From Internal Investigation to Prosecution in Türkiye: Part 1 - Bribery

Introduction

Business crimes often trigger internal investigations in Türkiye, as they do globally, potentially leading to criminal proceedings and sanctions under Turkish Law. In ACFE's “A Report to the Nations” published in 2024, Türkiye has the highest number of corruption cases in the Eastern Europe and Western/Central Asia region. As stated in the report, corruption as a business crime covers criminal acts that can be committed in many different forms, including bribery[1]. That is why, it is crucial for multinational companies to determine their course of action when confronting bribery—a prevalent business crimes that may encounter during investigation processes in Türkiye.

Any suspicion of a bribery offense encountered during an internal investigation may necessitate various reporting requirements, measures, and disciplinary actions specific to the company. It also imposes legal obligations under Turkish Law, potentially resulting in penalties if the offence is reported. This article examines the Turkish Penal Code (“TPC”, “the Law”") and relevant secondary legislation concerning the offense of ‘Bribery’.

Defining Elements of Bribery

The offense of bribery, regulated under Article 252 of the TPC, falls within the scope of offenses against the "reliability and functioning of public administration" in Turkish Law. Bribery is defined as “the provision of benefits to a public official or another person designated by them, either directly or through intermediaries, to influence the performance or non-performance of a duty related act”. Key elements of the offense of bribery that require attention are outlined as follows.

▪️ Perpetrator: The offense of bribery involves two parties: the bribe giver/offeror and the bribe taker/acceptor. Both parties are considered perpetrators of the offense. The bribe taker must be a public official, whereas the party may be any natural person acting on their own behalf or on behalf of a legal entity.

The provisions of this offense shall also apply to;

a) Occupational organizations with the character of a public entity,

b) Corporations established in association with public institutions or organizations or occupational organizations with the character of a public entity,

c) Foundations operating within public institutions or organizations or occupational organizations with the character of a public entity,

d) Public benefit associations,

e) Cooperatives,

f) Public joint-stock companies.

To be particular, any person that have the authority to act on behalf of a public joint stock company is included within the scope of the aforementioned categories. As a result, under Turkish Law, offering a benefit or advantage to a representative, CEO, board member or any other official acting on behalf of a publicly traded company in commercial dealings may constitute the offense of bribery.

Furthermore, anyone who intermediates in the bribery offense is considered a joint perpetrator. This includes individuals who facilitate the bribe offer or demand, ensure the bribery agreement, or assist in delivering the bribe, regardless of whether they hold the title of a public official.

Another point to consider is that the offense of bribery encompasses both direct and indirect actions, including through intermediaries, involving the provision, offering, or promising of benefits; as well as solicitation or acceptance of such benefits. This applies to individuals engaged in in public functions in foreign countries, such as state court judges, parliament members, arbitrators, officials, or representatives of supranational organizations. The offense arises when the intent is to influence the execution or omission of duties, or to secure or maintain business opportunities or an unfair advantage in international commercial transactions. Similarly to the U.S. Foreign Corrupt Practices Act (FCPA), which penalizes the bribery of foreign officials, TPC stipulates that bribery offences may occur not only when Turkish officials are involved, but also when a Turkish citizen, acting on behalf of a Turkish company or individually, offers or gives a bribe to individuals performing public duties for a foreign state or organization as outlined above.

Conversely, individuals involved in bribery—whether by giving, offering or promising bribes; receiving, demanding, or soliciting bribes; acting as intermediaries; or benefiting from the bribery relationship—are also deemed to have committed the offense if the bribery pertains to a dispute involving Türkiye, a public institution in Türkiye, a private legal entity established under Turkish law, or a Turkish citizen. This applies equally to transactions related to these entities or individuals. Foreign nationals abroad are subject to investigation and prosecution ex officio if they are found within Türkiye.

Additionally, any third party who indirectly benefits from the bribery relationship, or a representative of a legal entity who accepts such benefits, is penalized as a joint perpetrator, regardless of whether they are a public official.

▪️ Subject: Even if the benefit is not obtained, an agreement on bribery is sufficient for the offense to be sentenced as if it has been completed. Furthermore, the occurrence of the offense does not require the public official to act contrary to their official duties. The offence arises when a person provides benefits to a public official to influence the performance or non-performance of an act, whether lawful or unlawful. No distinction is made regarding the legality of the requested act.

The Difference Between Bribery and Extortion: The offense of bribery, regulated under Article 252, is distinct from extortion, which falls under Article 250. Bribery involves mutual consent between the bribe giver and the public official accepting the bribe, as it is an offense committed by both parties. In contrast, extortion is a unilateral offense committed by a public official who abuses their position to force, persuade, or exploit someone’s error to gain personal or third-party benefits.

In extortion, the individual offering a benefit does so under duress, often out of fear that their request will be delayed, mishandled, or result in harm if they do not comply.[2]

Penalties and Special Circumstances for Bribery: Under the TPC, both bribe givers and receivers face imprisonment ranging from 4 to 12 years. However, if the public official demands a bribe but the other party does not comply, the penalty for the official is reduced by half, resulting in a corresponding reduction in the prison sentence.

Penalties increase if the public official involved is a judicial officer, arbitrator, expert witness, notary public, or sworn financial advisor. Additionally, legal entities involved in bribery may face administrative fines and specific security measures. This applies when the offense is committed by an organ, representative, or individual acting within the entity’s scope of activities for its benefit.

