Our firm has a particularly strong reputation and tradition in the areas of corporate criminal law and administrative offences, with special practice in economic and financial crime. First of all, our team provides preventive advice to companies and their managers and directors, with the purpose of adapting internal practices, developing compliance programmes and thereby preventing the committing of acts with criminal or administrative consequences. Among others, we draft codes of conduct and regulations for anticorruption and money loundering prevention.

Whenever required, our lawyers ensure the representation of clients – as defendants or victims – in criminal and administrative offences proceedings, providing support and advice throughout their different stages. The founding partner who coordinates this practice area is a Professor Dr. of Criminal Procedure and Evidence Law with numerous published works about criminal and administrative offences law, and he is also a frequent speaker in conferences and training sessions for lawyers and judges. 

Administrative Offences

Administrative offences such an acts (activity or inactivity) which violates the established order of the state administration, which has been perpetrated and declared punishable by an administrative sanction imposed through administrative channels. The term administrative offence escribes legal violations without criminality and that are therefore not punishable under the penal code. If one is charged with an administrative offence, one has been charged with a violation of the law, but the offence is not serious enough to be considered criminal.

Administrative fine

In January, the Turkish Competition Board (hereafter the Board) started the year off with a landmark decision, where it addressed hub-and-spoke cartels in the Fast Moving Consumer Goods (hereafter FMCG) market. Price increases in the FMCG market triggered the Board to dig deep and investigate 29 undertakings and an association of undertakings regarding their pricing behaviour. As a result of the administrative investigation, the Board imposed a record administrative fine on supermarkets A101, BIM, Carrefoursa, Migros and Sok, as well as on their common supplier, Savola, a cooking oil producer, for violating competition law through a hub-and-spoke cartel.

The Board imposed a total administrative monetary fine of approximately EUR 176 million on the aforementioned five undertakings as a result of their behaviour with respect to the coordination of prices. The common supplier, Savola, was also found equally liable and an administrative monetary fine of EUR 1.48 million was imposed on Savola for acting as the “hub” in the hub-and spoke cartel. Additionally, the Board imposed an administrative monetary fine of approximately EUR 740,000 on Savola based on the grounds that it violated Turkish Competition Law by determining the resale prices of undertakings operating at the retail level.

Administrative Offences Committed by Legal Entity

A legal entity may be found guilty of an administrative offence, if it is established that it had the opportunity to observe rules and norms whose violation is administratively punishable under the laws of a subject of Turkey, but it has not taken all the measures that were in its power in order to follow to them.

Imposition of an administrative penalty on a legal entity does not relieve the guilty natural person of administrative responsibility for the given offence, and holding a natural person to administrative or criminal responsibility does not relieve the legal entity of administrative responsibility for the given offence.

Administrative offences proceedings

One can implement administrative offences proceedings in court if one disagree with an administrative penalty given to one by a state institution. In that case, the decision of imposing an administrative sanction will be examined in administrative offences proceedings, which is similar to a criminal proceedings. An administrative offense differs from a criminal offense in that the violation is considered less serious.

The administrative sanctions is imposed for the purpose of warning and reform the offender for observing the established legal order and to have an instructive and warning effect on the other citizens.

Safeguards

There are a number of essential fair trial guarantees that apply to administrative offences proceedings in the same way as they do to a criminal trial. These guarantees include the equality of both parties to the case (one and the state institution), the right to a defence and the right to submit evidence. However, some guarantees may be applied less strictly than in a criminal case. The standard applicable to each case will depend on the gravity of the offence and the penalty that can be imposed. For example, if one is charged with smoking in a public place and request an oral hearing in a magistrate court (Sulh Ceza Hakimi), the court will be given more freedom to decide whether such a hearing is necessary as compared to such a need when examining a charge of drunk driving or a violation of competition laws.

In cases of administrative offences the abettors, the subsidiaries and the concealers, as well as those who have admitted them is penalised only in the cases stipulated by the respective law or edict.

Applied for every administrative offence may be the normative act which was in force at the time of its commitment. If, until the enactment of the penal provision, follow different normative provisions applied can be the one which is more favourable for the offender.

The laws and edicts stipulating administrative sanctions may apply for all administrative offences committed on the territory of the Republic of Turkey, on a Turkish ship or aeroplane and regarding Turkish citizens who have committed administrative offences abroad punishable by the Turkish laws, if they affect the interests of Turkey. The issue of the responsibility of foreigners using immunity regarding the administrative penal jurisdiction of the Republic of Turkey may be settled according to the norms of the international law adopted by it.

Principle of Equality before Law

Persons who have committed administrative offences is equal before the law. Natural persons may be administratively liable, regardless of their sex, race, nationality, language, origin, property or official status, residence, attitude to religion, opinions, participation in social associations, or other circumstances. Legal entities may be administratively liable, regardless of location, organisational-and-legal form and subordination or other circumstances.

