The Constitutional Court, with its decision dated 5/11/2024 and numbered E.2024/81, K.2024/189, annulled the regulation on “committing crimes on behalf of an organization” in the Turkish Penal Code (TPC) for the second time. This regulation concerning Articles 220 and 314 of the Turkish Penal Code had previously been annulled by the Constitutional Court with its decision dated October 26, 2023 and numbered E.2023/132, K.2023/183. However, following this annulment decision, the regulation was re-enacted and entered into force within the scope of the 8th Judicial Package.
The 8th Judicial Package and the Return of the Regulation
The 8th Judicial Package, adopted on March 2, 2024, made significant changes to the Turkish Penal Code and re-enacted the regulation on “committing crimes on behalf of an organization”. This regulation was enacted with almost the same content as its previous version and began to be applied again in criminal law. However, the Constitutional Court annulled this provision once again, evaluating that the new regulation also contained the same ambiguities and was contrary to constitutional principles.
Annulled Articles
- Turkish Penal Code (TPC) Article 220 (Paragraph 6):
“(Amended:2/3/2024-7499/10 art.) A person who commits a crime on behalf of an organization without being a member of the organization shall be punished with imprisonment from two years and six months to six years. The penalty to be imposed may be reduced by up to half according to the nature of the crime committed. The provision of this paragraph applies only to armed organizations.”
2. Turkish Penal Code (TPC) Article 314 (Paragraph 3):
“(Added:2/3/2024-7499/11 art.) A person who commits a crime on behalf of an organization without being a member of the organization shall be punished with imprisonment from five years to ten years. The penalty to be imposed may be reduced by up to half according to the nature of the crime committed.”
Assessment of Interpretation Open to Arbitrariness in Terms of the Principle of Legality and Violation of Fundamental Rights
The Constitutional Court, as in its 2023 annulment decision, drew attention to the ambiguities in the definition of the crime and the negative effects on fundamental rights in its 2025 decision as well.
The principle of legality requires that crimes and punishments be regulated in a clear, precise and foreseeable manner, enabling individuals to know in advance which of their behaviors will constitute a crime. However, the Constitutional Court has determined that the regulations on “committing crimes on behalf of an organization” in TPC 220/6 and TPC 314/3 violate this principle. The ambiguity in these articles has expanded the scope of the crime and created a ground open to arbitrary interpretations by judicial authorities. In particular, the insufficient definition of the expression “on behalf of an organization” undermines legal certainty and creates a deterrent effect on fundamental rights. For this reason, the Court has decided to annul the regulations due to the risks of leading to arbitrariness and violating fundamental rights.
The Court emphasized the following problems in both the previous regulation and the new regulation brought by the 8th Judicial Package:
Paragraph 21:
- The fundamental basis of the violation of the principle of legality is that the regulation does not define the elements of the crime clearly and precisely and is ambiguous. The following statements are particularly important:
“No regulation has been included regarding what should be understood from the concept of crime committed on behalf of an organization in the first sentence of the paragraph and no distinction has been made between the crimes committed…”
Paragraph 23:
- The fact that the regulation can also be applied to crimes not related to fundamental rights has expanded the scope of the crime and created a deterrent effect on fundamental rights such as freedom of expression:
“it is possible for the rule to be applied to crimes that are not related to a fundamental right, but when the jointly committed crime is related to the exercise of fundamental rights, the ambiguity of the concept of “on behalf of an organization” in the rule causes the sentence to be interpreted broadly, and this situation creates a strong deterrent effect on fundamental rights such as freedom of expression, the right to organize meetings and demonstrations, or freedom of association or freedom of religion and conscience …“
Paragraph 22:
- The application of the concept of crime committed on behalf of an organization without any concrete evidence of organizational membership has undermined the foreseeability of punishment and caused individuals to face heavier penalties than organization members:
“It has been stated that the specific conditions required for the crime of membership in an armed organization according to the aforementioned first sentence are not required for a person who is not a member of the organization but commits a crime on behalf of the organization, and that individuals are punished not only for the crime they committed but also separately for organizational membership in accordance with the provisions of actual concurrence, without their connection with the organization being clearly established, on the grounds that they committed a crime allegedly having some connection, even if weak, with the armed organization. It has been emphasized that this situation may cause the person who commits a crime on behalf of the organization to face heavier penalties than organization members.”
Message to the Legislative Body
The Court reminded that these regulations were annulled for similar reasons in its decision dated October 26, 2023 and numbered E.2023/132, K.2023/183 and stated that the new regulation also carries the same problems. For this reason, it stated that there is currently no situation requiring a departure from the Constitutional Court’s previous decision. The relevant part of the decision is as follows:
“25. It is clear that the legislator has discretion, subject to adhering to constitutional principles, regarding whether committing a crime on behalf of an organization without being a member of the organization should be considered a crime, what type and measure of criminal sanction it should be met with, and what should be accepted as aggravating or mitigating reasons. However, if the aforementioned crime is to be included, it must be re-regulated taking into account the findings in the Constitutional Court’s annulment decision.
26. In this respect, there is no situation requiring a departure from the Constitutional Court’s decision dated 26/10/2023 and numbered E.2023/132, K.2023/183 regarding the rules.”
These assessments constitute a clear message to the legislative body:
Regulations such as committing crimes on behalf of an organization can be made, but these regulations must address the problems in the Constitutional Court’s previous annulment decision.
Conclusion
The Constitutional Court’s decision once again reveals both the constitutional limits of the regulations brought by the 8th Judicial Package and the obligation of the legislative body to act within these limits. The second annulment of the crime of “committing crimes on behalf of an organization” demonstrates that legal regulations need to be made in terms of criminal law and fundamental rights and freedoms.
At this point, the legislative body needs to reconsider the regulations taking into account the Constitutional Court’s decisions. These decisions taken in 2023 and 2025 contain important lessons in terms of the relationship between the judiciary and the legislature in our legal system.
