Legal Definition of the Crime
The crime of obscenity is regulated under Article 226 of the Turkish Penal Code (TPC) within the section titled “Crimes Against General Morality.” The relevant article of the law states:
TPC Article 226 – (1)
a) Anyone who gives a child products containing obscene images, writings, or words, or shows, reads, makes read, or makes listen to the content of such products,
b) Anyone who displays, shows publicly, reads, makes read, says, or makes say the content of such products in places accessible to or visible by children,
c) Anyone who offers these products for sale or rent in a manner that reveals their content,
d) Anyone who offers, sells, or rents these products outside of commercial places dedicated to their sale,
e) Anyone who gives or distributes these products free of charge, alongside or in connection with other goods or services,
f) Anyone who advertises these products,
shall be punished with imprisonment from six months to two years and a judicial fine.
(2) Anyone who publishes or facilitates the publication of obscene images, writings, or words through the press or media shall be punished with imprisonment from six months to three years and a judicial fine of up to five thousand days.
(3) Anyone who uses children, simulated child images, or persons appearing to be children in the production of products containing obscene images, writings, or words shall be punished with imprisonment from five to ten years and a judicial fine of up to five thousand days. Anyone who brings these products into the country, reproduces, offers for sale, sells, transports, stores, exports, possesses, or makes them available for others’ use shall be punished with imprisonment from two to five years and a judicial fine of up to five thousand days.
(4) Anyone who produces, brings into the country, offers for sale, sells, transports, stores, provides for others’ use, or possesses products containing writings, sounds, or images of sexual acts performed with violence, with animals, on deceased human bodies, or in unnatural ways shall be punished with imprisonment from one to four years and a judicial fine of up to five thousand days.
(5) Anyone who publishes, facilitates the publication, or enables children to see, hear, or read the content of the products referred to in paragraphs three and four shall be punished with imprisonment from six to ten years and a judicial fine of up to five thousand days.
(6) For these crimes, specific security measures may be imposed on legal entities.
(7) The provisions of this article do not apply to scientific works and, except for paragraph three, to works of artistic or literary value, provided that access by children is prevented.
These provisions aim to protect public morality and, in particular, to keep children away from obscene content.
What is Obscenity?
The concept of obscenity, defined by the Turkish Language Association as “explicit, contrary to decency, inappropriate,” refers to words, images, or behaviors that are sexual in nature and considered disturbing, shameful, or objectionable according to social values and moral standards.
Although this concept is not directly defined in the Turkish Penal Code, its boundaries and application have largely been shaped by Supreme Court (Yargıtay) decisions and case law. When determining whether content is considered obscene, judicial authorities take multiple factors into account. The meaning conveyed by the content, the manner of its presentation, the intended audience, and whether sensitive groups, such as children, are affected by the content are the key factors in this assessment.
Elements of the Crime
When the crime of obscenity is evaluated with both its objective and subjective elements, it has the following fundamental components:
1.Mental Element: The crime can only be committed intentionally; it cannot be committed negligently under the law.
2.Perpetrator: Under Article 226 of the Turkish Penal Code (TPC), no special condition is required for the perpetrator of the crime, meaning that anyone can commit this offense.
3.Victim: Regarding this crime, the victim can be anyone in society, including children.
4.Act (Conduct Element): Under TPC Article 226, the act element includes optional actions specified in the law, such as publicizing obscene products, selling them, renting them out, advertising them, or producing, selling, or possessing materials containing sexual acts that involve violence or are conducted in unnatural ways.
5.Legal Value Protected by the Crime: The crime of obscenity is regulated under the section “Crimes Against General Morality,” and the legal value it protects is the physical, mental, and moral integrity of individuals in society, particularly children.
Aggravating Circumstances
The crime of obscenity, regulated under Article 226 of the Turkish Penal Code (TPC), is structured in certain cases to warrant a heavier penalty. According to TPC Article 226/5, the dissemination of the content of the products referred to in paragraphs three and four through the press or media, or making them accessible to children, constitutes an aggravating circumstance.
