The protection of children is of great importance both for society and the legal system. In this context, violations of children’s freedom are considered crimes against public order. Acts such as taking a child against their will or keeping them in a specific place are treated as a separate type of crime under the Turkish Penal Code. This type of crime, regulated under Article 234 of the Turkish Penal Code, aims to protect not only the child’s physical freedom but also their right to care, supervision, and protection. In this article, the elements, legal definition, conditions, and penal aspects of the crime of child abduction and detention will be examined.
LEGAL DEFINITION OF THE CRIME
The crime of child abduction and detention is regulated under Article 234 of the Turkish Penal Code (TPC) under the title “Crimes Against Family Order.” The relevant article provides:
TPC Article 234
- If a mother or father whose custody rights have been revoked, or a relative up to the third degree, abducts or detains a child under sixteen years of age from the person who has custody, guardianship, or care and supervision of the child without using force or threat, they shall be sentenced to imprisonment from three months to one year.
- If the act is committed using force or threat, or if the child has not yet reached twelve years of age, the penalty is doubled.
- (Added: 06/12/2006 – Law No. 5560/Art. 10) Anyone who keeps a child who has left home without the knowledge or consent of their legal representative, even with the child’s consent, without notifying the family or the competent authorities, shall be sentenced, upon complaint, to imprisonment from three months to one year.
As explicitly stated in the law, the crime of child abduction and detention may arise in multiple situations:
- According to Article 234/1, the act of abducting or detaining a child under sixteen by a mother, father, or relative up to the third degree whose custody rights have been revoked, from the person who has care or supervision of the child, is defined as a crime.
- Example: If a father whose custody has been revoked abducts or detains his 14-year-old daughter despite her being under her mother’s supervision, the crime of child abduction and detention is committed.
- Similarly, according to paragraph 3, anyone who fails to notify the child’s family or competent authorities when a child leaves home without the consent or permission of their legal representative, even with the child’s consent, bears criminal liability.
- Example: If a child leaves home without the knowledge or consent of their parents and stays at a teacher’s house, and the teacher does not inform the child’s family or authorities, the crime is committed.
However, for the crime to occur, the child must have left home of their own free will. If the child is held or detained against their will by a third party, this does not constitute child abduction and detention, but rather constitutes the aggravated form of deprivation of liberty.
ELEMENTS OF THE CRIME
When evaluated in terms of both its objective and subjective elements, the crime of child abduction and detention consists of the following fundamental components:
Mental Element (Mens Rea): The crime can only be committed intentionally; it cannot be committed negligently or by mistake.
1.Perpetrator: The crime of child abduction and detention, under the scope of paragraph 1 of Article 234, is a special-type crime, meaning it can only be committed by certain persons. Therefore, the perpetrator can only be the mother, father, or a relative up to the third degree whose custody rights have been revoked. In contrast, paragraph 3 of the same article does not impose any special condition on the perpetrator; thus, anyone can potentially commit the crime under that provision.
2.Victim: Since the crime is classified among offenses against family order, under Article 234/1, the victim is the parent whose custody has not been revoked or the person responsible for the child’s care or supervision. Under Article 234/2, the victim is the child’s legal representative.
3.Act (Physical Element): According to Article 234/1, the act constituting the crime is the detention or abduction of a child under sixteen without the permission or consent of the parent, guardian, or person responsible for care and supervision. Under paragraph 3 of the same article, the act consists of failing to notify the family or authorities when a child leaves home without the consent or permission of their legal representative, even if the child consents.
4.Protected Legal Interest: The crime of child abduction and detention is regulated under the title “Crimes Against Family Order”, and the legal interests protected by this offense are family order and public safety.
COMPLAINT PERIOD, STATUTE OF LIMITATIONS, AND COMPETENT COURT
The crime of child abduction and detention is subject to a complaint only when committed under Article 234/3 of the Turkish Penal Code (TPC). In this case, the victim must file a criminal complaint within six months from the date they become aware of the act and the perpetrator.
