In a most recent notable case, the 5th Criminal Chamber of the Turkish Court of Appeal (Appeal Court), [1] reversing a Regional Court of Appeal decision, ruled that if a bribery agreement is made conditionally, it does not constitute a bribery crime under the Turkish Criminal Code.   

Background

In April 2018, the Istanbul Chief Public Prosecutor’s Office filed an indictment against a public official and sought the court to charge him under Article 252(1) and (2) of the Turkish Criminal Code, allegedly with receiving a bribe in exchange for to give prior inside information about a potential workplace search that the police officers would conduct at the other defendants’ commercial facilities.

At the end of the trial, the Istanbul 9th Criminal Court (Court) [2] decided to acquit the defendant on the grounds of lack of sufficient evidence that the defendant was in a bribery scheme. As aggrieved parties, the Ministry of Interior and the Ministry of Treasury and Finance (formerly the Undersecretariat of Treasury) appealed the decision. Upon its examination, however, the 13th Criminal Chamber of the Istanbul Regional Court of Appeal [3] refused the appeal reasons and upheld the acquittal. The same parties took the case to the Appeal Court and requested to reexamine and reverse the acquittal decision that was rendered about the defendants.

Decision

In its examination, the Appeal Court, referring to the previous text of Article 252(3) of the Turkish Criminal Code (although the prosecutor’s office relied on the current criminal code, the criminal court is free to make legal descriptions for which code will be implemented to the case and it seems that the Appeal Court did this) which was amended in 2012, stated that bribery is a crime that in light of the agreement that the parties agree on, a public official receives an undue benefit in exchange of to perform or not to perform an act by violating his official duty. The Appeal Court also stated that this form of bribery is qualified bribery; therefore, the crime's legal definition should be handled in this context by the court. In other words, the Appeal Court primarily questioned whether there was a bribery agreement between defendants that would be subject to the investigation.   

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Secondarily, the Appeal Court questioned whether the bribery agreement was made depending on a condition. If so, contrary to the Turkish legal doctrine and in line with its previous precedents, the Appeal Court would accept that the bribery agreement that took place between the defendants is invalid.

The Appeal Court said that to be able to mention whether there is a bribery crime in the meaning of the Criminal Code, the Court should determine the existence of a bribery agreement in the first place between the parties as to perform or not to perform an act by violating his duty by the public official before committing the act or at least during the performance. Therefore, if the Court determines that there is no bribery agreement in the meaning of the law, there will be no punishable crime.

Secondly, the Appeal Court accepted that the bribery agreement, which is subject to the charge, was made under a condition. The public official will let the other party know in advance about a potential workplace search that will be conducted by the police in their facilities. And in exchange for this information, he will receive bribery. Therefore, the Appeal Court decided that the Court should have considered whether the bribery agreement was made under a condition.

Following these findings and determinations, the Appeal Court reversed the Regional Court’s decision and sent the file back to the Court to reevaluate the defendant's legal status and retrial the case.          

Takeaways