In this article, we will explore the Crime of Persistent Stalking, introduced into the Turkish Penal Code No. 5237 by Law No. 7406 dated 27/05/2022; including its aggravated forms, legislative structure, rationale, legal subject matter, perpetrator, victim, elements, forms of manifestation, aggravated circumstances, penalties, and judicial process.
The Crime of Persistent Stalking in Turkey is the local adaptation of the offense known as "Stalking" in Western countries, tailored to the Turkish Penal Code and the social needs of Turkey. The reason for criminalizing this behavior is that, previously, the disturbing actions included in this offense did not constitute a crime on their own (unless the perpetrator committed another criminal act such as threats, insults, or harassment) and thus remained unpunished. The objective of this legislation is to prevent actions of persistent stalking directed at victims from escalating into physical acts of violence.
What is the Crime and Penalty of Persistent Stalking?
When examining the characteristics and elements of the crime of persistent stalking, as can be inferred from the title of the article, the predominant condition is "persistence." According to the Turkish Language Association dictionary, the word "ısrar" (persistence) is defined as "resistance, insistence, persisting, focusing on."
The crime of persistent stalking is regulated in Article 123/A of the Turkish Penal Code, under the section "Offences Against Persons" in the second part titled "Offenses Against Liberty" of the special provisions book of the Turkish Penal Code:
TCK Art. 123/A Persistent Stalking
(1) A person who persistently follows physically or attempts to make contact using communication and information systems, or through third parties, thereby causing serious distress to someone or making them or their relatives fear for their safety, shall be sentenced to imprisonment for a period of six months to two years.
(2) The penalty shall be imprisonment for one to three years if the crime is committed:
a) Against a child, or a separated or divorced spouse,
b) Forcing the victim to change their school, workplace, or residence, or to leave their school or job,
c) By a perpetrator who has been ordered to stay away from the victim’s home, school, or workplace.
(3) The investigation and prosecution of the crime set forth in this article are contingent upon a complaint.
Persistent stalking is an intentional crime with concrete consequences. Unlike the crime of disturbing peace and quiet, this crime is not of a general and complementary nature; it is applied independently when committed. According to the law, for persistent stalking to constitute a crime, it requires:
Persistently physically following someone,
Persistently attempting to make contact using information systems, communication, or third parties.
Additionally, for persistent stalking to lead to judicial action, it must cause serious distress to the victim. However, due to the concept of "persistence," the number of times the action is performed is also important in the formation of the crime. For this crime, the repetitive nature of the action must occur more than once, although the Turkish Penal Code does not specify how many times the persistent action must occur. It is evident that the action must be performed at least twice for the crime to be considered persistent. A one-time action will not constitute the crime of persistent stalking, as persistence requires a certain continuity.
Protected Legal Value
The regulation of the crime of persistent stalking under the "Offenses Against Liberty" in the Turkish Penal Code provides insight into the protected legal value. The persistent behaviors performed by the perpetrator infringe upon individuals' rights to live in peace and security, undisturbed, and in a healthy environment. In other words, the legal value protected by the Crime of Persistent Stalking is the internal and external tranquility, psychological serenity, peace, and comfort of the person (victim).
The rationale of the article also states that "it is aimed to impose a proportional sanction on persistent stalking actions before more severe acts against the victim's physical and mental integrity emerge. The regulation particularly aims at effectively combating persistent stalking actions before crimes involving violence against women occur and protecting the victims."
Elements of the Crime of Persistent Stalking
1) Act
The material element of the crime consists of two alternative actions. The first is persistently following someone physically, and the second is attempting to make contact persistently using communication tools or through third parties.
As a consequence of the alternative action, the formation of this crime with an action not specified in the law is not possible. For instance, persistently sending gifts and flowers, ordering goods or services, or capturing images with a camera will not constitute the crime of persistent stalking; instead, depending on the situation, it might lead to liability for disturbing peace and quiet or sexual harassment.
Persistence
Under Turkish Penal Code 123/A, the crime of persistent stalking requires the repetitive commission of the specified actions, but the article does not specify how many times the persistent stalking action must occur for the crime to form. For the crime to be considered committed and its elements to be present, the specified action must be performed consecutively or “repeatedly.
The realization of the element of persistence can be in the form of performing the actions defined in the legal description consecutively or with intervals after the initial action.
