Press Release Nr: Plenary Assembly 6/15
15/12/2015

JUDGEMENTS ON APPLICATIONS RELATED TO SEXUAL ABUSE OF CHILDREN
(Click for full text of judgment)

The Constitutional Court held in its judgement on 12.11.2015;

1. To reject the application for annulment of the second paragraph of Article 103 of Turkish Criminal Code (No.5237, Date 26.9.2004) which was in force before the amendments introduced with Article 59 of Law No. 6545 dated 18.6.2014. The said provision of law prescribed, in case of performance of sexual abuse by inserting an organ or instrument into a body, the offender is sentenced to imprisonment from eight years to fifteen years.

2. To annul the second paragraph of Article 103 of Turkish Criminal Code which prescribes, in case of performance of sexual abuse by inserting an organ or instrument into a body, the offender is sentenced to imprisonment of no less than sixteen years.

Provisions of Law subject to Constitutionality Review

The second paragraph of Article 103 of Turkish Criminal Code (No.5237, Date 26.9.2004) which was in force before the amendments introduced with Article 59 of Law No. 6545 dated 18.6.2014, prescribed, in case of performance of sexual abuse by inserting an organ or instrument into a body, the offender is sentenced to imprisonment from eight years to fifteen years.

The second paragraph of Article 103 of Turkish Criminal Code (No.5237) prescribes, in case of performance of the same act, the offender is sentenced to imprisonment of no less than sixteen years.

Grounds

1- The grounds of the application for annulment of the second paragraph of Article 103 of Turkish Criminal Code (No.5237) which was in force before the amendments introduced with Article 59 of Law No. 6545 dated 18.6.2014

The court judgment, which requests constitutionality review, states briefly that the ultimate aim of the provision of law subject to contention is to prevent the underage marriages and the sexual abuses against the children; that penal sanctions imposed on fathers in families of underage marriage, where they are still married and have a child born into this family tie, do not comply with the social and cultural structure of the country; that it is not possible to protect the family institution as the provision of law does not impose a different sanction for the circumstances of those who are still married; that there is no public interest in imposing the same sanctions on someone who violently rapes an underage girl and another one who marries an underage girl and have a baby in accordance with their customs and traditions; that such a practice does not observe the principles of justice and equity and that the right of the woman and child in that family union are heavily damaged. Accordingly, the applicant court which requests constitutionality review alleges that the said provision of law is contradictory to Articles 2, 10 and 41 of the Constitution.

2- The grounds of the application for annulment of the second paragraph of Article 103 of Turkish Criminal Code (No.5237)

The court judgment, which requests constitutionality review, states briefly that, in case of performance of sexual abuse by inserting an organ or instrument into a body, the offender is sentenced to imprisonment of no less than sixteen years. However, before the amendments introduced with Law No. 6545, the minimum limit of the sanction imposed on the same act was eight years. It also states that increasing the minimum limit of sanction from eight years to sixteen years contradicts the principles of justice and equity which are the sine qua non of a state of law and the principle of the proportionality of crime and punishment; that underage marriages are common in rural areas and sexual intercourse between underage children are widespread in urban areas; that the minor defendants are not aware of heavy sanctions imposed on sexual intercourse with underage children; that there are no activities aiming to increase such awareness; that the heavy sanctions imposed on the children injure the public conscience; that the previous version of the provision imposed no less than eight years of imprisonment if the victim’s spiritual health is not impaired but, according to the current version of the provision, the minimum limit of the sanction imposed on the same act is sixteen years regardless of whether the victim’s spiritual health is impaired or not; that imposing different penal sanctions on acts against the victims of proximate ages leads to indirect forms of inequality. Accordingly, the said provision of law was alleged to contradict Article 2 and 10 of the Constitution.

The Court’s Assessment

1- With regards to the application for annulment of the second paragraph of Article 103 of Turkish Criminal Code (No.5237) which was in force before the amendments introduced with Article 59 of Law No. 6545 dated 18.6.2014

In the Constitutional Court’s opinion, the provisions of law subject to contention aim to protect the sexual inviolability and physical and spiritual integrity of all children regardless of their gender. The children’s incapability of protecting themselves leads to performance of sexual abuse quite easily and such crimes may cause heavier impacts on psychology and physiology of children when compared to those of adults. In this respect, it is one of the State’s positive obligations to adopt measures which prevent and deter such crimes. In addition to the Constitution, the international agreements on protection of children that we are a party to and all other international documents on this issue emphasize that states must adopt measures including effective end deterrent punishments for sexual abuse and exploitation of children. In this context, it is within the discretionary power of the legislative organ to determine a sanction on such crimes considering the scientific data on biological and psychological development of minors as well as public morals and cultural characteristics of the society and taking into account the “major crime” nature of sexual abuse, the elements and perpetration methods of crime and its damages on the society.

The legislative organ, aiming to prevent the sexual abuse of children, laid down different regulations for perpetrators who have a position which facilitates the commission of such crimes and increased the punishment to be imposed on such perpetrators. Save for this exception, the implementation of same rules with regards to the criminal liability without making any distinction among the perpetrators of such crimes does not contradict the principle of equality.

In addition to the primary aim of protecting the children’s physical and spiritual health, the regulation on the crime of child’s sexual abuse aims to protect the family as well considering the significance and status of children in the family. Considering the lifelong impacts of sexual abuse on children who are exposed to such acts, the family life of these children are negatively affected on the actual date of being exposed to this act and such negative effects may continue to exist on the family lives of those victims when they establish a family as grown up adults as well. In this context, as the gender of the perpetrator and victim is of no account with regards to this crime, the legislative organ’s legislative act imposing imprisonment from eight years to fifteen years on the perpetrators of this crime, just by considering the victim’s being child and with view to protect the child and observing the punitive, preventive and deterrent characteristics of criminal sanctions, does not contradict Article 41 of the Constitution which provides that family is the foundation of the Turkish society and the state shall take measures for the protection of the children against all kinds of abuse and violence.

Consequently, the Court rejected the application for annulment of the said provision of law as it was not found contrary to Articles 2, 10 and 41 of the Constitution.

2- With regards to the application for annulment of the second paragraph of Article 103 of Turkish Criminal Code (No.5237)

In the Constitutional Court’s opinion, considering the fight against crime and the criminal and the corrective purpose of the punishment and the basic principles of criminal law, there must be a fair and reasonable balance between the act and the punishment imposed on such act depending on the type of crime and the sanction laid down by the legislative organ must be proportionate to the aims pursued with punishment. It is beyond any dispute that imposing a heavy sanction on performance of sexual abuse by inserting an organ or instrument into a body aims to realize effective protection of the child. However, the said provision of law leaves no power of discretion to be applied for specific cases and provides no reparative legal institutions. Accordingly, the said provision of law eliminates the possibility to apply the reparative legal institutions or to impose a penalty by taking into account the specific circumstances of each case such as the crime is committed against victims of different ages or the perpetrator is minor too or the de facto coupling turns into formal marriage by raising the victim’s age. In some cases, it leads to imposing of heavy penalties which do not match the circumstances of the case at hand or which distorts the fair balance between the crime and the sanction applied. Therefore, the amount of penalty determined under the said provision of law does not have the standards and proportionality to realise the aim pursued with the punishment in each specific case. As the provision of law sets forth a sanction which cannot be considered proportionate in its current version, it contradicts the principle of the state of law.

Consequently, the Court annulled the said provision of law as it was found contrary to Article 2 of the Constitution and decided that the annulment decision be effective one year after it is published in the Official Gazette.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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