Legal Definition of the Crime
The crime of escape by a convict or detainee is regulated under Article 292 of the Turkish Penal Code (TPC) under the title “Crimes Against the Judiciary.” The relevant article states:
TPC Article 292
(1) A detainee or convict who escapes from a detention center, penal institution, or the custody of supervising officers shall be sentenced to imprisonment from six months to one year.
(2) If this crime is committed through the use of force or threats, the perpetrator shall be sentenced to imprisonment from one to three years.
(3) If this crime is committed with a weapon or collectively by more than one detainee or convict, the sentence prescribed in the above paragraphs may be increased by up to one fold.
(4) If, during the commission of this crime, aggravated outcomes occur as a result of intentional injury, intentional homicide, or damage to property, punishment shall also be imposed in accordance with the provisions related to these offenses.
(5) The provisions of this article also apply to convicts who work outside the penal institution and to those whose imprisonment has been converted into a judicial fine.
It is stipulated that a detainee or convict who escapes from a detention center, penal institution, or the custody of supervising officers shall be punished with imprisonment from six months to one year.
Elements of the Crime
The crime of escape by a convicted or detained person, when evaluated together with its objective and subjective elements, has the following fundamental components:
1 – Perpetrator: A detainee is a person who has been arrested and deprived of freedom due to the suspicion of attempting to escape or destroy evidence during the investigation or prosecution stages. A convict is a person whose conviction has been finalized as a result of criminal proceedings. According to Article 292 of the Turkish Penal Code (TCK), the perpetrator of the crime can only be a person with the status of a detainee or convict. Whether there is a detention order or a finalized conviction for the individual is decisive for the establishment of the crime. Likewise, convicts assigned outside penal institutions or those whose imprisonment sentences have been converted to judicial fines can also be perpetrators of this crime (TCK Article 292/5).
However, merely being a convict or detainee is not sufficient to constitute the crime. For the crime to occur, these individuals must physically escape from the detention facility, penal institution, or the supervision of the public officials responsible for their custody. Therefore, even if a conviction is finalized, if the convict escapes before being handed over to the penal institution, the crime cannot be considered to have occurred under Article 292 of the TCK, since the convict has not yet entered the penal institution.
2 – Victim: In this crime, the victim is the state, meaning the public authority.
3 – Act (Physical Element): Under Article 292 of the Turkish Penal Code (TCK), the physical element of the crime is the act of “escaping” from a detention center, penal institution, or from the custody of supervising officials.
4 – Legal Interest Protected by the Crime: The crime of escape by a convict or detainee is regulated under the heading of “Crimes Against the Judiciary,” and the legal interest protected by this crime is state authority.
5 – Mental Element: This crime can only be committed intentionally. It is sufficient for the perpetrator to act knowing that they are escaping. It is legally impossible for this crime to be committed negligently.
Aggravated Circumstances of the Crime
The offense of escape by a convict or detainee, regulated under Article 292 of the Turkish Penal Code, is stipulated to carry harsher penalties in certain circumstances. The aggravated circumstances specified in the law are as follows:
1- Commission of the crime by using force or threat (TPC Art. 292/2): If the act of escape is carried out through the use of force or threat, the perpetrator is sentenced to imprisonment for one to three years.
2- Commission of the crime with a weapon or together with multiple convicts or detainees (TPC Art. 292/3): If the crime is committed using a weapon or collectively by more than one convict or detainee, the penalty imposed can be increased up to double the sentences specified in the preceding paragraphs.
3- Aggravated result of the crime (TPC Art. 292/4): If, during the commission of this offense, the perpetrator causes aggravated consequences due to intentional injury, commits intentional homicide, or damages property, these offenses are evaluated separately, and the perpetrator is additionally sentenced according to the provisions applicable to these crimes.
Voluntary Repentance
Under Article 293 of the Turkish Penal Code, a special provision for voluntary repentance is established regarding the crime of escape by a convict or detainee. The relevant article states:
“If a detainee or convict, after escaping, voluntarily surrenders and demonstrates active repentance, the penalty to be imposed shall be reduced from five-sixths to one-sixth, taking into account the period from the day of escape until the day of surrender. However, if the period of escape exceeds six months, no reduction in the penalty shall be applied.”
For the provisions on voluntary repentance to be applicable, it is necessary that the convict or detainee surrenders voluntarily.
COMPLAINT PERIOD, STATUTE OF LIMITATIONS, AND COMPETENT COURT
Under Article 292 of the Turkish Penal Code (TCK), this crime is not subject to a complaint and the investigation is conducted ex officio by the public prosecutor’s office. Although there is no complaint period for the investigation of the crime, the statute of limitations for the case is 8 years. The competent court is the Criminal Court of First Instance.
Judicial Fines, Postponement of the Pronouncement of the Verdict, and Suspension
Under Article 292 of the Turkish Penal Code (TCK), a detainee or convict who escapes from a detention center, penal institution, or from the supervision of authorized personnel is subject to imprisonment for a period of six months to one year. Considering the minimum and maximum limits of the penalty, it is possible to convert the prison sentence into a judicial fine, to order the postponement of the pronouncement of the verdict, or to suspend the sentence. Similarly, if the imprisonment sentence imposed as a result of the trial is one year or less, it can also be converted into a judicial fine.
