Anti-Corruption in Turkey

By Birturk Aydin*, Sertac Kokenek*, and Gokce Serez* (Baker McKenzie Istanbul)

1. Domestic bribery (private to public)

1.1  Legal framework

Turkey does not have a general anti-corruption or bribery law. Other Turkish laws, however, contain provisions on anti-corruption – primarily the Turkish Criminal Code, the Law on Declaration of Property and Combating Bribery and Corruption, the Law on the Ethics Board for Public Officials, and the Civil Servants Ethical Principles and Application Procedures and Principles (the “Ethics Regulation”).

Bribery of public officials is regulated by the Turkish Criminal Code No. 5237, Article 252.

1.2 Definition of bribery

A person receiving a bribe and a person providing a bribe are both held under the same prohibition.

Bribery may refer to, directly or through an intermediary, providing a benefit to a public officer or a third party indicated by the public officer for the performance or non-performance of an act relating to its duty. If the public official and the private individual agree on the bribe to be provided, the act is deemed bribery.

1.3 Definition of public official

The Turkish Criminal Code defines “public official” broadly as any person who participates in the conduct of public activities by way of appointment or election or otherwise, for a continuous, limited or temporary period of time.

Although state-owned company employees are not expressly defined as public officials under the Turkish Criminal Code, they are considered public officials as long as they participate in the conduct of public activities according to the Turkish Appellate Court. Employees of a publicly owned company also qualify as public officials under the Ethics Regulation.

1.4 Consequences of bribery

(a) For individuals

The Turkish Criminal Code applies the same penalties for public officials and for individuals who corrupt public officials. The penalties are as follows:

  • Imprisonment of four years to 12 years (For persons who offer or promise to give bribes and public officials who request bribes, but are rejected by the counterparty, the term of imprisonment will be reduced by half.)
  • Increased prison term if the person who receives, agrees on or requests a bribe is a judicial officer, arbitrator, court-appointed expert, notary public or sworn financial adviser
  • Termination of an employment contract
  • Prohibition from participating in public tenders and termination of public procurement agreement
  • Security measures for individuals (e.g., prohibition on conducting public service, confiscation of bribe)

(b) For intermediaries

  • According to the Turkish Criminal Code, intermediaries will be subject to the same penalties imposed on actual bribe makers and public officials, regardless of their position as such.

(c) For companies/legal entities:

  • Under Article 253 of the Turkish Criminal Code, legal entities that obtain a benefit by committing the offense of bribery are subject to security measures. Concordantly, Article 20 of the Turkish Criminal Code sets forth that “criminal sanctions may not be imposed upon legal entities.” Under this article, private legal entities may only be subject to the following security measures as specified in Article 60 of the Turkish Criminal Code:
    • Revocation of license/permit if: (a) a private legal entity abuses its authority, arising out of a license/permit granted to it by a public entity; and (b) the legal entity’s governing bodies or representatives participated in the actions of such entity; if so, the court may revoke the legal entity’s license/permit.
    • Confiscation of property or material interests; if the conditions of confiscation specified under the Turkish Criminal Code are satisfied, the court may confiscate the property or material interests connected to the offense/crime.
    • Prohibition from participating in public tenders and termination of public procurement agreement
    • Administrative fines

1.5 Political contributions

Contributions to political parties are regulated by the Political Parties Law No. 2820.

In general terms, except for the real persons and legal entities listed in the Political Parties Law (e.g., publicly owned companies), real persons and legal entities can donate to a political party, in cash or in kind, up to approximately TRY 38,526 (the amount for 2017) within a year. Political parties are prohibited from receiving donations from foreign states, international organizations, foreign real persons and legal entities.

1.6 Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, amongst others)

The Turkish Criminal Code establishes no limitation on hospitality expenses. However, according to the Ethics Regulation, public officials may not accept any gift and cannot benefit for themselves, their relatives, real or legal third parties, directly or through an agent, from real or legal persons with a business, service or beneficial relationship related to their task.

According to the Ethics Regulation, “gift” is defined as “any kind of goods and benefits having an economic value or not, accepted directly or indirectly, which have an impact or may have an impact on the objectivity, performance, decision or fulfilment of the task of a public officer.” The decisive element is that “the benefit has or may have an impact on the objectivity, performance, decision or fulfilment of the task of a public officer.”

Moreover, the Ethics Regulation sets out in detail what kind of gifts and benefits are within the scope of the gift prohibition, including but not limited to: any welcome, farewell and congratulatory gifts; and scholarships, trips, gratis accommodation and gift vouchers received from entities with which the relevant public body has a business, service or interest. The Ethics Regulation also sets out in detail the kinds of gifts and benefits that are not within the scope of the gift prohibition, which include but are not limited to: books, magazines, articles, cassettes, calendars, CDs or similar materials; as well as souvenir-type gifts distributed at public conferences, symposia, forums, panels, meals, receptions or similar activities.

The Law on the Public Officials Ethics Board refers to discipline provisions to which the public officials are subject for contraventions.

The Ethics Regulation imposes no quantitative limitation on hospitality expenses.

