Turkey: The Anti-Bribery And Anti-Corruption Review - Turkey Chapter

I INTRODUCTION

In the past two decades, rapid growth and globalisation in business have triggered many challenges, such as the prevention of corruption and bribery, sustainability of fair competition, environmental protection and income justice. As two major global problems, corruption and bribery concern trade and investment regulations, governmental transparency and misconduct. The implementation of anti-corruption and anti-bribery measures is particularly important for sustaining economic and political consistency, as well as for developing ethical and transparent business conduct in multinational corporations.

Turkey's fight against corruption and bribery was and still is a crucial condition for its accession to the European Union. In the past 20 years, Turkey has signed and ratified a number of international conventions and substantively aligned its domestic legislation with these conventions.

In July 2012, provisions governing the crimes of corruption and bribery under the Turkish Penal Code2 (TPC) were amended with the enactment of Law No. 6352. This amendment redefined the crime of bribery and broadened its scope. The law provides that even where bribery has been committed outside Turkey, if the crime is connected in any way with the state of Turkey or a Turkish public institution, private entity or individual, it will be prosecuted in Turkey. With regard to the crime of corruption, the 2012 amendment enlightened the judiciary about the definition of 'coercion', which is the main element that distinguishes corruption from bribery.

II DOMESTIC BRIBERY: LEGAL FRAMEWORK

There is no specific anti-corruption and anti-bribery law in Turkey. The legislative instruments in this regard are governed under various pieces of legislation. These are: (1) the TPC; (2) Law No. 3628 on the Declaration of Assets and Combating Bribery and Corruption3 (the Asset Declaration Law); (3) Law No. 657 on Civil Servants4 (the Civil Servants Law); and (4) the Law Related to the Establishment of the Council of Ethics for Public Services and Amendments to Some Laws5 (the Ethics Rules Law).

i Scope of the term 'public official'

Turkish law does not provide a uniform definition for the term 'public official'. The scope of this term varies from one legislative instrument to another. Article 128 of the Turkish Constitution provides that the fundamental and permanent functions required by public services will be carried out by 'civil servants' and 'other public employees'. The breadth of this provision is such that the term 'public employees' comprises both civil servants and other public employees, who perform public services based on assignment or their employment relationship with the state, even though they may not necessarily be civil servants.

The Civil Servants Law sets forth four employment categories: civil servants, personnel employed on a contractual basis,6 temporary personnel and employees. The term 'civil servant' is defined under Article 4 as 'regardless of the existing establishment structure of the relevant entity, persons who are assigned the task of performing fundamental and permanent public services, executed in line with the general administrative principles of the state and other public legal entities'. The Civil Servants Law prohibits civil servants from requesting and accepting gifts. According to this Law, the Public Officials Ethics Board (the Ethics Board) is authorised to determine the scope of this prohibition.

The Ethics Board was established pursuant to the Ethics Rules Law, which entered into force for adopting rules and monitoring public officials' implementation of principles related to transparency, impartiality, honesty, accountability and obligation to observe public interest. The Ethics Rules Law is applicable to:

[...] all personnel employed at departments included in the general state budget, contributed budget administrations, state economic enterprises, working capital establishments, local administrations and unions thereof, all public establishments and institutions founded under the names of committees, upper committees, institutions, institutes, enterprises, organisations, funds and similar possessing public entities, the chairpersons and members of management and audit committees, boards and supreme boards.

The Ethics Rules Law is not applicable to the President, members of the Grand National Assembly of Turkey, members of the Council of Ministers, members of the Turkish Armed Forces, and members of the judiciary and universities.

Another law that provides a different definition for the term 'public official', while setting forth rules on the provision of gifts and benefits to public officials, is the Asset Declaration Law. Persons falling within this scope are, in summary:

  1. officers appointed through elections as well as externally appointed ministers;
  2. public notaries;
  3. certain higher officials of various public institutions;
  4. officers, civil servants, directors, auditors and other persons who are not employees, that work in general and contributed budget institutions, municipalities, special provincial administrations, state economic enterprises and their subsidiaries and affiliates;
  5. leaders of political parties;
  6. members of administrative bodies of foundations;
  7. chairpersons, board members and general managers of cooperatives and unions;
  8. directors and auditors of public interest associations; and
  9. individuals owning newspapers, and board members, auditors, responsible managers and columnists of companies that own newspapers.