RELEVANT CASE DECISIONS
“…Regarding the appeal against the conviction of the defendant for the crime of escape by a prisoner or detainee; within the scope of the file, in the incident where the defendant cut the bars of the window opening to the ward’s ventilation area, although the act constituted the crime of damage to public property, it was stated that he attempted to escape from prison despite the legal elements of the charged offense not being fulfilled, and additionally, a judgment was rendered in writing for the crime of escape by a prisoner or detainee as defined in TCK 292/1. This necessitated annulment, and since the defendant’s grounds for appeal were deemed valid in this regard, it was unanimously decided on 08.12.2021 that the judgment be REVERSED for the stated reason contrary to the request…” (Court of Cassation, 2nd Criminal Chamber, 2020/17368 E., 2021/20996 K., 08.12.2021)
“…For the crime of escape regulated in the first paragraph of Article 292 of the Turkish Penal Code (TCK) to occur, the perpetrator must be a detainee or a convict. In the present case, although it was alleged and accepted that the defendant, after being taken to the police station due to an outstanding arrest warrant, escaped under the pretext of going to the toilet, the court rendered a conviction without clearly verifying whether the defendant was in the status of a detainee or convict at the time of the escape, and based on incomplete investigation, assumed that the elements of the crime were fulfilled. This is contrary to the law. Since the defendant’s counsel’s appeal objections were found valid in this respect, the judgment was REVERSED for this reason…” (Court of Cassation, 9th Criminal Chamber, 2012/5501 E., 2012/12922 K., 15.11.2012)
“…In the concrete case where, while the prosecutor was preparing the files regarding the defendant who had a finalized court decision, the defendant escaped under the supervision of law enforcement officers, considering that the defendant was in the status of a detained suspect, a verdict of acquittal should have been rendered due to the non-fulfillment of the requirement in Article 292/1 of the TCK that the perpetrator must be a convict or detainee. However, a conviction was issued in writing. According to the Court, also, failure to consider that the heaviest sentence in the criminal record should be taken as the basis for recidivism necessitated a reversal…” (Court of Cassation, 2nd Criminal Chamber, 2020/17241 E., 2021/5075 K., 10.03.2021)
“…For the crime of escape by a convict or detainee to occur, the person must have a detention order or a finalized conviction, and must escape from a detention center, penal institution, or from the custody of supervising officers. In the concrete case, the defendant, who came to the penal institution to surrender after the expiration of his special leave, was found to have a bulge in his clothing during a frisk by the officers. When asked to hand over the substance causing the bulge, later determined to be cannabis, he attempted to flee from the officers’ custody toward the prison courtyard in order to hide, dispose of, or smuggle the drugs. Since the defendant’s act was not an attempt to escape from the penal institution, the decision to convict him instead of acquitting for an unfulfilled offense constitutes an erroneous evaluation. This is contrary to law, and since the defendant’s appeal objections were well-founded, the verdict was REVERSED pursuant to Article 321 of CMUK No. 1412, as applied under Article 8/1 of Law No. 5320…” (Court of Cassation, 8th Criminal Chamber, 2017/15131 E., 2018/8930 K., 11.09.2018)
“…1. The case in question concerns the allegation that the defendant committed the crime of escape by failing to return from his special leave while serving a sentence at Torbalı Open Prison. 2. Minutes documenting the defendant’s failure to return to the institution and an escape report dated 30.07.2015 were prepared. 3. Documents regarding the defendant’s apprehension, prepared by the Muğla Provincial Police Department on 26.01.2016, were included in the file.
IV. REASONS
It was determined that the trial proceedings were conducted in accordance with procedural and legal rules, that the allegations and defenses raised at various stages were presented and discussed along with all collected evidence in the reasoned judgment, that the act was committed by the defendant, and that the court’s conviction was based on conclusive evidence consistent with the documents and information in the file. Furthermore, the crime classification and sanctions corresponding to the act were correctly determined. Accordingly, the other appeal grounds raised by the defendant, which were found to be unfounded, were also rejected…” (Court of Cassation, 8th Criminal Chamber, 2021/18604 E., 2023/2358 K., 24.04.2023)
It was understood from all the evidence obtained throughout the case file that the defendant, while serving a sentence at Torbalı Open Prison, failed to return from his special leave, committed escape, and was apprehended by law enforcement and returned to the prison. Despite the application of the simplified trial procedure, the defendant objected to this decision. Therefore, there was no legal irregularity in the decision rendered by the first-instance court.
“…Regarding the defendant, the court, by its decision dated 10/11/2014 and numbered 2014/500 (file) – 2014/65 (decision), pursuant to Article 191 of the Turkish Penal Code (TCK) as amended by Article 68 of Law No. 6545 and the provisional Article 7(2) added to Law No. 5320 by Article 85 of the same Law, due to legal necessity, decided on the “postponement of the announcement of the verdict” under the provisions of TCK Article 191.
In this context, due to the existence of a special regulation for drug use offenses, as indicated in paragraph 4 of the same Law; during the suspension period:
a) Persisting in failing to comply with the obligations imposed or the requirements of the applied treatment,
b) Purchasing, accepting, or possessing narcotic or stimulant substances for repeated use,
c) Using narcotic or stimulant substances,
Without taking into account that the verdict may be announced under these circumstances, the conviction given for the offense of “escape of a detainee or convict” committed during the supervision period was finalized, and the verdict was announced without the conditions being met.
This constitutes a violation of the law. Since the defendant’s appeal objections are therefore justified, it was unanimously decided on 22/05/2019 to REVERSE the verdict…” (Court of Cassation, 10th Criminal Chamber, 2016/1013 E., 2019/3179 K., 22.05.2019)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
