INTRODUCTION
Although administrations are granted the opportunity to utilize the resources of private individuals through tenders for the procurement of services necessary for the performance of public services, this possibility is subject to stringent conditions. In the context of contracts, while parties are generally afforded the freedom to determine the type, content, and counterparties of the agreement, numerous formal requirements arise when one of the parties is an administration, particularly in the context of tenders.
The strict formalities imposed on public procurements, as well as the administrative sanctions prescribed for certain violations, are complemented by criminal sanctions for other infractions. While the offense of "rigging a tender" may first come to mind when considering the criminal dimension of tenders, the Turkish Penal Code includes provisions related to public procurement law under two distinct categories. The offense of "rigging a tender" pertains to certain violations occurring during the tender process, whereas the offense of "rigging the performance of an obligation" covers breaches committed during the fulfillment phase of obligations undertaken via tenders. Notably, the offense of rigging the performance of an obligation encompasses not only obligations assumed through public procurements but also those undertaken through other means vis-à-vis public institutions or organizations, professional organizations with public institution status, companies established with their participation, foundations operating under their structure, public-benefit associations, or cooperatives. However, this analysis will address the aforementioned offense exclusively in the context of obligations assumed through public procurements.
However, this analysis will address the aforementioned offense exclusively in the context of obligations assumed through public procurements.
PUBLIC PROCUREMENT CONTRACTS
Pursuant to the Public Procurement Law, a contract is a written agreement between the contracting authority and the contractor for the procurement of goods or services and construction works.
The Law on Public Procurement Contracts states that "The parties to public contracts made under this Law shall have equal rights and obligations in the implementation of the provisions of the contract. Provisions contrary to this principle cannot be included in the tender documents and contract provisions. This principle shall be considered in the interpretation and application of the Law." and Article 36 which states that 'In cases where there is no provision in this Law, the provisions of the Code of Obligations shall apply.', we can say that public procurement contracts are private law contracts. However, although it is stated that the parties are equal in terms of rights and obligations, it is possible to observe the determinant and dominant aspect of the administration in public procurement contracts, both in terms of legislative provisions and practices arising from the nature of the legal relationship.
In addition, the procedure for entering into public procurement contracts falls outside the scope of the principle of freedom of contract, which is one of the fundamental principles of the law of obligations. It is well-established that individuals are free to determine the parties and content of a contract within the limits prescribed by law. This rule is a consequence of Article 26 of the Turkish Code of Obligations (TBK). Freedom of contract refers to the liberty to decide whether to enter into a contract, as well as to determine the content, subject matter, type, and parties of the contract. In this context, it is evident that in public procurement contracts, determining the contracting party is subject to a procedure arising from legal provisions rather than the will of the administration. Furthermore, the limits regarding the type and content of the contract are also prescribed by the Public Procurement Contracts Law.
PROHIBITED ACTS AND CONDUCT
Within the scope of public procurement law, the tender process is regulated by Public Procurement Law and the State Procurement Law, and the contract process is regulated by the Public Procurement Contracts Law.
However, the process from the preparation for the tender, until the completion of the tender and the conclusion of the contract is subject to the offense of bid rigging, while the post-contract process is subject to the offense of rigging the performance of the performance.
Pursuant to the Public Procurement Contracts Law, the following acts are considered as "prohibited acts and conduct"
"a) Mixing or attempting to mix up the transactions related to the contract by cheating, promising, threatening, using influence, gaining benefit, agreement, extortion, bribery or by other means.
b) Forging, using or attempting to use false documents.
c) To use fraudulent materials, tools or procedures during the execution or delivery of the work subject to the contract, to make incomplete, faulty or defective production contrary to the rules of science and art.
d) Damaging the administration while fulfilling its commitment.
e) Using his/her knowledge and experience to the detriment of the administration or acting contrary to the provisions of Article 29.
f) Failure to fulfill its commitment in accordance with the tender document and contract provisions, except for force majeure.
g) Transfer or assignment of the contract in violation of Article 16."
Pursuant to Article 26, those who perform prohibited acts specified in a limited number in the provision will be banned from participating in the tenders of public institutions and organizations. If the prohibited act also constitutes a criminal offense, both administrative sanctions and criminal liability of the perpetrators will be imposed. This is stated in Article 27 of the Law as follows: "Even if it is detected after the work is completed and the acceptance process is carried out, a criminal complaint shall be filed with the competent Public Prosecutor's Office for criminal prosecution in accordance with the provisions of the Turkish Penal Code against real or legal persons and their partners or agents in that business who commit acts or behaviors that constitute a crime according to the Turkish Penal Code among the acts or behaviors specified in Article 25."