Grounds for Exemption from Punishment
Article 226/7 of the Turkish Penal Code (TPC) states: “The provisions of this article shall not apply to scientific works, and, except for paragraph three, to works of artistic or literary value, provided that access by children is prevented.” Accordingly, it is recognized that obscene content may be lawful under certain circumstances.
Under this provision, if an obscene product is of artistic or literary value and access by children is prevented, or if it remains within a person’s private domain, no crime is committed. Similarly, the sale, offering for sale, or exhibition of obscene products in permitted locations does not constitute a crime. (TPC Article 226/1-d)
Complaint Period, Statute of Limitations, and Competent Court
The crime regulated under Article 226 of the Turkish Penal Code (TPC) is not subject to a complaint, and investigation procedures are 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 applies: 15 years for the first sentence of paragraph three and paragraph five of the article, and 8 years for the other paragraphs. The competent court is the Criminal Court of First Instance.
Judicial Fine and Deferred Pronouncement of Judgment
Pursuant to Article 226/1 of the Turkish Penal Code (TPC);
- Anyone who gives a child products containing obscene images, writings, or words, or shows, reads, makes read, or makes listen to the content of such products;
- Anyone who displays, publicly shows, reads, makes read, says, or makes say the content of such products in places accessible to or visible by children;
- Anyone who offers these products for sale or rent in a manner that reveals their content;
- Anyone who offers, sells, or rents these products outside of commercial places dedicated to their sale;
- Anyone who gives or distributes these products free of charge, alongside or in connection with other goods or services;
- Anyone who advertises these products;
Such persons shall be punished with imprisonment from six months to two years and a judicial fine.
Pursuant to TPC Article 226/2: Anyone who publishes obscene images, writings, or words through the press or media, or facilitates their publication, shall be punished with imprisonment from six months to three years and a judicial fine of up to five thousand days.
Pursuant to TPC Article 226/3: Anyone who uses children, simulated child images, or persons appearing to be children in the production of products containing obscene images, writings, or words shall be punished with imprisonment from five to ten years and a judicial fine of up to five thousand days. Anyone who brings these products into the country, reproduces, offers for sale, sells, transports, stores, exports, possesses, or makes them available for others’ use shall be punished with imprisonment from two to five years and a judicial fine of up to five thousand days.
Pursuant to TPC Article 226/4: Anyone who produces, brings into the country, offers for sale, sells, transports, stores, provides for others’ use, or possesses products containing writings, sounds, or images of sexual acts performed with violence, with animals, on deceased human bodies, or in unnatural ways shall be punished with imprisonment from one to four years and a judicial fine of up to five thousand days.
Pursuant to TPC Article 226/5: Anyone who publishes, facilitates the publication, or enables children to see, hear, or read the content of the products referred to in paragraphs three and four shall be punished with imprisonment from six to ten years and a judicial fine of up to five thousand days.
Considering the minimum and maximum limits of the penalty, it is possible to convert the prison sentence into a judicial fine and to issue a deferred pronouncement of judgment.
Decisions Related to the Subject
“…In the third paragraph of Article 226 of the Turkish Penal Code (TPC), two separate criminal definitions aimed at protecting children against obscenity are provided. The first occurs when children are used in the production of products containing obscene images, writings, or words. The second crime arises from committing any of the acts of bringing these products into the country, reproducing them, offering them for sale, selling, transporting, storing, exporting, possessing, or making them available for others’ use. According to the fifth paragraph, the publication of the content of the products covered by the third and fourth paragraphs, which are absolutely prohibited in terms of obscenity, through the press or media, facilitating their publication, or enabling children to see, hear, or read them constitutes a separate crime.
In the case under review, considering the statements of the victim child …, the act of the child involved in the offense … storing sexually explicit images involving children constitutes the crime of obscenity as defined in the last sentence of TPC Article 226/3. However, this was not taken into account, and a conviction was instead issued under the obscenity crime defined in TPC Article 226/5. This is contrary to the law, and since the grounds for appeal submitted by the defense of the child involved in the offense … are valid, the judgment is REVERSED, contrary to the notification.
