What Is the Offense of Violating an Obligation Arising from Family Law?
The offense of violating an obligation arising from family law is an offense regulated under Article 233 of the Turkish Penal Code (TCK), under the heading “Offenses Against the Family Order,” with the purpose of protecting the material and moral integrity of the family.
As provided by law, the offense of violating an obligation arising from family law consists of three paragraphs, each of which regulates a separate type of offense:
‘’1.A person who fails to fulfill the obligation to provide care, education, or support arising from family law shall, upon complaint, be sentenced to imprisonment for up to one year.
- A person who abandons their spouse, knowing that she is pregnant, or an unmarried woman with whom they continuously live, knowing that she is pregnant by them, leaving her in a helpless situation, shall be sentenced to imprisonment for a term of three months to one year.
- “Even if their parental custody rights have been revoked, a mother or father who seriously endangers the morality, safety, or health of their children due to a lack of material and moral care resulting from habitual intoxication, the use of narcotic or stimulant substances, or dishonorable attitudes and conduct shall be sentenced to imprisonment for a term of three months to one year.” Accordingly, it is understood that Article 233, paragraph 1 of the Turkish Penal Code (TCK) regulates the violation of the obligation to pay maintenance, whereas paragraphs 2 and 3 provide for specific violations of family-related obligations.
What Is the Penalty for the Offense of Violating an Obligation Arising from Family Law?
As stated above, the penalty for the offense of violating an obligation arising from family law varies depending on the type of offense committed. Accordingly, the penalty for the “offense of violating the obligation to provide care, education, or support” regulated under paragraph 1 of Article 233 of the Turkish Penal Code (TCK) is imprisonment for up to one year.
The “offense of abandoning a pregnant person” and the “offense of a mother or father behaving in a manner harmful to their children”, regulated under paragraphs 2 and 3 of the same article, are punishable by imprisonment for a term of three months to one year.
Consequently, the perpetrator of the relevant offense shall be punished according to the type of offense committed.
Court with Jurisdiction and Competence in the Offense of Violating an Obligation Arising from Family Law
In criminal proceedings concerning the offense of violating an obligation arising from family law, the territorially competent court is the court of the place where the offense was committed (Article 12 of the Turkish Code of Criminal Procedure (CMK)), while the court with subject-matter jurisdiction is the Criminal Court of First Instance.
Frequently Asked Questions
1. Can a Decision to Defer the Announcement of the Judgment (HAGB) Be Issued for the Offense of Violating an Obligation Arising from Family Law?
A Decision to Defer the Announcement of the Judgment (HAGB) is a decision that prevents the sentence imposed on the defendant from producing its legal effects and consequences during the relevant period of supervision. If the defendant for whom an HAGB decision has been issued fulfills the specified conditions during the applicable supervision period, the imposed sentence is eliminated and the case is dismissed.
Accordingly, an HAGB decision may be issued in cases involving the offense of violating an obligation arising from family law.
2. Can the Imprisonment Sentence Imposed for the Offense of Violating an Obligation Arising from Family Law Be Converted into a Judicial Fine?
A judicial fine can essentially be defined as a type of sanction that may be imposed either together with or independently of the imprisonment sentence imposed on a defendant for an offense committed.
In addition, the imposition of a judicial fine depends on the offense having been committed intentionally and the sentence imposed on the offender being less than one year, that is, constituting short-term imprisonment.
Consequently, considering the manner in which the offense was committed and the applicable sentencing limits, the imprisonment sentence imposed for the offense of violating an obligation arising from family law may be converted into a judicial fine.
3. Is the Offense of Violating an Obligation Arising from Family Law Subject to a Complaint?
Offenses subject to complaint are offenses for which the victim or the person harmed by the offense must file a complaint before an investigation or prosecution can be initiated in relation to the relevant offense.
However, the offense of violating an obligation arising from family law is not among the offenses subject to a complaint. It is investigated ex officio by the Public Prosecutor’s Office and, therefore, there is no statutory time limit for filing a complaint in relation to this offense.