The broadest definition for the term 'public official' is provided under the TPC. Article 6(c) of the TPC defines the term 'public official' as 'a person who is involved in the operations of public activities, for a definite or indefinite term, either by way of election or nomination or any other way'. Accordingly, the main criterion for regarding a person as a 'public official' is the public nature of the services that he or she is rendering. The person's 'employment relationship' with the state (or any public legal entity) is not specifically sought.

ii Legal framework of anti-bribery and anti-corruption policies of Turkey

Turkey constructed its legislative system on three main divisions: (1) public administration law; (2) civil law; and (3) criminal law. Turkey developed a comprehensive legal framework to facilitate a sustainable fight against corruption and bribery, both in the public and the private sectors. Although the definition and elements of the crimes of bribery and corruption and their legal consequences are primarily dealt with under the TPC, there are many other laws concerning public administration that regulate public officials' acceptance of gifts and benefits. These laws ultimately aim to ensure transparency, equality and ethical conduct in the rendering of public services.

iii Criminal law perspective

The TPC is the primary legislation governing the crimes of bribery and corruption. The crime of bribery is described as a reciprocal crime (i.e., both the party who provides or promises the bribe and the public official involved in the crime will be subject to criminal penalties). On the other hand, in the crime of corruption, the offender is the public official, while the person who is approached for the benefit is the victim.

Article 252 of the TPC states that providing a benefit to a public official or a third party that is designated by a public official, directly or through third parties, for ensuring the performance or omission of the public official's duties, constitutes the crime of bribery. Article 252 specifies the legal sanction for the crime of bribery as imprisonment for four to 12 years.

Bribery is deemed to have been committed if and when a person (or a legal entity) and a public official reach an agreement on the provision of a benefit, in return for the public official's performance or omission of his or her duties. Accordingly, performing the 'provision of the benefit' is not necessary for bribery to be committed. The parties' intention and their mere agreement are sufficient.

In principle, bribery can be committed with the involvement of both parties (i.e., the individual or legal entity and the public official), and both parties will be subject to criminal penalties. However, under Article 252(8) of the TPC, in order to punish an individual or legal entity in the private sector for bribery, the recipient or requesting party must be one of the following: (1) an organisation in the form of a public institution; (2) a corporation or organisation incorporated with the participation of a public institution, in the form of a public institution; (3) a foundation operating within an organisation; (4) an association or cooperative serving a public interest; or (5) a publicly held joint-stock corporation.

If an individual (or legal entity) offers to provide a benefit to a public official but the public official refuses to receive the bribe or a public official asks for the benefit but the addressee of the request refuses to provide it, only the party who was involved in the criminal actions will be held liable, and the duration of imprisonment will be reduced.

Furthermore, a third party who helps the parties to conclude a bribery agreement or a third party to whom a benefit is provided, as requested by the public official, will be deemed an accomplice. Accomplices will also be subject to criminal penalties. In addition, under Article 253 of the TPC, if a legal entity gains benefits through bribery, it can be subject to certain security measures.7 In addition to the applicable security measures, legal entities can also be subject to administrative fines of between 23,000 lira and 4.6 million lira, based on the Law on Misdemeanours.8

The crime of corruption, on the other hand, is defined under Article 250 of the TPC as: 'the public official's forcing of a person in a coercive manner, abusing his or her public authority and powers, to provide him or her or a third party with a benefit or forcing a person to promise to do so, for performing his or her duties'. The main criterion for specifying the public official's criminal actions as corrupt is their use of coercion towards the person. As described under Article 250, coercion is deemed to exist where a person provides a benefit to a public official or a third party because of concerns that, without it, the official will not perform his or her duties (at all or on time). The legal sanction for committing corruption is imprisonment for five to 10 years.

