Consequences of the Decision to Suspension of the Pronouncement of the Judgement due to Public Procurement Crimes in Terms of Administrative Law

Aynur Hasoğlu; Hasan Koçyiğit

Makale detayları

Consequences of the Decision to Suspension of the Pronouncement of the Judgement due to Public Procurement Crimes in Terms of Administrative Law

Yazarlar:

Aynur Hasoğlu | Hasan Koçyiğit

Yayıncı:

Erciyes University

Ana Başlıklar:

İdare Hukuku

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 2, pp.963-1016

Belge Tipi:

Makale

Yayın Tarihi:

10/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001330673

pISSN:

1306-3839

Anahtar kelimeler:

Özet:

 Public institutions and organizations in Turkey, for their needs like goods procurement, service procurement, construction, and lea sing activities, can conduct these either directly through administrati ve units or by outsourcing to private legal entities. However, unlike private individuals, administrative authorities are bound to operate within a set of pre-established rules, a necessity for achieving public welfare. These rules are generally referred to as public procurement. Public procurement can be defined as the process and procedures related to the selection of private legal entities for various activities such as procurement of goods, services, construction, and leasing. There are two primary laws governing the procurement activities of administrative authorities: the State Procurement Law No. 2886 of1983 and the Public Procurement Law No. 4734 of 2002, with the addition of the Public Procurement Contracts Law No. 4735 of 2002. The Public Procurement Law has a broader scope than the State Pro curement Law, both in terms of administrative units and activities covered. In the context of public procurement contracts, various ad ministrative sanctions can be applied in certain situations, including bans from public tenders, removal from office, financial penalties to public officials, administrative fines for legal entities, compensation for damages, cancellation and termination of contracts, removal from public service, and disciplinary actions. Additionally, there are crimes specifically related to public procurement, such as bid rigging and fraudulent performance of a contract, outlined in Articles 235 and 236 of the Turkish Penal Code. Apart from these, during the procure ment process and the execution phase of the contracts, crimes like forgery, embezzlement, bribery, extortion, and abuse of office can also occur. However, this study will specifically focus on the crimes of bid rigging and fraudulent performance of a contract. In this study, the focus will initially be on both criminal and ad ministrative sanctions applicable in public procurement processes. Administrative sanctions are penalties imposed directly by administ rative authorities without judicial intervention, as allowed by law. These sanctions are of an administrative nature and are executive in character. Criminal sanctions, on the other hand, are punishments or measures imposed by judicial authorities for acts defined as crimes by law prior to their commission. These can include imprisonment, life imprisonment, and judicial fines. After discussing the administrative and criminal sanctions in public procurement, the study will examine the concept of deferred announcement of verdicts, evaluating its app lication within the context of criminal sanctions...continued in the article.

 Public institutions and organizations in Turkey, for their needs like goods procurement, service procurement, construction, and lea sing activities, can conduct these either directly through administrati ve units or by outsourcing to private legal entities. However, unlike private individuals, administrative authorities are bound to operate within a set of pre-established rules, a necessity for achieving public welfare. These rules are generally referred to as public procurement. Public procurement can be defined as the process and procedures related to the selection of private legal entities for various activities such as procurement of goods, services, construction, and leasing. There are two primary laws governing the procurement activities of administrative authorities: the State Procurement Law No. 2886 of1983 and the Public Procurement Law No. 4734 of 2002, with the addition of the Public Procurement Contracts Law No. 4735 of 2002. The Public Procurement Law has a broader scope than the State Pro curement Law, both in terms of administrative units and activities covered. In the context of public procurement contracts, various ad ministrative sanctions can be applied in certain situations, including bans from public tenders, removal from office, financial penalties to public officials, administrative fines for legal entities, compensation for damages, cancellation and termination of contracts, removal from public service, and disciplinary actions. Additionally, there are crimes specifically related to public procurement, such as bid rigging and fraudulent performance of a contract, outlined in Articles 235 and 236 of the Turkish Penal Code. Apart from these, during the procure ment process and the execution phase of the contracts, crimes like forgery, embezzlement, bribery, extortion, and abuse of office can also occur. However, this study will specifically focus on the crimes of bid rigging and fraudulent performance of a contract. In this study, the focus will initially be on both criminal and ad ministrative sanctions applicable in public procurement processes. Administrative sanctions are penalties imposed directly by administ rative authorities without judicial intervention, as allowed by law. These sanctions are of an administrative nature and are executive in character. Criminal sanctions, on the other hand, are punishments or measures imposed by judicial authorities for acts defined as crimes by law prior to their commission. These can include imprisonment, life imprisonment, and judicial fines. After discussing the administrative and criminal sanctions in public procurement, the study will examine the concept of deferred announcement of verdicts, evaluating its app lication within the context of criminal sanctions...continued in the article.

