Establishing Organizations for the Purpose of Committing Crimes

(Penal Code of Turkey, Article 220).

ABSTRACT

The crime of establishing organizations for the purpose of committing crimes is regulated in Article 220 of the Penal Code of Turkey under the heading of "Crimes Against Public Peace". The elements of the crime, the forms of sanction and procedure and the discussions in the doctrine will be examined in our study. In the last part of the review, the "effective remorse" clause regulated in Article 221 of the Penal Code of Turkey will be discussed.

1. OVERVIEW

In Penal Code of Turkey No. 5237, "Crimes Against Public Peace" are discussed in the fifth paragraph of the third part under the heading of "Crimes Against Society". The type of crime that will be examined in this study is mentioned in Article 220 of this part under the heading of ''Establishing Organizations for the Purpose of Committing Crimes''. Although the title of the relevant article mentions "establishing an organization", the article of the law includes sanctions against individuals, who establish the organization, manage the organization and even become members of the organization. For this reason, the heading of the article and the content of the article are not compatible in my opinion. The concept of "organization", which is a more comprehensive title, overlaps with the content of the law.

2- LEGAL BENEFIT PROTECTED BY CRIME

Although it is stated both in the doctrine and in the jurisprudence that the legal benefit protected by the crime in question is the public order, the meaning of this concept should be discussed in detail. While the essence of this concept is referred to as "ideal order" in one approach, it is referred to as "peaceful order in which the feeling of peace and security prevails in the life of the individual" in another approach. The fact that these two views point to elements close to each other indicates that the concept of "public order" should be defined with its strict and broad meanings. In a broad sense, public order refers to the social structure and the opportunities to maintain and improve this structure. In this respect, public order encompasses the institutions in the society, the relations between them, the mutual relations between and among the social organizations and individuals, the legal rules that ensure the life and development of the society, and social norms and values [1]. In the strict sense, public order refers to the regular course of social life, where the citizens maintain their relations with each other and with the state in a harmonious and peaceful manner.

The regular course of social life is ensured by the harmony and peaceful relations between citizens; and consequently, the existence of peace and tranquility in the society. Hence, this creates public peace [2]. In my opinion, the existence of a constantly operating organization established for the purpose of committing crimes directly threatens the value of "public order".

3- LEGAL CHARACTERISTIC OF THE CRIME

When a crime threatens the element of "public order", and the punishment is imposed upon the establishment of the organization without seeking for the act of committing the crime led to the interpretation of Article 220 of the Penal Code of Turkey as a crime of danger. However, there are debates as to whether this danger is concrete or abstract. Since the Article 220 of the Penal Code of Turkey clearly defines "the eligibility of an organization to commit the targeted crimes due to its structure, number of members and the tools and equipment owned", this crime is a concrete crime of danger. This crime is also defined as a "concrete crime of danger" In the decisions of the Supreme Court. However, there are opinions in the Italian Doctrine that this crime is an abstract crime of danger.

There are debates as to whether an organizing movement for the purpose of committing a crime is a preparatory movement for the crime. According to some views, this organizing movement is not defined as a preparatory movement, while another view argues that it is a preparatory movement in terms of its nature. While the Penal Code of Turkey does not impose sanctions on preparatory acts, some types of crimes are excluded from this principle. Article 220 of the Penal Code of Turkey  is one of the situations where preparatory acts are regulated as a special type of crime. The reason why preparatory acts are considered as special types of crime is undoubtedly the punishment of acts that create "significant danger of harm" to public order.

The fact that the article of the law does not punish these actions as a committed crime does not mean that the crime will not involve a preparatory act. At the core of the crime, the individuals, who are organized, get together for the purpose of committing the acts that the laws consider a crime. Therefore, establishing an organization is a tool. The criminal activity will begin after the organization comes together for a common purpose. In that case, these acts constitute the preparatory act of the main crime to be committed. Although preparatory actions are not penalized, the fact that this preparatory action poses a significant risk of harm to the society is considered as an exception to the rule, and it is evaluated independently.

