Legal Definition of the Crime
Crime of Torture is regulated under Article 96 of the Turkish Penal Code (TCK) within the section “Crimes Against Persons.” The relevant legal provision states:
TCK Article 96 – A person who engages in behavior that causes another person to suffer shall be sentenced to imprisonment from two to five years. (Additional sentence: 12/5/2022, Article 7406/5) If the crime is committed against a woman, the minimum sentence cannot be less than two years and six months.
(2) If the acts covered by the above paragraph are committed:
a) Against a child, a person unable to defend themselves physically or mentally, or a pregnant woman,
b) Against an ascendant or descendant, a father or mother, or a spouse or former spouse,
the perpetrator shall be sentenced to imprisonment from three to eight years.
The provision emphasizes that acts which are systematic and continuous, incompatible with human dignity, and which cause pain or humiliation, constitute a criminal offense.
Elements of the Crime
When evaluated together with both its objective and subjective elements, the Crime of Torture has the following fundamental components:
1-Perpetrator: Although the legislator does not require any specific qualification for the perpetrator of the crime of torture, the offender can be anyone except a public official. Indeed, the main difference between the crime of torture under TCK Article 96 and the similar crime of torture under TCK Article 94 lies in the status of the perpetrator. According to Article 94, the perpetrator of torture can only be a public official. Therefore, if the acts in question are committed by a public official, it will be considered torture under Article 94, not under Article 96.
2-Victim: In this crime, the victim can be any member of society.
3-Act (Behavior) Element: Under TCK Article 96, the act element consists of behaviors that cause a person to suffer. The legislator does not enumerate each action that could cause suffering; instead, this has been shaped through Supreme Court (Yargıtay) decisions. According to these rulings, if the following acts are committed against a person in a continuous and systematic manner, they constitute the crime of torture:
- Forcing someone to eat feces or drink urine
- Humiliating, intimidating, or beating at regular intervals
- Confining someone at home
- Parading someone naked
- Leaving someone hungry and thirsty
- Tying someone up and placing frightening animals like dogs or snakes, or repulsive animals like rats, on them, etc.
The crime consists of optional acts, and it is sufficient for the formation of the offense if any of the specified or similar optional acts are carried out against the victim in a continuous and systematic manner.
Supreme Court (Yargıtay) Decision on the Matter
“…In the first paragraph of Article 96 of Law No. 5237, titled “Torture,” the material element of the crime of torture is defined as “engaging in behaviors that cause a person to suffer,” but the specific nature of these behaviors is not explicitly outlined. However, the reasoning of the article clarifies that torture consists of acts committed against a person that are incompatible with human dignity and cause physical or psychological suffering or humiliation.
Thus, the legislator has defined the characteristics of the act in torture not in the text of Article 96, which regulates the crime of torture, but in its reasoning, unlike the definition of torture in Article 94, which regulates the crime of torture by public officials. In this respect, the crime of torture under Article 96 and the crime of torture under Article 94 are similar in terms of their material elements. However, for the crime of torture under Article 96, the reasoning does not refer to acts that affect the victim’s perception or will, as is required for the crime of torture under Article 94.
Torture is a crime of free action. Acts that cause the victim to suffer physically or psychologically, evoke feelings of shame, fear, helplessness, and worthlessness, and damage their dignity fall within the scope of torture. In this type of crime, the victim is subjected to acts that are objectively humiliating and painful, affecting the level of human dignity and the balance necessary for the immediate or future development of their personality.
Acts constituting torture may involve intentional injury, insult, threat, or sexual harassment, but these acts are committed systematically and over a period of time, not suddenly. According to the reasoning of the article, in order to qualify as torture, such acts must be carried out systematically. Systematic conduct means that multiple attacks on the victim are part of a general pattern of behavior or follow a prearranged, organized, and regular course of action. The systematic nature of the acts is one of the criteria used to determine whether they constitute the crime of torture.
The systematic application of acts requires that the behaviors directed at the victim be carried out in a regular and coherent manner over a certain period of time. Therefore, if acts against the victim are committed intentionally and deliberately as part of a general pattern or under a specific plan, the crime of torture is established. Such acts, regardless of their specific type, objectively involve a certain level of severity and reach a minimum threshold of gravity. When the acts as a whole reach an objective level of torture, in other words, the minimum level of violence is met, the crime is complete.
