Punishment for the crime of depriving a person's liberty

The crime of depriving a person of his or her freedom, also known as limiting freedom, is regulated under the title "Crimes Against Freedom" in Article 109 of the Turkish Penal Code. Terms such as kidnapping and kidnapping are also used among the public for this crime. According to Article 109, crime is an optional type of mobile crime that can be committed by depriving a person of the freedom to go or stay somewhere.

If a person performs one of the optional actions mentioned above, the person's right to stay where he is or to leave according to his own will, to change location and go wherever he wants, that is, to move freely or not to act of his own will, will be violated. In this respect, the legal value protected by crime is the freedom of movement of individuals.

109. In the first paragraph of the article, the basic state of the crime is; in the second paragraph; If the crime is committed by force, threat or fraud and in the third paragraph; In six paragraphs, the qualified situations of committing the crime with a weapon, with more than one person, due to the public duty performed by the person, by abusing the influence of the public office, against ancestor, descendant or spouse, against a child or against a person who is physically or mentally unable to defend himself are regulated. It has been regulated that if the crime in the fifth paragraph is committed for sexual purposes, the penalty to be given to the perpetrator will be increased by half, in addition to other cases. In addition, as stated in the sixth paragraph of the article, "in case of aggravated situations occur due to the crime of intentional wounding for the purpose or during the commission of this crime, the provisions regarding the crime of intentional wounding also apply." His statements include the aggravated state of the crime due to its consequences. Another situation that is aggravated due to its consequences regulated in the law is the situation where the crime causes a significant economic loss to the victim.

Article 110 of the Turkish Penal Code provides for effective repentance in the crime of depriving a person of liberty.

All these issues will be examined under separate headings below.

ELEMENTS OF THE CRIME OF DEPRIVING A PERSON OF HIS LIBERTY

As we mentioned above, the crime of deprivation of liberty is an optional type of crime that can be committed by depriving someone of the freedom to go somewhere or stay somewhere, or by performing both actions together. As a matter of fact, according to the justification of Article 109, "The crime in question occurs when a person is unlawfully deprived of the freedom to go somewhere or stay somewhere. For example, the acts of confining a person to a place, keeping him in a place or taking him to a place or preventing him from going somewhere require criminal sanctions according to this definition." There is no legal definition on how these optional movements will be carried out. In this respect, crime is a free-moving type of crime. In practice, the prevailing view is that the crime of depriving a person of liberty can also be committed through negligent acts. An example of negligent action is the act of not removing the person from where he/she is, even though he realizes that he accidentally locked the door on him."

For a crime to occur, optional actions must have been carried out for a certain period of time. This crime cannot be committed with instantaneous movements. The limit of the time period for the crime to occur is evaluated separately according to each concrete event. However, as we mentioned, the movements must continue for a significant period of time. According to a precedent decision of the General Criminal Assembly of the Supreme Court of Appeals dated 2020 on the subject; "The article only mentions "depriving the freedom of going somewhere or staying somewhere", and there is no restriction on the way, place, time and duration of the act. Therefore, it can be committed anytime and anywhere, provided that it results in the violation of the victim's freedom to go or stay somewhere. It does not matter whether the act is committed in a place accessible to everyone, in a private, closed or open area, or for a long or short period of time. It is not necessary for the victim to be locked up somewhere for the crime to occur. Even in the case of public detention or taking someone to such a place, the crime of deprivation of liberty will occur. Since it is a continuous crime, the completion and ending times of the crime may be different. The crime is completed when the victim regains his freedom. On the other hand, the concept of deprivation of liberty is not instantaneous. Since it necessarily involves a period of time, in order for the crime to be completed, the act and the result must last for a legally acceptable period of time. Whether the period is too short and whether it constitutes deprivation of liberty will be evaluated and determined by the judge, together with the severity, importance and seriousness of the act." YCGK 2020/100 K.

There does not need to be physical contact between the perpetrator and the victim for the crime to be committed. The crime can also be committed by locking the victim. As a matter of fact, in a decision of the 1st Criminal Chamber of the Supreme Court of Appeals dated 2020, it was ruled that "making a judgment in accordance with Article 109/2 of the same law, without considering that the action of the defendant locking the door on the victim complies with Article 109/1 of the Turkish Penal Code."

In the crime of depriving a person of liberty, there must be no consent or other reasons for compliance with the law. The existence of these situations will prevent the occurrence of crime. This issue is also mentioned under the heading of unlawfulness.

