What people commonly call a "gang" is, in Turkish law, usually characterised as a criminal organisation and is governed by Article 220 of the Turkish Criminal Code. When the penalty for a criminal organisation is at issue, the only question is not the specific crime committed; the nature of the person's link to the structure — whether founder, director, member or merely an aider — directly determines the punishment. A defence built without settling this distinction loses the most critical point of the file from the outset.
What does a "gang" correspond to in law? #
In criminal law, a "gang" is not an offence name in itself. The law punishes continuous and hierarchical structures set up to gain an advantage or to commit crime under the heading of establishing an organisation to commit crime. What separates such a structure from a terrorist organisation is that its aim is not a political or ideological goal but directly committing crime or obtaining benefit. Terror-oriented structures are dealt with under a separate law and separate articles; their elements and their penalties differ. For this reason it must be clarified at the outset in which category the file is being assessed.
Conditions for being deemed a "criminal organisation" #
Not every group acting together is legally a gang. According to the settled case-law of the Court of Cassation, the following elements are required together for a formation to be deemed a criminal organisation:
- Number of members: At least three people must come together. Cooperation between two people is not an organisation but at most complicity (joint participation in a crime).
- Hierarchical relationship: There must be a superior-subordinate relationship, a chain of command or a defined division of labour among the members. A loose, temporary association does not meet this element.
- Continuity: The structure must have been set up not to commit a single crime but in pursuit of an ongoing aim. People who come together once and disperse do not satisfy this condition.
- Purpose and suitability: It is not enough that the aim is to commit crime; the number of members, the equipment and the organisation must also be concretely suitable to achieve that aim.
If even one of these elements is missing, what exists is not a gang but at most an isolated crime committed jointly by several people. The most productive area of defence is often exactly this distinction: the structure the prosecution calls an "organisation" may in reality be a temporary association lacking continuity and hierarchy.
Establishing, directing, membership and aiding: the penalties #
The penalty varies according to the degree of the person's link to the structure:
- Establishing or directing: A person who establishes or directs the organisation is punished with imprisonment from four to eight years. The position of director entails serious liability even if the person does not personally take part in the acts.
- Membership: Joining the structure is a separate offence, punished less severely than founding or directing but still carrying imprisonment (in practice from two to four years).
- Being armed: The structure being armed increases the penalty by one quarter to one half.
- Aiding: A person who, without being a member, knowingly and willingly aids the structure is punished as a member.
The individual nature of criminal liability is decisive here: a person cannot be held liable beyond their actual position within the structure. A "membership" label not resting on concrete evidence is the first point to be disproved in the defence. We addressed the importance of the statement stage — the first encounter with the accusation — in our article on the right to give a statement and to defend oneself; findings recorded in the first statement later sit at the centre of the membership debate.
Crimes committed within the organisation's activity #
Just as being a member of a gang is a crime in itself, a separate and independent penalty is also imposed for each crime (robbery, threat, injury, fraud, drug trafficking and so on) committed within the structure's activity. That is, the penalty for membership and the penalties for the crimes committed are calculated independently and added together. Moreover, the fact that a crime was committed within this activity is itself a ground for aggravating the penalty for that crime. In addition, confiscation may be applied to the benefits obtained from the crime and to the property used in it; measures against assets are therefore part of the process.
Active repentance: the way to avoid punishment #
The law grants an important opportunity to a person who wishes to leave the structure. Under the provisions on active repentance, a person who establishes, directs or is a member of the structure may receive no punishment if, before any crime is committed and before the structure disperses, they report the situation to the authorities and secure its dissolution. A member's giving information about the workings and acts of the structure, even after being caught, may secure a significant reduction in the penalty. Because the conditions for benefiting from this provision are technical, the timing and content of the application must be planned correctly from the start; an early or incomplete statement may not deliver the expected benefit.
The difference between organisation membership and complicity #
Taking part in an offence together with others does not in itself make a person a member of a criminal organisation. Distinguishing the two institutions is decisive both for the amount of the sentence and for the enforcement regime.
| Complicity (joint commission) | Organisation membership | |
|---|---|---|
| Basis | TPC arts. 37–41 | TPC art. 220 |
| Continuity | Not required; joining for a single offence suffices | Required; the structure must be continuous |
| Hierarchy | Not required | Required; a chain of command |
| Sentence | The sentence for the offence committed | Membership is a separate offence; the offences committed are punished in addition |
| Number of members | At least two | At least three |
In practice the dispute usually turns on the elements of continuity and suitability: where people who have come together and committed offences a few times have not formed a structure showing a hierarchical bond, division of labour and continuity, there is no organisation and the acts are assessed under the rules on complicity. A grouping that is not suitable for committing the intended offences, and is inadequate in means and members, is likewise not an organisation.
Enforcement regime: differences in organised crime #
The enforcement of sentences imposed for organised offences departs from the general regime. The classification therefore affects not only the length of the sentence but also the time actually spent in prison.
- Conditional release ratio: For offences committed within the activity of an organisation, the period to be served in the penal institution before conditional release is higher than the general ratio.
- Probation: In organised offences the period of benefit from probation is shortened or, in some cases, not applied at all.
- Transfer to an open institution: The criteria for transfer to an open penal institution are also assessed separately.
- Suspension and deferral of the verdict: The limits on suspending the pronouncement of the verdict are assessed separately for the offences of founding, directing and membership of an organisation.
For this reason the defence addresses as a separate heading whether the act was “committed within the activity of an organisation”; even where conviction appears unavoidable, remaining outside this classification produces a concrete result.
Competent court, detention and the course of the trial #
The offences of founding, directing and being a member of a criminal organisation are tried by the high criminal court. As the files involve many defendants and are voluminous, the trial takes a long time, which makes careful monitoring of the detention periods necessary.
- Investigation: Protective measures such as interception of communications, technical surveillance and undercover investigators are frequently applied. Whether these measures rest on a judicial decision and whether their duration and scope have been exceeded is the first matter the defence examines.
- Detention: In matters within the jurisdiction of the high criminal court the period of detention is at most two years; it may be extended where necessary with reasons given. For review of the period and the reasoning, see our article on objecting to a detention order.
- Seizure of assets: Assets assessed as having been obtained within the activity of the organisation may be seized; an objection may also be lodged against the seizure order.
- Trial: Whether witness and anonymous witness statements alone suffice for conviction, the integrity of the communication records and the accuracy of the transcripts are argued at the hearing.
Rights at the stage of statement and interrogation are particularly important in these files; for the details see our article on the right to a statement and defence.
Decisive points in the defence #
In such files the main points on which the defence focuses are: whether the structure bears the elements of continuity, hierarchy and suitability; whether the person's link is genuinely established by evidence; whether membership is being confused with one-off complicity; and whether evidence such as wiretaps, witness statements and physical surveillance was lawfully obtained. Because these crimes are often tried with the accused in detention, objection to detention and assessment of the evidence must be handled at the very start of the process. Any sentence imposed may, where conditions are met, be suspended or in certain cases give rise to the deferment of the announcement of the verdict; this assessment depends on the specific features of the file. Charges of organised crime are among the areas of criminal law with the gravest consequences, and the defence must be built from the first moment of the investigation. You can reach our work in the field of criminal law on the relevant page.
This content is for general information only; it does not replace legal advice on a specific matter. Rates and periods relating to penalties may change according to the legislation in force and should be assessed together with the current provisions.
