Turkish Penal Code Article 252: The Crime and Punishment of Bribery

1. Introduction

The principle of impartiality and integrity among public officials is a fundamental cornerstone of the rule of law. Violation of this principle leads to a loss of public trust. Bribery is one of the most serious crimes committed by public officials that undermines this trust. Defined in Article 252 of the Turkish Penal Code (TCK), this crime aims to ensure transparency and justice in public services by punishing both the public official and the bribe-giver.

This article will evaluate the elements of the crime of bribery, its aggravating circumstances, its punishment, its place in comparative law, and its interpretation in practice in light of the precedents set by the Supreme Court of Turkey.

---

2. Legislative Amendment – ​​Article 252 of the Turkish Penal Code

Turkish Penal Code Article 252/1

"If a public official is directly or indirectly offered a benefit, or an agreement is reached to that effect, to perform, refrain from performing, or delay a task related to their duties, both the giver and the receiver of the bribe shall be sentenced to imprisonment for a period of four to twelve years."

This provision punishes both the giver and the receiver equally and considers the crime completed at the stage of agreement. The acquisition of actual benefit is not required.

---

3. Elements of the Crime of Bribery

A. Fail

The perpetrator of the bribery crime:

• In terms of field: Public official,

• Regarding the donor: It can be a natural or legal person.

Third parties who are not public officials may also be held liable under the provisions of complicity in crime.

B. Verb (Element of Movement)

• Providing direct or indirect benefit

• Receiving a benefit in exchange for performing or not performing a task related to the job

• It is sufficient that an agreement has been reached; actual benefit does not need to be provided.

C. Subject (Interest)

The benefit does not have to be material. Benefits of intangible value, such as a promise of promotion, a favor granted, or a loan secured, can also be considered bribery.

D. Illegality

The benefit received must be within the scope of the public official's job description and must have been obtained unlawfully. However, receiving a benefit even if it is in accordance with the requirements of the job constitutes the crime of bribery.

E. Kast

The crime can only intentionally . Both parties must have reached a bribery agreement by mutual consent.

---

4. The Difference Between Bribery and Gifts

According to the Supreme Court:

"Determining whether the money or value given to a public official has any influence on their official duties is what distinguishes between a crime and a gift."

Bribery refers to advantages given in exchange for completing a task, not symbolic gifts given as a token of gratitude.

---

5. Aggravating Circumstances (Turkish Penal Code Article 252/4-5)

The Turkish Penal Code has regulated certain situations in a way that aggravates :

• The crime those performing judicial duties ,

• Committed by persons with auditing functions such as referees , experts , inspectors , and auditors

• Committed abroad (Article 252/8).

In these cases, the penalty is increased by half.

---

6. Effective Repentance (Turkish Penal Code Article 254)

Provisions for effective repentance are предусмотре in bribery cases:

• A person who gives a bribe is exempt from punishment if they confess to the crime before it is revealed by the authorities

• This provision specifically encourages the punishment of public officials.

---

7. The Difference Between Abuse of Office and Bribery

• Abuse of power: Unilateral and without any personal gain.

• Bribery: a mutual agreement and the provision of benefits .

The Supreme Court rules that the crime of abuse of office exists even in the absence of a benefit to the party involved.

---

8. Application of the Bribery Crime in Light of Supreme Court Decisions

SUPREME COURT OF APPEALS, 5TH CRIMINAL DIVISION Case No: 2014/1054 Decision No: 2016/3181

• Article 252 of the Turkish Penal Code
• Bribery Crime

Although the defendant was convicted of bribery based on the allegation that he gave two cash payments of 75 TL and 250 TL to infantry soldier ... serving under the command of ... Command in May 2008 in exchange for turning a blind eye to the passage of smuggled goods from the ... border into Turkey;

Prior to the amendment by Law No. 6352, Article 252/3 of the Turkish Penal Code No. 5237, which defined bribery, stated that "bribery is the provision of a benefit by a public official to a person within the framework of an agreement reached to do or not do something contrary to the requirements of his duty," thus only including qualified bribery. It was understood that the provision of a benefit to a public official to do or not do something that he should not do, or the provision of a benefit by individuals to a public official in this manner, was excluded from the definition of bribery. Therefore, it is understood that if other conditions are met, the crime of abuse of office will occur

In order to determine, without any doubt, whether the money in question, related to the crime of bribery, was given to a public official to perform an act contrary to the requirements of their duty, within the meaning of Article 252/3 of the Turkish Penal Code in force at the time of the crime, and consequently to determine the nature of the crime, it is necessary to establish that the defendant was investigated by the Public Prosecutor's Office of [Name of Public Prosecutor] under file number 2008/116 for the crime of accepting a bribe, in relation to the crime of violating the Smuggling Law No. 5607 as of May 2008, the date of the crime. The court failed to investigate the outcome of the case opened by the Military Prosecutor's Office of the Command, to obtain certified copies of the case documents and, if a decision is made, the defendant's statements to law enforcement and the prosecutor's office, which the court based its judgment on but are not included in the file, as well as all communication records (tape recordings) related to the defendant, and to determine and assess the defendant's legal status by showing, in a manner that allows for Supreme Court review, to whom, how, in what way, and for what purpose and in what amount money was given for acting contrary to the requirements of his duty, by evaluating all the evidence together

According to the acceptance;

The court was not notified, in accordance with Article 231/11 of the Code of Criminal Procedure, of the decision regarding the postponement of the pronouncement of the sentence recorded in the defendant's criminal record

Given that the Constitutional Court's decision dated 08/10/2015, numbered E. 2014/140; K. 2015/85, was published in the Official Gazette dated 24/11/2015 and numbered 29542 and entered into force, there is a necessity to re-evaluate Article 53 of the Turkish Penal Code

The appeal by the defendant's counsel is deemed justified, and therefore, considering Article 8/1 of Law No. 5320 and Articles 321 and 326/last paragraph of the Code of Criminal Procedure, the judgment is REVERSED by unanimous decision on March 30, 2016.

---

9. Bribery in International Law

Turkey is a party to the United Nations Convention Against Corruption (UNCAC) and the OECD Convention Against Bribery. In this context:

• Giving bribes to foreign public officials is also considered a crime under the Turkish Penal Code (Turkish Penal Code, Article 252/8).

• Bribery crimes should be investigated without statute of limitations and addressed through international cooperation.

---

10. Criminal Sanctions for Bribery Offenses

Fines or suspended sentences are rarely applied. Since the minimum sentence is high, imprisonment is often the only option.

---

11. Problems in Implementation

• Lack of evidence: Proving the agreement can be difficult. Technical surveillance, witness statements, and communication records become important.

• Distinguishing between gifts and bribes: The boundaries of whether a gift received by a public official constitutes a bribe create confusion in practice.

• Abuse of effective repentance: Allowing someone who gives a bribe and then reports it to go unpunished can undermine the sense of justice.

---

12. Conclusion and Evaluation

Bribery is a serious crime that directly affects the principles of justice, impartiality, and honesty in the performance of public duties. Under Article 252 of the Turkish Penal Code, both the giver and the receiver of bribes are punished, and the creation of evidence against the public official through effective repentance is encouraged.

However, in practice, careful consideration should be given, particularly regarding the nature of the interest, the proof of the relationship between the parties, and the requirement of relevance to the duty. Combating bribery should be addressed in a multifaceted way, encompassing not only criminal law but also ethics, administrative oversight, and public awareness.