For persistence to be established, it is not necessary to repeat the same action. It can be argued that the condition of persistence is met if one of the alternative actions defined in the legal description is performed and then followed by the other alternative action.
Another point to note is that in criminal law, performing an action to the same person at different times on multiple occasions would constitute a concept of chain crime under TPC article 43. However, in the case of the crime of persistent stalking, since the concept of persistence itself is considered a crime as a whole, the provisions of chain crime will not be applicable in this context.
Persistently Physically Following Someone
Following someone involves intentionally maintaining visual or physical proximity over a period. However, it is essential to distinguish between coincidental or normal encounters. The rationale of the article suggests that excessively repeated actions such as frequently appearing in places where the victim is likely to be (like workplaces, schools, markets), making the victim feel followed, or waiting outside their home or at the entrance to their street, could be considered as physical following. Here, it is crucial to determine whether the perpetrator acted with the intent of persistent stalking or if the encounters were merely coincidental. These are factors that must be assessed in light of the specific circumstances of each case.
Persistently Attempting to Make Contact
The other alternative action constituting the material element of the crime is persistently trying to make contact with the victim. The law does not require the perpetrator to successfully reach the victim; the persistent attempt to make contact is sufficient. Therefore, behaviors such as repeatedly sending emails to the victim even if they are not read, making numerous calls or leaving messages on the voicemail despite the victim not responding, or sending multiple friend requests on social media platforms can constitute this crime. For the crime to occur, it is necessary that the victim is aware of the attempts to make contact.
The means of contact is significant, as the law specifies the mediums of contact. According to the law, the perpetrator must persistently use at least one of these three means: communication and information tools, information systems, third parties.
The communication and information tools listed in the article rationale include:
Letters
Faxes
Text messages
Emails
Phone calls
Programs and applications created over the internet
Social media platforms
In addition, future communication opportunities offered by this dynamic sector may also serve as methods of contact.
Another method of committing this crime is the use of third parties. It does not matter whether the perpetrator knows the third party or not, as long as they use them to make contact with the victim. The third party can attempt to physically contact the victim on behalf of the perpetrator or use communication and information tools to facilitate contact between the perpetrator and the victim.
Victim's Expression of Discomfort
Another element of the crime is the victim's discomfort. Since the crime is contingent upon a complaint, if the victim is not distressed by the crime, it cannot be said to have occurred. However, if the victim is distressed, the perpetrator's motive for the persistent actions becomes irrelevant. As mentioned earlier, the key factor in this complaint-based crime is the victim's discomfort and their subsequent complaint. If the victim has expressed their discomfort and the perpetrator continues their actions, thereby establishing persistence, it is clear that the crime has been committed.
2) Intent
The crime of persistent stalking is committed intentionally. The purpose of persistent stalking is to make contact with the victim or to make the victim feel their presence. The perpetrator's motivation, whether it is emotional reasons, to scare, or to pressure the victim, is irrelevant. The perpetrator's intent to disturb the peace and tranquility of the victim is not essential for the establishment of the crime.
3) Perpetrator and Victim
Considering that the regulation is especially aimed at combating violence against women, although victims are often women and perpetrators are often men, anyone can be a perpetrator or victim of this crime. For example, a man who is constantly harassed through messages on social media or finds notes left at his doorstep can also be a victim of this crime.
4) Consequence of the Crime
The consequence of the crime is the victim experiencing "serious distress" or the victim's "fear for their own or their relatives' safety." The actions leading to this result may not be unlawful in themselves. The key is that these persistent actions cause the victim distress or fear. For the crime to occur, these results must manifest in the victim. This can only be determined by establishing a causal relationship between the action and the result. Mere discomfort without reaching a serious level does not constitute the outcome of the crime. In such cases, it should be considered an attempt at the crime.
An example of the victim experiencing serious discomfort could be the victim being unable to leave their house or go to work without someone else, or feeling compelled to change their email address or phone number, or having to create new social media accounts with different usernames due to communication, messaging, or social network harassment.
Aggravating and Mitigating Circumstances in the Crime of Persistent Stalking
Special Aggravating Circumstances for the Crime of Persistent Stalking: Under Article 123/A of the Turkish Penal Code (TCK), if the crime is committed as listed below, the prescribed penalty range will be between 1 and 3 years:
Committed against a child* or a spouse who is separated or divorced,
Committed by a person who has been subjected to a restraining order or an order not to approach the victim’s residence, school, or workplace.**
Causing the victim to change their workplace, residence, or school, or to quit their school or job.***
*(According to TCK Article 6/b, “child” refers to a person who has not yet reached the age of eighteen. Even if the victim is legally of age due to marriage or judicial maturity, they are still considered a child under the definition in TCK, and therefore, the aggravated circumstance applies.)