(Supreme Court, 4th Criminal Chamber, 2021/25863 File, 2021/21482 Decision, 13.09.2021)”
“…1- According to the provision of Article 226/7 of the Turkish Penal Code (TPC), the provisions regarding the crime of obscenity “shall not apply to scientific works and, except for paragraph three, to works of artistic and literary value, provided that access by children is prevented.” In the present case, the Cinema Operation Certificates issued by the Ministry of Culture for the films seized in the cinema operated by the defendant on the date of the offense indicated that the inspection results were either positive or conditionally accepted. Without obtaining a detailed expert report on whether the films in question had artistic value under Article 226/7 of the TPC, and without explaining and discussing how the alleged crime was committed in the judgment, the conviction was issued unlawfully.
2- Furthermore:
a- According to the accepted interpretation, the concept of “unnatural” in Article 226/4 of the TPC refers to sexual acts that have no place in an individual’s sexual life, are degrading, or are not naturally accepted by society as a whole. Images of anal or oral sex, homosexual or group sexual acts, or masturbation with objects cannot be evaluated under this concept by themselves. In the present case, according to the content of the expert report, the defendant’s act constitutes a violation of Article 226/1-a of the TPC, and the conviction should have been based on this article; however, a judgment was erroneously issued under Article 226/4 of the same law.
b- Due to the annulment by the Constitutional Court’s decision dated 08.10.2015, numbered 2014/140 Esas and 2015/85 Karar, the provision regarding deprivation of rights in Article 53/1-b of the TPC can no longer be applied.
c- The provision of Article 53/1-c of the TPC was not properly considered, under which the deprivation of rights is valid for the defendant’s parental, guardianship, and custodial authority over his own descendants until the conditional release date, and for other persons, until the completion of the execution of the imposed prison sentence.
These errors required the reversal of the judgment, and since the grounds for appeal submitted by the defendant … are valid, the judgment is REVERSED in accordance with the notification.
(Supreme Court, 18th Criminal Chamber, 2017/497 File, 2017/2559 Decision, 08.03.2017)
“…According to the fifth paragraph of Article 226 of the Turkish Penal Code (TPC), the publication of the content of the products covered by paragraphs three and four of the same article, which are absolutely prohibited in terms of obscenity, through the press or media, facilitating their publication, or enabling children to see, hear, or read them constitutes a separate crime. The crime of obscenity regulated under Article 226/2 of the TPC, on the other hand, arises from committing any of the acts of publishing obscene images, writings, or words through the press or media, or facilitating their publication.
In light of these explanations, according to the report prepared by the Prime Ministry Board for the Protection of Minors …, since the obscene images published on the website did not involve children, nor depict sexual acts involving violence, animals, deceased human bodies, or unnatural methods, the act of the defendant constitutes the crime of obscenity as defined in Article 226/2 of the TPC. However, this was not taken into account, and a conviction was instead issued under Article 226/5 of the same law.
2- Given that Article 53/1-b of the TPC was annulled by the Constitutional Court’s decision dated 08.10.2015, numbered 2014/140 Esas and 2015/85 Karar, this required the reversal of the judgment. Since the grounds for appeal submitted by the defense of the defendant … are valid, the judgment is REVERSED in accordance with the notification, and the file is remitted to the court of first instance for continuation and conclusion of the proceedings from the stage prior to the reversal.
Decision was made unanimously on 10/03/2021.
(Supreme Court, 4th Criminal Chamber, 2020/14876 File, 2021/8692 Decision, 10.03.2021)”
“…Regarding the appeal review of the conviction of the defendant for the crime of obscenity (Article 226/3 of the TPC);
During the searches conducted at the defendant’s residence by law enforcement on 25.12.2013 and 14.01.2014, in the absence of a public prosecutor and without the presence of two persons from the local elders’ council or neighbors, the procedure was in clear violation of Article 119 of the Criminal Procedure Code (CPC No. 5271). Therefore, the evidence obtained as a result of these searches is unlawful and cannot be relied upon by the court for the judgment pursuant to Article 217/2 of the same Code.