However, the TPC also stipulates that if and when coercion does not exist (i.e., if a public official convinces a person in a fraudulent manner, by abusing the trustworthiness of his or her position, to provide him or her or a third party with a benefit or to promise to do so), the public official will be sentenced to imprisonment for three to five years. Furthermore, if the public official commits this crime by exploiting the person's misunderstanding, he or she will be sentenced to imprisonment for one to three years. Article 250 of the TPC also provides that the length of the imprisonment penalty may be reduced, once the value of the benefit and the victim's economic conditions are taken into account.

iv Public administration law perspective

A public official's acceptance of gifts or other benefits can be subject to various laws, and regulations of Turkish public administration law, depending on different factors. These include the characteristics of the benefit in question, the status and duties of the public official, and the legal relationship between the relevant official and the provider of the gift or benefit.

For example, the Asset Declaration Law stipulates an asset declaration obligation that public officials must fulfil on a periodical basis. This statutory obligation aims to monitor increases in the public official's personal assets. The Asset Declaration Law also provides that a public official who receives a gift or donation of a value exceeding 10 multiples of his or her monthly salary from any foreign country, international organisation or any other international legal entity pursuant to any international protocol, must deliver the property to the organisation in which he or she is employed.

The Civil Servants Law prohibits civil servants from requesting or receiving gifts and loans from their subordinates and third parties. As to the definition of the term 'gift', the Civil Servants Law refers to the Ethics Board's authority. The Ethics Board has published the Regulation on the Ethical Conduct Principles of Public Officials (the Ethics Regulation), which provides that:

[...] public officials are not allowed to accept gifts or benefits, directly or through an intermediary, from individuals or legal entities with whom they are in a business, service or benefit relationship, within the scope of their duties, either for themselves or for their relatives, any third parties or other institutions.

Under the Ethics Regulation, 'any kind of property or interest, with or without economic value, accepted either directly or indirectly, is regarded as gifts, if they have an effect on or have the possibility to affect the impartiality, performance, decision or duty of a public official'. In this regard, depending on the merits of each case, even the provision of a meal and transportation to a business meeting with a public official may be found impermissible, if it is possible that the meal and transportation affected the public official's decision.

Under Turkish public administration law, the main criterion to consider when determining whether the provision of a gift or benefit to a public official is permissible is the 'effect' that such a gift or benefit has on the public official, rather than its size or material value. According to the Public Officials Ethics Guide, published by the Ethics Board in 2014, if a public official has doubts on whether a gift or benefit is permissible, then he or she should ask himself or herself the following question: 'If I were not a public official, and if I were not holding the position that I hold today, would I still have received this gift or benefit?' According to this guide, if the answer is 'absolutely yes', the gift can be accepted. However, if the answer is 'no' or if there are any reservations, then the gift must be declined.

To read this article in full, please click here.

Footnotes

1. Okan Demirkan is a partner, and Begüm Biçer İlikay and Başak İslim are associates, at Kolcuoğlu Demirkan Koçaklı.

2. Published in the Official Gazette dated 12 October 2004 and numbered 25611.

3. Published in the Official Gazette dated 4 May 1990 and numbered 20508.

4. Published in the Official Gazette dated 20 July 1965 and numbered 12053.

5. Published in the Official Gazette dated 8 June 2004 and numbered 25486.

6. Personnel in the following five groups are considered to be personnel employed on a contractual basis, who are regulated separately by special laws:

a. personnel working on the basis of Article 4(B) of the Civil Servants Law;

b. permanent personnel employed on a contractual basis;

c. personnel working in regulatory authorities (independent administrative authorities) employed on a contractual basis (e.g., the Competition Board, Capital Markets Board and Banking Regulation and Supervision Authority);

d. personnel working in the Ministry of Health and Ministry of Education, employed on a contractual basis; and

e. personnel working in state economic enterprises in line with Decree No. 399 on the Personnel Regime of State Economic Enterprises employed on a contractual basis.

7. The most commonly implemented security measure in Turkey is cancellation of the legal entity's licences to conduct its operations, if the entity is active in a regulated business. Seizure of the benefits that the legal entity obtained through the crime of bribery may also be implemented as a different security measure.

8. Published in the Official Gazette dated 31 March 2005 and numbered 25772.

Originally published by Law Business Research Ltd, November 2017.

© Kolcuoğlu Demirkan Koçaklı Attorneys at Law 2017

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Begüm Biçer İlikay
Similar Articles
Relevancy Powered by MondaqAI
Kolcuoglu Demirkan Kocakli Attorneys at Law
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Kolcuoglu Demirkan Kocakli Attorneys at Law
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions