Embezzlement And Bribery Offences: Elements, Effective Remorse And The Trial Process

Embezzlement and bribery are special-status offences that cannot be committed by anyone; they arise only where the offender holds a particular capacity. Accordingly, the first issue discussed in both types of file is whether the suspect qualifies as a public official within the meaning of criminal law.

The Turkish Penal Code defines the public official more broadly than the concept of civil servant in administrative law. The decisive criterion is not the post or the title but participation in the conduct of a public activity. Under the Code, a person who participates in the conduct of a public activity, whether by appointment or election or in any other manner, and whether permanently, for a fixed term or temporarily, is deemed a public official. The practical consequences of this are as follows:

• Holding a tenured civil service post is not required. Contracted personnel, temporarily assigned persons, and members of boards or commissions may be regarded as public officials if they participate in a public activity.
• Whether or not remuneration is received is not decisive on its own. What matters is whether the activity carried out is public in nature.
• The status of public official may also be a matter of discussion for persons participating in judicial activity, such as court-appointed experts.
• For the bribery offence, the scope has been expressly extended. The Code provides that the bribery provisions also apply to persons carrying out activity within professional organisations having the character of public institutions, companies established with the participation of public institutions and organisations or of such professional organisations, foundations operating within them, associations working for the public benefit, cooperatives, and publicly held joint stock companies, where a benefit is provided contrary to the requirements of the office in the establishment of a legal relationship with those bodies or in the continuation of an existing relationship. It should be noted that the requirement of conduct contrary to the office is preserved in this extension.

Persons who are not public officials cannot be the principal offender of these offences; however, if they participate in the offence, they may be liable as instigators or aiders and abettors. The position differs for bribery: the person giving the bribe need not be a public official at all, and the Code punishes that person directly.

The offence of embezzlement occurs where a public official appropriates, for themselves or for another, property whose possession has been transferred to them by reason of their office, or which they are under a duty to protect and supervise. Its elements may be separated as follows:

• Offender: A public official.
• Subject matter of the offence: Property placed in the possession of the public official by reason of their office; in practice this is most often money, instruments equivalent to money, and movable property. Whether immovable property may constitute the subject matter of the offence is a matter of debate. The property need not necessarily belong to the public; assets belonging to third parties that have been placed in the possession of the public official by reason of their office may also constitute the subject matter of the offence. What is decisive is not ownership but the link between the office and possession.
• Conduct: Dealing with the property as though one were its owner, that is, incorporating it into one's own assets or transferring it to another in this manner.
• Mental element: Intent. Embezzlement cannot be committed negligently; allegations of accounting error, record confusion, or administrative oversight are significant at this point.

Where the link between office and possession cannot be established, the conduct cannot be characterised as embezzlement. The situations most frequently confused in practice are the following:

• Theft: If possession of the property was not transferred to the public official by reason of office and the offender took the property from another's possession without consent, theft rather than embezzlement arises.
• Breach of trust: If the offender is not a public official, or if possession was transferred not by reason of office but on the basis of a private legal relationship, an assessment of breach of trust is made.
• Extortion by abuse of office (irtikâp): Where a public official, abusing the influence conferred by their office, compels or induces a person to provide a benefit, a different offence type is at issue than the appropriation of property already held.

In practice, embezzlement allegations most often emerge through stocktaking, inspection and audit reports, findings of cash or inventory shortfalls, and banking and accounting records. For this reason, the accounting report prepared by a court-appointed expert is decisive in such files. Whether the records on which the report is based are complete, which period was examined, and whether the discrepancy identified genuinely amounts to incorporation into personal assets are the headings on which the defence focuses.

In the offence of embezzlement, the most important distinction determining the amount of the penalty is the manner in which the act was committed.

• Simple embezzlement: Where the public official appropriates the property without engaging in any deceptive conduct aimed at preventing the embezzlement from coming to light. The prison sentence prescribed in the Code applies.
• Aggravated embezzlement: Embezzlement committed through deceptive conduct intended to prevent it from being discovered. Issuing false documents, altering records, creating accounting entries contrary to the truth, and recording a non-existent receivable or expense may be assessed within this scope. In such cases the penalty is increased. Where false documents are alleged to have been issued, whether the offence of forgery of documents additionally arises, and how the offences concur, are assessed according to the particular features of the file; on this subject you may review our article on the offence of forgery of documents.
• Embezzlement for temporary use: Appropriation of the property for temporary use with the intention of returning it. The Code provides for a reduction in the penalty in this case. Here the discussion focuses on whether the offender acted with the intention of return from the outset. Factors such as the brevity of the period of use, whether the use was recorded, and whether the property was returned voluntarily before any audit or complaint are taken into account in assessing that intention.

