The Turkish Penal Code not only penalizes crimes committed individually but also criminalizes offenses committed by multiple people in an organized, planned, and systematic manner. In this context, a preventive criminal law approach has been adopted against socially dangerous crimes committed through criminal organizations.
One of these approaches is the crime of “establishing an organization for the purpose of committing a crime,” regulated in Article 220 of the Turkish Penal Code. With this regulation, the legislator aims to prevent crimes from being committed within organized structures at the formation stage and to cut off the path of organized criminal structures. This text addresses the definition, elements, conditions, criminal sanctions, and practical application of this crime.
Legal Definition of the Crime
Article 220, paragraph 1 of the Turkish Penal Code defines the acts of establishing and managing an organization with the purpose of committing a crime as separate offenses:
TPC Article 220/1: “Those who establish or manage an organization with the intent to commit acts considered crimes by law, and if the structure of the organization, the number of its members, and its means and tools are suitable for committing the intended crimes, shall be punished with imprisonment from four to eight years. However, the existence of the organization requires that it consist of at least three members.”
This provision states that certain objective and structural conditions must be met for a structure to be considered an “organization.” Accordingly, to qualify as an organization:
- There must be a group consisting of at least three people.
- These individuals must have come together with the purpose of committing acts defined as crimes by law.
- The group must have a specific hierarchical structure.
- The activities of the organization must exhibit continuity and planning.
- The organization must possess the means, tools, and structure suitable for committing the intended crimes.
The second paragraph of the article regulates members who join the organization later and participate in its activities, differing from the organization’s leaders:
TCK Article 220/2: “Those who become members of an organization established for the purpose of committing crimes shall be punished with imprisonment from two to four years.” This provision targets individuals who are not part of the decision-making or management levels of the organization but knowingly and willingly take a place within the hierarchical structure of the organization. For the crime of membership to be established, the perpetrator must have adopted the organization’s criminal purpose and act in accordance with the organization’s orders and instructions toward this goal. Factors such as actual participation in the organization, demonstrating affiliation, and contributing to the organization’s goals are decisive in determining the membership offense.
Furthermore, paragraph seven of the same article states that a person who knowingly or willingly assists the organization, even if not included in the hierarchical structure, can be punished as a member of the organization. Situations constituting the crime of aiding the organization include providing a location, supplying food/clothing, offering shelter, supplying weapons or vehicles, etc. The penalty for organization membership may be reduced by up to one-third depending on the nature of the assistance provided.
TYPES OF THE CRIME: DISTINCTION AS FOUNDER, LEADER, AND MEMBER
Article 220 of the Turkish Penal Code addresses the crime of establishing an organization for the purpose of committing a crime under three distinct statuses: founder, leader, and member. The criminal responsibility differs for each status.
- Founder of the Organization: The person who initially establishes and brings together the organization, forming its structure and gathering individuals within it, is considered the founder.
- Leader of the Organization: Individuals who manage the existing organization, make decisions, guide members, and organize activities are regarded as leaders.
- Member of the Organization: Persons who are part of the hierarchical structure of the organization and participate in its activities are defined as members.
Those who establish or lead the organization constitute the command and control system of the organization, make decisions, and direct the members. Therefore, they bear heavier criminal responsibility due to their greater influence in the commission of the crime. This is also stipulated in the fifth paragraph of the relevant legal article, which states that organization leaders will be punished separately as perpetrators for all crimes committed within the scope of the organization’s activities.
Conditions Necessary for the Formation of the Crime
1.Structure Consisting of at Least Three People: As explicitly stated in Article 220/1 of the Turkish Penal Code (TCK), for a structure to be considered an organization, it must consist of at least three people. A criminal agreement between two people does not constitute the crime of establishing an organization; this situation can at most be evaluated under the crime of agreement to commit a crime (TCK Article 316). The three-person rule makes it mandatory for the organizational structure to have a collective nature.
2.Union with the Purpose of Committing a Crime: To be considered an organization, the purpose of the individuals coming together must be to commit the acts defined as crimes by law. Even if no crime has been committed yet, the establishment of the organization with the intent to commit a crime is sufficient for the formation of the crime.
3.Hierarchical Structure: The organization must have a certain chain of command within itself, meaning that there are assigned roles and task divisions. This implies that organization members take orders from each other or are directed by the leadership team. Hierarchy shows that the organization’s activities are conducted in a disciplined and systematic manner. Equality relations within the organization and arbitrary decision-making mechanisms do not meet this condition.
4.Continuity and Planning: The organizational structure must not be temporary but a continuous activity organization. That is, it should cover multiple crimes, extend over time, and include future-oriented planning. Individuals who come together for the sole purpose of committing a one-time crime are not considered part of an organized crime. The continuity of the structure coming together to commit crimes implies a will to operate steadily as an organization.
5.Structure and Equipment Suitable for Committing Crimes: The organization must have the infrastructure, communication network, logistical means, financial resources, or equipment to commit the intended crimes. For example, elements such as shelter and hiding opportunities, financial sources, weapons, and ammunition are among the factors considered in determining whether the organization meets these conditions. The essential point is whether the tools serve the purpose of the organization.
Without the full occurrence of all these elements together, ordinary groups or short-term associations cannot be considered as criminal organizations.