In the case at hand, considering that the complainant stated in her complaint that she was threatened by the defendant and repeatedly experienced physical abuse while living in the same house with him, although no marks were observed on her body, and that children living with their mother witnessed that their father, the defendant, beat and threatened them, it is understood that the defendant’s systematic acts of threat and injury against his spouse, both while living together and during periods of physical separation, constitute the crime of torture. Therefore, there is no legal defect in the judgment issued against the defendant…”
(Supreme Court of Turkey, 8th Criminal Chamber, 2021/9606 E., 2024/394 K., 16.01.2024)
4-Legal Interest Protected by the Crime: The crime of torture is regulated under the “Crimes Against Persons” section of the Turkish Penal Code. The legal interest protected by this type of crime is primarily the physical integrity and inviolability of individuals, as well as human dignity.
5-Mental Element: The crime can only be committed intentionally; it cannot legally occur through negligence. For the crime to be established, the perpetrator must know and intend that their actions will cause the victim to suffer.
Aggravating Circumstances
The crime of torture, regulated under Article 96 of the Turkish Penal Code (TCK), is accompanied by aggravated circumstances that may require heavier penalties in certain cases. According to the relevant legal provisions: if the crime is committed against a woman, the minimum sentence cannot be less than two years and six months. Furthermore, if the acts are committed against a child, a person unable to defend themselves physically or mentally, a pregnant woman, an ascendant or descendant, a parent, a spouse, or an ex-spouse, the perpetrator may be sentenced to imprisonment ranging from three to eight years.
Differences Between the Crime of Torture and Other Crimes
1- Regarding the Crime of Torture: According to Article 94 of the Turkish Penal Code (TCK), which regulates the crime of torture, a public official who engages in acts against a person that are incompatible with human dignity and cause physical or psychological suffering, impair perception or will, or result in humiliation is punishable by imprisonment from three to twelve years.
When examining the legal text, it is observed that the crimes of torture and torture (işkence) share similar characteristics due to acts that are incompatible with human dignity, cause physical or psychological suffering, and lead to humiliation. However, there are differences between the two crimes, the clearest of which is the status of the perpetrator. The perpetrator of torture (işkence) can only be a public official, whereas the perpetrator of the crime of torture (eziyet) can be anyone other than a public official.
2- Regarding the Crime of Maltreatment: Under Article 232 of the TCK, which regulates maltreatment, a person who mistreats someone living in the same household may be sentenced to imprisonment from two months to one year. Additionally, a person who abuses the disciplinary authority arising from their right to educate, raise, care for, protect, or teach a profession or art to someone under their supervision may be sentenced to up to one year in prison.
One of the main differences between maltreatment and the crime of torture relates to the status of the victim. The victim of torture can be anyone, whereas in maltreatment, the victim is someone who lives with the perpetrator in the same household or is under the perpetrator’s supervision, care, or responsibility for upbringing, education, protection, or teaching. Similarly, the continuity and systematic nature required in torture is not a requirement in the crime of maltreatment.
COMPLAINT PERIOD, STATUTE OF LIMITATIONS, AND COMPETENT COURT
Under Article 96 of the Turkish Penal Code, this offense is not subject to a complaint, and the investigation proceedings are conducted ex officio by the prosecutor’s office. Although there is no complaint period required for investigating the crime, the statute of limitations for the case is eight years. The competent court is the Criminal Court of First Instance.
JUDICIAL FINES, SUSPENSION OF SENTENCE, AND POSTPONEMENT OF ANNOUNCEMENT OF JUDGMENT DECISION
Under Article 96 of the Turkish Penal Code (TCK); a person who engages in conduct that causes another person to suffer shall be sentenced to imprisonment for a term of two to five years. If the crime is committed against a woman, the minimum sentence cannot be less than two years and six months. If these acts are committed against a child, a person unable to defend themselves physically or mentally, a pregnant woman, an ascendant or descendant, a father or mother, a spouse, or an ex-spouse, the offender shall be sentenced to imprisonment for a term of three to eight years.
Considering the minimum and maximum limits of the sentence, it is possible to issue a postponement of the announcement of the judgment (HAGB) or a suspension of the sentence. However, it is not possible to convert the prison sentence into a judicial fine.
