Discussions on the establishment of an ethics commission have been afoot since 2011, when the first proposal1 for a legislation to establish a Political Ethics Commission was submitted by the main opposition political party in Turkey, the Republican People's Party. The discussions to set up an ethics commission to regulate the ethical conduct of members of the parliament and the ministers, in general, in part stemmed from yet another set of discussions surrounding the maximum value of gifts that members of the parliament can receive (which has been proposed to be 10% of the monthly subsidy and allowance amount of the members of the parliament as per the new draft law on Political Ethics which has not been submitted to the GNAT yet.).
The debate on whether and to what extent such gift giving is acceptable with respect to members of the parliament in Turkey is gaining momentum as the line drawn by legislation applicable to public officials and members of the parliament become hazier than ever.
This paper discusses the legal basis of providing gifts and benefits to members of the parliament in Turkish law in light of the proposed Law on Political Ethics ("Proposed Law No. 452")2 and lays out similar legal frameworks in foreign jurisdictions.
1. Members of the Parliament under Turkish Law
As per the Constitution of the Republic of Turkey, Turkish citizens have the right to form political parties and in accordance with the established procedure to join and withdraw from them.3 Pursuant to Article 76 of the Constitution of the Republic of Turkey, every Turkish citizen over the age of 25 is eligible to be a member of the parliament.
As per the same provision, persons who have not completed their primary education, who have been deprived of legal capacity, who have failed to perform compulsory military service, who are banned from public service, who have been sentenced to a prison term totaling one year or more excluding involuntary offences, or to a heavy imprisonment; those who have been convicted for dishonorable offences such as embezzlement, fraudulent conversion, malversation, corruption, bribery, theft, fraud, forgery, breach of trust, fraudulent bankruptcy; and persons convicted of smuggling, conspiracy in official bidding or purchasing, of offences related to the disclosure of state secrets, of involvement in acts of terrorism, or incitement and encouragement of such activities, cannot be elected deputies, even if they have been pardoned.
Judges and prosecutors, members of the higher judicial organs, members of the teaching staff at institutions of higher education, members of the Higher Education Council, employees of public institutions and agencies who have the status of civil servants, other public employees not regarded as laborers on account of the duties they perform, and members of the Armed Forces shall not stand for election or be eligible to be a deputy unless they resign from office.4
- Definition of Public Officials
As per Article 128 of the Constitution of the Republic of Turkey, the fundamental and permanent functions required by the public services of the state, state economic enterprises and other public corporate bodies are assigned to perform, in accordance with principles of general administration, are to be carried out by public servants and other public employees.
Law No. 657 on Public Officials5 ("Law No. 657") 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. Article 4 of Law No. 657 explicitly stipulates that "public service", as mentioned above, can be performed by four types of individuals: as (i) officials, (ii) contracted personnel, (iii) temporary personnel, or (iv) workers. Except for workers, the remaining three types of individuals are subject to Law No. 657.
The Turkish criminal legislation 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 Code No. 52376 ("Criminal Code"), 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. Providing benefit to public officials and particularly to members of the parliament should be approached with sensitivity, as public officials are prohibited from receiving benefit under certain circumstances in criminal context.
With respect to criminal law, public officials can be defined as "the individual who permanently, periodically or tentatively engages in the carrying out of a public activity, by way of election or appointment or any other way"7. Within the context of this definition, everyone from the president to the public servant can be considered as a public official. The term "public official" engenders two elements: (1) the existence of a public activity and (2) the engagement of the respective person in the relevant public activity. One can infer that with respect to especially the second element, members of the parliament, who are elected by the public, are engaged in public activity, and as such fulfill the second element. With respect to the first element, one can conclude that the activity to which the member of the parliament engage themselves in (i.e. to represent the public) is of a public nature. Within the context of Turkish criminal law, members of the parliament could be inferred as "public officials"
Members of the parliament are considered public officials in general terms so as to be included in the public servants as described in Article 128 of the Constitution of the Republic of Turkey. In the narrow sense, public officials are considered "state officials", as understood within the context of the definition laid out in Law No. 657. While the function of a member of the parliament encapsulates public benefit, it is not subject to Law No. 6578. However, one can reach the conclusion that members of the parliament fulfill a public service in the general sense given this public benefit.
