organizations or professional organizations which are public institutions, foundations operating within such institutions/organizations, unions working for public benefit, cooperatives or publicly traded joint stock companies. The term 'benefit' includes everything that changes the public official's status both financially and/or spiritually and herewith makes him/her more prosperous than before the act of bribery.

The benefit received by the public official must serve a certain purpose in order to constitute a bribe. In other words, the benefit must be provided with the expectation of action or inaction by the public official. Providing benefit to public officials to conduct a legal and just activity will not constitute the crime of bribery. The action does not have to be completed in order to be qualificatied as bribery. The mere agreement constituting the act that alters the official's behaviour is sufficient to fall within the definition of the crime under article 252/1 of the Code. It is important to note that a gift provided or received after the completion of an action, without a previous agreement between the parties and as a result of gratitude, is not deemed a bribe.

Furthermore, the relevant action following the offered benefit must fall within the public official's field of activity in order to constitute bribery. Therefore, the action is not considered a crime of bribery in case the benefit is provided for an action that does not fall within the scope of the public official's duty.

The perpetrator of the crime of bribery is the public official in terms of the receiver of the bribe. The perpetrator of the crime in terms of the provider of the bribe can be anyone; the Code does not stipulate any specification as to the perpetrator in terms of the one delivering the bribe.

As per article 252/1 of the Code, the public official receiving the bribe may be sentenced to four to twelve years in prison. The person delivering the bribe will be sentenced equally. In case the official receiving or agreeing on the bribe is an arbitrator, expert witness, notary public or a sworn financial advisor, the penalty per each of these persons will be raised with one thirds of the original penalty.³

Under article 253 of the Code, security measures will be taken for the legal entities which are provided with unjust benefit by way of committing the bribery crime.

Article 254 regulates effective repentance and stipulates that in case the official receiving the bribe returns it to the investigating authorities before the initiation of the investigation, then he/she will not be subject to penal sanction. In case the public official agreed to act on an offer, but instead informs the authorities before the investigation commenced, then the public official will not be prosecuted. Likewise, the deliverer of, or the person agreeing on the bribe with a public official will not be sentenced, provided that he/she repents and informs the investigating authorities before their initiation of investigation. In this case the bribe provided to the official will be collected and returned to the deliverer.⁴

Abuse of Power

Besides the crime of bribery explained above, the officials can also commit the crime of 'abuse of power', as per article 257 of the Code. Under this article, the crime is committed by officials behaving against the requirements of their duties while receiving an interest in exchange. Following this article, public officials can be imprisoned for one to two years if they cause damage to a person or to the public, including financial damages, or by providing the unjust benefit.

As noted above, the perpetrator of the crime of abuse of power is the public official. However, it is possible for third parties not being public officials to be complicit in the crime. Consequently, the abettor or the one assisting the crime can also be held responsible. As per article 38 of the Code, the abettor will be sentenced to the same penalty as the public official. For the assistant however, article 39 determines that the sentence will be half of the penalty imposed on the public official.

Impropriety

Article 250 of the Code deals with the crime of impropriety. This crime is committed by public officials abusing their power and herewith compelling or persuading a person to provide benefit for himself or for someone else, or by taking advantage of the mistake of a person in order to obtain such benefit. This impropriety is considered a crime because it damages the credence of the administration. Therefore, material damage is not necessary to qualifying as crime of impropriety. The crime of impropriety will occur when the public official abuses the power or the confidence granted to him/her by his/her duty, compels or persuades a person to provide benefit to him/her or a third party or to make such commitments or takes advantage from the aggrieved party's mistake, and as a result gains interest.

As per the same article, the public official committing the crime of impropriety by way of compelling the aggrieved party will be sentenced to imprisonment for five to ten years.⁵ The imprisonment is fixed on three to five years for committing the crime by way of persuading the aggrieved party⁶. Impropriety by taking advantage of the aggrieved party's mistake can lead to imprisonment for one to three years.⁷

Even though the public official as perpetrator of the crime, it is possible for third parties (not being public officials) to be complicit in this. In this respect, the abettor or the one assisting the crime can be held responsible as well. As per article 38 of the Code, the abettor will be sentenced to the full penalty of the committed crime. Article 39 of the Code determines that the person assisting the crime of impropriety will be sentenced to the half of the penalty sentenced to the perpetrator public official.