4. Is Mediation Available for the Offense of Violating an Obligation Arising from Family Law?
Mediation essentially aims to facilitate communication and reconciliation between the person accused of committing an offense and the victim through the intervention of a mediator.
However, only the offense of violating the obligation to provide care, education, or support, regulated under the first paragraph of the provision concerning the offense of violating an obligation arising from family law, falls within the scope of mediation.
5. What Is the Procedure for the Enforcement of the Sentence for the Offense of Violating an Obligation Arising from Family Law?
With regard to the enforcement procedure for the offense of violating an obligation arising from family law, according to the current Turkish sentence execution calculation, it appears that there is no actual time to be served in prison.
Some Decisions of the Turkish Court of Cassation (Yargıtay) Concerning the Offense of Violating an Obligation Arising from Family Law
- “However, in the case where the juvenile pushed to crime, after giving birth to the baby born out of a non-marital relationship at Trabzon Maternity Hospital, left the baby at the hospital on the same day with witness A.. C.., who was her elder sister, and fled without ever returning to take the baby back, although the offense of abandonment was not established because the legal element of the offense, namely ‘leaving the person to their own fate,’ had not occurred, considering that the juvenile pushed to crime had violated her obligation to provide care, education, and support to the victim, it should have been examined in the judgment whether her act constituted the offense of violating an obligation arising from family law regulated under Article 233 of the Turkish Penal Code (TCK). Accordingly, rendering a judgment in the manner set forth, without discussing this issue in the judgment, and on the basis of an incomplete prosecution, insufficient reasoning, and an erroneous legal characterization, is contrary to law. Since the grounds for appeal raised by the juvenile pushed to crime K.. C.. and her defense counsel were found to be justified, the opinion in the notification recommending affirmance was rejected and the JUDGMENT WAS REVERSED…” (Decision of the 4th Criminal Chamber of the Turkish Court of Cassation (Yargıtay), dated 07.12.2015, Case No. 2015/23995, Decision No. 2015/39358.)
- “In the specific case subject to the proceedings: 1- Except in cases where an immediate acquittal must be rendered because the act does not constitute an offense, in cases where the evidence must be assessed and determined, an acquittal cannot be rendered without questioning the defendant and establishing the defendant’s defense. However, without taking this into consideration, and by misinterpreting Article 193/2 of the Code of Criminal Procedure No. 5271 (CMK), an acquittal was rendered following an incomplete investigation without questioning the defendant and without hearing at trial the witness Turgut Aksoy, who had been heard during the investigation stage. 2- In the act committed by the defendant, who, becoming angry because his spouse, the complainant M.. Ç.., did not take care of the home, because there was no food in the house, and because the electricity had been cut off by T. A.., the owner of the house and a witness, locked his two children, aged 11 months and 4 years and in need of care, in separate rooms at around 11:00 a.m., left the house, and returned at around 10:00 p.m., the offense of abandonment was not established because the element of ‘leaving the person to their own fate’ had not occurred. However, since the defendant had violated his obligation to provide care, education, and support to the victims, his act constituted, separately with respect to each of the two victims, the offense of violating an obligation arising from family law regulated under Article 233 of the Turkish Penal Code (TCK). Therefore, rendering an acquittal without taking this into consideration was unlawful. 3- Considering that there was a conflict of interests between the victim children and the defendant, who was their mother, a representative guardian should have been appointed for the child victim by the competent court pursuant to Article 426 of the Turkish Civil Code No. 4721 (TMK), or a legal representative should have been appointed by the Bar Association pursuant to Article 234/2 of the Code of Criminal Procedure (CMK). Thus, the victim should have been provided with representation and enabled to exercise the rights to file a complaint and participate in the proceedings. Rendering a judgment following an incomplete prosecution and erroneous legal characterization without providing such an opportunity was contrary to law. Since the grounds for appeal submitted by the Public Prosecutor of the Republic at that location were found to be justified, the opinion in the notification recommending affirmance was rejected and the JUDGMENTS WERE REVERSED…” (Decision of the 4th Criminal Chamber of the Turkish Court of Cassation (Yargıtay), dated 11.09.2015, Case No. 2014/2629, Decision No. 2015/33631.)