However, if the act is committed under Articles 234/1 or 234/2 of the TPC, the crime is not subject to a complaint. The investigation is conducted ex officio by the public prosecutor. Although there is no complaint period for the investigation of the crime, the statute of limitations for filing a case is eight years, starting from the date the crime was committed. The competent court is the Assize Court (Asliye Ceza Mahkemesi) in the jurisdiction where the crime occurred.
SUSPENSION OF PRONOUNCEMENT OF THE JUDGMENT, SETTLEMENT, AND POSTPONEMENT
According to Article 234 of the Turkish Penal Code (TPC); if a mother or father whose custody rights have been revoked, or a relative up to the third degree, abandons or detains a child under sixteen from the person who has custody, guardianship, or care and supervision without using force or threat, or if a child who leaves home without the knowledge or consent of their legal representative is kept, even with the child’s consent, without informing the family or competent authorities, the perpetrator shall be punished with imprisonment from three months to one year.
Considering the minimum and maximum limits of the penalty, it is possible to:
- Convert the prison sentence to a judicial fine,
- Suspend the pronouncement of the judgment, and
- Postpone the execution of the sentence.
Furthermore, while conciliation provisions cannot be applied for crimes committed under the first and second paragraphs of Article 234, conciliation may be applied under the provisions of the third paragraph.
RELEVANT COURT DECISIONS
“…It was discussed and considered as follows:
- Regarding the defendant’s actions toward the victim …, in the review of the conviction for the crime of child abduction and detention:
On the day of the incident, the victim … traveled by bus from Samsun province to Tosya district with her friend …, and the defendant informed the victim’s father … by phone that his daughter had arrived in Tosya. Instead of acquitting the defendant for the crime of child abduction and detention, the court wrongly convicted him, which was reviewed in this case. - In the review of the conviction for the defendant’s actions toward the victim …:
On the date of the crime, the victim, who was under fifteen years of age, left the custody of her parents without any use of force, threat, or deceit and went to … district with her friend …. The defendant met the victims at the bus station and took them in a vehicle, during which they were apprehended by law enforcement. Considering the decisions of the Turkish Court of Cassation General Criminal Assembly dated 01.12.2015 (Case No. 2014/14-198, Decision No. 2015/428) and 17.02.2015 (Case No. 2014/14-307, Decision No. 2015/8), the right of a victim under fifteen to move freely according to her own will does not constitute an absolute right that she can fully exercise. Therefore, the defendant’s actions against the victim, whose consent is legally invalid, constitute the crime of deprivation of liberty, and the defendant should have been punished under Articles 109/1-3-f of the TPC.
Failure to consider this and instead convicting the defendant for child abduction and detention as written in the judgment is contrary to the law. Since the defendant’s appeal is well-founded in this respect, the judgment is REVERSED pursuant to Articles 321 and 326 (final paragraph) of the CMUK No. 1412, to be applied under Article 8/1 of Law No. 5320…”
(Turkish Court of Cassation, 8th Criminal Chamber, File No. 2019/8584, Decision No. 2022/6463, Date: 26.04.2022)
“…According to the case file, it was understood that the victim, aged between fifteen and eighteen, ran away voluntarily with the consent of the defendant … and stayed at the house of the other defendant …, without the use of force, threat, or deceit. Considering that these actions constitute the crime of child abduction and detention regulated under Article 234/3 of the Turkish Penal Code (TPC), the court failed to investigate the outcome of another investigation file that had been separated from the main file by the Bartın Chief Public Prosecutor’s Office on 04.09.2009 (Investigation No. 2009/3785, Decision No. 2009/96) regarding the defendant …’s act of child abduction and detention on 01.09.2009, and did not evaluate the legal status of the defendants accordingly.
