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 bribery1. 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:
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:
İç Soruşturmalar Rehberi (Only in Turkish).
(2020). Retrieved from Ethics & Reputation Society (TEID):
Kahraman, R. (2018). 5237 Sayılı Türk Ceza
Kanununda Rüşvet Suçu (Only in Turkish). Retrieved
from Yükseköğretim Kurulu
Başkanlığı Tez Merkezi:
Karakurt Eren, A. (2016). Türk Ceza Kanununda
Rüşvet Suçu (Only in Turkish). Retrieved from
Yükseköğretim Kurulu Başkanlığı
Tez Merkezi:
Occupational Fraud 2024: A Report to the Nations. (2024).
Retrieved from Association of Certified Fraud Examiners (ACFE):
Footnotes
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)
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.