Law No. 657 will not be applicable to members of the parliament, because first, members of the parliament do not have a contractual relationship with the public, nor can they be as such classified under the three types of individuals to whom Law No. 657 is applicable, as was described above since they would have to withdraw from being public officials in order to be considered as an applicants to being a member of the parliament, and second, members of the parliament are subject to the GNAT bylaw and relevant legislation applicable to these members once they are elected representatives of their constituents. The members of the parliament are elected by the "public will" in order to carry out a "public service" (that is to represent the public), and they carry out their duties as a result of the right to elect and be elected in a system where there is a separation of powers. Accordingly, members of the parliament should be subject to equal conditions as those sought for public officials. On the other hand, Law No. 657 should not be applicable to members of the parliament for the very reason that the law grants them a parliamentary immunity, which separates them from being subject to the general provisions of Law no. 657. This discussion ultimately blurs the line as to the legal status of members of the parliament, and that there is no clear cut answer to whether members of the parliament can be considered as public officials, thereby being subjected to the provisions of Law No. 657.
When the subject matter is regarded with respect to the immunity granted to the members of the parliament due to their duties having a public benefit, the regulations of the Turkish legislation in relation to public officials cannot be applicable to members of the parliament. "Shielding representatives from criminal law is justified to the extent that it augments those individual rights that are necessary for self-government, compensates for a shortfall in those rights or protects the passage of pro-rights legislation."9 It could be inferred that this immunity will protect the member of the parliament, together with its public function. As such, the prohibition to receive gifts and benefits as imposed upon public officials will not hold true for members of the parliament.
2. Providing Gifts and Benefits under Turkish Law
Ambiguity of drawing a clear distinction on what constitutes a bribe and a gift is a slippery ground and even providing the gift could be interpreted as providing a 'benefit' to the public official.
Article 29 of the Law No. 657 on Public Officials provides 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'10 also covers the ethical behavior of public officials as defined underthe Law on Public Officials, number 65711"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.12 In principle, public officials must not receive or be delivered gifts13, and must not benefit from their duties.14"
As per the same article, prohibited gifts are stated as; a) Gifts of greeting, farewell and celebration, scholarship, travel, cost-free accommodation and gift vouchers received from the people who have service or interest relations with the institution they work for, b) Transactions which are made from unreasonable prices according to the market price when buying, selling or hiring movable or immovable goods or service, c) All sorts of gifts including jewelry, clothes, food or any other goods given by those benefiting from the service, d) Loans and credits taken from the people, who have work or service relations with the institution.
On the other hand, the following gifts are outside the scope of the said prohibition; a) Donations which mean contribution to the organization for which the public officials work, which will not affect the execution of the organization services in accordance with the law and which are received, provided that they are allocated for the public service, recorded in the fixed assets list of the organization and that they are declared to the public (except from the official car and other gifts received in order to allocate for the service of a specific public official) and the donations which are granted to the institution and organizations, b) Book, magazine, article, cassette, calendar, compact disc or such goods, c) Gifts or rewards acquired in publicly held competitions, campaigns and activities, d) Gifts having the value of souvenir which are given in publicly held conferences, symposium, forum, panel, meal, reception or similar activities, e) Advertisement and handicraft products which are distributed to everyone and which have symbolic value) Credits taken from financial organizations according to the market conditions.
In light of the foregoing, other than the explicitly permitted ones, 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.
- Criminal Acts of Public Officials
As members of the parliament are not considered as public officials the question of which regulation will be applicable for providing gifts and benefits to members of the parliament arises.
The crimes as will be defined below are regulated under the Criminal 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, as described under the Criminal Code (i.e. which would also include members of the parliament).
Articles 252 254 of the Criminal Code regulate 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. 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; however would fall under other a different form of crime that will be defined in the following section. The action does not have to be completed in order to be qualified as bribery and therefore the mere agreement constituting the act that alters the official's behavior is sufficient to fall within the definition of the crime under Article 252/1 of the Criminal 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, will not deemed a bribe.
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. It is highly important to note that the person delivering the bribe will be sentenced equally.
ii. 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 Criminal 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.
Article 250 of the Criminal Code regulates 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. Underlying reason considering impropriety as crime is because it damages the credibility 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.
In light of the foregoing criminal implications of receiving and providing gifts and benefit to public officials, the question of whether a member of the parliament can vote in favor of or against a proposed law will arise in case the member of the parliament were to receive or provide gifts and benefits. The discussions on this question may best be left to another article.
3. Evaluations on the Proposed Law No. 452 and Meaning of Providing Gifts and Benefits to Members of the Parliament under Turkish Law
Law No. 3628 on Declaration of Assets, and Fight Against Bribery and Corruption ("Law No. 3628") regulates declaration of assets for the purpose of combating bribery and corruption, and to prevent unjustified benefit or irregular declaration, and to ensure due pursuance of public officials and criminal accomplices in such irregularities. Among those who are required to declare their assets are political party leaders.15
The Proposed Law No. 452 aims to lay out the principles and procedures of the GNAT Ethics Commission which is to obtain substantive information and/or initiate investigation and research into breach of Law No. 3069 on Acts that are Not Compatible with GNAT Membership, Law No. 3628, other laws as well as political ethics principles that are laid out under the Proposed Law.