As a result of the execution of these prohibited acts and behaviors, it is also possible to commit crimes of abuse of office, fraud, causing the absence of public necessities, collusive tendering, fraudulent non-performance, embezzlement, bribery and extortion. In our article, the relevant acts will be evaluated within the scope of the "offense of rigging the performance of the performance".
THE OFFENSE OF FRAUDULENT NON-PERFORMANCE
The crime of offense of fraudulent non-performance is regulated under Article 236 of the TPC and the relevant provision is as follows:
"(1) A person who fraudulent non-performance undertaken against public institutions or organizations, professional organizations with the status of public institutions, companies established with their participation, foundations operating under them, associations working for public benefit or cooperatives shall be sentenced to imprisonment from three to seven years.
(2) If the following acts are committed fraudulently, they shall be deemed to have conspired in the fraudulent non-performance:
a) Delivery or acceptance of a good other than the good whose characteristics are specified in the tender decision or contract.
b) Delivery or acceptance of goods less than the quantity specified in the tender decision or contract.
c) Accepting the performance as if it has been performed in due time, although the performance has not been performed within the period specified in the tender decision or contract.
d) Accepting the work or the materials used in construction tenders even though they do not comply with the conditions, quantity or qualifications specified in the specification or contract.
e) Accepting the performance in service as if it has been performed despite the fact that it has not been performed or incompletely performed according to the conditions specified in the tender decision or contract.
(3) Persons in charge who obtain benefits due to the collusion in the fraudulent non-performance shall also be punished according to the relevant criminal provision for this reason."
MATERIAL ELEMENT
ACT
Although the definition of the offense includes a limited number of elective acts, these acts must be done fraudulently. It is important to note that not every act based on untrue statements can be considered as fraud. The deception must be capable of deceiving a person of average intelligence and knowledge. Deception is defined as "aggravated lie" by the Criminal General Assembly of the Court of Cassation.
"According to the settled acceptance in practice, cheating is defined as 'Cheating is a aggravated lie. The lie should be heavy, intense and skillful to a certain extent, and should eliminate the victim's ability to control in terms of display. With the deception used, the victim must be misled and unfair benefit must be provided to the defendant or someone else by the victim who believes the lies with deceptive behavior as a result of misleading ... The fraudulent behavior must be of a deceptive nature. A simple lie cannot be accepted as a fraudulent act'... However, fraudulent behavior should be evaluated on a case-by-case basis according to the characteristics of each concrete case, based on objective criteria, not on the subjective situation of the person or persons, and the characteristics of the event, the situation of the victim, the relationship with the act, the form of the trick used, and the characteristics of the document concealed or altered, if used, should be taken into consideration separately..." (Criminal General Assembly of the Court of Cassation, 27.09.2016, File No.2016/789, Decision No.2016/323)
DISTINCTION ACCORDING TO CRIME TYPES
Since the crime of offense of fraudulent non-performance, the contract is an optional offense, the crime will occur with the realization of one of the acts listed in the provision.
Since it is possible to commit the offense only through the performance of certain acts included in the legal definition, it can be said that it is a dependent motion crime.
Since the crime is a crime of inchoate offense, the completion of the crime does not depend on the realization of a result.
Another issue regarding the type of crime is the distinction between the crime of danger and the crime of damage. In this regard, there are different evaluations in terms of the crime of fraudulent non-performance. As it is known, if the legal value protected by the crime is required to be damaged in order to complete the crime, it is a harm crime, and if no damage is required, it is a danger crime.
A crime of danger is classified into two categories: concrete danger crimes and abstract danger crimes. In cases where the existence of a danger is a prerequisite for the completion of the crime, it is regarded as a concrete danger crime. Conversely, if the occurrence of danger is presumed upon the realization of the act defined in the legal description of the offense, it is considered an abstract danger crime.
According to one view, as the occurrence of harm is not a condition for the formation of such a crime, it is classified as a crime of danger. However, due to its inherent nature, which entails accompanying harm, the offense in question is characterized as a crime of harm. In our opinion, although harm arises as a consequence of the offense due to its nature, the occurrence of harm is not a precondition for the formation of the offense. Therefore, pursuant to the definition of a crime of harm, the offense in question constitutes an abstract danger crime.
