Top court invalidates legal provision on 'committing crimes on behalf of a criminal organization'

The Constitutional Court has nullified the provision in the Turkish Penal Code that addresses the crime of "committing crimes on behalf of an organization without being a member."

According to the decision published in the Official Gazette, the Patnos Heavy Penal Court and İstanbul 22nd Heavy Penal Courts applied to the Constitutional Court, arguing that the 6th paragraph of Article 220 of the TCK, regulating the mentioned offense, contradicts Articles 2, 13, and 38 of the Constitution, requesting its annulment.

In their application decisions, the courts claimed that the contested rule does not prevent arbitrary actions by organs using public power and is not accessible and predictable enough to help individuals understand their rights, asserting that the lack of clarity in the rule contradicts the principles of legality in law and crime.

The Constitutional Court, evaluating the request, emphasized in its decision that, while the rule in question is a law provision of accessible nature, the results arising from its application should also be predictable for it to be considered specific. The decision stated the importance of determining whether the rule provides a protective measure against arbitrary interference with fundamental rights protected by the Constitution.

Scope of the offense

The decision pointed out that the rule lacks any regulation on what is meant by the concept of "committing a crime on behalf of the organization" and does not differentiate between committed crimes. It stated, "In other words, regardless of the nature or severity, when any crime is considered to have been committed by a person who is not a member of an organization on behalf of that organization, individuals are also punished for membership in the organization. This situation unreasonably broadens the scope of an offense that implies a severe accusation and penalty."

Adequate justification

The decision emphasized that, in the context of examining the certainty of punishment in terms of committing a crime on behalf of the organization, another point to consider is whether, in the event of accepting that an individual committed a crime on behalf of the organization, they should be punished for membership in the organization. It stated, "As a principle, for a person to be punished for membership in an armed organization, it must be shown with sufficient justification that the person had a continuous, equal, and intense connection with the organization, or at least acted knowingly and willingly within the hierarchical structure of the organization to achieve the organization's goals."

Impact on fundamental rights

The decision raised concerns about the broad interpretation of the rule, indicating that it may have a strong deterrent effect on fundamental rights such as freedom of expression, the right to organize meetings and demonstrations, or freedom of association when applied to crimes unrelated to basic rights. It stated, "However, due to the vague interpretation of the concept of committing a crime on behalf of the organization in the rule, the broad interpretation of the term in terms of the exercise of fundamental rights, due to the ambiguity of the term, creates a strong deterrent effect on fundamental rights such as freedom of expression, the right to organize meetings and demonstrations, or freedom of association when applied to crimes unrelated to basic rights."

Requirement of legality

The decision concluded that the contested rule is susceptible to broad interpretation, allowing individuals to be punished for membership in an organization without any concrete evidence and without considering the nature and severity of the committed crime in terms of contributing to the organization's goals. Therefore, the rule does not meet the requirement of legality.

The Constitutional Court, by unanimous vote, annulled the 6th paragraph of Article 220 of the TCK, which regulates the crime of "committing crimes on behalf of an organization without being a member," stating that the first sentence's annulment also requires the annulment of the second and third sentences in the same paragraph. The decision will take effect four months later. (HA/VK)