In light of the foregoing, all three of the crimes as defined under the Code (i.e. bribery, impropriety and abuse of power) are committable by or against health personnel who permanently or temporarily participates in the conduct of a public activity by way of assignment, election or other manners; in other words health personnel working for public institutions such as state hospitals.

b. Providing Gifts and Entertainment

Aside from the criminal aspect of providing benefit to public officials, the issue is also governed in more specific terms (in terms of providing gifts and entertainment) under certain administrative legislation for public officials, wherein the definition of a public official differs from the definition provided under the Code. To that end, the Law on Public Officials, number 657⁸, applies to all public officers as defined under this law; namely the officers working for the General and Annexed Budget Institutions, Provisional Special Administrations, units established by Municipalities, and the affiliated foundations with revolving capitals, funds established by law, surety funds or Physical Training General Directorates.

Article 29 of this law states that "public officials are prohibited from, directly or indirectly, requesting gifts and accepting the same in return of a benefit, even if, in the latter case, such gifts are not provided in the course of duty". As per article 30 of this law, a public official is prohibited from obtaining, directly or indirectly, any benefit of any kind whatsoever from an undertaking under his/her zone of control or in any way connected to him/her or the body he/she is working for.

Furthermore, the 'Regulation on Ethical Principles of Public Officials and Procedures for Application'⁹ also covers the ethical behavior of public officials as defined under the law on Public Officials, number 657¹⁰. Article 15 of this regulation reads as follows:

"An object of interest of any kind, whether of value or not, received directly or indirectly, that influences or is likely to influence the impartiality, performance, decision or duty of a public official is deemed a gift.¹¹ In principle, public officials must not receive or be delivered gifts, and must not benefit from their duties.¹²"

In light of the foregoing, giving gifts to public officials for any kind of benefit is prohibited and would therefore require it to be proven that there is no contact with the relevant public officials and the party providing gifts at the time, and that it is merely a gift without any expectation of return in terms of action or inaction. The question needs to boil down to the analysis of whether the party providing benefit expects some kind of action or inaction from the public officials in return of the gifts.

II. Definition of Health Personnel and Restrictions Against Providing Benefit to Health Personnel

Without prejudice to the criminal regulations on providing benefit to public officials, restrictions against providing gifts and entertainment to health personnel as defined under its own legislation differ from the ones under the administrative legislation on providing gifts and entertainment to public officials. In other words, health personnel can be provided with gifts and entertainment under certain circumstances and to that end would be exempt from the administrative legislation which would apply to all public officials in general terms.

Under Turkish law, all health personnel¹³, as noted in Additional article 13 of the Law on the Procedure of the Practice of Medicine and Medical Sciences , both working for public and private health institutions will be subject to the specific restrictions set out below. The legislation does not differentiate between employees of these sectors.

Until mid 2011 there was a legislative gap for providing benefit, gifts, entertainment, travel and accommodation, including during academic congresses and conventions, for health personnel in specific and the ethic limits of it.

In August 2011, the Turkish Ministry of Health issued the Regulation on the Promotional Activities for Medicinal Products For Human Use¹⁴ (hereafter the "Regulation"). This regulation, of which the majority came into effect on 31.12.2011, governs the issue of benefit provision to health personnel.

The key rule for providing benefit to health personnel is regulated under article (8) of the Regulation and does not contradict the general rule for all public officials: Any kind of monetary or non-monetary advantage cannot be provided, offered or promised during the promotion of medicinal products for human use to doctors, dentists and pharmacists.

So far, the most debated subject regarding providing benefits to health personnel has been the granting of benefits to health personnel for participation in academic and educational activities, such as seminar, congresses etc. The Regulation sheds light on this controversial issue by governing the terms and conditions for medical license holders to host health personnel during academic and educational activities.

As per article 7 of the Regulation, academic and educational activities on the promotion of medicinal products for human use can not be used for purposes other than the conveyance of already available and/or new medical information. The same article also stipulates that the travel and accommodation expenses of the participants cannot be borne by medical license owners. The term 'participant' as used in the article, suggests that the restriction against the payment of travel and accommodation expenses would apply to the participants who are not health personnel, such as the relatives of the health personnel.