SUPREME COURT DECISIONS
“…In the case at hand, it has been understood that the acts committed systematically by the juvenile offender—such as burning plastic bags and dripping them on the hands and genitals of the victims in the same dormitory, beating them and urinating on them, spitting and forcing them to lick it, and making them fight each other—constitute the crime of torture within the scope of Article 96 of Law No. 5237. Therefore, no error was observed in the judgment rendered against the juvenile offender…” (Supreme Court of Appeals, 8th Criminal Chamber, 2021/8858 E., 2024/1671 K., 22.02.2024)
“…According to the case file, it is established from the recordings in the file that the defendants committed unprovoked and excessive acts of systematic violence against a victim with autism who is unable to defend themselves physically or mentally, recorded these acts for amusement, and published them on social media. It was noted that Defendant … repeatedly pulled the victim …’s ears and slapped them, during which the victim’s facial expressions showed fear and pain. When considering the defendants’ statements along with all the evidence in the case file, it is understood that during a one-minute period, the defendants’ actions went beyond mere injury, causing suffering to the victim for amusement. Consequently, the Court’s acceptance and application were appropriate, the elements of the crime were established, and the defendants’ appeals were found to be without merit; no legal irregularity was found in the decision…” (Supreme Court of Appeals, 8th Criminal Chamber, 2021/5931 E., 2023/9230 K., 28.11.2023)
“…Regarding the defendants, a public lawsuit was filed by the Akhisar Chief Public Prosecutor’s Office with the indictment dated 20.11.2014 for the crime of intentional injury, and with the indictment dated 12.05.2015 for the crime of torture, seeking their punishment. Upon examination of the CD Solution Report, which was accepted as evidence that the crimes of insulting and injuring the victim child were committed, the defendants’ statements, and the medical reports, it was understood that the defendant …, who committed the alleged crimes of injury and threat according to the case file, was convicted of intentional injury and threat, and the pronouncement of the judgment was deferred; regarding defendant …, no evidence was found showing participation in intentional injury, and an acquittal was granted. It was determined that since duplicate punishment or acquittal for torture cannot be imposed on the defendants for the same act, there was no error in dismissing the case on these grounds…” (Supreme Court of Appeals, 8th Criminal Chamber, 2020/14585 E., 2023/2155 K., 11.04.2023)
“…In the case at hand, according to the statement of the victim …’s mother during the investigation, supported by the medical report, it was impossible for the injuries on the victim’s body to have occurred from a single act of beating. The defendant had performed certain acts toward his daughter, whom he did not want to be born, for a year from her birth, including biting, pinching, and slapping, indicating his rejection of her. This situation was revealed upon the hospital visit on 05.11.2015. The victim’s mother explained that she did not file a complaint due to fear of harm to her marriage. In view of this, issuing a written acquittal instead of a conviction for the defendant under Article 96, paragraph 2(a) and (b) of Law No. 5237 was found to be legally incorrect…” (Supreme Court of Appeals, 8th Criminal Chamber, 2021/9349 E., 2024/393 K., 16.01.2024)
“…In light of these explanations, in the concrete case, upon examining the defendant’s actions toward the child complainant …; according to the forensic report dated 18.05.2019 prepared regarding the complainant …, bruises and ecchymosis were observed on the palm of the left hand and the right hip, and it was determined that the injuries were of a nature that could be treated with simple medical intervention. These injury marks occurred during the incident on 06.05.2019, and no prior injuries were identified in the report. In the complainant …’s initial, spontaneous statement, it was stated that on the day the defendant … applied violence to his sister …, he struck the complainant’s hand and hip with a rolling pin. In the defendant …’s initial defense and in the defense taken by the Regional Court of Justice, he stated that he struck the complainant’s hand with a rolling pin on the day of the incident. According to the statement of the witness …, who is the complainant …’s guidance teacher, when asked whether the defendants applied similar acts of violence to the complainant’s siblings, the complainant … stated that the defendants did not commit violent acts toward the siblings (… and …).
Accordingly, it was determined that it is not established that the defendant … acted systematically and over a certain period against the complainant …; moreover, according to the defendant’s admission consistent with the medical report, the act of striking the complainant’s hand and hip with a rolling pin that did not make contact does not include elements of systematicity or continuity. Therefore, the conviction of the defendant for intentional injury is legally appropriate, and aside from grounds for appeal, there is no legal defect in the judgment…” (Supreme Court of Appeals, 8th Criminal Chamber, 2025/2287 E., 2025/5618 K., 03.07.2025)
“…In the case at hand, it was determined that there is insufficient evidence to establish that the defendant … systematically withheld food from the minor complainant …, who is his stepson. Accordingly, under the principle of “in doubt, the defendant benefits,” an acquittal should have been issued; however, the written judgment convicting the defendant was found to be legally incorrect…” (Supreme Court of Appeals, 8th Criminal Chamber, 2020/10196 E., 2023/7884 K., 24.10.2023)
“…The case concerns allegations regarding whether the defendant engaged in a series of behaviors that caused suffering to his spouse.