The difference between aggravated embezzlement and embezzlement for temporary use produces very different outcomes on the same set of facts. It is therefore important that statements given at the initial stage of the investigation are not formulated without a legal assessment of the category into which the conduct falls.

Effective remorse in embezzlement is regulated in a separate article of the Turkish Penal Code and provides for a graduated reduction system tied to timing. Where the embezzled property is returned in kind or the loss suffered is fully compensated:

• Restitution or compensation made before the investigation commences attracts the highest rate of reduction.
• Restitution or compensation made voluntarily before the prosecution stage commences, that is, before the indictment is accepted and the case is filed, attracts a lower rate of reduction. Because the Code separately requires the payment to be voluntary at this stage, it should be borne in mind that a payment made under compulsion once the matter has been detected may not produce the same result.
• Restitution or compensation made before judgment is delivered attracts the lowest rate of reduction.

Two points are decisive in this graduation. First, the Code requires full rather than partial restitution or compensation; incomplete payment does not, as a rule, permit application of the effective remorse provision. Second, the scope of the loss to be compensated is often not limited to the principal amount; how the loss suffered by the institution is to be calculated is determined by expert examination. For this reason, correctly establishing the amount and scope of the loss before payment is made is important in order to avoid a subsequent finding of "incomplete compensation". The reduction rates should be verified against the current text of the Code, and the stage reached in the specific file must be correctly identified.

Bribery is the provision of a benefit, directly or through intermediaries, to a public official or to another person indicated by them, in return for the official performing or not performing an act relating to the discharge of their duties. Following the amendment made by Law No. 6352 in 2012, the scope of bribery was broadened: the act for which the benefit is given need not necessarily be contrary to the requirements of the office; a benefit provided in return for the performance of an act consistent with the requirements of the office may also be assessed within the scope of bribery.

As regards the elements of the offence, the following points stand out:

• Benefit: Not limited to money. Property, services, cancellation of a debt, the promise of a job or of recruitment, and discounted or free use are examples of any kind of economically valuable advantage that may qualify as a benefit.
• Recipient of the benefit: The benefit need not reach the public official directly; providing it to another person indicated by the public official may also constitute the offence.
• The bribery agreement: The offence of bribery is deemed complete once the parties reach agreement. The benefit need not actually have been delivered; where agreement has been reached, the penalty is imposed as though the offence had been completed.
• Rejection of the offer or request: If an offer or request of a bribe has been communicated to the other party but is not accepted, the Code lays down a separate provision for this situation, and the penalty to be imposed on the person making the offer or request is reduced at the rate stated in the Code. What applies here is not the discretionary reduction regime of the general provisions on attempt, but the reduction that the Code prescribes specifically for this situation.

The boundaries of bribery become clearer when compared with similar offences:

• Extortion by abuse of office (irtikâp): Where the benefit was obtained by the public official coercing the person through the influence of office or causing them to fall into error, extortion arises, unlike bribery, where the parties agree of their own free will.
• Misconduct in office: Where conduct contrary to the requirements of the office occurs not in return for a benefit but for other motives, an assessment of misconduct in office rather than bribery is made.

Security measures specific to legal entities may be imposed on legal entities for whose benefit an unjust advantage has been obtained through the commission of bribery. The Code also contains provisions regarding benefits provided to foreign public officials in the context of international commercial transactions.

Unlike embezzlement, bribery involves a two-sided relationship, and the Code punishes both sides. The person giving the bribe is punished with the same penalty as the public official receiving it, even if the giver is not a public official. The person acting as intermediary in a bribery relationship is held liable as a co-perpetrator, whatever their capacity; a defence that the intermediary was merely "passing on a message" is assessed according to the nature of the content conveyed and of the intention involved.

Effective remorse in bribery is tied to a sharper threshold than in embezzlement:

• A public official who has received the subject matter of the bribe is not sentenced if, before the situation has been learned of by the official authorities, they deliver that subject matter in kind to the authorities competent to investigate.
• A public official who has merely reached an agreement with another on receiving a bribe is subject to a different threshold: the same result follows if that person reports the situation to the competent authorities before the investigation commences.
• The person giving the bribe or the intermediary may likewise obtain immunity from punishment if, before the investigation commences, they show remorse and report the situation to the competent authorities.

