Legal Definition of the Crime
The Crime of Trading by a Public Official is regulated under Article 259 of the Turkish Penal Code, within the section titled “Crimes Against the Reliability and Functioning of Public Administration.” The relevant provision states:
Article 259 of the TPC:
(1) A public official who attempts to sell goods or services to another person by taking advantage of the influence derived from their official duty shall be punished with imprisonment of up to six months or a judicial fine.
Elements of the Crime
When the Crime of Trading by a Public Official is evaluated together with its objective and subjective elements, it has the following fundamental components:
1- Perpetrator:
For this crime, as stated in the provision, the perpetrator can only be a person who holds the status of a public official. In this respect, the offense regulated under Article 259 of the Turkish Penal Code is a specific (special) offense.
The liability of the perpetrator arises only in relation to acts committed during the period in which they hold the status of a public official. Acts carried out during a time when the person is not a public official cannot give rise to this offense.
2- Victim:
In this offense, the victim is the public administration.
3- Act (Conduct) Element:
The act element of this crime consists of actions such as “attempting to sell goods or services to another person by taking advantage of the influence provided by one’s official duty.” It is not necessary that the goods or services subject to the offense belong to the perpetrator. Acting as an intermediary in the sale of goods or services belonging to another person is also sufficient for the crime to occur for public officials.
4- Protected Legal Interest:
The crime of trading by a public official is regulated under the title “Crimes Against the Reliability and Functioning of Public Administration” in the Turkish Penal Code. The legal interest protected by this offense is the reliability of public administration and the proper functioning of its order.
5- Mental Element:
This crime can only be committed intentionally; it cannot be committed through negligence. The offense is completed when the perpetrator seeks to obtain a benefit by abusing the influence arising from their duty and attempts to sell goods or services to another person. It is not necessary for the goods or services in question to have actually been sold for the crime to be established.
Advance Payment, Complaint Period, Statute of Limitations, and Competent Court
The investigation and prosecution of the offense are not subject to a complaint; the investigation is conducted ex officio by the public prosecutor. Although there is no complaint period required to initiate an investigation, the statute of limitations for prosecution is 8 years. The provisions of advance payment may be applied during the investigation stage. The competent court is the Criminal Court of First Instance.
Judicial Fine, Suspension of the Sentence, and the Decision to Defer the Pronouncement of the Judgment
Pursuant to Article 259 of the Turkish Penal Code; a public official who attempts to sell goods or services to another person by taking advantage of the influence derived from their duty shall be punished with imprisonment of up to six months or a judicial fine. Considering the lower and upper limits of the penalty, it is possible to issue a decision to defer the pronouncement of the judgment (HAGB) and to suspend the sentence. However, since the offense предусматриes alternative sanctions, if a sentence of imprisonment is imposed, it cannot be converted into a judicial fine.
Court of Cassation Decisions on the Subject
“…As a result of the investigation conducted regarding the complainant-suspect … for the crime of defamation, and the complainant-suspect … for the crimes of simple threat and trading by a public official, following the decision of non-prosecution issued by the Seydişehir Chief Public Prosecutor’s Office dated 15/02/2016 and numbered 2015/278 investigation, 2016/228, the objection filed by the counsel of the complainant-suspect … against the decision rendered by the Seydişehir Criminal Judgeship of Peace dated 15/03/2016 and numbered 2016/179, which rejected the objection seeking the annulment of the non-prosecution decision issued concerning the other complainant-suspect …, was examined.
According to the case file, in light of the confirmation by witnesses … and …, whose statements were taken, of the allegations that the complainant-suspect …, by using the title of police chief, sold potatoes to officers working at the Seydişehir District Police Department, it was determined that the evidence collected regarding the complainant-suspect … for the crime of trading by a public official is of a nature that would require the filing of a public prosecution and should be evaluated by the court.
In this respect, since it was not appropriate to reject the objection on this ground instead of accepting it, it was considered necessary to quash the decision pursuant to Article 309 of the Criminal Procedure Code No. 5271, upon the letter of the Ministry of Justice, General Directorate of Criminal Affairs dated 19/08/2016 and numbered 94660652-105-42-5825-2016-Kyb, based on cassation in the interest of the law, and the matter, together with the case file, was referred to the Court of Cassation Chief Public Prosecutor’s Office for notification to the Chamber.
Since the content of the notification based on the request for cassation in the interest of the law was found to be justified, the request was accepted and the decision of the Seydişehir Criminal Judgeship of Peace dated 15/03/2016 and numbered 2016/179 regarding the suspect … for the crime of trading by a public official was QUASHED pursuant to Article 309 of the Criminal Procedure Code…” (Court of Cassation, 5th Criminal Chamber, 2017/5860 E., 2017/5144 K., 04.12.2017).
“…A public prosecution was filed against the defendant for the act of violating Law No. 3628 and for the crime of trading by a public official. From the date of 12/11/2009, when the defendant’s statement—being the last procedural act interrupting the statute of limitations—was taken, until the date of review, the 8-year ordinary statute of limitations prescribed under Article 66/1-e of the Turkish Penal Code No. 5237 had elapsed.