1- Deprivation of the Victim's Freedom to Go Somewhere

There is more than one way to execute this optional move. The victim does not have to be kept in a closed place for a crime to occur. A crime is also considered to have occurred if the plane ticket or passport of a victim who is about to travel is stolen. As a matter of fact, we stated that the crime aims to protect people's freedom of movement. Situations such as chaining a person, tying him up, making him take sleeping pills, putting him in a car and driving him around for a while are also considered crimes within the scope of this act.

2- Deprivation of the Victim's Freedom to Stay in a Place

We explained above that preventing the victim from going somewhere constitutes a crime. This action means preventing the victim from staying in one place. It is a crime to remove a person from a place where there is no legal harm in his presence. For example, if a person is kicked off the street, there is an interference with the person's freedom and this behavior constitutes a crime.

QUALIFIED CONDITIONS OF THE CRIME OF DEPRIVING A PERSON'S LIBERTY

There are 7 different qualified forms of the crime of depriving a person of liberty, regulated by law. Since all of these qualified situations facilitate the commission of the crime, the legislator has included more severe sanctions in these cases compared to the basic state of the crime. The following situations are considered a qualified form of the crime:

1-Using force, threats or deceit to commit the crime or during the commission of the crime (TCK article 109/2)

2-Committing the crime with a weapon (TCK article 109/3-a)

3-Commission of the crime by more than one person (TCK article 109/3-b)

4-Commission of the crime due to the public duty performed by the person (TCK article 109/3-c)

5-Commission of the crime by abusing the influence of public office (TCK art. 109/3-d

6-Commission of the crime against ancestors, descendants and spouse (TCK article 109/3-e)

7-Commission of the crime against a child or a person who is physically or mentally unable to defend himself (TCK article 109/3-f)

8-Committing the crime for sexual purposes (TCK article 109/5)

In case one of the qualifying circumstances listed in the first 7 articles exists, the penalty to be given to the perpetrator is increased. In cases where more than one qualified situation exists, the punishment to be given to the perpetrator will be increased only once. In other words, there is no separate increase for each qualifying situation. However, if there is more than one qualified situation, the judge will take this situation into consideration and impose punishment by deviating from the lower limit.

The situation is different in the case of depriving a person of his freedom for sexual purposes. If the basic or qualified forms of the crime are committed for sexual purposes, the penalty to be given to the perpetrator will also be increased by half. For example, if the crime of deprivation of liberty is committed with a weapon and is also committed for sexual purposes, the penalty to be given to the perpetrator will be increased by two. The penalty to be given to the perpetrator will first be calculated based on the qualified situation, and then this penalty will be increased by half again if the crime is committed for sexual purposes. In other words, the penalty, which is increased by 1 times if the crime is committed with a weapon, will be increased by half for sexual purposes.

DEPRIVING A PERSON OF HIS FREEDOM BY USING FORCE, THREAT AND CHEATING

This qualified state is a qualified state regarding the way the verb is committed. It is not necessary to use force, threats and deceit to commit the basic form of the crime.

- Algebra refers to any form of coercion that helps break a person's resistance.

- Threat is the influence of the victim's will by an evil or injustice that will occur in the future,

- Cheating refers to the perpetrator deceiving the victim by using certain behaviors or words, and misleading the victim's will to form correctly with these actions.

Threat crime and algebra are types of crimes regulated separately in the Turkish Penal Code. However, in terms of this crime, the crime of force and threat is considered as instrumental crime. A person who deprives a person of his freedom by using force and threats cannot be punished for these crimes. These two crimes are used as instrumental crimes to commit the main crime. Since the commission of the crime will be easier in the presence of these situations, the legislator has regulated the application of the basic penalty by increasing it.

DEPRIVATION OF A PERSON'S LIBERTY WITH A WEAPON (KIDNAPPING WITH A WEAPON)

Considering the frightening nature of the weapon, its effect on the victim, and its ability to facilitate the commission of the crime, the commission of the crime in this way has been included in the scope of a qualified situation.

The scope of the concept of weapon defined in Article 6 of the Turkish Penal Code is quite broad. According to the relevant article, many concepts such as guns, knives, sticks, piercing tools and explosives are considered within the scope of weapons. The Supreme Court, especially in its recent decisions, has evaluated many items that have a wounding effect as weapons.

For a crime to be committed with a gun, the gun does not necessarily have to be pointed at the victim. It is sufficient that the weapon is used to create a threatening effect. The victim will understand that the perpetrator has a gun, and therefore any behavior that will disturb his or her peace of mind will be considered within the scope of this qualified form of the crime.