**Not approaching the residence, school, or workplace is generally interpreted as not approaching the address. Preventive measures that can be taken by a judge under Law No. 6284 on the Protection of the Family and Prevention of Violence Against Women include restraining orders and not approaching the place where the protected person is located.
***This is regulated as an aggravated circumstance due to its result. Since it is an aggravated circumstance due to its result, it is not required that the perpetrator intended this outcome. The presence of negligence leading to the severe consequence is sufficient. In TCK, aggravated circumstances due to their results can be separately provided for and can lead to different legal sanctions.
Special Appearances of the Crime of Persistent Stalking
If the execution actions of the crime of persistent stalking are not completed, the perpetrator will be punished for an attempt of the crime. (TCK Art. 35)
Regarding concurrence, if the actions directed towards the victim during the commission of the crime of persistent stalking constitute another crime, the perpetrator can be punished for these criminal acts as well. For example, if one or more actions directed at the victim within the scope of persistent stalking constitute crimes of insult or threat, in addition to the crime of persistent stalking, the perpetrator can also be punished separately for these committed crimes. Similarly, if the crime of sexual harassment is committed, the perpetrator will also be punished separately.
Since the crime of persistent stalking is a specific form of the crime of “Disturbing the Peace and Tranquility of Persons” in TCK Art. 123, the latter crime does not occur in cases where the crime of persistent stalking is committed.
Complaint, Statute of Limitations, and Reconciliation for Persistent Stalking
The investigation and prosecution of the crime of persistent stalking depend on the victim's complaint, as stated in the final paragraph of Article 123/A of the Turkish Penal Code (TCK). Therefore, for the actions specified under this crime to be subject to investigation and prosecution, a complaint must be filed by the victim.
The time limit for filing a complaint is six months. After this period elapses from the date of the persistent stalking action, no further complaints can be made.
Although the crime of persistent stalking in TCK 123/A is subject to a complaint, it is not among the crimes eligible for reconciliation. This is explicitly stated in Article 253/3 of the Criminal Procedure Law No. 5271. According to Article 253/3 of the CPL, “Even if the investigation and prosecution are contingent upon a complaint, in crimes against sexual integrity and the crime of persistent stalking, the path of reconciliation cannot be taken.” Therefore, the institution of reconciliation is not applicable in the judicial process for this type of crime.
The statute of limitations for this crime type is eight years. This period starts from the day the person entitled to file a complaint becomes aware of the act and the identity of the perpetrator, provided that it does not exceed the eight-year limit. If no investigation is initiated against the person within this period, or if the ongoing judicial process is not completed, then the person can no longer be prosecuted under this crime.
Victims of persistent stalking can file a report or complaint related to the crime under Article 158 of the Criminal Procedure Law (CPL) to the Public Prosecutor's Office or law enforcement authorities. If a complaint is made to the governorship, district governorship, or court, it will be forwarded to the relevant Public Prosecutor's Office. If the crime is committed abroad but requires prosecution in our country, complaints can be made to Turkish embassies and consulates. If the victim is abroad during the complaint period, they can also file a complaint with the embassies and consulates. Moreover, the complaint can be made in writing or verbally for recording in the minutes.
Deferred Sentence and Suspension of the Announcement of the Verdict
According to Article 231 of the Criminal Procedure Law (CMK), for a decision to suspend the announcement of the verdict:
a) The defendant must not have been previously convicted of an intentional crime,
b) The court must conclude, considering the defendant's personality traits and behavior during the trial, that they are unlikely to commit a crime again,
c) The damage inflicted on the victim or the public by the crime must be fully compensated through restitution, returning to the pre-crime state, or indemnification.
If the defendant does not consent, the decision to suspend the announcement of the verdict (HAGB) is not made.
If the penalty adjudicated at the end of the trial for the crime charged to the defendant is imprisonment of two years or less or a judicial fine, the court may decide on HAGB. HAGB means that the established verdict does not produce any legal consequences for the defendant.