Considering that there is no sufficient, indisputable, and convincing evidence proving that the defendant committed the crime of obscenity (226/3), the conviction is deemed unjustified. Accordingly, instead of accepting the appeal, it should have been rejected on its merits.
Since the appeals lodged by the defendant and his defense, as well as the Ministry’s attorney representing the complainant, are valid in this respect, the judgment of the Samsun Regional Court of Justice, 3rd Criminal Chamber, dated 06.06.2018, file number 2017/2733, decision number 2018/1676, which rejected the appeal on the merits concerning the convictions for sexual abuse of a child and obscenity (226/3), while accepting the appeal regarding the conviction for deprivation of liberty, is REVERSED in accordance with Articles 302/2-4 of the Criminal Procedure Code (CPC No. 5271), and the case is remitted for the defendant to be convicted solely for the crime of deprivation of liberty.
(Supreme Court, 14th Criminal Chamber, 2020/436 File, 2020/1867 Decision, 10.03.2020)”
“…According to Article 226/1(a) of the Turkish Penal Code (TPC), persons who give a child products containing obscene images, writings, or words, or show, read, make read, or make listen to the content of such products, shall be punished. The crime of obscenity regulated under Article 226/2 of the TPC, on the other hand, arises from committing any of the acts of publishing obscene images, writings, or words through the press or media, or facilitating their publication.
In light of these explanations, in the present case, where there is no allegation or determination that the defendant showed an obscene image to a child, the crime of obscenity under Article 226/1(a) of the TPC cannot be said to have occurred. According to the expert report obtained, it was not possible to determine whether the obscene image, consisting of a single photograph, belonged to a child. Therefore, it should have been thoroughly investigated without any doubt whether the defendant shared the obscene image on the website Facebook in a manner visible to everyone, as alleged in the indictment. If it is determined that the defendant did share the image, his act would constitute the crime of obscenity under Article 226/2 of the TPC; otherwise, the elements of the crime would not be satisfied.
Failure to carry out such a complete investigation and issuing a judgment with insufficient reasoning is contrary to the law. Since the grounds for appeal submitted by the defendant … are valid, the judgment is REVERSED in accordance with the notification.
(Supreme Court, 4th Criminal Chamber, 2020/12934 File, 2020/14410 Decision, 28.10.2020)”
“…In the case where it is alleged that the defendant committed the crime of obscenity by publishing semi-nude sexually explicit photographs of himself on the websites vine, twitter.com/alaraaesc, and twitter.com/sexiescort; the court failed to determine whether multiple judgments had already been issued against the defendant due to the obtained images. Moreover, a detailed expert report was not obtained for all the images to assess whether they were obscene, and the discussion in the judgment did not address, in a manner allowing for review, whether the crime of obscenity defined in Article 226 of the Turkish Penal Code (TPC) had occurred in the case. Issuing a conviction with such an incomplete examination is contrary to the law. Since the grounds for appeal submitted by the defendant’s defense … are valid, the judgment is REVERSED, contrary to the notification.
(Supreme Court, 4th Criminal Chamber, 2020/22798 File, 2021/14089 Decision, 18.05.2021)”
“…Regarding the appeal review of the convictions of the defendant for the crime of showing obscene images to children targeting the victims … (three times) and the acquittal decision for the crime of obscenity against the victim … (once);
Instead of establishing a judgment by obtaining detailed statements from the victims regarding the content of the images shown to them and whether they were obscene, the court continued the trial based solely on the victims’ statements that the defendant showed them pornographic films, and issued convictions (three times) for the crime of showing obscene images to children with an incomplete investigation. Although naked and masturbation images of the victim … and other children whose identities could not be determined were obtained from the defendant’s mobile phone and a CD seized from him, it was not considered that the defendant possessed obscene images involving children. Furthermore, taking into account that the victim … was under eighteen years old at the time of the offense, and that the defendant’s act constitutes both the crime of obscenity and the violation of the privacy of private life under Article 226/3 of the Turkish Penal Code (TPC), the court should have applied the rule of cumulative sentencing under Article 44 of the TPC and imposed the heaviest penalty provided for these crimes under Article 226/3. Instead, the court issued an acquittal for the crime of obscenity, which is inconsistent with the scope of the file.