2. On 30.07.2013, following a report that the deceased, Vecide, had committed suicide by hanging herself in a room of their home, an investigation was launched against the defendant and his mother due to a suspicious death. The family of the deceased stated that their daughter was continuously beaten by her husband, the defendant, that she could not divorce him because of their children, and that she occasionally showed them the bruises on her body. They also alleged that the defendant was responsible for their daughter’s death and filed a complaint accordingly.”
3. a) During the proceedings, it was stated by the deceased’s father, the complainant, and the mother and siblings that the deceased was continuously beaten by the defendant, that the defendant did not even give allowance, that he gave money for diapers to the children only after begging, and that they occasionally witnessed the marks of the beatings, yet she could not divorce him because of the children. It was also stated by relatives, F.Ş., that due to a curtain-related issue, the deceased was beaten and left hungry, as reported to them by the children and her sister.
b) The joint children of the deceased and the defendant, B.O.B. and M.B., stated to the prosecutor that their mother, the deceased, was continuously beaten by their father, and even that the defendant killed their mother by hanging her. According to the evaluation and result report prepared by a social services expert after taking the children’s statements, B.O.B. stated that he had not witnessed the incident, had provided incorrect information to the prosecutor, and that his brother M.B. had witnessed the event, explaining that he gave the statement that way because he was afraid to go to his father’s family. However, during the trial phase, the children’s statements indicated that their father, the defendant, continuously beat their mother, beat her even before her death, and eventually killed her, thereby returning to their statements made during the investigation phase.
4. a) According to the post-mortem and autopsy report dated 30.07.2013, the deceased had old bruises with yellow discoloration on the front of the left inner thigh just below the Poupart’s ligament, measuring 6 cm and 2 cm in diameter, and an old dried wound on the right elbow measuring 0.3 cm in diameter.
b) According to the report of the Istanbul First Forensic Medicine Specialized Board dated 23.12.2015, the deceased’s death occurred as a result of hanging, and there was no medical evidence indicating death due to any traumatic effect other than hanging.
5. It was determined that regarding the defendant and his mother, no further prosecution was warranted due to insufficient evidence for the crimes of intentional homicide and incitement to suicide.
REASONING
1. Considering that under Article 96 of Law No. 5237, if the perpetrator has an intent to kill separate from the crime of torture, they may also be held responsible for intentional homicide, it has been understood in the concrete case that B.O.B. and M.N.B., the joint children of the defendant and the deceased, in their statements during the investigation—which were also deemed credible by the pedagogical expert—reverted to their initial statements indicating that their father killed their mother. These statements can be accepted as new evidence within the scope of Article 172, Paragraph 2 of Law No. 5271, making it possible to re-evaluate the case and take appropriate action accordingly. (Court of Cassation, 8th Criminal Chamber, 2021/9725 E., 2024/1684 K., 22.02.2024)
Regarding the appeal against the conviction for the crime of torture, it was noted that in the indictment dated 02.09.2015 prepared by the Fethiye Chief Public Prosecutor’s Office, there was no description or charge clause indicating that the defendant was being prosecuted for the crime of “torture.” After the torture case was initiated and should have been merged with this case for a joint evaluation of the evidence, the judgment was rendered in writing and additional defense rights were granted without observing the requirement. This was contrary to Article 225/1 of the Code of Criminal Procedure No. 5271, which stipulates that “a judgment can only be rendered regarding the act and the perpetrator specified in the indictment.” Therefore, this procedure was illegal, and the defense counsel’s appeal was found justified; accordingly, the judgment is REVERSED pursuant to Article 321 of the CMUK No. 1412, as applied under Article 8/1 of Law No. 5320. (Court of Cassation, 8th Criminal Chamber, 2020/3770 E., 2021/16802 K., 28.06.2021)
Lawyer Gökhan AKGÜL & Lawyer Yasemin ERAK