OFFENDER
As evident from the legal definition of the offense, the perpetrators of the crime of tampering with the performance of an obligation are the parties involved in the "delivery/performance" and "acceptance" of the obligation. To clarify the identities of these individuals, it is appropriate to evaluate the terminology in conjunction with the definitions provided under the Public Procurement Law. According to Article 4 of the Public Procurement Law, the parties to the contract are defined as the contractor and the administration. Accordingly, the term "the delivering/performing party" refers to the individual authorized to deliver the goods or perform the work on behalf of the successful bidder who was awarded the tender and signed the contract. On the other hand, the term "the accepting party" refers to the individual authorized to accept the goods or performance on behalf of the institution or organization conducting the tender.
If the crime is a crime that can be committed by everyone, it will be a general crime, and if it can only be committed by certain persons, it will be a specific crime. For example; while crimes such as theft, injury and threats are crimes that can be committed by everyone, bribery, torture and abuse of office are specific crimes. When evaluated in this context, we can say that the crime of fraudulent non-performance is a specific crime since it is a crime that can only be committed by persons who are under obligation with the tender and authorized to accept the performance on behalf of the administration.3
VICTIM
The crime of offense of fraudulent non-performance is regulated under Chapter Nine of the Third Section titled "Crimes Against Society" of the Second Book of the Turkish Criminal Code. It can be said that the victim of this crime is the public, in other words, all individuals who make up the society. The institution, which is a party to the tender - considering that legal entities cannot be considered as victims in the sense of criminal law - should be accepted as "damaged by the crime".
SUBJECT OF THE OFFENSE
Although tenders and performances undertaken pursuant to the Public Procurement Law and the State Procurement Law constitute the subject of this offense, tenders outside the scope of these laws and even performances based on private law contracts may also be subject to this offense. This is because the provision generally refers to the performance of the obligations undertaken against -specified- institutions.
MORAL ELEMENT
When we look at the moral element of the crime, we can say that the crime is a crime committed only intentionally, since there is no legal regulation regarding the negligent form of this crime.
ELEMENT OF ILLEGALITY
As a rule, the act in accordance with the type of crime stipulated in the law is unlawful. However, in the presence of a reason for compliance with the law, the act will be considered lawful even though the act in accordance with the type has occurred, therefore the crime will not occur and the criminal responsibility of the perpetrator will not arise due to the crime. The reasons for compliance with the law are regulated under the Turkish Criminal Code's Book One, Part Two, Chapter Two and can be counted as the exercise of the right, the performance of the duty, the consent of the person concerned and self-defense. The relevant section includes not only the reasons for compliance with the law, but also the reasons that reduce or eliminate culpability. It should be noted immediately that in the presence of a reason that reduces or eliminates culpability -unlike the existence of a reason for compliance with the law- the offense will occur, but the criminal responsibility of the perpetrator will be reduced or eliminated.
SPECIAL FORMS OF THE OFFENSE
ATTEMPT
In the event that the perpetrator starts to directly execute a crime that he intends to commit with favorable actions and fails to complete it due to reasons beyond his control, an attempt to commit the crime will be in question. Although it may appear that attempt to commit this crime is not possible due to the fact that the crime of fraudulent non-performance is not a crime with an outcome, but a crime of mere action, it is possible to attempt this crime in accordance with the jurisprudence of the Court of Cassation
Since the acts carried out until the stage of delivery and acceptance - acts that will serve the formation of the crime - will be characterized as preparatory acts, it will not be possible to talk about the attempt if the acts remain at this stage. However, if the formation process of the acts that can be considered as executive acts can be divided into parts and the interruption occurs at this stage, the attempt will be in question.
AFFILIATION
It is possible to participate in the offense unfraudulent non-performance both as a perpetrator and as a co-conspirator. Accomplice is possible by instigating or assisting. Since this crime is a specific crime, being both a direct perpetrator and a joint perpetrator of this crime depends on the perpetrator being the person authorized to deliver or accept on behalf of the administration. If the person who would normally be considered as a joint perpetrator -due to his/her contribution to the formation of the crime- does not meet the conditions stipulated for the perpetrator due to the specific crime, this person will be responsible as an aider and abettor, not as a joint perpetrator.
In addition, participating in this crime as an instigator or accessory is not subject to any special conditions.
