On May 27, 2022, Law No. 7406 amending the Turkish Penal Code (TPC), the Criminal Procedure Code (CPC), and other provisions was published in Turkey’s Official Gazette. Among other changes, the amendments to the TPC and CPC make a woman being the victim an aggravating factor for certain offenses and introduce a number of procedural rules concerning the prosecution of the related offenses. The amendments also criminalize “insistent pursuit” (stalking) and make changes in the rules regarding grounds for the mitigation of sentences.
Amendments to the TPC
The amending law makes the intentional killing of a person an aggravated offense if the victim is a woman. Previously, the law made the killing of a “woman known to be pregnant,” among other things, an aggravating factor. (The intentional killing of a child of either sex is already an aggravated offense.) The change in the law makes the intentional killing of a woman punishable by an aggravated life sentence, while the basic offense is punishable by a life sentence. An aggravated life sentence differs from the basic sentence of life imprisonment in that the convict must serve a longer term before being eligible for conditional release (30 years versus 24 years), and a longer part of the sentence must be served in a high-security penitentiary. (Law on the Execution of Sentences and Security Measures (LESSM) arts. 9 and 107.) Moreover, inmates sentenced to aggravated life imprisonment are subject to harsher punitive measures, such as being mandatorily held in a single-person cell. (LESSM art. 25.)
The amending law also introduces increased minimum sentences for the offenses of intentional injury (TPC art. 86), torment (the intentional inflicting of pain and suffering on a person incompatible with human dignity, art. 96), torture (acts similar to torment committed by public officials and their accomplices, art. 94), and threats to violate life, or bodily or sexual integrity (art. 106) if the victim is a woman. The amendments also increase the sentence by 1/6 for the offense of preventing a public service or activity from being conducted or a person from benefiting thereof by threat or coercion (art. 113) if the offense is committed in relation to healthcare services.
The amendments establish a new offense criminalizing the “causing of serious disquiet in a person or anxiety in a person over one’s own security or that of one’s relatives by way of insistently engaging in the physical pursuit of the person or insistently attempting to contact the person via communication media, information technology systems, or a third person.” (New art. 125/A.) The prosecution of the offense is conditional on the complaint of the victim, with the offense being punishable by six months to two years in prison. The sentence is increased to one to three years in prison if (a) the victim is a child or a divorced or separated spouse, (b) the offending act causes the victim to change or quit their school, work, or residence, or (c) the offender was subject to a previously issued restraining order prohibiting the offender from approaching a residence, school, or workplace.
Lastly, amendments are made to article 62 of the TPC, which sets forth the grounds for discretionary mitigation of sentences by the sentencing court. Amendments to article 62(2) clarify that “the behavior of the offender following the commission of the crime and during the trial process” must show remorse for it to be grounds for mitigating the sentence. Furthermore, the amendments transform the grounds provided in article 62(2) into a closed list by deleting the language that indicated it was an open list. Accordingly, the following factors are now exclusively the grounds on which a sentencing court may mitigate the sentence of a convicted offender: the offender’s background, their social relations, and the behavior of the offender after the commission of the offense that shows remorse and the potential effects of the penalty on the future of the offender. Finally, an excepting factor is added, stating that an offender’s pretentious actions aimed at influencing the court may not be considered as grounds for mitigation, and language is added to the provision that requires courts to include in their opinions the reasoning for the court’s electing to apply a ground for mitigation. Previously, the law required courts to include in their opinions the grounds that were used for applying a mitigating factor but not the reasoning for applying it.
Amendments to the CPC
Article 100 of the CPC provides a list of offenses for which there is a presumption in favor of pretrial detention if there exists a “strong suspicion based on material evidence.” The amendments add to this list of offenses the intentional injury offense if it is committed against a woman or against persons serving in healthcare institutions while they are on duty or for reasons related to their duties.
Another amendment is made to article 234 of the CPC, which governs the procedural rights of victims and complaints. The amended article 234 now provides for the right of the unrepresented victim or complainant to request legal counsel to be appointed by the bar association if the offense in question carries a minimum penalty of at least five years of imprisonment, or involves sexual assault, sexual abuse of children, insistent pursuit, or, if committed against women, intentional injury, torment, or torture. Previously, the right was provided only for sexual assault and crimes with a minimum sentence of five years in prison.
Background and Reactions
Public focus on domestic legal measures to combat violence against women has intensified following Turkey’s withdrawal from the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention), which the country had ratified on February 10, 2012. A number of opposition parties and human rights groups have severely criticized the withdrawal and accused the government, by the withdrawal, of worsening the conditions of impunity and insecurity that give rise to violence against women. The government strongly rejects these accusations, arguing that the Istanbul Convention was only a framework treaty and that domestic laws that establish the actual operative provisions combating violence against women, such as the Law on the Protection of the Family and Prevention of Violence Against Women and the relevant provisions of the TPC, are in place. The government further claims that, contrary to the accusations, it has every intention of strengthening these protections and not weakening them.
A number of women’s groups and legal practitioners have criticized the new amendments for focusing on the increase in punishments as opposed to measures for the prevention and efficient investigation and prosecution of violent offenses against women, and on support for victims. The criminalization of stalking appears to have been received more positively by these commentators, although they criticized the prosecution of the offense being conditional on the complaint of the victim.
Violence against healthcare workers is another topic of public debate in Turkey. Reports suggest that incidents of threats and violence against healthcare workers have become widespread in recent years. The government has taken steps to implement more sanctions for offenses against healthcare workers with amendments to the Healthcare Services Framework Law and now the TPC and the CPC. The Turkish Medical Association (TTB), a professional association of doctors of which the majority of doctors in Turkey are members, has criticized the approach taken by the government in the recent amendments to the TPC and CPC, stating that the problem can be solved only by a “holistic” approach that addresses the working conditions of doctors, which the TTB argues have worsened as a result of the current economic crisis and the reforms implemented by the government in the healthcare provision system in recent years.