DEPRIVATION OF A PERSON'S LIBERTY BY MORE THAN ONE PERSON

Another qualified form of the crime is committing the crime with more than one person. In order for this qualified element to occur, the execution actions of the crime must be carried out by at least two people together. As stated in the justification of the article, all perpetrators were required to be co-perpetrators. If the execution actions of the crime are carried out by a single person, this time there will be no qualified element. Again, if the execution actions of the crime are carried out by one person, but other accomplices are the instigators or aiders, the qualified crime does not occur.

DEPRIVATION OF A PERSON'S LIBERTY DUE TO THE PUBLIC DUTY HE PERFORMS

According to Article 6 of the Turkish Penal Code; From the term public servant; It is understood as a person who participates in the execution of public activities on a permanent, temporary or temporary basis, by appointment or election or in any other way.

For this qualified situation to occur, the victim of the crime must be a public official. In order for this situation to occur, the motive of the perpetrator is investigated. If the perpetrator commits the crime for personal reasons and not because of the victim's public duty, the crime does not occur. It is necessary and sufficient for the perpetrator to commit the crime due to the duty of a public official. No other conditions are required. It does not matter whether the victim is retired or has left his job. As a matter of fact, in the justification of Article 109; "For this optional element of the crime, the motive of the perpetrator is important. At the time of the crime, the person may not have been a public official, for example, he may have been retired. Likewise, the crime can be committed against a relative of a public official. The kidnapping of a judge's son as a reaction to his decision can be given as an example of this situation." Expressions are used.

DEPRIVATION OF A PERSON'S LIBERTY BY MISUSE OF THE INFLUENCE GIVEN BY PUBLIC OFFICE

For this qualified situation to occur, the perpetrator must be a public official at the time of the act and abuse the influence provided by his public office. Two conditions must coexist. Otherwise, the mere fact that the perpetrator is a public official is not sufficient for the existence of a qualified situation.

In practice, it is seen that this version of the crime is mostly committed by the investigation authorities. According to the Code of Criminal Procedure, if the persons authorized to make arrest and detention decisions abuse their authority, the crime of deprivation of liberty will come to the fore. The unlawful arrest decision made by the public prosecutor is also considered within the scope of depriving the person of his liberty. Police detention of people without a detention order constitutes the crime of deprivation of liberty. Likewise, it is a crime for the public prosecutor to take the person with whom he is arguing in traffic to safety.

THE CRIME OF DEPRIVING A PERSON OF LIBERTY AGAINST THE DESCENT, SUBORDINATE AND SPOUSE

In the law, the persons who constitute the qualified crime are listed in a limited manner. Other than these people, crimes committed against a sibling or spouse's sibling are not within the scope of qualified cases. Crimes committed against a spouse who is not legally married will also not be counted within the scope of qualified circumstances. Since it is easier for the perpetrator if the crime is committed against these people, the legislator has considered this situation as a qualified situation.

CRIME OF DEFENDING LIBERTY AGAINST A CHILD OR A PERSON WHO IS UNABLE TO DEFEND THEMSELVES BODY OR MENTALLY

According to Article 6 of the Turkish Penal Code, individuals who have not reached the age of 18 are considered children. Crimes committed against persons listed in the article other than children are considered within the scope of qualified crime. It is clear that the crime can be committed more easily due to the difficulty of these people in resisting the perpetrator. For this reason, the crime committed against these people is subject to more severe sanctions.

DEPRIVATION OF A PERSON'S LIBERTY FOR SEXUAL PURPOSES

Among the qualified cases, the most severe penalty is when the crime is committed for sexual purposes. Here, the perpetrator is required to act for sexual purposes. However, the perpetrator does not necessarily have to achieve his goal. If a sexual act has been committed, the perpetrator is also punished for these crimes.

It cannot be said that in every act of sexual assault, a person is deprived of his freedom. In order for the crime of sexual assault or sexual abuse to be committed, the victim must be kept in a place for a certain period of time. In this form, the means of depriving a person of his freedom is a crime. The perpetrator does not need to be punished separately for this crime. However, the purpose of keeping the person in a certain place should be for the duration of the crime. When this period is exceeded, the perpetrator will also be punished for the crime of depriving the person of liberty.

As a matter of fact, as stated in the decision No. 2020/345 of the General Criminal Assembly of the Supreme Court of Appeals; "Since it is not possible to commit these crimes without restricting the freedom of the person if the person's bodily immunity is the subject of the purpose crime, in cases where people are kept limited to the duration of the crime, for example, while committing the act of sexual assault (sexual abuse) or wounding, keeping or keeping them waiting for the duration of these crimes does not constitute a separate crime, but the purpose is to prevent the victim from going somewhere or staying somewhere before or after the crime." When his freedom is removed, the crime of depriving the person of his freedom also occurs."