CONSEIL
The optional acts foreseen within the scope of the offense of fraudulent non-performance include some of the prohibited acts listed in Article 25 of the Public Procurement Contracts Law. Therefore, in the event that the prohibited acts listed in Article 25 of the Law on Public Procurement Contracts, other than the optional acts stipulated in Article 236 of the TPC, constitute a crime, the perpetrator will not be punished for the crime of rigging the performance of the performance, but for the other crime(s) that contain the definition of the crime corresponding to the act.5
In addition, if the performance of an obligation undertaken as a result of a tender is tampered with through actions other than the alternative acts specified in Article 236 of the Turkish Penal Code (TPC), punishment should be sought not under the offense of tampering with the performance of an obligation but under the general provisions governing such offenses.
However, if the commission of one of the alternative acts defined within the scope of the offense of tampering with the performance of an obligation constitutes another offense, the principle of "apparent concurrence" applies. Accordingly, for crimes falling within the elements of the offense of tampering with the performance of an obligation, no penalty will be imposed for the secondary offense, and punishment will only be imposed for the primary offense of tampering with the performance of an obligation. "Apparent concurrence" refers to cases where multiple legal norms appear to be applicable to the same act but, in reality, only one of them is enforceable. It should be noted, however, that Article 236(3) of the TPC provides: "Public officials who obtain benefits by tampering with the performance of an obligation shall also be punished under the relevant provisions of law for this reason." This introduces an exception to the principle of apparent concurrence. It is explicitly stated that officials who obtain benefits by committing alternative acts will be punished both for tampering with the performance of an obligation and for any additional offenses arising from their conduct under the provisions governing real concurrence. Notably, no distinction is made regarding whether the benefit was obtained for the offender themselves or for another person. Therefore, if the offense is committed in a manner that provides benefit to any individual, the rules of apparent concurrence will not apply, and the offender will be held liable for all criminal acts committed within this scope.
CONCLUSION
In order to ensure that the tender process is carried out in accordance with the law, the crimes covered under the Turkish Penal Code numbered with 765 are as follows: "If a person commits any act by any means whatsoever, by means of any fraud in the purchase or sale or in the price or in the quantity or in the making of any kind of goods which he is authorized to buy or sell or to make on behalf of the State of Turkey, he shall be punished with heavy imprisonment for a term not less than ten years and the damage shall be made to be paid to him." and Article 205 of Book Two, Chapter Six, Section Six, Chapter Five, "If a person commits fraud and deceit in the type, quality and quantity of the provisions and goods specified in the above article, he shall be sentenced to imprisonment from six months to five years and a heavy fine of twenty-five liras to two hundred liras. In the event that the perpetrator commits fraud and deceit in the official office or other equipment that is undertaken to be provided for a public service, the penalty to be imposed on the perpetrator is imprisonment for up to two years and a fine of up to one hundred and fifty liras." is regulated by Article 362. When we look at the Turkish Criminal Code No. 5237, it is seen that the limits of the regulations on the subject are more clear. Considering the casuistic regulations in both the State Procurement Law and the Public Procurement Law and the Public Procurement Contracts Law regarding the procurement process, it has been an appropriate choice to regulate the related offenses as optional actions in parallel with this, in order to clearly define the boundaries of the criminal acts.
Footnotes
1. Mahmut KAPLAN, "The Crime Of Offense Of Fraudulent Non-Performance", Istanbul University Faculty of Law Journal Year: 2013, Section: LXXI, Number: 1, p. 715; Ahmet GÖKCEN, "The Crimes Of Fraudulent Non-Performance İn The New Penal Code", Law and Justice Critical Law Journal, Year: 2005, Section: 6- 7, p. 176 ; Murat Volkan DÜLGER, Evaluation of Crimes Related to the Tender Process in the Context of Economic Crimes, p.18.
2. İzzet ÖZGENÇ, Crimes Committed in the Tender Process, 4th Edition, Ankara 2013, p. 123; Çetin ARSLAN/Ali Rıza TÖNGÜR, "The Crime of fraudulent non-performance", Journal of the Justice Academy of Turkey, Year: 2013, Issue: 14, p. 243.
3. For the contrary view, see: Murat Volkan DÜLGER, Evaluation of Crimes Related to the Tender Process in the Context of Economic Crimes, p.15
4. Ahmet KILIÇ, The Offense Of Fraudulent Non-Performance , Ankara Yıldırım Beyazıt University, Master's Thesis, 2017, p.96.
5. Onur Alp SARAÇ, Situations Contrary To The Law İn The Public Procurement System, Ege University, Master's Thesis, 2010, p.50.
6. Kayıhan İÇEL, Cumulation of Crimes, İstanbul, 1972, p. 167.
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