“In order to accept the existence of an ‘organization’ as defined in Article 220 of the Turkish Penal Code No. 5237, at least three persons in a hierarchical relationship must come together, and the structure of the organization must be capable, in terms of its number of members as well as tools and equipment, of committing an indefinite number of crimes intended. There must be a factual union around the purpose of committing crimes, cooperation, action sharing, and activities performed continuously toward these purposes.
Since the nature of the organization requires continuity, if persons come together to commit a certain crime or any crime, this situation is considered as an intention to participate (complicity) rather than the formation of an organization. However, considering that the existence of an organization — which facilitates the commission of intended crimes and is preparatory in nature for those crimes — does not require that the intended crimes actually be committed, in determining continuity, it is necessary not only to examine whether the predicate crimes are committed continuously but primarily to investigate whether there is a firm determination to continuously commit the predicate crimes.
In light of these explanations and regarding the specific case, although the existence of the intention to participate among the defendants is accepted, since there is no clear and convincing evidence free of any doubt showing that a hierarchical unity exists, the decision to convict the defendant instead of acquitting him/her from the alleged crime is contrary to the law. Considering the grounds of appeal by the defendant’s counsel to be well-founded, and in accordance with the notification, the judgment is REVERSED.” (Supreme Court 18th Criminal Chamber, Case No. 2019/918 E., Decision No. 2019/12554 K., dated 18.09.2019)
Making Propaganda for the Organization
Article 220/8 of the Turkish Penal Code (TCK) states: “Anyone who makes propaganda that legitimizes, praises, or encourages the use of the organization’s methods involving force, violence, or threats shall be punished with imprisonment from one to three years. If this crime is committed through press and broadcasting, the penalty shall be increased by half.”
As can be seen from the relevant legal article, attempts to publicize and promote the organization or its illegal aims to society, recruit new members to the organization, and justify the organization’s activities are regulated as crimes under TCK Article 220/8. If this crime is committed through press and broadcasting, the penalty imposed is increased by half.
Aggravated Forms of the Crime
The crime of forming an organization with the intent to commit a crime may carry certain aggravated circumstances that require harsher penalties. These situations are referred to as aggravated forms of the crime and are separately regulated in various paragraphs of Article 220 of the Turkish Penal Code. These aggravated circumstances are determined based on both the perpetrator’s position and the structure or activities of the organization.
1.The purpose and propaganda of the organization carried out through press or publication: According to TPC Article 220/8, the effective effort to recruit new members and spread the organization’s purpose through press or publication is regulated as an aggravated circumstance that requires an increased penalty for this crime.
2.The organization being armed: Under TPC Article 220/3, the armed status of the organization is considered an aggravated circumstance. In this case, the penalty is increased by one-quarter to one-half.
3.Additional responsibility of the organization’s leader: The leader of an organization established to commit crimes is additionally punished as a perpetrator for crimes committed within the scope of the organization’s activities (TPC Article 220/5). According to this provision, the leader is held directly responsible not only for founding or managing the organization but also for other crimes committed within the organization’s activities. For example, if robbery, plunder, or assault crimes committed by a member of the organization were carried out with the leader’s knowledge and instruction, the leader is also punished as a perpetrator for these crimes. This imposes a heavier legal responsibility on leaders.
Effective Remorse
One of the important legal institutions affecting the criminal liability of the defendant in the crimes of organizing, managing, or being a member of an organization with the intent to commit a crime is effective remorse. Article 221 of the Turkish Penal Code is a regulation aimed at deterring offenders in organized crime and encouraging the dismantling of organizations. Within this scope, individuals who sever ties with the organization, show willingness to cooperate, and provide information about the organization to the state may benefit from significant consequences ranging from a reduction in penalties to complete exemption from punishment.
1.Dissolution of the organization by the founder or manager before investigation: If a person is in the position of founding or managing the organization and no crimes have yet been committed in line with the organization’s purpose and no investigation has been initiated, but this person dissolves the organization or ensures its dissolution by providing information, no penalty shall be imposed on them. This provision regulates that even the heads of the organization will not be punished due to their voluntary contribution to dissolving the organization. However, two main conditions must be met to qualify for this exemption: no crime has been committed on behalf of the organization, and no investigation has started.
2.Voluntary withdrawal of a member: If a member of the organization has not participated in any crime committed within the scope of the organization’s activities and voluntarily notifies the official authorities of their departure from the organization, no penalty shall be imposed. This provision is especially designed to encourage individuals who have recently joined the organization, have not engaged in crime, but wish to leave.
3.Repentance and provision of effective information by a caught member: If a member of the organization is caught before participating in any crime and, out of remorse, provides information that facilitates the dismantling of the organization or the capture of its members, no penalty shall be imposed.
4.Voluntary surrender and subsequent provision of information: Any founder, manager, member, person committing a crime on behalf of the organization, or knowingly assisting the organization, who voluntarily surrenders and provides information about the structure of the organization and the crimes committed, shall not be punished for these crimes. However, if the person provides information after being caught, a reduction in penalty may be applied. This reduction can range from one-third to three-quarters, depending on the judge’s discretion.
5.Probation measure: Individuals benefiting from the provisions of effective remorse shall be subjected to a probation decision for one year. This period may be extended up to a maximum of three years, considering the individual’s circumstances and compliance with obligations.
Lawyer Gökhan AKGÜL & Lawyer Yasemin ERAK
