Entrance
This report has been prepared based on the submitted Court of Cassation decisions and other official documents in response to the user's question "What is the crime of bribery, what is its penalty, the reasons for increasing and decreasing the penalty, and the issues to be considered during the trial?". The report aims to present the definition of the crime of bribery, its legal framework, penalty, the reasons for reducing or increasing the penalty, and the important points that emerged during the trial process, supported by quotations from relevant case laws.
Main Findings
In light of the documents examined, the main findings regarding the crime of bribery are presented below under the following headings:
- Definition and Elements of the Crime of Bribery The crime of bribery is basically the act of a public official providing a benefit or reaching an agreement on this issue, either directly or through intermediaries, for himself or for someone he designates, in return for doing or not doing something that is contrary to the requirements of his duty.
- In the decision of the 6th Criminal Chamber of the Konya Regional Court of Justice (2019/2437-2020/23), it was stated that the crime of bribery is defined as "providing a benefit to oneself or another person to be indicated, directly or through intermediaries, in order for him/her to do or not to do a job related to the performance of his/her duty" with reference to Article 252 of the TCK.
- In the decision numbered 2017/4011-2020/11408 of the 5th Criminal Chamber of the Supreme Court of Appeals, the crime is defined as "a public official providing a benefit within the framework of an agreement with a person to do or not to do a job contrary to the requirements of his duty".
- The "agreement" element is of critical importance for the completion of the crime. In the decision numbered 2017/1020-2020/350 of the Supreme Court of Appeals Criminal General Assembly, it is stated that "if an agreement is reached on bribery, the penalty is imposed as if the crime has been completed." In the PPA decision (2022/ UY.I -1462), it is emphasized that "even if an agreement is reached on bribery, the crime will be considered completed."
- The crime of bribery is a crime of "encounter"; that is, there is a public official giving a bribe on one side and a public official receiving a bribe on the other, and both parties act for the same illegitimate purpose (Court of Cassation 5th Criminal Chamber, 2015/4135-2020/645; General Assembly of the Court of Cassation Criminals, 2011/136-2011/232).
- While during the period of TCK No. 765, a crime was completed by promising or offering a bribe (Court of Cassation 5th Criminal Chamber, 2012/13646-2014/1712), it was stated that with TCK No. 5237, "since reaching an agreement on or giving a bribe is deemed necessary for the completion of the crime, attempting this crime has been made possible, unlike the previous law" (Court of Cassation 5th Criminal Chamber, 2008/3724-2011/1826).
- Penalty for the Crime of Bribery The basic penalty for the crime of bribery is determined in accordance with Article 252 of the Turkish Penal Code No. 5237.
- In the decisions numbered 2017/1020-2020/350 and 2014/52-2014/354 of the Supreme Court Criminal General Assembly, it was stated that the public official who accepts a bribe and the person who gives the bribe "shall be punished with imprisonment from four to twelve years".
- Certain circumstances may require increased penalties for bribery .
- Special status of the person who takes or requests a bribe: In the decision numbered 2017/1020-2020/350 of the Supreme Court of Appeals Criminal General Assembly, "if the person who takes or requests a bribe or agrees on this matter is a judicial officer, arbitrator, expert, notary or sworn financial advisor, the penalty to be given is increased from one third to half."
- Abuse of rights and authorities: In the decision numbered 2020/6914-2023/9486 of the 5th Criminal Chamber of the Supreme Court of Appeals, the situations where the crime is " committed by abusing the rights and authorities in subparagraph (a) of the first paragraph of Article 53 of Law No. 5237 " were considered as a factor that increases the penalty.
- Intensity of intent to commit a crime: In the decision of the 6th Criminal Chamber of the Konya Regional Court of Justice (2019/2437-2020/23), it was decided that the defendants " should be punished separately by moving away from the lower limit of the incentive since it was understood that they had communicated with the complainants many times within 4 days while committing the crime and had repeatedly demonstrated their intent to commit a crime."
- Special law article for police officers: In the decision numbered 2013/6800-2015/13218 of the 5th Criminal Chamber of the Supreme Court of Appeals, "The fact that the Additional Article 11 of the Highway Traffic Law No. 2918 was not applied to the defendants who are police officers and an incomplete sentence was given" was considered as a reason for reversal.
- Reasons for Reducing the Sentence and Reasons for Discounting the Sentence In some cases, a reduction or no penalty may be considered in the sentence to be given for the crime of bribery.