A defendant subject to HAGB is put under supervision for a period of five years. During this supervision period, a decision to suspend the announcement of the verdict cannot be made again for an intentional crime committed by the person. If an intentional crime is committed during this period, both the execution of the previous crime is carried out, and the provisions of the new crime come into effect. If no intentional crime is committed during these 5 years, at the end of 5 years, the crime will no longer be recorded in the criminal record and will be as if no penalty has been given.
In the case of the crime of persistent stalking regulated under Article 123/A of the Turkish Penal Code, if the penalty to be given to the defendant is two years or less or a judicial fine, the court may decide on HAGB with the consent of the defendant.
Both in HAGB and deferred sentence decisions, the opinion of the court is crucial. That is, decisions to apply HAGB or defer the sentence are not obligatory. Therefore, an effective defense should be made.
Appeal Against the Sentence for the Crime of Persistent Stalking
In the trial for the crime of persistent stalking, the person may be convicted. In this case, it is possible to appeal against the court's decision.
In such a case, an appeal petition is submitted to the court that issued the decision within 7 days. This 7-day period starts from the date of reading the judgment in person or, if the judgment is given in absentia, from the date of notification.
The appellate authority that will examine the relevant file is the Regional Court of Justice. This court functions as an appeals court.
Cyber Persistent Stalking
The advancements in information technology have led to an increase in cybercrimes, including "Cyber Persistent Stalking." In this crime, the perpetrator persistently tries to communicate with the victim using electronic communication means, especially through social networks. Actions like persistently sending follow requests on social networks and making excessively critical comments on the victim’s posts can be considered cyber persistent stalking.
Cyber persistent stalking differs from physical persistent stalking in three aspects due to the limitless accessibility of the internet. First, it is an inexpensive and easy means to contact victims anywhere in the world. Second, the anonymity of the perpetrator in cyber persistent stalking can cause continuous panic in the victim. Third, the location of the perpetrator, or "stalker," can cause complications in the judicial process.
Supreme Court Decisions
Although the specific type of crime we have examined, cyber persistent stalking, has not been directly addressed in Supreme Court decisions due to its recent formal recognition, it can be considered in relation to "Disturbing the Peace and Tranquility of Persons," a related crime. This will provide guidance on decisions concerning the element of "persistence."
The crime closely resembling persistent stalking and having a general-special norm relationship with it is "Disturbing the Peace and Tranquility of Persons," found in Article 123 of the TCK. This article states, "If a person persistently phones, makes noise, or engages in any other unlawful behavior solely to disturb someone's peace and tranquility, upon the victim's complaint, the perpetrator can be sentenced to imprisonment from three months to one year."
The crime of disturbing the peace and tranquility of persons protects the "right to psychological and emotional peace." Persistent stalking and disturbing the peace share similarities in the legal value they protect and the impact they have on victims. Constant exposure to disturbing behaviors affects individuals psychologically, causing unease and anxiety. A common element in both crimes is "persistence." Typically, a single occurrence of these actions is not sufficient for the crime to occur. However, the Supreme Court also evaluates whether the actions are part of a continued pattern.
Despite these similarities, while the intent to disturb peace and tranquility is a requirement for the crime of disturbing peace, such a specific intent is not required for persistent stalking.
Supreme Court of Appeals, 18th Criminal Division, 2019/18795 E., 2020/5209 K.
"The legal interest protected by the crime of disturbing the peace and tranquility of individuals is defined as the protection of personal freedom and ensuring that an individual is not psychologically or emotionally disturbed, and can continue their life in a healthy manner. For this crime to be constituted, it is not sufficient to perform actions such as calling, making noise, or engaging in similar unlawful behavior just once, as stated in the law text. The action must be persistently repeated, show continuity, and be committed solely with the motive of disturbing the peace and tranquility of individuals.
In the case under review; considering the confessions of the juvenile offenders and the consistent statements of the complainant through the stages, it was necessary to accept that the element of persistence was present in the actions of the juvenile offenders calling the complainant 8-10 times on the day of the incident, and that they acted with the motive of psychologically and emotionally disturbing the complainant. In other words, this act constituted a violation of the legal interest protected by Article 123 of the Turkish Penal Code (TCK), and hence the crime of disturbing the peace and tranquility of individuals was committed... The acquittal decisions were made with an inappropriate reasoning... and thus required annulment by unanimous decision."
Supreme Court of Appeals, 4th Criminal Division, 2018/7076 E., 2021/18701 K.