Article 220 of the Penal Code of Turkey includes multiple perpetrators. In order for the organization to exist, there must be at least three persons according to the article of the law. However, it should be noted that it is a constant crime since a continuity is sought for the existence of the organization.

According to the dominant view in the doctrine, the crime of establishing organization for the purpose of committing crimes is a general and complementary crime [3]. In case the establishment of organization for the commission of certain crimes is specifically regulated by other penal norms, the special provision is applied for the general and complementary crime instead of the provision regarding the establishment of the organization.

4- DIFFERENCE FROM CRIMES OF SIMILAR CHARACTERISTIC

Despite the fact that Article 220 of the Penal Code of Turkey involves getting organized/establishing an organization for the purpose of committing crimes, organizations related to the commission of certain crimes are specifically regulated in the law. For instance, terrorist organizations, drug trafficking organizations, armed organizations and smuggling organizations are examples of the organizations that are subject to private regulation. The organization in these types of crime is different from the organization established for the purpose of committing crimes. Article 220 of the Penal Code of Turkey is more general and complementary compared to the other organized crimes.

The differences between agreement for crime (Penal Code of Turkey, Article 316) with and the crime defined in Article 220 should also be discussed. While the Article 220 of the Penal Code of Turkey does not mention purpose crimes, Article 316 of the Penal Code of Turkey states that the agreement between the perpetrators of crimes should be against the constitutional order, the security of the state and the functioning of the constitutional order. While Article 220 of the Penal Code of Turkey seeks the consensus of multiple persons, Article 316 of the Penal Code of Turkey seeks the presence of an organized and hierarchical structure consisting of at least three persons.

5- PERPETRATOR OF CRIME

Article 220 of the Penal Code of Turkey defines a crime with multiple perpetrators. The ''United Nations Convention Against Transnational Organized Crime [5]'' , which is signed by Turkey, seeks three persons for the presence of the crime. In my legal opinion, seeking the existence of three persons for the existence of an "organization" is a restrictive approach since the crime is a crime of danger. Because the union with less than three persons can involve a significant element of danger. Evaluation should be made on concrete cases. The only criterion specified in terms of the perpetrator of the crime is in terms of the number of members; anyone can be the perpetrator of the crime.

6- MATERIAL AND NON-MATERIAL ELEMENTS OF THE CRIME

According to the Article 220 of the Penal Code of Turkey, being organized, in other words, establishing the organization, managing the organization, being a member of the organization and making the propaganda of the organization are subject to sanctions. The terms to establish an organization or to manage an organization in the article constitute the material elements in the first paragraph. The statement of “… those who establish or manage an organization…” in the text of the Article emphasizes that there is an optional act of crime here. Therefore, any of these elective acts is sufficient for the type of crime to occur [6]. Accordingly, the founder of an organization does not have to be the person who manages the organization, or the person who manages the organization does not need to be the founder of organization at the same time [7]. Article 313 of the Penal Code of Turkey No. 765, which is titled “Those who form an organization for the purpose of committing a crime”, stipulated that the individuals, who form an organization for the purpose of committing crimes, and the managers of the organization would be punished under different clauses [8].

The concept of organization refers to an organized structure consisting of at least three persons with a hierarchical order among its members. This element of being organized is indirectly stated in the article of the law. In my opinion, the reason why it is not clearly stated is the difficulty in defining the element due to the change in organization according to periods and orders.  The Supreme Court supports this view by stating that "the crime will not occur unless the defendants agree and organize beforehand" [9].

