Offences Involving Performance of Obligations

Fraud in the Performance of an Obligation

The offence of fraud in the performance of an obligation criminalises certain fraudulent acts committed during the post-contractual performance and acceptance stages of work undertaken for a public entity. Article 236 of the Turkish Penal Code (“TPC”) exhaustively enumerates the acts that may constitute this offence.

Not every irregularity arising during a procurement or contractual process automatically constitutes bid rigging or fraud in the performance of an obligation. The alleged offence must be assessed by reference to the specific act, fraudulent conduct, intent, individual contribution, loss suffered by the relevant entity and lawfully obtained evidence.

1. The Tender Stage and the Performance Stage Are Distinct

The tender process ends upon the signing of the contract, after which the performance stage begins. Acts committed during the tender process before the contract is signed may be assessed under Article 235 of the TPC where the statutory elements are present. Post-contractual delivery, performance, inspection and acceptance procedures may be assessed under Article 236 where the relevant conditions are satisfied.

No conclusion should be reached without first determining the date and nature of the alleged act. Not every irregularity occurring during the tender stage constitutes an offence under Article 235, just as not every irregularity arising during the performance of a contract constitutes an offence under Article 236.

2. Scope of the Offence

Article 236 of the TPC applies to obligations undertaken towards:

• Public institutions and organisations;

• Professional organisations having the status of public institutions;

• Companies established with the participation of such institutions or organisations;

• Foundations operating within such entities; and

• Associations working for the public benefit or cooperatives.

The first step is to determine, by examining the contract and its annexes, the type, quantity, quality and delivery or performance period of the goods, services or construction work undertaken.

3. Fraudulent Acts Enumerated in Article 236 of the TPC

Where committed fraudulently, the following acts may constitute fraud in the performance of an obligation:

• Delivering or accepting goods other than those whose specifications are set out in the tender decision or contract;

• Delivering or accepting a quantity of goods smaller than that specified in the tender decision or contract;

• Accepting an obligation that was not performed within the prescribed period as though it had been performed on time;

• Accepting construction work or materials used in such work as compliant even though they do not satisfy the conditions, quantities or quality requirements set out in the specifications or contract; and

• Accepting a service that was not provided, or was provided incompletely, as though it had been properly provided in accordance with the contractual requirements.

These five categories of conduct may not be extended by analogy.

Current case law of the Court of Cassation separately determines who may qualify as the principal offender under the subparagraphs concerning delivery and those concerning acceptance alone. A person who does not possess the specific legal status required to commit the offence as a principal offender may, where the relevant conditions are met, be held liable for instigating or assisting the offence.

The mere title of contractor, company director, employee or acceptance officer is insufficient to establish criminal liability. The person’s knowledge, intent and individual contribution to the alleged conduct must be demonstrated.

4. Fraud, Intent, Loss and Benefit

Fraudulent conduct is required for each of the alternative acts constituting the offence. Fraud must be demonstrated through specific conduct capable of concealing the true nature of the performance and misleading the other party.

Article 236 does not establish an offence that may be committed through negligence. Carelessness, a difference in technical interpretation, a measurement error or inadequate supervision does not satisfy the constituent elements of the offence unless fraudulent conduct and intent are proven.

Criminal liability is personal. No criminal penalty may be imposed on a legal entity. Where the statutory conditions are satisfied, security measures applicable to legal entities under Articles 60 and 242 of the TPC may nevertheless be considered separately.

Obtaining a benefit is not a general constituent element of the basic form of the offence. Where a public official obtains a benefit, the possibility of a separate offence may arise.

Although not expressly stated in the wording of Article 236, current Court of Cassation case law treats the offence as one requiring loss and seeks proof of actual loss suffered by the institution or organisation that is the purchaser under the contract. Matters such as whether the goods were rejected, replaced or rectified free of charge, the amount paid, and whether any residual economic loss remained must be assessed together with the contractual provisions.

5. Not Every Breach of Contract Constitutes a Criminal Offence

Article 25 of Public Procurement Contracts Law No. 4735 regulates a broad range of unlawful acts, including:

• Fraudulent interference with contractual procedures;

• Use of forged documents;

• Use of fraudulent materials or methods;

• Defective workmanship;

• Causing loss to the contracting authority;

• Misuse of information or breach of confidentiality obligations;

• Failure to perform the undertaking in accordance with the contract; and

• Unauthorised assignment of the contract.

Article 236 of the TPC, however, criminalises only the five fraudulent forms of delivery or acceptance listed above. Accordingly:

• Delay may be examined under Article 236(2)(c) only where the delayed performance is fraudulently accepted as having been completed on time.

• Incomplete or defective construction work does not automatically fall within Article 236(2)(d) unless it is fraudulently accepted as compliant.

• An incomplete service does not fall within Article 236(2)(e) unless it is fraudulently accepted as having been fully and properly provided.

• Disputes concerning measurements, progress payments, quality, price adjustments or the interpretation of specifications do not constitute the offence unless fraudulent conduct, intent and one of the relevant alternative acts are established.

Article 27 of Law No. 4735 requires notification to the public prosecutor’s office only where conduct falling within Article 25 also constitutes a criminal offence under the TPC.