This omission is contrary to the law. Since the appeals of the complainants’ representatives … and … are well-founded in this regard, the judgment is REVERSED pursuant to Article 321 of the CMUK No. 1412, in consideration of Article 8/1 of Law No. 5320…”
(Turkish Court of Cassation, 14th Criminal Chamber, File No. 2014/8987, Decision No. 2017/2510, Date: 09.05.2017)
“…Regarding the appeal filed by the representative of the complainant victim against the judgment for the crime of child abduction and detention, in the context of Article 234/3 of the Turkish Penal Code (TPC No. 5237), it is understood that because the child has not yet reached the age of eighteen, the parents’ custody rights over the child are protected, and therefore the victims of the alleged crime are the mother and father. Accordingly, the complainant victim’s representative does not have the right to appeal the judgment…”
(Turkish Court of Cassation, 9th Criminal Chamber, File No. 2024/246, Decision No. 2024/11268, Date: 19.12.2024)
“…According to the content of the appeals filed by the defendant … and the Public Prosecutor, limited to the judgment against the defendant … for the crime of child abduction and detention, and considering that this crime was committed together with the offense of violation of residential inviolability at night, which is not subject to the simple trial procedure, the appellate review found that: Since the complainant … did not accept reconciliation during the investigation stage for the crime of child abduction and detention, which was within the scope of reconciliation at the time of the offense, reconciliation cannot be pursued again under Article 253/18 of the Criminal Procedure Code (Law No. 5271). Therefore, the opinion in the notification recommending reversal was not adopted…”
(Turkish Court of Cassation, 8th Criminal Chamber, File No. 2019/7820, Decision No. 2022/6746, Date: 09.05.2022)
“…Regarding the appeal review of the judgments against the defendants for the crime of child abduction and detention:
The incident occurred when the victim, who was seventeen years old at the time of the offense, voluntarily left her home and stayed for two days at the house of the other defendant … together with defendant …. It was determined that the defendants’ actions constituted the crime of child abduction and detention, and that this crime falls within the scope of reconciliation under Article 253 of the Criminal Procedure Code (Law No. 5271), as amended by Law No. 5560. Since the reconciliation procedure is a prerequisite for prosecution, and taking into account the provisions of Law No. 6763 enacted on 02.12.2016 after the judgments, it was necessary to initiate a reconciliation attempt under Articles 253 and 254 of the CPC and reassess the legal status of the defendants accordingly.
Failure to do so is contrary to the law. Therefore, the appeal filed by the complainant victim’s representative is well-founded, and the judgments are REVERSED pursuant to Article 321 of the CMUK No. 1412, in consideration of Article 8/1 of Law No. 5320…”
(Turkish Court of Cassation, 14th Criminal Chamber, File No. 2017/3334, Decision No. 2017/5550, Date: 13.11.2017)
“…Regarding the examination of the appeal objections against the acquittal judgments for the crime of child abduction and detention concerning defendants …. and ….:
According to the case facts and file contents, it was established that the defendants committed the alleged crime by keeping the children who had left the dormitory on the day of the incident with them without notifying the competent authorities. Despite this, instead of convicting them, the court issued acquittal judgments in writing, which is contrary to the law.
Accordingly, the appeal filed by the representative of the complainant institution is well-founded, and the judgments are REVERSED pursuant to Article 321 of CMUK No. 1412, in consideration of Article 8/1 of Law No. 5320…”
(Turkish Court of Cassation, 14th Criminal Chamber, File No. 2013/1378, Decision No. 2014/12504, Date: 11.11.2014)
“…According to the minutes, documents, and reasoning reflecting the trial process in which the court’s conscience was formed, and considering the overall context of the concrete case, it was noted that the crime of child abduction and detention, committed together with the offense of public insult not subject to the simple trial procedure, also does not fall within the scope of the simple trial procedure. Therefore, the reasoning in the notification recommending reversal was not adopted.
Upon examination, it was determined that the essential elements justifying the resolution attributed to the defendant for the act of child abduction and detention, and that this act was committed by the defendant, were established through a trial conducted in accordance with the law. All evidence, allegations, and defenses presented at the stages of the proceedings were displayed completely and in a manner sufficient for appellate review, discussed without altering their essence, and the court’s conscience was based on definite, consistent, and non-contradictory data. The act was correctly characterized and fits the statutory definition of the crime, and the sentence was applied in accordance with the law.
It was understood that the reasons put forward by the defendant … were unfounded, and contrary to the notification, the appeal is REJECTED on its merits and the judgment is UPHELD…”
(Turkish Court of Cassation, 4th Criminal Chamber, File No. 2022/6417, Decision No. 2022/16404, Date: 01.07.2022)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
