Get out of jail free card for bid-rigging in Turkey

On April 11 we saw an amazing show of solidarity between the ruling Justice and Development Party (AK Party) on the center-right and the main opposition Republican Peoples’ Party (CHP) on the center-left make a last minute amendment to what is commonly referred to as the fourth judicial reform package, which includes a set of reforms to improve Turkey’s record in the European Court of Human Rights (ECtHR). Unfortunately, this specific amendment has nothing to do with addressing the shortcomings of the Turkish justice system on fundamental rights. There was no connection whatsoever between the case law of the Strasbourg-based rights court and this amendment.

The amendment was made to Article 132 of the Turkish Penal Code (TCK) (also known as Law No. 5237, adopted in 2004) and called for reduced prison sentences for individuals convicted of rigging public procurement tenders. Both parties, miles apart on almost every issue on the national agenda, made a hypocritical deal to add this change to the fourth judicial package while it was being debated on the floor of Parliament. The AK Party did not have the courage to include this change in the draft when it submitted it to Parliament, nor did the CHP dare to propose it during the deliberations in the Justice Commission because they were afraid of public outrage for whitewashing major corruption and bid-rigging scandals involving their own members in state bureaucracy or local municipal administrations.

When Article 12 of the fourth judicial package (adopted now as Law No. 6459) was being debated in Parliament, 11 AK Party deputies, led by parliamentary group deputy chairman Mustafa Elitaş, offered this amendment to the chair. Three CHP deputies also sponsored the amendment with the blessing of their parliamentary group leaders on the floor. Justice Commission Deputy Chairman Hakkı Köylü remained neutral, while Justice Minister Sadullah Ergin, representing the government’s view, supported the amendment. When it was put up to a vote, it was overwhelmingly approved.

The package reduces the maximum sentence given to individuals accused of tender rigging from 12 years in prison to seven. The minimum sentence is reduced from five to three years. And if the rigging does not cause any damage to the state, the prison sentence will be one to three years. In other words, when somebody is involved in mischief during the tenders, he can get away with a suspended sentence or a mere fine because of the low threshold of prison term limits imposed by the new law. As it has been proven that it is difficult to determine the exact damage rigging caused to the state in previous cases, the government, with the support of the main opposition party, offered “get out of jail free cards” for crooks who squander public trust by abusing government power.

If you combine this change with Article 231 of the Code on Criminal Procedure (CMK), which calls for the postponement of sentences for crimes that require imprisonment of less than two years, suspects accused of rigging will most likely be let free, giving them impunity in the case of wrongdoing. This will lead to more such fraud in public tenders while dealing a severe blow to the perception of fair justice in the eyes of the public. The practical result of this change will be an increase in the workload of the judicial system, putting an extra burden on already stressed courts in Turkey. This in turn will lead to a slowdown in the functioning of the judicial system and will prolong the duration of trials, a problem the fourth judicial package was, in fact, aiming to solve. Convicts in already completed trials will appeal to reopen their cases to benefit from this change, prompting many cases in the appeal process to be returned to the lower criminal courts for another trial under the revised penal code.

The effect of the change has already been felt across the country. İzmir’s fugitive mayor of Dikili, Osman Özgüven, who was sentenced by the court to more than eight years in two tender rigging cases (upheld by the appeals court as well), returned to Turkey from abroad on Thursday to face another trial. In a case against 25 individuals, including the mayor of Kuşadası, the İzmir 3rd High Criminal Court announced its decision to cancel the case in early April. İzmir Mayor Aziz Kocaoğlu is likely to avoid lengthy prison terms thanks to the fourth judicial reform package. He is currently standing trial on accusations of corruption and engagement in tender rigging in the İzmir Municipality. All these municipalities are run by the CHP. Similar examples can be cited for the AK Party and others.

Interior Minister Muammer Güler announced on March 15 that he authorized 1,521 investigations across the country of mayors suspected of committing a crime between March 2009 and January 2013. Of these, 897 investigations are about alleged tender rigging. The AK party, which won a majority of mayoral offices in the 2009 local elections, topped the list of local administrations under review with 599. The main opposition CHP follows with 454 cases and the junior opposition Nationalist Movement Party (MHP) came in third with 231 cases. The Peace and Democracy Party (BDP) came last with 96 cases. Güler noted that he did not allow investigations to move forward in another 1,509 cases. The breakdown of this number according to party is as follows: AK Party (797), CHP (441), MHP (137) and BDP (44).

The numbers explain why the AK Party and the CHP joined hands to legislate a change to clear their mayors’ conduct on the eve of local elections in March 2014. The MHP and BDP did not object to the change either because they will benefit from the revision as well. This is classic dirty deal-making among politicians of different breeds to clear their parties and members in the public opinion. What I find cynical and appalling is that this whitewash legislation was buried in the fourth judicial package which was officially titled “Law Regarding Changes to Some Laws with Respect to Human Rights and Freedom of Expression.” Put another way, politicians are saying that the right to rig tenders and squander the taxpayer’s money should be listed as a “fundamental human right.”

On Monday night, just before the 15-day period for review expired, President Abdullah Gül signed the bill into law. He could have partially vetoed the bill, dropping this last minute addition from the law by sending it back to Parliament. He chose not to do so. I don’t expect that the CHP, which is the only party in the opposition with enough deputies to appeal to the Constitutional Court for the overturn of the amendment, will do so. After all, it was the CHP that wholeheartedly sponsored moving this amendment.

The change undercuts efforts to prosecute bid-rigging in Turkey by offering lenient sentences or complete impunity under which crooks can escape accountability in cases of collusion. This is an invitation for a spike in bid-rigging schemes in the future. When coupled with existing deficiencies and a vast array of exemptions in the Public Procurement Law, which has been the most revised code in the last decade (57 times in 10 years by one account), Turkey scores very low in accountability and transparency. The EU 2012 progress report rightly noted that “the Turkish public procurement legislation is not in line with the acquis in a number of respects.” Politicians are naive in thinking that they can get away with this latest example of self-serving legislation by camouflaging this terrible incentive for public- private collusion with the rights package. All I am saying is that politicians’ conduct did not go unnoticed in this case.

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