 Public institutions and organizations in Turkey, for their needs like goods procurement, service procurement, construction, and lea sing activities, can conduct these either directly through administrati ve units or by outsourcing to private legal entities. However, unlike private individuals, administrative authorities are bound to operate within a set of pre-established rules, a necessity for achieving public welfare. These rules are generally referred to as public procurement. Public procurement can be defined as the process and procedures related to the selection of private legal entities for various activities such as procurement of goods, services, construction, and leasing. There are two primary laws governing the procurement activities of administrative authorities: the State Procurement Law No. 2886 of1983 and the Public Procurement Law No. 4734 of 2002, with the addition of the Public Procurement Contracts Law No. 4735 of 2002. The Public Procurement Law has a broader scope than the State Pro curement Law, both in terms of administrative units and activities covered. In the context of public procurement contracts, various ad ministrative sanctions can be applied in certain situations, including bans from public tenders, removal from office, financial penalties to public officials, administrative fines for legal entities, compensation for damages, cancellation and termination of contracts, removal from public service, and disciplinary actions. Additionally, there are crimes specifically related to public procurement, such as bid rigging and fraudulent performance of a contract, outlined in Articles 235 and 236 of the Turkish Penal Code. Apart from these, during the procure ment process and the execution phase of the contracts, crimes like forgery, embezzlement, bribery, extortion, and abuse of office can also occur. However, this study will specifically focus on the crimes of bid rigging and fraudulent performance of a contract. In this study, the focus will initially be on both criminal and ad ministrative sanctions applicable in public procurement processes. Administrative sanctions are penalties imposed directly by administ rative authorities without judicial intervention, as allowed by law. These sanctions are of an administrative nature and are executive in character. Criminal sanctions, on the other hand, are punishments or measures imposed by judicial authorities for acts defined as crimes by law prior to their commission. These can include imprisonment, life imprisonment, and judicial fines. After discussing the administrative and criminal sanctions in public procurement, the study will examine the concept of deferred announcement of verdicts, evaluating its app lication within the context of criminal sanctions...continued in the article.

 Kamu ihale suçlarından verilen Hükmün Açıklanmasının Geri Bı- rakılması HAGB, mahkûmiyeti askıya alan bir karardır. Onun belli bir süre daha hukuki sonuç yaratmayacak olması, ihalede gerçekleşti- rilen yasak fiillerden ötürü uygulanan; kamu ihalelerine katılmaktanyasaklanma, görevden el çektirme, kamu görevlisine para cezası uy- gulanması, tüzel kişiler hakkında idari para cezası uygulanması, zarar ziyanın tazmini, ihalenin iptali ve feshi, memuriyetten çıkarılma ve disiplin cezası gibi idari yaptırımlar üzerinde belirsiz bir olumsuz etkide bulunabilmektedir. Çalışmamız bir bütün halinde; kamu ihale suçlarından verilen HAGB kararının, idare hukuku açısından sonuçlarının neler olduğuna ilişkin bir değerlendirme amacı taşımaktadır. Bu sebeple öncelikle kamu ihale suçları açısından geçerli olan cezai ve idari yaptırımlar incelenmiş, daha sonra cezai yaptırımın sonucu olarak uygulanabilen HAGB kurumu değerlendirilmiş ve nihayetinde HAGB kurumunun idare hukuku açısından sonuçları üzerinde durulmuştur. Bu bağlamda konu hakkında hem idare hem ceza hukuku çalışmalarına hem de güncel yüksek mahkeme kararlarına yer verilmiştir. Çalışmanın sonuç kısmında, HAGB kurumu ile idari yaptırımların birbirine uygun hale getirilmesi için yapılması gerekenler konusunda hem uygulayıcılara hem de Kanun Koyucuya yol göstereceğini dü- şündüğümüz sonuçlara ulaşılmıştır.

Makale detayları

Consequences of the Decision to Suspension of the Pronouncement of the Judgement due to Public Procurement Crimes in Terms of Administrative Law

Yazarlar:

Aynur Hasoğlu | Hasan Koçyiğit

Yayıncı:

Erciyes University

Ana Başlıklar:

İdare Hukuku

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 2, pp.963-1016

Belge Tipi:

Makale

Yayın Tarihi:

10/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001330673

pISSN:

1306-3839

Public Procurement

Administrative Sanctions

Public Procurement Crimes

Ban on Participation in Public Tenders

Suspen sion of the Pronouncement of the JudgementKamu İhalesi

İdari Yaptırımlar

Kamu İhale Suçları

Kamu İhalelerine Katılmaktan Yasaklama

Hükmün Açıklan- masının Geri Bırakılması

Sayı

Makale detayları

Yazarlar: Aynur Hasoğlu | Hasan Koçyiğit

Yayıncı: Erciyes University

Ana Başlıklar: İdare Hukuku

Dergi: Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 2, pp.963-1016

Belge Tipi: Makale

Yayın Tarihi: 10/2024

Belge Dili: Türkçe

Document ID (Org No.): 2001330673

pISSN: 1306-3839

Sayı

Yazarlar:

Aynur Hasoğlu | Hasan Koçyiğit

Yayıncı:

Erciyes University

Ana Başlıklar:

İdare Hukuku

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 2, pp.963-1016

Belge Tipi:

Makale

Yayın Tarihi:

10/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001330673

pISSN:

1306-3839