Presumption of Innocence

A person is administratively liable only for those administrative offences, in respect of which his guilt has been established. A person who is on trial for an administrative offence is regarded innocent until his guilt is proved in the procedure established by the law and determined by a lawful decision of the judge, or of the body, or of the official who has considered his case. A person held administratively responsible is not obliged to prove his innocence. Irremovable doubts in respect of the guilt of a person held administratively responsible is interpreted in favour of this person.

Ensuring Lawfulness, While Taking Coercive Measures in Connection with an Administrative Offence

A person held administratively responsible may not be subject to an administrative penalty and to measures for ensuring proceedings in respect of a case concerning an administrative offence otherwise than for the reasons and in the procedure established by law.

An administrative penalty is imposed and measures for ensuring the proceedings in respect of a case concerning an administrative offence is taken by the authorized body or official within the scope of jurisdiction of said body or official in compliance with law.

When taking administrative coercive measures, decisions or actions (failure to act) abasing human dignity shall not be allowed.

Operation of the Legislation on Administrative Offences in Time

A person who has committed an administrative offence is liable under the law effective at the time of committing the administrative offence. Any law mitigating or terminating administrative responsibility for an administrative offence, or improving the position of a person who has committed an administrative offence may be retroactive, that is, it also extend to persons who committed administrative offences prior to the entry of such law into force and who have not been punished pursuant to a decision concerning the imposition of an administrative penalty. A law establishing or aggravating administrative responsibility for an administrative offence or worsening the position of the person may not be retroactive.

Proceedings in respect of a case concerning an administrative offence is carried out under the law effective at the time of conducting the proceedings in respect of said case.

Committing deliberately or by negligence

The act declared administrative offence is an offense when it has been committed deliberately or by negligence. The negligent acts is penalised only in explicitly stipulated cases.

Excuses

The acts committed in case of an unavoidable defence or urgency cannot be penalised. Similarly, the preparatory activities of the administrative offence cannot be sanctioned. The attempt to administrative offence cannot be sanctioned with some exceptions such as customs and foreign currency offences if stipulated by the respective law or edict and protection of the agricultural property.

Administrative Sanctions

An administrative penalty is a monetary penalty that can be imposed on individuals or companies who fail to comply with requirements of a statute or regulation, an order given by a Ministry official, or a requirement of an authorization (permit, license, approval etc.). As an administrative (rather than prosecutorial) enforcement tool, administrative penalties are issued by designated Ministry officials rather than the courts.

The following administrative sanctions can be stipulated and imposed for administrative offences:

• public reprobation;
• administrative fine;
• temporary deprivation of right to practice a definite profession or activity.

The public reprobation for the committed offence is expressed in a public reprobation of the offender before the staff where he works or before the organisation whose member he is.

The fine is a sanction expressed in a payment of a definite sum of money. Regarding the underage persons the administrative sanction of fine is replaced by a public reprobation.

The deprivation of right to practice a definite profession or activity is expressed in a temporary prohibition for the offender to practice a profession or activity in relation to which he has committed the offence. The duration of this sanction cannot be shorter than one month and longer than two years, and for offences related to the traffic safety using alcohol or other strong intoxicating substance – up to five years. It does not affect legal capacity except in the cases stipulated by the respective law or edict.

Nobody can be penalised repeatedly for an administrative offence for which he has already been punished by an enacted penal provision or a court decision. When several administrative offences have been committed by one act or one and the same person has committed individual offences the imposed sanctions is incurred individually for each of them.

Along with the administrative sanctions stipulated, the sanctioning body can rule seizure in favour of the state of the possessions of the offender which have been used for the commitment of a deliberate administrative offence, if this is stipulated by the respective law or edict. Seized in favour of the state can also be the objects subject to the offence, whose possession is prohibited, regardless of their quantity and value, wherever they might be. In the cases stipulated by the respective law or edict, besides the objects, seized in favour of the state may also be the objects belonging to the offender, which have been subject to the offence. Seizure cannot be admitted when the value of the objects obviously does not correspond to the nature and the burden of the administrative offence, unless the respective law or edict stipulate otherwise. The objects acquired by the offender as a result of the offence is seized in favour of the state regardless of their quantity and value.

Personal Liability

The administrative sanctioning liability is personal. Liable for administrative offences committed in carrying out the activity of enterprises, establishments and organisations can be the workers and employees who have committed them, as well as the chiefs who have ordered or admitted their commitment. When the author of an administrative offence has acted in fulfilment of unlawful official order given by the established order he is liable to administrative sanctioning if the order does not contain an offence obvious to him.

Liable to administrative sanctioning can be persons of age, who have accomplished 18 years of age who have committed offences in a sane state. Liable to administrative sanctioning may also be underage persons who have accomplished 16 years of age, but who have not accomplished 18 years of age, who have been in position to understand the nature and the importance of the committed offence and to manage their conduct. Responsible for administrative offences committed by minors, underage persons from 14 to 16 years of age and placed under full judicial disability may be respectively the parents, trustees or guardians who have consciously admitted their commitment.

Operation of the Legislation on Administrative Offences in Territory

A person who has committed an administrative offence in the territory of Turkey is held administratively liable in compliance with the law of Turkey on administrative offences.

Citizens of Turkey and stateless persons permanently residing in Turkey who have committed administrative offences outside Turkey is held administratively liable under the Turkish Codes as provided for by an international treaty made by Turkey.

Types of Guilt

An administrative offence is deemed willful, when the person who has committed it realized the wrongful nature of his action (omission), could foresee the harmful consequences thereof and wished these consequences, or deliberately tolerated them, or treated them indifferently.

An administrative offence is deemed as committed through negligence, when a person who has committed it could foresee the harmful consequences of his action (omission) but self-conceitedly hoped to prevent such consequences, or did not foresee the appearance of such consequences, though he should have to or could have foreseen them.

Aims of an Administrative Penalty

An administrative penalty is a punitive measure for committing an administrative offence, established by the state, and it is administered for the purpose of preventing the commitment of new offences either by the offender himself, or by other persons.

An administrative penalty may not be aimed at the abasement of human dignity of the natural person who has committed an administrative offence, or at inflicting on him physical suffering, or at damaging business reputation of a legal entity.

Types of Administrative Penalties

The following types of administrative penalties may be established and imposed for committing administrative offences:

• Warning,
• Administrative fine,
• Compensated seizure of the instrument or object of an administrative offence,
• Confiscation of the instrument or the object of an administrative offence,
• Deprivation of a special right granted to a natural person,
• Administrative arrest,
• Administrative deportation from Turkey of a foreign citizen or a stateless person,
• Disqualification,
• Administrative suspension of the activity,

Principal and Additional Administrative Penalties

A warning, an administrative fine, deprivation of a special right granted to a natural person, an administrative arrest, disqualification and an administrative suspension of the activity may be established and imposed as principal administrative penalties.

Compensated seizure of the instrument or subject of an administrative offence, or confiscation of the instrument or subject of an administrative offence, as well as administrative deportation from Turkey of a foreign citizen or a stateless person may be established and imposed either as a principal penalty, or as an additional one.

For one administrative offence there may be imposed either a principal administrative penalty, or a principal and additional one from the number of penalties indicated in the sanctions part of an applicable article of the Given Part of the Code.

General Rules for Imposing an Administrative Penalty

An administrative penalty for committing an administrative offence is imposed within the limits, established by the law stipulating the responsibility for the given administrative offence, in compliance with the relevant laws.

When imposing an administrative penalty on a natural person, the nature of the administrative offence committed by him, the personality of the culprit, his property status, the circumstances mitigating the administrative responsibility and the circumstances aggravating the administrative responsibility, is taken into account.

When imposing an administrative penalty on a legal entity, the nature of the administrative offence committed by it, the property and financial status of the legal entity, the circumstances mitigating the administrative responsibility and the circumstances aggravating the administrative responsibility, is taken into account.

Imposition of an administrative penalty does not relieve a person, who has been penalized for failure to perform a duty, from carrying out this duty.

No one bear administrative responsibility twice for the same administrative offence.

Circumstances Mitigating Administrative Responsibility

The following circumstances is deemed as mitigating administrative responsibility;

• Acknowledgement of an administrative offence by the person, who has committed it,
• A voluntary provision of information by a person on an administrative offence he/she has committed,
• Prevention by the person, who has committed an administrative offence, of harmful consequences thereof; voluntary reimbursement for damages caused, or elimination of harm inflicted thereby,
• Committing an administrative offence in a state of extreme excitement (in the heat of passion) or under very arduous personal or family circumstances,
• Committing of an administrative offence by a minor,
• Committing of an administrative offence by a pregnant woman or by a woman having an infant.

Circumstances Aggravating Administrative Responsibility

The following circumstances is deemed as aggravating administrative responsibility:

• Continuation of wrongful conduct, despite the demand of authorized persons to terminate it,
• Repeated commitment of a similar administrative offence, in which the person has already been penalized for committing such an offence in respect of which the term, has not yet expired,
• Drawing minors into the commitment of an administrative offence,
• Committing of an administrative offence by a group of persons,
• Committing an administrative offence during natural disasters or under other emergency circumstances,