Constitutional Court annuls provision in Turkish Penal Code: Unconstitutional

According to the decision of the Constitutional Court (AYM) published in the Official Gazette, the Patnos High Criminal Court and the Istanbul 22nd High Criminal Court requested that the high court rule for the annulment of the 6th paragraph of Article 220 of the TCK, which regulates the crime of "committing a crime on behalf of an organization without being a member of the organization," arguing that it is contrary to Articles 2, 13, and 38 of the Constitution.

In the application decisions, it was argued that the rule in question is not accessible or predictable in a way that would prevent arbitrary behavior by bodies exercising public power and help individuals understand the law, and that the lack of certainty in the rule is incompatible with the principles of the rule of law and legality in crimes and punishments.

Evaluating the request, the Constitutional Court emphasized in its decision that while the rule in question is a legislative provision of an accessible nature, for the rule to be considered certain, the consequences that would arise from its application must also be predictable.

The decision stated that it must also be determined whether the rule contains protective measures against arbitrary interference by public authority with fundamental rights protected by the Constitution.

"EXPANDS THE SCOPE OF THE CRIME"

The decision, which stated that it is understood that there is no regulation regarding what should be understood by the concept of "crime committed on behalf of an organization" in the rule and that no distinction is made between the crimes committed, included the following statements:

"In other words, regardless of its nature or severity, when any crime is evaluated as having been committed on behalf of an organization by a person who is not a member of the organization, individuals are also punished for the crime of being a member of an organization. This situation expands the scope of a crime that carries a very serious accusation and penalty in a way that the criteria are uncertain. It is understood that judicial authorities also interpret the concept of a crime committed on behalf of an organization differently according to the characteristics of each concrete case, and that certainty cannot be provided through judicial interpretation either."

"MUST BE SHOWN WITH SUFFICIENT JUSTIFICATION"

Stating that the fact that a person is also punished for the crime of being a member of an organization when it is accepted that they committed a crime on behalf of the organization is another issue that should be considered in terms of the certainty review, the decision made the following assessment: "In principle, in order for a person to be punished for membership in an armed organization, the continuity, diversity, and intensity of their actions, or even in the absence of these characteristics, whether the crime could only be committed by members of the organization in terms of the nature of the crime and achieving the organization's goals should be considered, and it must be shown with sufficient justification that they have an organic bond with the organization and acted knowingly and willingly within the hierarchical structure of the organization."

The decision included the following statements:

"However, when the rule in question is applied, the specific conditions sought for the crime of being a member of an armed organization are not sought for a person who is not a member of the organization but commits a crime on behalf of the organization, and without making any distinction between persons in both categories, a person who is not a member of the organization but commits a crime on behalf of the organization is punished as a member of the organization. In this respect, a person is punished for membership in an organization in addition to the crime they committed in accordance with the provisions of real concurrence, on the grounds that they committed a crime alleged to have some connection, however weak, with an armed organization, without their connection to the organization being clearly demonstrated. This causes a person who commits a crime on behalf of an organization to face heavier penalties than members of the organization.

Furthermore, although it is possible for the rule to be applied in terms of crimes that are not related to a fundamental right, if the crime committed is related to the exercise of fundamental rights, a strong chilling effect is created on fundamental rights such as freedom of expression, the right to organize meetings and demonstrations, or freedom of association or religion and conscience due to the broad interpretation stemming from the ambiguity of the concept of 'on behalf of an organization' in the rule."

"DOES NOT MEET THE REQUIREMENT OF LEGALITY"

The decision also stated that the rule in question is open to broad interpretation in a way that would cause individuals to be punished for a very serious crime such as being a member of an organization without any concrete evidence regarding membership in the organization and without taking into account how the crime committed contributed to the organization's goals in terms of its nature and severity; therefore, the rule is not of a certain and predictable nature to prevent arbitrary practices of public authority, and in this respect, it does not meet the requirement of legality.

Ruling that the phrase "a person who is not a member of the organization but commits a crime on behalf of the organization shall also be punished for the crime of being a member of the organization" in the rule in question is contrary to Article 38 of the Constitution, the Constitutional Court unanimously annulled the 6th paragraph of Article 220 of the TCK, which regulates the crime of "committing a crime on behalf of an organization without being a member of the organization."

The decision stated that the second and third sentences of the same paragraph, which have no possibility of being applied following the annulment of the first sentence, should also be annulled.

The high court deemed it appropriate for the decision to enter into force after 4 months.