Subsequently, in relation to Article 53 of the TPC No. 5237, a re-evaluation was necessary in accordance with the Constitutional Court’s annulment decision dated 08.10.2015, numbered 2014/140 Esas and 2015/85 Karar, which was published in the Official Gazette No. 29542 on 24.11.2015 and entered into force. The judgments were thus contrary to the law. Since the appeals filed by the defendant’s counsel and the public prosecutor of that jurisdiction are valid, the convictions are REVERSED pursuant to Article 321 of the CMUK No. 1412, taking into account Article 8/1 of Law No. 5320.
(Supreme Court, 14th Criminal Chamber, 2016/3846 File, 2016/6261 Decision, 23.06.2016)”
“…In the case under review; the defendant and the minor complainant … were in a romantic relationship for a period, during which the minor sent some images of herself to the defendant via the internet. Upon examining the expert report submitted to the file, it was determined that these images were sexually explicit within the scope of Article 226/3 of the Turkish Penal Code (TPC), as defined above. The images belonging to the complainant were stored by the defendant, and after their separation, the defendant sent these images via individual messages on the social media platform Facebook to …, who was heard as a witness. At the time these messages were sent, the witness … was underage (16 years old). This was established based on the consistent statements of the complainant during the proceedings, the defendant’s sincere confession, the witness …’s statements throughout the proceedings, and the entirety of the file.
It was therefore established that the defendant’s act of storing sexually explicit images of the minor complainant … constitutes the crime of obscenity as defined in the last sentence of Article 226/3 of the TPC. Sending these images via individual messages to the underage … at the time of the offense constitutes the crime of obscenity as defined in Article 226/5 of the same law. According to the cumulative sentencing rule defined in Article 44 of the TPC, the defendant should have been sentenced under Article 226/5, which prescribes the heaviest penalty, due to facilitating the viewing, listening, or reading of these images by children. Instead, the court acquitted the defendant on grounds that were legally and substantively unfounded.
This is contrary to the law, and since the grounds of appeal submitted by the complainant’s attorney and the complainant … are valid, the judgment is REVERSED in accordance with the notification.
(Supreme Court, 4th Criminal Chamber, 2020/11345 File, 2020/15475 Decision, 05.11.2020)”
“…The concept of ‘unnatural’ in Article 226/4 of the Turkish Penal Code (TPC) refers to relationships that have no place within an individual’s sexual life, are degrading, or are not naturally accepted by society as a whole. Images depicting anal or oral sexual acts, homosexual acts, or group sexual activities cannot be evaluated solely within this concept.
In the present case, regarding the images considered to be obscene, the expert report dated 06/03/2007 stated that the individuals appearing on one of the CDs were estimated to be of high school age. Due to this uncertainty, a detailed new expert report should have been obtained to determine conclusively whether children were involved in these images. If it was determined that children were not involved, the act would fall under the violation defined in Article 226/1-d of the TPC, which criminalizes offering, selling, or renting products containing obscene images, writings, or words outside designated sales areas, and the defendant should have been sentenced accordingly.
Instead, the court issued a judgment under Article 226/4 based on an incomplete expert report without such investigation, which is contrary to the law. Since the appeal grounds of the defendant’s counsel are valid, the judgment is REVERSED, contrary to the notification.
(Supreme Court, 18th Criminal Chamber, 2018/5068 File, 2018/16583 Decision, 06.12.2018)”
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