THE CRIME CAUSES A SIGNIFICANT ECONOMIC LOSS TO THE VICTIM

This situation is considered within the scope of aggravated situations due to the result of the crime. Situations such as a businessman missing an important business appointment due to a crime or a student missing the university exam can be given as examples. In case of such situations, the perpetrator is given a judicial fine in addition to imprisonment.

ACCEPTANCE OF AGGRESSIVE CONDITIONS DUE TO THE CRIME OF INTENTIONAL WOUNDING

TCK 109/6. According to the article; If aggravated situations occur due to the crime of intentional injury for the purpose of committing this crime or during it, the provisions regarding the crime of intentional injury also apply.

For a crime to occur, the perpetrator must use force on the victim to the extent of deliberately injuring him or her, and there must be an aggravated injury as a result of this injury.

PUNISHMENT OF DEPRIVATION OF PERSON'S LIBERTY

According to Article 109 of the Turkish Penal Code:

1- A person who unlawfully deprives a person of his/her freedom to go or stay somewhere is sentenced to imprisonment from one to five years.

2- If a person uses force, threat or fraud to commit the act or while committing it, he is sentenced to imprisonment from two to seven years.

3- This crime;

a- With a gun,

b- Together by more than one person,

c- Due to the public duty performed by the person,

d- By abusing the influence of public office,

e- Against lineal, descendant or spouse,

f- If it is committed against a child or a person who is unable to defend himself physically or mentally, the penalty to be imposed according to the above paragraphs is increased by one.

4- If this crime causes a significant economic loss to the victim, a judicial fine of up to one thousand days is also imposed.

5- If the crime is committed for sexual purposes, the penalties to be imposed according to the above paragraphs are increased by half.

6- In case of aggravated situations occur due to the crime of intentional wounding for the purpose or during the commission of this crime, the provisions regarding the crime of intentional wounding are also applied.

THE ELEMENT OF ILLEGALITY OF DEPRIVING A PERSON OF HIS LIBERTY

109. According to paragraph 1 of the article, a person who unlawfully deprives a person of the freedom to go or stay somewhere is considered to have committed a crime. In the article, illegality is specifically mentioned. Therefore, acts of lawfully detaining or removing a person from a place will not constitute a crime.

There are various legal grounds for the crime of depriving a person of liberty. Lawful detention, arrest or detention of a person is within the scope of exercising the right and does not constitute a crime.

Deprivation of Liberty Self-Defense

The existence of legitimate self-defense conditions in the act of depriving a person of his freedom is also considered a reason for compliance with the law. It is not considered a crime for a person to lock someone who attacks him somewhere.

Consent of the Victim to Deprivation of Liberty

Even if the person's consent exists, the crime of depriving the person of his or her freedom does not occur. This consent must exist before the act or at the time the act is committed. Consent, which is permission after the act has occurred, does not make the act lawful. Anyone who has the power to appeal is deemed to be competent to give consent. There is no age limit for giving consent. However, the Supreme Court of Appeals does not accept the consent of children under the age of 15 as valid consent in the crime of deprivation of liberty committed for sexual purposes.

As a matter of fact, the General Criminal Assembly of the Supreme Court of Appeals in its decision dated 10.03.2020; "The case is about the crime of depriving a person of liberty. It is clear that the consent of the victim, who is under the age of fifteen and whose consent is not legally valid, is not valid, which is against the law, good manners and general morality, and this consent will not eliminate the criminal liability of the defendant who acts with the awareness of injustice." The provision was made as follows.

Again, according to the decision of the Supreme Court of Appeals Criminal General Assembly No. 2015/8 K.; "Since the right of children in the first category, "who have not completed the age of fifteen", to move freely with their own will is not a right that they can absolutely dispose of due to its nature, their consent to the actions taken for the violation of these rights cannot be accepted as a reason for legality in terms of the crime of deprivation of liberty." The consent of children between the ages of 15-18 is considered valid if they have the power to appeal. When evaluated in terms of the crime of sexual intercourse with a minor, the consent of the victim will be considered valid and the perpetrator will not be punished for the crime of depriving the person of liberty.

DEPRIVATION OF A PERSON'S LIBERTY ACTIVE REGRET

Effective repentance provisions can be applied for the crime of depriving a person of liberty. The conditions for effective repentance are regulated in Article 110 of the Turkish Penal Code. According to the relevant article; If the person who commits the crime of depriving a person of his/her freedom automatically releases the victim in a safe place without causing any harm to the victim before the investigation for this crime begins, the penalty is reduced by up to two-thirds. In order for the provisions of effective repentance to be applied, the crime must be completed. Voluntary renunciation provisions may be applied if the conditions are met for crimes that remain at the attempt stage.

According to the decision of the General Criminal Assembly of the Supreme Court of Appeals No. 2020/147, the following conditions must be met in order for the provisions of effective remorse to be applied in the crime of depriving a person of liberty:

1- The crime must be completed. If the perpetrator releases the victim before the crime is completed, in other words, while the enforcement actions are continuing, there will be voluntary renunciation, not effective remorse.

2- The perpetrator must release the victim before being investigated for the crime.

After the investigation begins, the perpetrator's release of the victim will not have any effect on criminal liability. Therefore, if the victim is released after the incident is learned by the competent authorities, effective repentance provisions will not be applicable even if all other conditions required by law are met, but this issue may be accepted as a reason for discretionary reduction.

3- The perpetrator must release the victim spontaneously, without any pressure or coercion.

4- The victim must be released by the perpetrator.

This provision will not be applicable if the victim escapes from the hands of the defendant or is taken from his/her location by law enforcement officers or others who are informed of the incident. In addition, the perpetrator must release the victim "in a state where he can appear in public". For example, leaving the person naked cannot be accepted as release in the sense required by the law.

5- The perpetrator must release the victim in a safe place where he will not be harmed and can easily reach wherever he wants.

This provision will not be applicable if the victim is released at night in a deserted place or forest far from residential areas.

6- The perpetrator must not have caused any harm to the victim.

UNJUSTIFICATION OF DEPRIVATION OF A PERSON'S LIBERTY

In the crime of depriving a person of liberty unfair provocation provisionsare applicable. Unfair provocation provisions can be applied especially to perpetrators who commit the crime of depriving a person of his/her freedom in order to collect his/her debt.

As a matter of fact, according to a decision of the Supreme Court of Appeals Criminal General Assembly dated 2020; "Unfair provocation, which is regulated as a reason that reduces criminal liability, refers to the perpetrator committing a crime by acting under the influence of anger or severe pain created by an unjust provocation. In this case, the perpetrator tends to commit a crime as a result of the confusion created in his psychological structure by the anger or pain caused by unjust provocation.

At this stage, it should be further examined how the provision of unjust provocation should be evaluated in crimes of deprivation of liberty committed due to non-payment of a debt or failure to give legal receivables to the rightful owner. It is not possible to accept the mere inability to pay the debt as an act that constitutes unfair provocation. However, behaviors such as arbitrarily and deliberately not paying the debt despite having the ability to pay, just for one's own benefit or to put the creditor in a difficult situation, stealing goods from the creditor, making untrue statements or promises, constantly stalling the creditor, trying to get rid of the debt through collusive behavior, can be considered as acts that constitute unfair provocation. As a matter of fact, it is seen that the decisions made by the Penal Board dated 19.01.2016 and numbered 203-2 and dated 04.07.2017 and numbered 656-360 were evaluated in this direction."

Attempt to deprive a person of his liberty

The crime of depriving a person of his liberty is an uninterrupted type of crime. The completion and ending moments of the crime vary. A crime is completed when a person is deprived of his liberty for a criminal period. But the moment the crime ends is the moment when the victim regains his freedom. In terms of attempt, the moment of completion of the crime is taken into account.

For this reason, the provisions of attempt can only be applied in crimes of deprivation of liberty of a person where enforcement actions have been initiated but the result has not been achieved. For example, attempts will be mentioned in cases where the perpetrator tries to kidnap the victim but this action is prevented.

CONVENTION OF DEPRIVING A PERSON OF HIS LIBERTY

As we stated above, in cases where the crime of depriving a person of liberty is considered an instrumental crime, the perpetrator cannot be punished for this crime.

If the crime is committed by using force or threats, the perpetrator cannot be punished for these crimes.

In cases where crimes such as deprivation of liberty and crime of plunder, sexual assault, sexual abuse, sexual harassment, deliberate murder are committed together, the perpetrator is punished separately for each crime.

The chain crime provisions apply in cases where the freedom of more than one person is restricted with the same action or the crime is committed more than once against the same perpetrator at different times.

DEPRIVATION OF A PERSON'S LIBERTY PROCEEDING

The prosecution of the crime of depriving a person of liberty does not depend on a complaint. Investigation and prosecution are carried out ex officio.

The trial of the basic and qualified forms of the crime is carried out by the Criminal Courts of First Instance.

The statute of limitations for the crime of depriving a person of liberty is 8 years. However, in case of qualified circumstances, this period will be 15 years.