Terör Örgütü Yöneticisinin Örgütün Faaliyeti Çerçevesinde İşlenen Suçlardan Dolayı Sorumluluğu

Abstract

Establishing an organization with the intention of committing crimes makes it much easier to commit crimes in accordance with the organization's purpose and activities. The organization becomes a source of power that dominates its members through the hierarchical structure within the organization. Consequently, criminal organizations, especially terrorist groups with more rigid hierarchies, have substantial capabilities in terms of providing tools, materials, and members for committing crimes within the scope of their objectives and activities. Individuals leading criminal organizations can easily direct this organized power apparatus to commit crimes within the scope of the organization’s activities. Therefore, it is imperative that organizational leaders be held accountable for crimes committed within the framework of the organization's activities. However, how organizational leaders should be held accountable for such crimes poses a significant problem. The general rules related to participation in crime are not always sufficient in this regard. Hence, the addition of a separate provision in the fifth paragraph of Article 220 of the Turkish Penal Code (TPC) has been appropriate. Thus, in cases where the participation status of the leader of the organization in concrete crimes committed within the framework of the activities of the organization cannot be determined according to the general rules on participation, the responsibility of the leader of the organization should be determined according to this provision. However, according to the fifth paragraph of Article 220 of the TPC, it is not specified which conditions must be met in order to hold the organization leader responsible for the crimes committed within the framework of the organization's activities. Based on the criterion of "substitutability" mentioned in the preamble of the article, the idea that this provision should be interpreted according to the theory of "indirect agency based on a mechanism of organized dominance" developed by the German jurist Roxin and considered to be a third form of indirect perpetration, is widely accepted in Turkish doctrine and case law. In this paper, views, criticisms, and assessments regarding how this provision should be understood are included.