“The defendant's actions, which occurred at different times and involved calling, sending messages, and leaving notes at the front of the house multiple times, constituted the crime of disturbing the peace and tranquility of individuals as regulated in Article 123 of the TCK, with the element of ‘persistence’ being present. The conditions for applying the provisions of chain crimes were not considered, and instead, an excessive sentence was determined by applying Article 43/1 of the same Law... This required annulment... and was decided unanimously.”
Supreme Court of Appeals, 4th Criminal Division, 2020/23955 E., 2021/13869 K.
“The defendant's actions of persistently sending messages to the complainant, who had expressed their lack of interest, and the nature of the message contents, constituted the crime of disturbing the peace and tranquility of individuals as regulated in Article 123/1 of the TCK. The acquittal decision was given with inappropriate reasoning... which required annulment... and was decided unanimously.”
Frequently Asked Questions
Can a Prison Sentence for Persistent Stalking Be Converted into a Judicial Fine?
If the sentence imposed by the court is one year or shorter, it is possible to convert this sentence into a judicial fine and execute it in this manner. There is no legal impediment to issuing such a decision.
What is the Difference Between the Crime of Persistent Stalking and the Crime of Threatening?
Like the crime of persistent stalking, the crime of threatening is regulated under the section "Crimes Against Liberty" in the Turkish Penal Code (TCK). While both crimes protect a similar legal value, the behaviors constituting both crimes fundamentally carry fear and anxiety. However, in persistent stalking, the continuous and persistent nature of the action plays an important role, whereas for the crime of threatening to occur, a single instance of the threatening behavior is sufficient. The threat must be communicated to the victim, whereas in persistent stalking, even if the perpetrator's behavior may be perceived as a threat by the victim, communication of the threat is not necessarily a required element.
In Which Court is TCK Article 123/A Offense Tried?
The trial of the crime of persistent stalking is conducted by the criminal court of first instance. The trial procedure for the basic form of persistent stalking as regulated in TCK Article 123/A-1 will be conducted under the simple trial procedure, as the upper limit of the crime is 2 years.
What Happens if the Complaint is Withdrawn in the Crime of Persistent Stalking?
Since the crime of persistent stalking is subject to complaint, if the complaint is withdrawn, a decision of non-prosecution will be made during the investigation stage. In the court phase, the case will be dismissed.
Is There a Prohibition of Arrest in the Crime of Persistent Stalking?
There is a prohibition of arrest in the basic form of the crime. However, if the qualified circumstances in the second paragraph exist, the prohibition of arrest is lifted.
Is Stalking a Crime?
Stalking on social media that exceeds the limits of freedom of expression, causes discomfort to the other party, and leads to a sense of insecurity constitutes the crime of persistent stalking.
Does a Conviction for Persistent Stalking Prevent Employment in Public Service?
If the finalized sentence is one year or longer, the individual cannot become a public official, and if they are already a public official, they will be removed from office.
Does the Crime of Persistent Stalking Get Recorded in the Criminal Record?
A finalized sentence is recorded in the criminal record. After the execution of the sentence, conditions for the deletion from the criminal record may arise, and an application can be made for its removal.
Does the Crime of Persistent Stalking Lead to Material and Moral Compensation Liability for the Perpetrator?
The explanations provided so far fall within the scope of criminal law. However, in the context of private law, the conviction and finalization of the persistent stalking crime by the perpetrator can also lead to material and moral compensation liabilities. Material damages incurred by the victim due to having to change their residence, school, or workplace as a result of the persistent stalking acts, and moral damages caused by the crime of persistent stalking, can be subject to compensation.
Key Points to Consider
In our article, we have outlined the fundamental elements and penalties of the crime of persistent stalking as regulated under the TCK, as well as special circumstances that can affect the penalty, the trial process, and protective measures that can be applied to the individual during this process, in a practical manner.
In everyday life, where encountering this crime is quite possible, it is crucial for an individual to express themselves with the correct legal tools and conduct the process with effective legal strategies. The crime of persistent stalking can be easily confused with other types of crimes regulated in the TCK (''Disturbing the Peace and Tranquility of Individuals'', ''Violation of Privacy of Private Life'', ''Threatening'', ''Sexual Harassment'', etc.), due to the similarity in the legal values protected and the acts causing the crime. Therefore, it requires the comparison and management of the process by a lawyer with sufficient expertise.
A mistake or negligence in this area can lead to serious grievances. Hence, for the process to be conducted healthily and correctly, it is advisable to first consult a lawyer.
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