56 Evaluation of Actual Aggregation and Conceptual Aggregation Rules in Terms of the Crime ... book titled “General Provisions” of the Turkish Criminal Code No. 5237, defined in Article 44 as follows; “A person who commits more than one offense through a single act shall only be sentenced for the offense with the heaviest penalty.”29,30 Accordingly, in order for the existence of conceptual aggregation of different kinds to be accepted, the following conditions must be met: 1- There must be an act, 31 2- More than one crime must have been committed with this act, 3- The perpetrator must have been sentenced for the offense with the heaviest penalty, 32 29 https://www.mevzuat.gov.tr/ 30 Conceptual aggregation can also be defined as the combination of more than one crime in a single act. In this context, “If the crimes are the same, there is a conceptual aggregation of the same kind, and if the crimes are different, there is a conceptual aggregation of different kinds.” (Neslihan Göktürk, “Türk Hukuku’nda Suçların İçtimaı [Aggregation of Crimes in Turkish Law]”, Ceza Hukuku ve Kriminoloji Dergisi, 2014, p.44.) Conceptual aggregation of the crimes of same kind is defined in Article 43/2 of the Turkish Criminal Code No. 5237. 31 “...There definitely must be only one act in both conceptual aggregation of the crimes of same kind and of the different kinds.” (Muhammed Demirel, Karar Analizi Tehlike Suçları Zarar Suçları Arasındaki İlişkinin İçtima Kuralları Kapsamında Değerlendirilmesi [Decision Analysis, Evaluation of the Relationship Between Endangerment Crimes and Crimes Causing Harm in the Scope of the Rules of Aggregation], İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, 2013, p.1482.) 32 In a recent decision of the 9th Criminal Chamber of the Court of Cassation, the following is stated about the method to be followed in terms of the implementation of the rule of conceptual aggregation in cases where more than one crime are committed with a single act of the perpetrator but these crimes are subject to the same type and amount of punishment; “With the amendment made in Article 241 of the TCC with Article 14 of the Law No. 7242, which was published in the Official Gazette dated 04/15/2020, the lower limit of the judicial fine in the article was changed to five hundred days, and the upper limit of the imprisonment sentence was changed to 6 years. It is clear that Article 241 of the TCK, which stipulates the heaviest penalty must be imposed pursuant to Article 44 of the TCC for POS usury actions committed after this date. In the concrete case, regarding the problem of which law should be applied, since the same type and amount of penalties are specified in Article 241 of the TCC in force and Article 36 of the BKKK (Bank Cards and Credit Cards Law) Law No. 5464 as of the date of the crime : As discussed in detail above under the heading “Examination of the Legal Relationship Between the Parties According to the Law of Obligations”, in the case of POS usury, although there is a contract of sale in appearance and the credit card is used as a tool in committing the crime, the real intention of the parties consists of making an interest agreement. The perpetrator, who is the owner of the card acceptor enterprise, charges the card holder’s credit card the sum of the interest and the loan amount subject to the agreement using the POS device installed in the workplace, thus guarantees his
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