Negligence or fault under Article 28 of Law No. 4735 may result in disciplinary liability or liability for damages. It does not give rise to criminal liability unless the elements of a criminal offence are separately established. The Law also provides for restrictions on the appointment or assignment of public officials convicted of offences arising from contracts falling within its scope.

Allegations involving forged documents, bribery or misconduct in public office may be investigated under their respective provisions even where the elements of Article 236 are not established.

6. Criminal Penalties, Debarment and Contractual Consequences

Unlawful acts committed during the performance of public procurement contracts may result in administrative sanctions, criminal penalties or both. An offence under Article 236 of the TPC is punishable by imprisonment for a term of three to seven years.

In addition, the prohibited acts listed in Article 25 of Law No. 4735 may, under Article 26, result in administrative debarment from public procurement procedures for a period of not less than one year and not more than two years, depending on the nature of the act.

Termination, forfeiture of guarantees and liability for damages are legally distinct from criminal proceedings.

Article 27 of Law No. 4735 provides for debarment by court order for a period of one to three years after the expiry of the administrative debarment. It also provides for permanent debarment, where the statutory conditions are satisfied, for persons repeatedly convicted of prohibited acts under the Law.

A notification made to the public prosecutor’s office does not automatically suspend the time limits applicable to challenges against other administrative or contractual measures.

7. Investigation, Evidence and Defence Rights

The offence under Article 236 of the TPC is not subject to a complaint as a prerequisite for investigation. It is investigated ex officio.

Any criminal report should clearly identify:

• The obligation undertaken under the contract;

• The work actually performed;

• The delivery or acceptance alleged to have been fraudulent;

• The persons concerned;

• The relevant dates; and

• The supporting documents.

A criminal report or investigation does not establish guilt. The public prosecutor must collect evidence both for and against the suspect. Where sufficient suspicion does not exist, a decision of non-prosecution must be issued. The court may rely only on lawfully obtained evidence examined and discussed during the hearing.

The allegations must be explained to the person concerned, who must be informed of the rights to legal assistance, to remain silent and to request the collection of exculpatory evidence.

The contract and its annexes, delivery and receipt records, inspection and acceptance documents, progress-payment records, measurements, laboratory reports, invoices, warehouse and logistics records, emails, EKAP records and other system data must be preserved in their original form together with their digital metadata. No false record should subsequently be created, and existing records must not be deleted or altered.

8. When Should Legal Assistance Be Sought?

Once an irregularity is identified, the potential consequences concerning criminal liability, termination, guarantees, progress payments, compensation, disciplinary action and debarment should be assessed together.

It is advisable for contracting authority officials, contractors and company representatives to obtain legal assistance without delay and to have the file examined from the perspectives of both public procurement contract law and criminal procedure at the earliest stage of:

• A request for a statement;

• A request for documents;

• An audit or inspection;

• A criminal complaint; or

• A dispute concerning inspection or acceptance.

9. Frequently Asked Questions

Does every incomplete, defective or delayed performance fall within Article 236 of the TPC?

No. One of the delivery or acceptance acts enumerated in the law must be established together with fraudulent conduct and intent.

Does an incorrect inspection or acceptance decision constitute an offence by itself?

No. A technical error, negligence or carelessness may give rise to other forms of liability. Article 236 additionally requires proof of fraudulent conduct and individual intent.

How are loss suffered by the institution and any benefit obtained assessed?

Obtaining a benefit is not a constituent element of the basic offence. Loss is determined in the particular case by considering matters such as payment, rejection, replacement and rectification, together with current case law.

Why should persons accused of fraud in the performance of an obligation obtain legal assistance?

The offence requires simultaneous knowledge and application of two distinct fields of law: public procurement law and criminal law. Legal assistance should therefore be obtained to ensure that both aspects are managed concurrently and to prevent any loss of rights.

10. Related Content and Contact Information

Legal Assistance in Public Procurement Procedures • Litigation Process Management • Court Decisions • Frequently Asked Questions

For a preliminary assessment, the contracting authority and contract details, the type of work, the disputed delivery or acceptance, the date on which the matter was discovered, the available records and, where applicable, the deadline for challenging the relevant act or submitting an application should be provided when making contact.

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Disclaimer

This text provides general and guidance-oriented information only. It does not constitute a legal opinion or a commitment regarding any particular outcome.

The constituent elements of the offence, evidence, applicable time limits and available remedies must be assessed separately in each case by reference to the date of the alleged act, the legislation currently in force and current case law.

Legislation and case law last reviewed: September 2026.

Principal Legal Sources

1. See: Turkish Penal Code No. 5237, particularly Articles 2, 20, 21, 40, 60, 236 and 242, as amended and currently in force

2. See: Public Procurement Contracts Law No. 4735, particularly Articles 20 and 25–28, as amended and currently in force

3. See: Criminal Procedure Code No. 5271, particularly Articles 147–160, 170, 172 and 217, as amended and currently in force

4. See: Draft Turkish Penal Code and Report of the Justice Committee—legislative reasoning for Article 236 of the TPC