In organizational membership, the individual aims to strengthen the organization, and to contribute to the organization. This contribution should not have any limitations. The person can benefit financially, as well as feel loyal to the orders of the organization. Even the presence of individuals under the auspices of the organization is of a nature to strengthen the organizations. For this reason, this sense of belonging, which will strengthen the organization, should be considered sufficient for membership in the organization. However, it is unfortunately difficult to determine and evaluate the sense of belonging in practice. It is an undoubted fact that activities will take place within the framework of the principle of confidentiality in a structure that is organized for the purpose of committing a crime. While this confidentiality alone creates difficulties in identifying the members of the organization, it creates a separate identification problem for the members of the organization who feel a sense of belonging to the organization, and are waiting for the orders of the organization. In addition to this problem, the thin border between the concept of "belonging" and the concept of "sympathy" is a problematic issue in the determination of the organization member in practice. Because sympathy, adopting the aims of the organization, and having publications related to the organization do not indicate membership in the organization, while it is not so innocent to feel a sense of belonging and expect orders from the organization. The decisions of the Supreme Court also state that sympathy for the organization does not indicate membership to the organization. Despite the dominant view in the doctrine, the decisions of the Supreme Court decisions on this matter and my opinion are in this direction, there are also opinions that seek a concrete contribution for membership to the organization.

Another important issue related to the membership to the organization is the sanction imposed on the person, who commits a crime on behalf of the organization without being a member of the organization. A person who commits a crime on behalf of the organization without being a member of the organization is also charged with the crime of being a member of the organization (Penal Code of Turkey, Article 220/6), and the person who knowingly and willingly helps the organization without being included in the hierarchical structure within the organization is penalized as a member of the organization (Penal Code of Turkey, Article 220/7). The person who commits a crime on behalf of the organization without actually being a member of the organization is also penalized despite not being a member of the organization, as long as s/he commits a crime on behalf of the organization and in connection with the purpose of the organization, and does not commit the crime for his/her own personal interests, according to the Penal Code of Turkey, Article 220/6 [11]. The Supreme Court also decided on “…committing a crime on behalf of the organization without being a member... in the face of the allegation and acceptance that the accused made the propaganda of the organization by chanting slogans in favor of the organization through participating in the demonstration organized in line with the .... purpose of the armed terrorist organization and following the call for action by the internet sites broadcasting under the control of the organization..." [12].

In fact, it is quite interesting that the relevant article of the law includes the sanction imposed to the person, who knowingly and willingly helps the organization without being involved in the organization. The fact that this article (Penal Code of Turkey, Article 220/7) has no limitations, and that the frame of "knowingly and willingly helping" is not drawn causes question marks in practice. It should be discussed whether the attorney defending the organization in a trial where the organization is on trial, the doctor who continues the treatment in a situation where the members of the organization are injured, and many similar examples fall within the scope of Article 220/7 of the Penal Code of Turkey . In my opinion, Article 220/7 of the Penal Code of Turkey is a provision that has no limitations; and therefore very broad results can be reached with the interpretation of the article of the law. A limitation should be added to this paragraph with a regulation to be made in the Penal Code of Turkey .

Article 220/8 of the Penal Code of Turkey regulates the propaganda of the organization or its purpose. Undoubtedly, the criminalization of propaganda is aimed at preventing new individuals from joining the organization. Since the Article 220 of the Penal Code of Turkey isa crime of danger in itself, this danger increases strongly if the organization spreads to the masses. Article 220 of the Penal Code of Turkey defines a crime committed with a special intention; general intention is not sufficient for this crime to occur. It is necessary to establish the organization, manage the organization or become a member of the organization with a special intention.

8- EFFECTIVE REMORSE

In organizational crimes, the sanctions are determined according to the behavior of the perpetrator or perpetrators, their behavior patterns, and the perpetrator's mission in the realization of the crime. Therefore, Article 220 of the Penal Code of Turkey enforces different penalties according to the actions of the perpetrator.

Article 221/1 of the Penal Code of Turkey titled effective remorse stipulates thatno penalty shall be imposed on the founders or administrators who disband the organization or ensure its dissolution with the information they provide before the investigation starts or a crime is committed in line with the purpose of the organization. The second paragraph of the same article states that in order for the members of the organization to benefit from the effective remorse provisions, they must not have participated in the commission of any crime within the framework of the organization's activity, and they must have voluntarily informed the relevant authorities that they abandoned the organization. According to the third paragraph, in order for the arrested organization members to benefit from effective remorse, they must not have participated in the commission of any crime yet, and they must provide appropriate information regarding the dissolution of the organization or the arresting of its members due to remorse.  It is debatable whether the information stated in this paragraph clearly leads to the disbanding of the organization or arresting its members. In my legal opinion, it is sufficient for the information provided to be important, and the judge should decide on the appropriateness of the information before the concrete case.