An earlier version of the Proposed Law, as submitted in 2011 to the GNAT's consideration ("Proposed Law No.1")16, also includes in its scope the determination of political ethics rules such as ensuring transparency, independence, honesty, accountability and public benefit and to scrutinize such cases. The Proposed Law No.1 prohibits obtaining gift and benefits and defines "gift" under Article 2 as "any property and benefit that has been directly or indirectly accepted, that has an economic value or does not have any such value, that affects or has the potential to affect the decisions of the member of the parliament or the minister." However, the current Proposed Law No. 452 does not contain a provision for definitions and prohibition as to obtaining gifts and benefits however instead, lays out what is titled as "Political ethics principles" under Article 2.17
The main provision under the Proposed Law No. 1 regulating the provision of gifts and benefits with respect to members of the parliament is Article 4. As per Article 4 of the Proposed Law No. 452, the prohibition to receive gifts and benefits covers the following four acts:
(i) Celebratory or farewell gifts or gifts that are reimbursed by those individuals with whom members of the parliament and ministers have a business, service or benefit relationship, as well as scholarship, travel, vacation and gift vouchers,
(ii) Acts that are carried out whilst purchasing, selling or leasing moveable and immoveable goods with prices that are not reasonable as compared to market prices,
(iii) Any and all types of goods, clothing, jewelry or other gifts,
(iv) Loans and credits with low interest rates or no interest rates that are received from individuals with whom the members of the parliament and ministers have business and service relationship.
The Proposed Law No.1 made it clear under Article 4/2 that the main principle behind this prohibition to not give and receive is not to obtain any benefit by way of making use of the privileges granted to members of the parliament and ministers in order to carry out their public service duties or to fulfill their duties and powers.
Under Article 4/3 of the Proposed Law No.1, members of the parliament, their wives, and children are obliged to hand over gifts they receive from foreign countries, foreign institutions, foreign legal persons, foreign nationals and that exceed their monthly net minimum salaries. This provision, however, is followed by the much debated rule on allowing members of the parliament to accept gifts whose values do not exceed 10% of their monthly salaries. Pursuant to Article 4/4 of the Proposed Law No. 452, members of the parliament are obliged to hand over gifts given to them by private or official institutions that exceed 10% of their monthly salary to the Ethics Commission. This provision excludes goods that hold an intellectual and artistic value, such as books, CDs.
The current Proposed Law No. 452 makes it a clear regulation for members of the parliament to declare their incomes that fall outside of (1) their salaries and retirement payment incomes, (2) incomes obtained up to 10 times for agricultural production, (3) incomes obtained up to 5 times for lease, interest and securities, and (4) an honorary payment of up to 2 times of their monthly salaries (such as incomes obtained due to attending conferences, making speech or publishing articles and books), as per Article 3, within three months as of the date when they receive their income.
At the end of 2012, a report was submitted to the Presidency of the GNAT by the Political Ethics Negotiation Commission, which was established in April 2012 by four members, each from the relevant political parties that are represented in the GNAT. The Political Ethics Negotiation Commission gathered for sixteen times during 2012 in order to implement an open, honest, and accountable environment in politics, and determine ethics principles through a detailed analysis of political ethics. The Political Ethics Negotiation Commission ultimately drafted a report, in which the general content of each of the meetings held were outlined, and the report was accompanied by the Political Ethics Negotiation Commission's own proposed draft law on Political Ethics Law and its reasoning. Article 5 of the Political Ethics Negotiation Commission's proposed draft law on Political Ethics Law regulates the rules on the prohibition of obtaining gifts, and it provides that members of the GNAT cannot accept gifts from foreign countries, international organizations and any real or legal person or institution whose amount exceeds 10% of the member of the parliament's monthly subsidy and allowance amount, similar to the Proposed Law No.1 regulation. The proposal is currently waiting at the GNAT's presidency for consideration and assessment.
When the relevant regulations are evaluated in view of the clear prohibition that is laid out under Law No. 657 for providing gifts and benefits to public officials, there appears to be a dichotomy under Turkish law between which individuals are covered under this prohibition and which not. The principle underlying this prohibition essentially rests with the legislature's concern in ensuring the independence of the public official and to prevent occasions that would result in the public official jeopardizing his independent will to perform, decide or fulfill his duties. Gifts that are provided to public officials would result in a general societal tendency to no longer trust public officials and in the efficient management of public governance. Similarly, members of the parliament, who may already be shielded from the law with certain immunities, should also be prohibited from receiving or giving gifts and benefits, irrespective of the value. The fact that public has already criticized the value that was previously permissible in the draft law on Political Ethics Law before the 10% limit was accepted could be a clear sign of the disturbance such permission has already created in the Turkish social sphere.
