TCK 282 Bağlamında Yurtdışında İşlenen Suçlardan Elde Edilen Malvarlığı Değerleri: Çifte Suçluluk Kuralı Üzerine Karşılaştırmalı Bir İnceleme
Mustafa Akgün5237 sayılı Türk Ceza Kanunu’nun 282. maddesinin 1 ve 2. fıkralarında konusu “alt sınırı altı ay veya daha fazla hapis cezasını gerektiren bir suçtan kaynaklanan malvarlığı değerleri” olan iki ayrı suç ihdas edilmiştir. Bu makalede, yurtdışında işlenen fiillerden kaynaklanan malvarlığı değerleriyle alakalı iki ayrı argüman ortaya konmuştur. İlk olarak, yurtdışında işlenen bir fiilden kaynaklanan malvarlığı değerlerinin, çifte suçluluk şartı aranmaksızın, 5237 sayılı Kanun’un 282. maddesinin konusu teşkil edebileceği, bu argümana karşı öne sürülen kanunilik ilkesi ve hukuk güvenliğine dayanan iddia ile Palermo Konvansiyonu’nun 6(2)(c) maddesine dayanan iddianın kabule şayan olmadığı gösterilmiştir. İkinci olarak, bahse konu suçun konusu bağlamındaki öncül suçta çifte suçluluk prensibinin ya hep ya hiç anlayışıyla istisnasız bir şekilde uygulanmasının veya hiçbir durumda uygulanmamasının riskleri açıklanmış ve Birleşik Krallık ve Almanya’da kabul edilmiş olan, Avrupa Birliği düzenlemelerinde de yansıması olan daraltılmış çifte suçluluk kuralının yerindeliği ve bunun için yasal değişikliğe ihtiyaç olduğu ortaya konmuştur.
Assets Originating from Crimes Committed Abroad Within the Scope of Article 282 of the TPC: A Comparative Study on the Rule of Dual Criminality
Mustafa AkgünArticle 282, paragraphs 1 and 2, of Turkish Penal Code No. 5237, establish two separate offenses concerning assets originating from a crime that requires a minimum sentence of six months or more imprisonment. This paper presents two separate arguments regarding assets derived from a crime committed abroad. First, it has been shown that assets originating from a crime committed abroad can be subject to Article 282 of Law No. 5237 without requiring the condition of dual criminality and that the counterargument based on the principle of legality and legal certainty, as well as the claim based on Article 6(2)(c) of the Palermo Convention, is not acceptable. Second, the risks of applying the principle of dual criminality in the predicate offense, within the context of the said crime, in all or nothing fashion, either universally or not at all, have been explained, and the appropriateness of the narrowed dual criminality rule, which has been accepted in the United Kingdom and Germany and is also reflected in the European Union regulations, has been demonstrated, as well as the need for legal changes to achieve this.
Two separate offenses have been established in paragraphs 1 and 2 of Article 282 of the Turkish Penal Code No. 5237, with the subject being assets originating from a crime that requires a minimum sentence of six months or more imprisonment. The first issue investigated in this paper is whether these assets could have resulted from acts committed outside Turkey, provided only that, had they been committed within Turkey, they would have constituted a crime punishable by the same minimum sentence. There is no provision in Article 282 of the Turkish Penal Code or in other articles of the Code that necessitates attributing value to foreign country laws in determining what constitutes a property value or what offenses can be considered predicate offenses, or under what conditions the property in question can be considered to have been derived from the offense. Since the predicate offense is significant only in the context of determining the subject of the crime, Article 19(1) of Law No. 5237, which must be applied when prosecuting crimes committed outside Türkiye, does not apply in this context. Even if the predicate offense was committed abroad, as long as the criminal act such as transferring proceeds abroad, concealing their illicit origin, or attempting to make them appear legitimate is committed in Turkey, Turkish laws will apply in accordance with Article 8(1) of Law No. 5237. Therefore, it is not possible to conclude that dual criminality is required in the context of a predicate offense based on the articles and systematics of the Law
Two arguments are presented in response to the above arguments. First, when the predicate offense in the context of money laundering is committed abroad, the application of the principle of dual criminality should be seen as a legal consequence stemming from the rule of law and the principle of legality, rather than as a requirement for jurisdiction. However, as explained in the second part of this paper, the very application of the principle of dual criminality without any legal basis constitutes a violation of the principle of legality. Therefore, this argument is not acceptable. Second, some authors have argued that the principle of dual criminality should be applied in the determination of the predicate offense in Article 282 of Law No. 5237, in accordance with Article 6(2)(c) of the Palermo Convention, which is equal to domestic laws as per Article 90(5) of the Constitution. However, as shown in the first part of the paper, the authors making this claim misinterpret the relevant paragraph of the Palermo Convention by disregarding Articles 6(1), 6(2)(b), and 34(3) of the Convention. Therefore, this argument is also not acceptable.
Positive law requires that the condition of dual criminality not be sought when the predicate offense has been committed abroad in the context of Article 282 of Law No. 5237. However, the lack of dual criminality creates political and moral problems in terms of both the principle of legality and legal security. It is a fact that not seeking dual criminality in the context of the predicate offense related to money laundering would mean that people who have legally earned income in their own country and brought this income to Türkiye could be deemed to have committed a crime, which would not be a fair approach, especially in cases involving offenses that require relatively lesser penalties. On the other hand, applying the principle of dual criminality universally, with no exception, in this context would hinder the achievement of the objectives of the Palermo Convention, as this approach would mean that even assets derived from serious crimes would not be subject to money laundering charges if the predicate offense is not defined as a crime in the country where it was committed. In today’s world, where the ability to move across borders has turned them into a porous veil, differences between national legal systems would be put at the service of criminals and criminal organizations. Therefore, applying the principle of dual criminality in an all-or-nothing manner in either scenario risks leading to unjust outcomes.
To avoid the risks mentioned above, a narrowed dual criminality regime, as in European Union regulations and the laws of the United Kingdom and Germany, should be established. A legislative amendment is necessary to address this issue. Determining which crimes should be included in the catalog of offenses for which the principle of dual criminality should be sought requires a separate and comprehensive examination, considering the areas where criminal organizations are active, crimes frequently associated with international money laundering and the degree of wrongfulness of these crimes, which is beyond the scope of this article. The list of crimes for which dual criminality is sought, as set forth in European Union regulations, can serve as a guiding catalog for the aforementioned research.