As can be seen, the Code prescribes not a single threshold but two separate thresholds depending on the situation. For a public official who has actually received the benefit, what is decisive is delivery in kind "before the situation is learned of by the official authorities"; for an official still at the agreement stage, and for the bribe giver and the intermediary, it is a report made "before the investigation commences". Because the moment at which the investigation actually begins, the moment the official authorities learn of the situation, and the moment the suspect learns of it do not always coincide, the timing of the report or of the delivery is highly likely to affect the legal outcome directly.

The evidentiary structure of bribery files is also distinctive. Decisions authorising the interception and recording of communications, call detail records, bank account movements, money transfers, witness statements and, in some cases, audio or video recordings made by one of the parties enter the file. The decision on the basis of which such evidence was obtained, whether its scope was exceeded, and the review of its lawfulness are the technical headings on which the defence focuses.

For offences committed by public officials by reason of their duties, Law No. 4483 on the Prosecution of Civil Servants and Other Public Officials applies as a rule, and an investigation permit must be obtained from the competent authority before an investigation may be conducted. Under this procedure a preliminary examination is first carried out, after which the permit is either granted or refused; as a rule, permit decisions may be challenged before the regional administrative court. For certain categories of officials listed in the Code, however, the authority that examines the challenge is different; which authority is to be applied to must therefore be determined separately from the text of the Code according to the office and status of the person concerned.

There is, however, an important exception in respect of embezzlement and bribery. Law No. 3628 on the Declaration of Assets and the Fight Against Bribery and Corruption provides that the provisions of Law No. 4483 do not apply to the offences within its scope. Simple and aggravated embezzlement, extortion by abuse of office, bribery, and rigging of official tenders and procurement or sales fall within this scope. The practical consequences are as follows:

• The investigation is conducted directly by the Chief Public Prosecutor's Office, without waiting for an administrative permit.
• Special obligations are prescribed regarding the reporting of denunciations and complaints concerning these offences to the competent authorities.
• Where the public prosecutor conducting the investigation finds indications corroborating the denunciation, they may require the suspect to submit a declaration of assets.
• In cases falling within this scope, the public institution that suffered the loss has the right to join the proceedings; the institution frequently appears in the file as an intervening party.

Special trial procedures may be prescribed in specific statutes for certain categories of officials; the applicable procedure must therefore be determined separately according to the suspect's office and status. In addition, disciplinary proceedings conducted within the institution are independent of the criminal investigation. The outcome of the criminal trial does not in every case determine the disciplinary outcome; ensuring that statements given in the two processes are not inconsistent with one another requires careful monitoring aimed at preventing loss of rights.

Because of the upper limit of the penalties they carry, embezzlement and bribery offences are tried before the High Criminal Court. In determining the competent court, aggravating or mitigating grounds are not taken into account; the upper limit of the penalty set out in the Code is taken as the basis. For this reason, competence lies with the High Criminal Court even in cases such as embezzlement for temporary use, where a reduction is provided for.

In İzmir, the process generally operates as follows:

• Investigation: Initiated, upon an inspection or audit report, a denunciation or a complaint, by the relevant investigation bureaus of the Chief Public Prosecutor's Office having jurisdiction over the place where the act was committed. A substantial part of the files in the city centre is conducted by the İzmir Chief Public Prosecutor's Office, while files within the Karşıyaka judicial district are conducted by the Karşıyaka Chief Public Prosecutor's Office. Law enforcement units act on the prosecutor's instructions.
• Protective measures: For measures such as search, seizure, interception of communications and detention on remand, the deciding authority is the Criminal Judgeship of Peace at the seat of the prosecutor's office conducting the investigation. For the mechanism for objecting to a detention order you may review our article on challenging detention on remand.
• Prosecution: Upon acceptance of the indictment, the case is heard before the İzmir High Criminal Courts at the Bayraklı campus where the İzmir Courthouse is located. Files concerning acts committed within the judicial district of the İzmir Courthouse are followed at that courthouse. Some districts of İzmir, however, fall within the judicial districts of separate courthouses; Karşıyaka, for example, has its own courthouse and its own Chief Public Prosecutor's Office. Which courthouse hears the file is therefore determined by the judicial district in which the place of the act falls. The Criminal Courts of First Instance are competent not for these offences but for offences carrying a lower upper limit of penalty, such as misconduct in office.
• Appeal: Appeals against judgments of the High Criminal Court are examined by the criminal chambers of the İzmir Regional Court of Justice.