- “However: 1- In the case where the defendant left the baby born out of a non-marital relationship with witness F.. B.., with whom the defendant had agreed to provide care for the baby in return for payment after the birth, checked on the victim and covered the victim’s expenses only during the first month, and thereafter never contacted or inquired about the victim again, the element of ‘leaving the person to their own fate’, which constitutes an element of the offense regulated under Article 97/1 of the Turkish Penal Code (TCK), was not established. However, this conduct, which constituted a breach of the defendant’s obligations concerning the care and supervision of the child, constituted the offense of violating an obligation arising from family law regulated under Article 233 of the TCK. Furthermore, considering that there was a conflict of interests between the child victim and the defendant, who was the victim’s mother, a representative guardian should have been appointed for the child victim by the competent court pursuant to Article 426 of the Turkish Civil Code No. 4721 (TMK), or a legal representative should have been appointed by the Bar Association pursuant to Article 234/2 of the Code of Criminal Procedure (CMK). In this manner, the victim should have been provided with representation and enabled to exercise the rights to file a complaint and participate in the proceedings. Rendering a judgment following an incomplete prosecution and erroneous legal characterization without providing such an opportunity was contrary to law. 2- The defendant’s previous judgment, which became final on 18.09.2007, after the date of the offense, was improperly taken as a basis for the application of the provisions on recidivism. Since the grounds for appeal raised by the defendant B.. Ç.. were found to be justified, the opinion in the notification recommending affirmance was rejected and the JUDGMENT WAS REVERSED…” (Decision of the 4th Criminal Chamber of the Turkish Court of Cassation (Yargıtay), dated 07.07.2015, Case No. 2015/1050, Decision No. 2015/33097.)
- “Having established, as a result of the trial conducted in accordance with the law, that the essential elements justifying the conclusion reached regarding the acts of threat and threat with a weapon attributed to the defendant were present, and that these acts were committed by the defendant; that all evidence, allegations, and defenses submitted throughout the proceedings were presented fully and in a manner enabling appellate review, and were discussed without altering their substance; that the court’s conscientious conviction was based on definite, consistent, and non-contradictory evidence; and that the acts were correctly characterized and fell within the types of offenses prescribed by law. Although the final sentence imposed for the offense of threat with a weapon was incorrectly determined as 1 year and 13 months of imprisonment instead of 2 years and 1 month, no reversal could be ordered because there was no appeal against the defendant to his detriment. Except for this point of criticism, the penalties were applied in accordance with the applicable legal provisions. Accordingly, since the grounds put forward by the defendant … were not found to be justified, it was decided to reject the appeal on the merits and AFFIRM THE JUDGMENTS…” (Decision of the 4th Criminal Chamber of the Turkish Court of Cassation (Yargıtay), dated 31.10.2018, Case No. 2014/28373, Decision No. 2018/18493.)
- “In light of the foregoing explanations, in the specific case under review: In the case where it was established that the defendant called his friend, witness …, by telephone, told him that he had left the complainants, who were his children, in front of his house, and did not return to take them back, the offense of abandonment was not established because the legal element of ‘leaving the person to their own fate’ had not occurred. However, without examining whether the defendant’s conduct constituted the offense of violating an obligation arising from family law regulated under Article 233 of the Turkish Penal Code (TCK), a judgment was rendered on the basis of an incomplete prosecution, insufficient reasoning, and erroneous legal characterization. Since this requires reversal, the grounds for appeal raised by the defendant … were found to be justified, and, in accordance with the opinion set forth in the notification, it was decided to REVERSE THE JUDGMENT…” (Decision of the 4th Criminal Chamber of the Turkish Court of Cassation (Yargıtay), dated 29.11.2022, Case No. 2020/27120, Decision No. 2022/23932.)