2. Domestic bribery (private to private)

2.1 Legal framework

Turkish anti-corruption laws do not prohibit a private person from receiving or being provided with an advantage that is tendered or accepted by another private person. However, there is an exception for representatives of: professional organizations with the character of a public institution; companies incorporated through (i) the participation of governmental institutions and organizations or through (ii) professional organizations with the character of a public institution; foundations that operate under the supervision of the same; and associations that work for the benefit of the public, cooperatives and public companies.

2.2 Definition of private bribery

Private bribery entails, directly or through an intermediary, providing, offering or promising a benefit to representatives of: professional organizations with the character of a public institution; companies incorporated through the participation of governmental institutions and organizations or through professional organizations with the character of a public institution; foundations that operate under the supervision of the same; and associations that work for the benefit of the public, cooperatives or public companies; as well as requesting or accepting a benefit by such person; acting as an intermediary for these; providing a benefit to a third party referring to such a relationship for the performance or non-performance of an act relating to its duty, regardless of his or her role as a public official.

2.3 Consequences of private bribery

The consequences of public bribery also apply to private bribery.

Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)

The Turkish Criminal Code and the Ethics Regulation do not regulate hospitality expenses made by private persons to private persons.

3. Corruption of foreign public officials

3.1 Legal framework

Bribery of foreign public officials is regulated by the Turkish Criminal Code, Article 252

3.2 Definition of corruption of foreign public officials

The Turkish Criminal Code does not provide a separate definition for bribing foreign public officials. The abovementioned public bribery definition also applies to bribing foreign public officials.

3.3 Definition of foreign public official

The Turkish Criminal Code does not provide a separate definition for foreign public officials. However, Article 252 also applies to the following persons:

(a) Public officials elected or appointed in a foreign state

(b) Judges, jurymen or other officials performing a duty in international or supranational courts or in foreign states’ courts

(c) International or supranational parliament members

(d) Persons performing a public service for a foreign state, including public institutions or public organizations

(e) Citizens or foreign arbitrators assigned within the framework of an arbitration

(f) Officials or representatives of international or supranational organizations established based on an international agreement

3.4 Consequences of bribery of foreign public officials

The consequences of public bribery also apply to bribing foreign public officials.

3.5 Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, amongst others)

The Turkish Criminal Code and the Ethics Regulation do not regulate hospitality expenses made by private persons to foreign public officials.

4. Facilitation payments

The Turkish Criminal Code does not recognize so-called facilitation payments. Facilitation payments are payments made to accelerate or secure the performance of routine public acts. Without a clear court precedent, facilitation payments may fall within the scope of bribery.

5. Compliance programs

5.1 Value of a compliance program in mitigating/eliminating the criminal liability of legal entities

The Turkish Criminal Code does not specifically recognize compliance programs as instruments to mitigate or eliminate the liability of legal entities. Adopting a compliance program is, nevertheless, recommended for companies in order to establish a compliance culture and ensure the compliance of employees in minimizing any liability risk.

5.2 Absence of a compliance program as a crime

N/A

5.3       Elements of a compliance program

(a)           Legal framework

N/A

(b)          Recommended practice

N/A

6. Regulator with jurisdiction to prosecute corruption

The Turkish legal system has no specific regulator with the exclusive responsibility to prosecute corruption cases. Public prosecutors are, however, eligible to prosecute such cases.


Esin Attorney Partnership, member of Baker McKenzie International, a Swiss Verein Ebulula Mardin Cad., Gül Sok. No. 2
Maya Park Tower 2, Akatlar-Besiktas Istanbul 34335
Turkey

Birturk Aydin

Birturk Aydin focuses his practice on compliance issues and specializes in anti-corruption, trade sanctions and export controls. He has carried out on-the-ground due diligence reviews for clients, both as part of the M&A process and general internal compliance assessment, and he has worked with clients to design and implement their compliance programs, policies, procedures and risk assessments. Birturk also advises local and multinational clients, including property developers, real estate companies, property consultants, construction companies, real estate investment companies and manufacturing entities on real estate matters.

birturk.aydin@esin.av.tr

Tel: +90 212 376 64 45

Esin Attorney Partnership, member of Baker McKenzie International, a Swiss Verein Ebulula Mardin Cad., Gül Sok. No. 2
Maya Park Tower 2, Akatlar-Besiktas Istanbul 34335
Turkey

Sertac Kokenek

Sertac Kokenek focuses his practices on corporate compliance and domestic and international mergers and acquisitions. He drafts and negotiates corporate transaction documents, including share purchase, asset purchase and merger agreements. In addition, he advises companies on general corporate and business law matters. Sertac also advises clients on data privacy, real estate and trade and commerce issues.

sertac.kokenek@esin.av.tr

Tel: +90 212 376 64 90

Esin Attorney Partnership, member of Baker McKenzie International, a Swiss Verein Ebulula Mardin Cad., Gül Sok. No. 2
Maya Park Tower 2, Akatlar-Besiktas Istanbul 34335
Turkey

Gokce Serez

Gokce Serez focuses her practice on corporate compliance, including corporate investigations, anti-bribery, anti-money laundering, anti- corruption, white-collar crimes, trade sanctions and export controls. In addition, she advises clients on corporate and business law matters, domestic and international mergers and acquisitions, real estate, and trade and commerce issues.

gokce.serez@esin.av.tr

Tel: +90 212 376 64 85