Embezzlement and bribery are not offences subject to complaint; the prosecutor's office initiates an investigation of its own motion upon learning of circumstances giving the impression that an offence has been committed, and withdrawal of a complaint does not bring the file to an end. These offences are also outside the scope of mediation in criminal matters. The statute of limitations for prosecution is determined under the general provisions of the Turkish Penal Code, taking the upper limit of the penalty for the offence as the basis.

Because examination of accounts and records is at the forefront throughout the process, it is important that the documents, institutional correspondence and accounting records to be submitted to the file are gathered in an orderly manner from the very outset. As Yücesoy Attorney Partnership & Law Office, we provide legal assistance at the investigation and prosecution stages concerning allegations of embezzlement and bribery.

Must the property belong to the public for the offence of embezzlement to arise? No. What is decisive is not ownership of the property but that possession of it was transferred to the public official by reason of their office, or that the property is under their duty of protection and supervision. Assets belonging to third parties held by reason of office may also constitute the subject matter of the offence.

What is the difference between aggravated and simple embezzlement? Aggravated embezzlement is embezzlement committed through deceptive conduct intended to prevent it from coming to light. Issuing false documents, altering records, or creating accounting entries contrary to the truth may be assessed within this scope, and the penalty is increased. Where there is no such concealing conduct, simple embezzlement is at issue.

Is the reduction for embezzlement for temporary use applied automatically? It is not automatic. It must be established within the scope of the file that the property was appropriated for temporary use with the intention of returning it, that is, that the intention to return existed from the outset. The duration of use, whether a record was kept, and whether the return was made voluntarily are taken into account in this assessment.

Does the offence arise in bribery if no money changed hands? The offence of bribery is deemed complete once the parties reach agreement on the bribe; actual delivery of the benefit is not required. If an offer or request was communicated to the other party but not accepted, the Code lays down a separate provision for this situation, and the penalty to be imposed on the person making the offer or request is reduced at the rate stated in the Code.

Is a permit from the administration required to investigate embezzlement and bribery? As a rule, an investigation permit is required under Law No. 4483 for offences committed by public officials by reason of their duties. However, Law No. 3628 provides that this procedure does not apply to the offences within its scope, including embezzlement and bribery; the investigation is conducted directly by the Chief Public Prosecutor's Office. Since specific statutes may provide separate procedures depending on the suspect's office and status, the position is assessed on the facts.

Which court hears embezzlement and bribery cases in İzmir? Because of the upper limit of the penalties they carry, these offences are heard before a High Criminal Court. Files within the judicial district of the İzmir Courthouse are followed before the İzmir High Criminal Courts at the Bayraklı campus; in judicial districts with their own separate courthouse, such as Karşıyaka, the file is heard before the High Criminal Court of that courthouse. Decisions on protective measures such as detention on remand, search and seizure are given at the investigation stage by the relevant Criminal Judgeship of Peace.

Must payment be made in full in order to benefit from effective remorse? The effective remorse provision in embezzlement is conditional upon return of the property in kind or full compensation of the loss suffered; partial payment is not, as a rule, regarded as sufficient. Since the scope of the loss is often determined by expert examination, correctly establishing the amount before payment is important.

Embezzlement and bribery carry severe sanctions and are tried before the High Criminal Court because they target the integrity underlying public office. In embezzlement, the elements determining the outcome are whether the link between office and possession is established, whether the conduct was concealed through deception, and whether an intention to return existed. In bribery, the existence of an agreement, the nature of the benefit and the position of the parties are decisive. In both offences the effective remorse provisions are strictly tied to timing; steps taken before the investigation commences and steps taken afterwards produce different legal consequences.

For this reason, technical examination of accounting reports, institutional correspondence and communication records, formulation of statements with their legal consequences in mind, and careful monitoring of each stage of the process are of great importance. The outcome of each file is assessed according to your own circumstances, based on its particular documentary and evidentiary structure.

For legal assistance in investigation and prosecution processes concerning embezzlement and bribery offences, please contact Yücesoy Attorney Partnership & Law Office.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy