Türk Ceza Hukukunda Kamu Görevlisi

Abstract

This study examines the concept of the public official in Turkish criminal law. Although Article 6/1-c of the Turkish Criminal Code No. 5237 defines a public official as a “person participating in the conduct of a public activity,” the concept of public activity itself is not a predefined notion in criminal law. In order to set out the theoretical foundations of the concept of the public official, the first chapter begins with a theoretical examination of the concept of public activity. Within this framework, public activity is explained in light of the meaning and principles attributed to it in criminal law, drawing also on the doctrine of public service; the concept of the public official is then defined on the basis of this explanation. The legal regime of the public official is subsequently examined with regard to the relevant branches of law and to criminal law, and the distinctive features of the concept of the public official in criminal law are identified. The second chapter addresses the interpretation of the statutory definition of the public official. In this context, the principles governing the interpretation of definitional norms and the relationship between the definition and the principle of legal certainty are analyzed, and those aspects of the current regulation that are incompatible with this principle are identified. A distinction is drawn between the interpretation of the definitional norm and the interpretation of the criminal provisions referring to that definition; the criteria employed in legal scholarship and in the case law of the Court of Cassation (Yargıtay) to limit the scope of the concept are critically assessed within the framework of this distinction. Finally, the study advances the proposal that, while the scope of the definitional norm is preserved, the legal consequences attached to the capacity of public official be limited by means of the teleological-functional method, through the connecting element contained in the criminal provision.