Effective Remorse: The TPC provides leniency through effective remorse provisions. A person accepting or agreeing to accept a bribe can avoid punishment by informing the competent authorities before the offense becomes known. Similarly, if the bribe has already been received, returning it to the relevant authorities can also result in impunity.

Bribe givers or intermediaries can likewise benefit from effective remorse by reporting the offense to the authorities before it is officially discovered. However, these provisions do not extend to individuals who bribe foreign public officials.

It is also important to note that all perpetrators involved in bribery, including intermediaries and individuals indirectly benefiting from the offense, are subject to separate penalties as joint perpetrators.

Investigation and Prosecution Procedure

Bribery, categorized as an offense against the reliability and functioning of public administration, is investigated and prosecuted ex officio under the TPC. Any individual aware of or witnessing the offense may report it to the authorities.

The offense of bribery can be committed more than once in the form of a continuous offense, which means violating the same provision more than once by committing the same offense.[3] The statute of limitations for bribery is 15 years, calculated from the last act of bribery in cases of continuous offenses.

Generally, initiating an investigation against a public official requires permission from the relevant authority. However, under Article 17 of Law No. 3628 on Declaration of Assets, Fight Against Bribery and Corruption, such permission is not necessary for offenses related to bribery.

The Practice of Bribery in Türkiye

Turkish jurisprudence provides examples of bribery in practice. In one case, a company representative instructed a public official to maintain an irregular record, providing financial benefits to the official, which constituted bribery. [4] The offense was subsequently reported to the authorities.

Bribery can have severe consequences, including criminal penalties for perpetrators and the termination of employment by employers. In another case, the offense of bribery was evaluated during a trial following an internal investigation by the company. [5]

Evidence obtained through internal investigations or reports submitted to competent authorities can lead to criminal proceedings, resulting in imprisonment, disqualification of public officials, and administrative fines for companies.

Conclusion

Under Turkish law, bribery is a serious offense with significant legal and ethical ramifications for individuals and corporations. The TPC aims to safeguard public order by meticulously defining the scope, perpetrators, and penalties associated with bribery.

While the law encourages voluntary compliance through provisions such as effective remorse, it is imperative for companies to adopt proactive measures, including internal audit mechanisms and compliance programs, to prevent bribery. Adherence to legislation and international standards is crucial for mitigating risks and avoiding criminal sanctions.

In the second part of this series, the offense of fraud as a business crime under the TPC will be explored in detail.

References

▪️ 9th Civil Chamber of the Court of Cassation, Decision 2020/4092 E., 2021/1766 K. (2021, January 20). Retrieved from Lexpera: https://www.lexpera.com.tr/ictihat/yargitay/9-hukuk-dairesi-e-2020-4092-k-2021-1766-t-20-1-2021

▪️ Apaydın, C. (n.d.). Rüşvet Suçu (TCK m.252) (Only in Turkish). Retrieved from Ceza Hukuku Bilinci.

▪️ Artuk, M. E., Gökçen, A., Alşahin, M. E., & Çakır, K. (Eylül 2019). Ceza Hukuku Özel Hükümler. Ankara: Adalet Yayınevi.

▪️ Criminal General Assembly of the Court of Cassation 2017/872 E., 2021/202 K. (2021, May 6). Retrieved from Lexpera: https://www.lexpera.com.tr/ictihat/yargitay/ceza-genel-kurulu-e-2017-872-k-2021-202-t-6-5-2021

▪️ İç Soruşturmalar Rehberi (Only in Turkish). (2020). Retrieved from Ethics & Reputation Society (TEID): https://www.teid.org/wp-content/uploads/2020/09/ic%CC%A7-sorus%CC%A7turmalar_dijitalversiyon.pdf

▪️Kahraman, R. (2018). 5237 Sayılı Türk Ceza Kanununda Rüşvet Suçu (Only in Turkish). Retrieved from Yükseköğretim Kurulu Başkanlığı Tez Merkezi: https://tez.yok.gov.tr/UlusalTezMerkezi/TezGoster?key=as2oTjW5jfr9IKSvmCdJYt9lE7yJXk5Cueb_9vOzDTlIBKEsZ0Hcs8YaggTfz_tS

▪️Karakurt Eren, A. (2016). Türk Ceza Kanununda Rüşvet Suçu (Only in Turkish). Retrieved from Yükseköğretim Kurulu Başkanlığı Tez Merkezi: https://tez.yok.gov.tr/UlusalTezMerkezi/TezGoster?key=OykDDeWBWTL9-Wm52sZBrI8xAlIFwcutGknymRh5wPkGu0sEh1pijbSfsNu7QXTv

▪️ Occupational Fraud 2024: A Report to the Nations. (2024). Retrieved from Association of Certified Fraud Examiners (ACFE): https://www.acfe.com/-/media/files/acfe/pdfs/rttn/2024/2024-report-to-the-nations.pdf

[1] (Occupational Fraud 2024: A Report to the Nations, 2024)

[2] (Artuk, Gökçen, Alşahin, & Çakır, Eylül 2019)

[3] (Kahraman, 2018)

[4] (Criminal General Assembly of the Court of Cassation 2017/872 E., 2021/202 K., 2021),

[5] (9th Civil Chamber of the Court of Cassation, Decision 2020/4092 E., 2021/1766 K., 2021)