4. Providing Benefit and Benefits to Members of the Parliament in Foreign Jurisdictions
In the UK, the Code of Conduct for Members of the House of Lords and Guide to the Code of Conduct provide under Category 8 that "Any gift, or other benefit, which relates substantially to membership of the House and which is either given free of charge, or provided at a cost below that generally available to Members of the public, should be registered whenever the value or potential value of the gift or benefit is greater than £500, unless the Member gives the gift to charity within the period required for registration." As per the same category, benefits include loans, tickets to cultural and sporting events, hospitality, travel and accommodation upgrades. This category, however, excludes gifts and material benefits that do not relate substantially to membership of the House from being registered.
On a similar note, the Independent Parliamentary Standards Authority's ("IPSA") Gifts and Hospitality Code ("Gifts and Hospitality Code") defines "gifts" under Article 4 as "something which is voluntarily given without the expectation of receiving anything in return" The provision sets out that the general principles for accepting gifts as follows:
(i) The gift must normally be of a nominal or notional value and not exceeding £30;
(ii) The gift must be given for an appropriate reason;
(iii) The gift must be given at an appropriate time (e.g. not in advance of an award or contract); and
(iv) The gift must be of a one-off or irregular nature, such that it could not be viewed as a regular source of income by HM Revenue & Customs.
The Gifts and Hospitality Code expressly stipulates that where the Chair or a Member of IPSA receives any gift of any value, from a Member of Parliament, an MP's staff member, a Member of the House of Lords or Lords' staff, that gift is to be registered.
The Parliamentary Codes of Conduct in Europe imposes a negative obligation on the members of the parliaments across Europe as the ban on the acceptance of gifts or other favours, either on one's own behalf of on that of another person or a political group. This prohibition, however, is regulated differently in different countries. While providing gifts in certain countries is an express prohibition only with respect to parliamentary staff and not necessarily with respect to members of the parliament themselves (such as in Finland, Denmark, Austria), in France, Germany and Poland, one of the principles for the codes of conduct of members of the parliament is the obligation to declare gifts, irrespective of their value. In Malta and Latvia, members of the parliament are prohibited from receiving gifts.
Members of the European Commission are prohibited from accepting any gift with a value of more than EUR 150. When, in accordance with diplomatic usage, they receive gifts worth more than this amount, they are obliged to hand them over to the Commission's Protocol department. Similarly, Members of the European Parliament have to refrain from accepting gifts or other benefits in the performance of their duties.
In all of the above, the essential principle behind setting out such a prohibition is to preserve the independence of elected representatives and to protect them from any societal misconception as to their independence.
1 See Legislation Proposal Text, of July 13, 2011, available at http://www2.tbmm.gov.tr/d24/2/2-0010.pdf .
2 As submitted for consideration to the GNAT on June 21, 2012, Proposed Law No. 452.
3 Article 68, the Constitution of the Republic of Turkey.
4 Article 76, the Constitution of the Republic of Turkey; Article 18, Law No. 2839 on Election of Members of the Parliament.
5 The Law No. 657 on Public Officials published on the Official Gazette dated 20.07.1965 and numbered 12053.
6 Turkish Criminal Code No. 5237, enacted on 01.06.2005 and published on the Official Gazette dated 12.10.2004 and numbered 25611.
7 Hüseyin Aydın, Ceza Hukukunda Kamu Görevlisi Kavramı, Ankara Barosu Dergisi, Vol. 2010/1, Issue 68, p. 118.
8 Article 1, Law No. 657.
9 Simon Wigley, Parliamentary Immunity in Democratizing Countries: The Case of Turkey, Human Rights Quartler, Vol. 31, Issue 3, p. 576.
10 The Regulation on Ethical Principles of Public Officials and Procedures for Application published on the Official Gazette dated 13.04.2005 and numbered 25785.
11 The Law No. 657 on Public Officials published on the Official Gazette dated 20.07.1965 and numbered 12053.
12 Article 15/1 of the Regulation on Ethical Principles of Public Officials and Procedures for Application.
13 According to Article 29 (2) Council of Ethics is granted with the authority to designate the scope of the prohibition of receiving gifts.
14 Article 15/2 of the Regulation on Ethical Principles of Public Officials and Procedures for Application.
15 Article 2(f), Law No. 3628.
16 As submitted on July 13, 2011, Proposed Law No. 1.
17 These principles in summary, include such prohibitions as not acting as a representative in cases that are initiated against the State, the Turkish Central Bank, and other banks, for crimes committed in relation to misuse of Office, smuggling, fraudulent bankruptcy, money laundering, and embezzlement; to not accept any administrative and political paid jobs that are offered by foreign state or international organization; to not become a board member or manager in companies that use more than fifty times their income generated as a credit from public banks or banks who have participated in the public.
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.