- Attempt: If a bribery agreement cannot be reached or a benefit cannot be obtained, the crime remains at the attempt stage and the penalty is reduced. In the PPL decision (2022/ UY.I -1462), "In the case of attempted bribery, the penalty may be reduced, as stated in Article 35 of the TCK." In the decision numbered 2008/3724-2011/1826 of the 5th Criminal Chamber of the Supreme Court of Appeals, it was stated that "in the event that an agreement cannot be reached due to the rejection of the offer by the other party, the crime of attempting to give bribery will occur" and TCK 35 will be applied.
- Not Accepting the Bribe Request (TCK 252/4): In the decision of the 6th Criminal Chamber of the Konya Regional Court of Justice (2019/2437-2020/23), it was ruled that "since the complainants did not accept the bribe request of the defendants, the sentences of the defendants shall be reduced by half in accordance with Article 252/4 of the TCK ".
- Active Remorse (TCK 254): In the decision numbered 2020/6914-2023/9486 of the 5th Criminal Chamber of the Supreme Court of Appeals, it was emphasized that the defendant who gave the bribe "showed active remorse before the incident was learned by the official authorities and reported his crime to the official authorities... therefore, the second paragraph of Article 254 of Law No. 5237 should be applied to him." A similar situation was also addressed in the decision numbered 2020/4320-2024/570 of the 5th Criminal Chamber of the Supreme Court of Appeals.
- Low Amount of Bribery: In the decision numbered 2011/895-2011/4575 of the 5th Criminal Chamber of the Supreme Court of Appeals, it was stated that "the amount of bribery was considered very light" and a reduction in the penalty was made.
- Old age: In the same decision (Court of Cassation 5th Criminal Chamber, 2011/895-2011/4575) "Old age has also been considered as a reason to reduce the penalty."
- Discretionary Reasons for Discount (TCK 62): It can be applied for reasons such as the defendant's behavior during the trial process or the possible effects of the sentence on the future. However, in the decision of the Konya Regional Court of Justice (2019/2437-2020/23), it is seen that TCK 62 is not applied on the grounds that "the defendants did not show remorse". The decision of the 5th Criminal Chamber of the Supreme Court of Appeals numbered 2008/3724-2011/1826 criticized the unjustified application of TCK 62.
- There are many points that the courts should pay careful attention to in bribery crime trials .
- Determination of the Existence, Timing and Content of the Bribery Agreement: The existence of the agreement, which is the basic element of the crime of bribery, is essential, it must have occurred before the work is done or at the latest at the time of the work being done, and it must be demonstrated with concrete evidence who made this agreement, in return for what work, and for what amount of benefit (Court of Cassation 5th Criminal Chamber, 2022/163-2023/11126; Court of Cassation 5th Criminal Chamber, 2018/14086-2023/8533). In the decision numbered 2014/52-2014/354 of the General Assembly of the Criminal Court of Cassation, it was stated that "the most important element of the crime of bribery is the bribery agreement".
- Being Related to Duty and Contrary to the Requirements of Duty: The benefit must be a job that falls within the duty of the public official and must be provided for in order for this job to be done or not to be done in violation of the requirements of duty. In the decision numbered 2017/4011-2020/11408 of the 5th Criminal Chamber of the Supreme Court of Appeals, it was emphasized that "it must be a job that falls within the duty of the perpetrator and there must be an absolute connection between the specific action requested as a result of the bribe and the duty of the perpetrator."
- Legality and Evaluation of Evidence: The principle of "Findings obtained unlawfully cannot be accepted as evidence" was reminded in the decision numbered 2017/1020-2020/350 of the General Assembly of Criminal Courts of Cassation. The interpretation and analysis of evidence such as telephone records and bank transactions should be done carefully (5th Criminal Chamber of the Court of Cassation, 2017/4011-2020/11408). The aim should be to reveal the material truth in a way that leaves no room for doubt (5th Criminal Chamber of the Court of Cassation, 2020/6914-2023/9486).
- Favorable Application of Law: In case of changes in the law that occur during or after the trial, the provisions that are favorable to the defendant must be applied. This applies to basic punishment, attempt provisions or other procedural matters (e.g. Court of Cassation 5th Criminal Chamber, 2012/13646-2014/1712; Court of Cassation 5th Criminal Chamber, 2014/636-2014/4295).
