Republic of Turkey
SUPREME COURT OF APPEALS
6th Criminal Chamber Case No: 2018/905
Decision No: 2018/1539
Decision Date: 28.02.2018
CRIME OF RIGGING A TENDER – THE DEFENDANT IS NOT A FOUNDER, MANAGER, OR MEMBER OF A CRIMINAL ORGANIZATION, OR A PERSON WHO COMMITTED A CRIME ON BEHALF OF THE ORGANIZATION, EITHER ALONE OR WITH OTHERS
NEVER BEFORE – THE APPLICATION OF REPETITION PROVISIONS SHOULD BE CONSIDERED
SUMMARY: It is accepted that the defendant is not a founder, manager, or member of a criminal organization, nor is he a person who committed a crime on behalf of the organization, either alone or with others, but rather a person who knowingly and willingly assisted the criminal organization in the concrete case, and therefore, it is not possible to apply the recidivism provisions to him. It is necessary. (Law No. 5237, Articles 6, 58, 220, 235)
The defendant… was sentenced to 4 years and 2 months imprisonment for the crime of rigging the tender, pursuant to Article 235/2-d of the Turkish Penal Code No. 5237, by reference to Articles 235/1, 62/1, 53/1, 58/9; and to 1 year and 15 days imprisonment for the crime of knowingly and willingly assisting an organization established for the purpose of committing a crime, pursuant to Article 220/7 of the same Law, by reference to Articles 220/2, 220/3, 62/1, 53/1, 58/9.
Upon the appeal of the defendant and his lawyer within the legal period, our Chamber decided to uphold the judgment. Upon the appeal filed by the Supreme Court Chief Public Prosecutor’s Office with its letter dated 07/02/2018 and numbered KD2018/5239 against the aforementioned decision of our Chamber, the file was sent to our Chamber, read and considered accordingly;
ON BEHALF OF THE TURKISH NATION
In the examination conducted pursuant to Article 308 of the Code of Criminal Procedure No. 5271, as amended by Article 99 of Law No. 6352;
The defendant … does not have a criminal record that constitutes a basis for recidivism in his criminal record.
According to Article 6/1-j of the Turkish Penal Code No. 5237 titled “Definitions”, the term “member of an organization” refers to a person who establishes, manages, joins a criminal organization, or commits a crime on behalf of the organization, either alone or together with others. It has been assessed that the aforementioned defendant is not the founder, manager, or member of a criminal organization, nor is he in a position to commit crimes on behalf of the organization, either alone or together with others, but rather a person who knowingly and willingly assisted the criminal organization in the concrete case, and therefore, it is not possible to apply Article 58/9 of the Turkish Penal Code No. 5237 to him.
Therefore;
1) The objection of the Supreme Court Chief Public Prosecutor’s Office is ACCEPTED,
2) The decision of the 6th Criminal Chamber of the Supreme Court dated 11/10/2017, numbered 2017/2064 and 2017/3376, regarding the “affirmation” of the judgment against the defendant … for the crimes of rigging the tender and knowingly and willingly assisting an organization established for the purpose of committing crimes, is REVOKED; the judgment is REVERSED in accordance with the reason for the objection, and since the reason for reversal does not require a retrial, Article 8/1 of Law No. 5320 applies. Based on the authority granted by Article 322 of the Code of Criminal Procedure No. 1412,
the judgment was corrected and AFFIRMED by removing the sections regarding the application of Article 58/9 of the Turkish Penal Code No. 5237 to the aforementioned defendant, while the other aspects were found to be in accordance with the procedure and the law, by unanimous decision on February 28, 2018.