This situation necessitated reversal; since the grounds of appeal raised by the complainant’s counsel were found to be justified on this basis, it was decided, contrary to the opinion set out in the notice, to QUASH the judgment pursuant to Article 321 of the Code of Criminal Procedure No. 1412, which remains in force under Article 8/1 of Law No. 5320…” (Court of Cassation, 19th Criminal Chamber, 2018/2779 E., 2018/6006 K., 21.05.2018).
“…Upon the appeal against the judgment rendered by the local court, the file was examined and the matter was considered as follows: In the concrete case, it is alleged that the defendant …, a veterinarian working at the District Directorate of Agriculture, directed witnesses …, …, … and … regarding their animals to the private establishment of the other defendant … named Sıla Veterinary Clinic, thereby enabling him to obtain unlawful gain, and that despite being prohibited from performing artificial insemination, he carried out artificial insemination on the animals of witnesses …, …, …, … and ….
When the following matters are evaluated together: that there is no statement in the indictment indicating that the defendant received money from the witnesses in return for artificial insemination; that the animals of witnesses … and …, who stated that artificial insemination had been performed, were in fact inseminated by another person; that the allegation that the defendant directed witnesses to the co-defendant …, who did not appeal, was not confirmed by the witnesses; and that an administrative fine was imposed on the defendant on the grounds that he performed artificial insemination;
it is concluded that, contrary to the defense, there is no sufficient, conclusive, and convincing evidence beyond all doubt to support a conviction for the charged offense. Therefore, in accordance with the principle of “benefit of the doubt,” the defendant should have been acquitted of the charged offense; however, instead, a conviction was rendered as a result of an erroneous assessment.
Furthermore, on the merits: without considering that the defendant’s act of performing artificial insemination on the animal of witness … and receiving a fee for it would constitute the offense of abuse of official duty regulated under Article 257 of the Turkish Penal Code, the defendant was erroneously convicted of the offense of trading by a public official under Article 259 of the Turkish Penal Code.
As stated in the decisions of the General Criminal Assembly of the Court of Cassation dated 03/06/2008 (2008/149-163 E.-K.) and 13/11/2007 (2007/171-235 E.-K.), it is mandatory for the judge, before considering other individualized sanctions such as conversion to alternative sanctions or suspension, to assess whether the decision to defer the pronouncement of the judgment can be made under the conditions set forth in Article 231/5-6 of the Criminal Procedure Code.
Moreover, since the sentence added to Article 231/8 of the Criminal Procedure Code by Article 72 of Law No. 6545 dated 18/06/2014 was not in force at the time of the act, decisions regarding the deferral of the pronouncement of the judgment rendered prior to the amendments introduced by Law No. 6545 do not, by their nature, constitute a legal obstacle.
In this regard, for the defendant who was sentenced to imprisonment for the offense of trading by a public official, the court should have assessed whether the deferral of the pronouncement of the judgment was necessary by examining the defendant’s personal characteristics and conduct at the hearing, and by forming an opinion as to whether he would reoffend, instead of failing to apply Article 231/5 of the Criminal Procedure Code on the basis of insufficient and unlawful reasoning.
Since this was contrary to the law and the defendant’s grounds of appeal were found to be justified, it was unanimously decided on 21/02/2019 to QUASH the judgment pursuant to Article 321 of the Code of Criminal Procedure No. 1412, also taking into account Article 8/1 of Law No. 5320.” (Court of Cassation, 5th Criminal Chamber, 2015/2316 E., 2019/2352 K., 21.02.2019).
“…It is understood that the non-appealing defendant …, whose file was severed, was engaged in insurance business; that defendant … was a police officer assigned to the traffic bureau and had reached an agreement with the non-appealing defendant … for the purpose of conducting commercial activities; that since he was a public official, he established an insurance office in the name of his spouse, defendant …; that traffic and registration documents were, for a certain period, sold by the treasury office; that defendant … also periodically provided these documents to the non-appealing defendant …; that the non-appealing defendant … purchased a program similar to POL-NET and prepared traffic and registration documents at his own workplace; and that the other defendants in the file paid fees to the non-appealing defendant … due to reasons such as outstanding tax debts on their vehicles and the age of their vehicles, and thereby caused the vehicles to undergo fraudulent technical inspections, resulting in damage to the public.
Thus, it is alleged that the offenses of qualified fraud and forgery of official documents were committed, and that defendant … additionally committed the offense of trading by a public official.
1- In the examination of the appeals regarding the decisions to defer the pronouncement of the judgment rendered against defendants …, …, … and … for the offense of forgery of official documents, and against defendant … for the offense of trading by a public official;
Pursuant to Article 231 of the Criminal Procedure Code No. 5271, a decision on “deferral of the pronouncement of the judgment,” which is not a decision concluding the case, is subject to objection under paragraph 231/12 of the same Law, and is not open to appeal (cassation). Therefore, in accordance with Article 264 of the Criminal Procedure Code No. 5271, an error in determining the competent authority in a legal remedy within an admissible application does not eliminate the rights of the appellants. Accordingly, the petitions of appeal shall be accepted as petitions of objection, and the file is to be referred to the Chief Public Prosecutor’s Office of the Court of Cassation to be returned without examination so that the court of first instance with jurisdiction may review the objections…” (Court of Cassation, 15th Criminal Chamber, 2019/5984 E., 2020/1487 K., 05.02.2020).
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