According to the fourth paragraph, “No penalty shall be imposed on any founder, administrator or member of a criminal organization, nor upon a person who commits an offense on behalf of that organization without being a member of such an organization, or knowingly aids and abets the organization, who surrenders voluntarily and provides information concerning the structure of the organization and of the offences committed in the course of the organization’s activities. Where a person provides such information after being apprehended, the penalty to be imposed on account of this offense shall be reduced by one third to three quarters." (Penal Code of Turkey , Article221/4) In other words, information about the crimes committed within the framework of the structure and activity of the organization is sufficient for the person, who surrenders voluntarily to benefit from the provisions of effective remorse. The fifth paragraph states that persons who benefit from effective remorse shall also be subject to probation for a period of one year.

REFERENCES

1. Artuk, Mehmet Emin; Gokcen, Ahmet; Yenidunya, A. Caner: General Provisions of the Penal Code, 4th ed., Ankara, Turhan Bookstore, 2009.
2. Avcı, Mustafa: “The Concept of Organized Crime in Turkish Law According to New Legal Regulations”, Journal of Law and Justice, Year: 2, Issue: 5, Spring 2005, p. 348-373.
3. Baba, Yasemin: “Effective Remorse in the Penal Code of Turkey”, (Istanbul University Institute of Social Sciences, Unpublished master's thesis), Istanbul, 2011.
4. Evik, Vesile Sonay: “Establishing organizations For The Purpose of Committing Crimes”, Prof. Dr. Çetin Özek Armağanı, Istanbul, 2004, p. 365-396.
5. Şen, E. (2013). Criminal Organization, Istanbul: Judicial Law Publishing.
6. Kavlak, C. (2010). Establishing Organizations For The Purpose of Committing Crimes (Penal Code of Turkey , Article 220). (Unpublished Master's Thesis). Dokuz Eylül University, Institute of Social Sciences, Izmir.
    

[1] Bayraktar Köksal, Criminal Incitement of Crime, Istanbul, 1977, 96.

[2] Bayraktar, Criminal Incitement of Crime, 97-98.

[3] Lattanzi-Lupo, Delitti Contro l'Ordine pubblico, Milan, 2000, 109; Spagnolo, 174; Ingroia, 44 et al.

[4] Fiandaca-Musco, Parte speciale, I, 357; Önder, 426. Our Supreme Court is also of the same opinion. For the relevant decision, please see Decisions of General Board of Crime of the Supreme Court 3.2.1986, No. 509/42, Savaş-Mollamahmutoğlu, v.2 3034.

[5] The Grand National Assembly of Turkey approved the ratification of this agreement with the Law No. 4800 (RG 4.2.2003/25014).

[6] Vesile Sonay Evik, “Establishing Organizations For The Purpose of Committing Crimes ”, Prof. Dr. Çetin Özek Aramağanı, Istanbul, 2004, p. 373; Erkan Canak, The Crimes of Establishing Organizations For The Purpose of Committing Crimes and Establishing Organizations For The Purpose of Interest, Istanbul, Vedat Kitapçılık, 2005, p. 91.

[7] Kavlak, The Crime of Establishing Organizations For The Purpose of Committing Crimes, p. 331.

[8] Gökcen, “Crimes against public peace (Art. 213-222)”, p. 17.

[9] Supreme Court Penal Department No 8, Decision dated 22.05.2000 and numbered E.10828, K.9312

[10] Supreme Court Penal Department No 16, Decision dated 9.10.2019 and numbered E.2019/1326 K.2019/5918

[11] Sarıtaş, “Regulations on Organized Crime in Penal Code of Turkey and Criminal Procedure Law within the Process of Harmonization with the European Union”, p. 155.

[12] Penal Department No 9,Decision dated 16.3.2011, and numbered E. 2009/5227, K. 2011/1716