- Assessment of Alternative Crime Qualifications: If the elements of the crime of bribery are not present, it should be evaluated whether the action constitutes the crimes of "abuse of office" (TCK 257) (Court of Cassation 5th Criminal Chamber, 2015/4135-2020/645; Court of Cassation Criminal General Assembly, 2011/136-2011/232) or "obtaining a benefit in order to act in accordance with the requirements of duty" (TCK 257/3) (Court of Cassation 5th Criminal Chamber, 2017/4011-2020/11408; Court of Cassation 5th Criminal Chamber, 2022/163-2023/11126).
- Consolidation of Related Cases and Investigation of Their Fate: Since the crime of bribery is usually committed mutually, it may be necessary to consolidate the cases regarding the bribe taker and the bribe giver or to investigate each other's fate (Court of Cassation 5th Criminal Chamber, 2015/4135-2020/645).
- Chain Crime Provisions: If there is more than one bribery agreement between the same defendants on different dates, a chain crime (TCK 43) may be brought to the agenda (Court of Cassation 5th Criminal Chamber, 2015/7464-2018/8076). However, offers made to different people for a single purpose may not always constitute a chain crime; if the action is considered a single act in legal terms, the chain crime provisions do not apply (Court of Cassation 5th Criminal Chamber, 2018/12945-2022/11999).
- Deprivation of Rights (TCK 53): In case of conviction , the deprivations of rights regulated in Article 53 of the TCK must be implemented correctly and in accordance with the law (Court of Cassation 5th Criminal Chamber, 2020/4320-2024/570; Court of Cassation 5th Criminal Chamber, 2007/11348-2011/24007).
- Suspension of Announcement of Verdict (HAGB): If the conditions are met, the HAGB institution must be evaluated (Court of Cassation 5th Criminal Chamber, 2009/9728-2010/2262).
- "Ensuring a Just Cause" within the scope of the old TCK (s. 765): For crimes in the period of TCK no. 765, the investigation of whether the bribe was given for the purpose of "ensuring a just cause" may affect the nature of the crime (Court of Cassation Criminal General Assembly, 2004/140-2004/174).
Examination
The decisions examined show that the definition and elements of the crime of bribery in Turkish law have evolved over time, especially with the transition from the Turkish Penal Code No. 765 to the Turkish Penal Code No. 5237. While in the old Turkish Penal Code the offer or promise of a bribe may have been sufficient to complete the crime, in the new Turkish Penal Code the elements of "agreement" and "gaining a benefit" have come to the fore, making the attempted crime more apparent. The basic distinguishing feature of the crime is the performance or failure to perform a task "contrary to the requirements of duty".
The Court of Cassation decisions constantly emphasize the necessity of proving the existence and content of the bribery agreement with concrete evidence. This is one of the most critical points of the trial. It is essential that evidence such as wiretapping records, witness statements, bank transactions are carefully evaluated and complied with the law.
In determining the penalty, factors such as the way the crime was committed, the position of the bribe taker or giver, the size of the bribe amount, as well as circumstances that reduce the penalty such as attempt, effective repentance, or increase the penalty such as the special status of the person are also taken into account. The principle of "favorable law" is a fundamental principle in determining the legal status of the defendant, especially in periods when there are changes in the law.
The potential for the crime of bribery to turn into crimes such as "abuse of office" or "obtaining a benefit in accordance with the requirements of office" if the elements are not met increases the importance of correctly determining the nature of the crime in trials. Therefore, courts need to evaluate all aspects of the incident and evidence with a holistic approach.
Conclusion
In light of the court decisions and other documents presented, the crime of bribery is defined as the public official obtaining an unfair advantage for himself or another person or reaching an agreement in this direction in return for performing or not performing an act contrary to the requirements of his duty. This crime entails criminal liability for both the public official who receives the bribe and the person who gives the bribe, and the basic penalty is imprisonment from 4 to 12 years according to TCK 252.
In determining the penalty, increasing factors such as the bribe taker having a special status such as a member of the judiciary and abuse of rights and authorities are taken into consideration, while mitigating factors such as the crime remaining at the attempted stage, effective remorse being shown and the small amount of the bribe are taken into consideration.
In the trial process, it is of vital importance to prove the existence and content of the bribery agreement with definitive evidence, to establish the connection of the act with public duty and the violation of the requirements of the duty, to ensure the legality of the evidence, to apply the principle of favorable law and to evaluate possible alternative crime characteristics (abuse of office, etc.). Judicial decisions require a meticulous examination and justification in these matters.