The second paragraph of article 7 regulates the conditions for the support provided by medical license owners for the participation of health personnel to academic meetings held within or outside of Turkey. Accordingly, a medical license owner might provide support for the health personnel's participation to academic meetings, provided that: (i) the meeting relates to the expertise/profession of the health personnel, (ii) the health personnel benefits from this support for at most five times within one year, two of which (at most) can be provided by the same medical license owner and (iii) the support is not provided directly to the health personnel but to the organization(s) arranging the meeting.¹⁵

The same article also requires medical license holders to inform the Ministry of Health on information regarding the health personnel to be supported, which includes the specification regarding the timing of the academic meetings.¹⁶ Accordingly, except for the international meetings that are held in a different country every year, medical license holders cannot assemble or support meetings in sea sides or ski centers during their peak seasons.¹⁷

Health personnel may also be provided with promotional material¹⁸; however the financial limit of the material may not exceed the amount determined by the Ministry of Health announced on the Ministry of Health's webpage.¹⁹

III. Conclusion

In light of the foregoing, public officials are prohibited to receive any benefit that might influence or have any kind of impact on their decisions. Health personnel, on the other hand, will be subject to the specific provisions of the health regulation and can thus be provided with certain benefits without falling within the crimes based on the misuse of power. However, this is only possible under stipulated terms and conditions and they are subject to different sanctions. They are however still subject to the restrictions brought against providing benefit to public officials, such as bribery and are therefore not exempted from criminal sanctions.

The legislator adopted a wider definition of health personnel regarding health legislation and stipulated that all health personnel, working for both public and private health institutions, have the same status in terms of providing benefit under health legislation. Under this definition, the legislator established that any kind of monetary or non-monetary advantage cannot be provided, offered or promised during the promotion of medicinal products for human use to health personnel working in both the public and private sector.

It is also determined that the health personnel could be (i) provided with the stated promotional materials that do not exceed the moderate limits and (ii) supported by medical license owners for the participation of to academic meetings, together with the payment of travel and accommodation expenses to be held within or out of Turkey only under the stated conditions.

Footnotes

1 The Law No. 657 on Public Officials published on the Official Gazette dated 20.07.1965 and numbered 12053.

2 Turkish Criminal Code No. 5237, enacted on 01.06.2005 and published on the Official Gazette dated 12.10.2004 and numbered 25611.

3 Article 252/2 of the Code.

4 Article 254/2 of the Code

5 Paragraph 1 of Article 250 of the Code.

6 Paragraph 2 of Article 250 of the Code

7 Paragraph 3 of Article 250 of the Code

8 The Law No. 657 on Public Officials published on the Official Gazette dated 20.07.1965 and numbered 12053.

9 The Regulation on Ethical Principles of Public Officials and Procedures for Application published on the Official Gazette dated 13.04.2005 and numbered 25785.

10 The Law No. 657 on Public Officials published on the Official Gazette dated 20.07.1965 and numbered 12053.

11 Paragraph 1 of Article 15 of the The Regulation on Ethical Principles of Public Officials and Procedures for Application published on the Official Gazette dated 13.04.2005 and numbered 25785.

12 Paragraph 2 of Article 15 of the The Regulation on Ethical Principles of Public Officials and Procedures for Application published on the Official Gazette dated 13.04.2005 and numbered 25785.

14 Regulation on the Promotional Activities for Medicinal Products For Human Use published on the Official Gazette dated 26.08.2011 and numbered 28037.

15 Paragraph 2 of Article 7 of the Regulation.

16 Paragraph 3 of Article 7 of the Regulation.

17 Paragraph 5 of Article 7 of the Regulation.

18 As per paragraph (g) of Article 4 of the Regulation, promotional materials include: printed material such as books, booklets, brochures consisting of sufficient and necessary information on the product, audiovisual materials such as films, slides, electronic media, all publications and materials which might be used as information-/data- or application source in relevant environments, free samples, programs and materials regarding patient education and souvenir visiting materials such as pens/pencils, pencil cases, notepads, calendars, of which the financial value does not exceed moderate limits

19 Article 8 of the Regulation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.