Ensuring legal security in society is directly related to individuals fulfilling the obligations they have undertaken in a timely and complete manner. The violation of these obligations can harm not only private legal relationships but also public order. In particular, those responsible for the care of elderly, sick, or otherwise incapacitated individuals may face serious consequences if they neglect these responsibilities. Article 97 of the Turkish Penal Code defines this situation as the “crime of abandonment” and imposes criminal sanctions under certain conditions. In this article, we will discuss the scope, elements, conditions, and legal consequences of the crime of abandonment.
LEGAL DEFINITION OF THE CRIME
The crime of abandonment is regulated under Article 97 of the Turkish Penal Code, titled “Violation of the Obligation of Protection, Supervision, Assistance, or Notification.” The relevant legal provision states:
TCK Article 97
(1) A person who abandons someone who, due to their age or illness, is unable to take care of themselves and is therefore under an obligation of protection and supervision, shall be punished with imprisonment from three months to two years.
(2) If, due to the abandonment, the victim contracts a disease, is injured, or dies, the person shall be sentenced according to the provisions for crimes aggravated by the result.
This provision defines the act of abandoning a person who cannot care for themselves due to age or illness and who is under the abuser’s duty of protection and supervision as a criminal offense.
ELEMENTS OF THE CRIME
When evaluated with both its objective and subjective elements, the crime of abandonment consists of the following fundamental components:
- Perpetrator: According to Article 97 of the Turkish Penal Code (TCK), the perpetrator of the crime is the person who has a duty of protection and supervision over individuals who, due to their age or illness, are unable to care for themselves. This duty of protection and supervision may arise from law or from a contract.
- Victim: The victim of the crime is the person who, due to their age or illness, is unable to care for themselves and is therefore under the obligation of protection and supervision.
- Act (Conduct Element): The crime occurs when a person who cannot care for themselves due to age or illness is “abandoned.” For the act of abandonment to occur in the context of the crime, the perpetrator must temporarily or permanently sever their relationship with the victim, remove the victim from their sphere of control, and, at the time of abandonment, it must be unclear who will assume these duties.
If the act of abandonment occurs in an environment where there are others who are legally or contractually obliged to protect and supervise the victim and who could assume these responsibilities, the crime does not occur. Similarly, the duration of abandonment, whether long or short, is not crucial to the formation of the crime. What matters is whether the act of abandonment creates a danger for the victim. The act of abandonment can be committed either through an active (commission) or passive (omission) behavior.
Mental Element (Mens Rea): The crime can only be committed intentionally. According to TCK Article 97, for the crime to occur, it is sufficient that the perpetrator acts with the awareness and will to abandon a person who cannot care for themselves due to age or illness and who is under a duty of protection and supervision. The crime cannot legally be committed through negligence.
Legal Value Protected: The crime of abandonment is regulated under the heading “Violation of the Obligation of Protection, Supervision, Assistance, or Notification,” and the legal value it protects is the right of individuals in need to live with respect for their life, bodily integrity, and human dignity.
ABANDONMENT CRIME AGGRAVATED BY THE CONSEQUENCE
The crime of abandonment is a danger-based offense, meaning that the occurrence of actual harm is not a prerequisite for the crime to take place. It is sufficient for the formation of the crime that the perpetrator acts with the awareness and intent to abandon a person who, due to their age or illness, is unable to care for themselves and is under a duty of protection and supervision.
However, if the abandoned person contracts an illness, is injured, or dies, the perpetrator will be punished under the provisions for crimes aggravated by the consequence, as explicitly stated in Article 97/2 of the Turkish Penal Code. This article clarifies that if, due to the act of abandonment, the victim becomes ill, is injured, or dies, the perpetrator shall be sentenced according to the aggravated provisions.
For the perpetrator to be held liable under the provisions for crimes aggravated by the consequence, their primary intent must have been abandonment, and they must not have intended the victim’s injury, illness, or death. If the perpetrator intended the victim to be injured, to die, or to become ill and acted with that purpose, then Article 97/2 does not apply; instead, the provisions concerning intentional injury or homicide will govern.
COMPLAINT PERIOD, STATUTE OF LIMITATIONS, AND COMPETENT COURT
The crime of abandonment is not subject to a complaint and is investigated ex officio by the prosecution. Although there is no complaint period required for the investigation of the crime, the statute of limitations for filing a lawsuit is 8 years. This period begins from the date the crime was committed. The competent court is the Criminal Court of First Instance in the location where the crime occurred.
Postponement of the Pronouncement of the Judgment, Suspension, and Judicial Fine
According to Article 97 of the Turkish Penal Code (TCK), a person who abandons someone who, due to their age or illness, is unable to care for themselves and is therefore under a duty of protection and supervision, shall be punished with imprisonment from three months to two years. If, as a result of the abandonment, the victim contracts a disease, is injured, or dies, the perpetrator shall be sentenced under the provisions for crimes aggravated by the consequence.
Although a judicial fine cannot be imposed directly for this crime, it is possible to convert the imprisonment sentence into a judicial fine. Considering the lower and upper limits of the punishment, it is also possible to issue a postponement of the pronouncement of the judgment or a suspension of the sentence.
Related Court Decisions” or “Relevant Judicial Decisions
“…In the first paragraph of Article 97 of the Turkish Penal Code, which regulates the crime of abandonment, abandoning a person who, due to their age or illness, is unable to care for themselves and is therefore under a duty of protection and supervision, is defined as a crime, and the act of abandonment is recognized as an independent offense. The victim of the crime is the person who, due to age or illness, cannot manage themselves, and the perpetrator is the person who has a duty of protection and supervision over them arising from law or contract.
In determining whether the duty arises from law, relevant legislation such as Law No. 6284 on the Protection of the Family and Prevention of Violence Against Women, and the Turkish Civil Code No. 4721, among other relevant laws, is consulted. For obligations arising from a contract, the scope and content of the contract are considered. The contract does not have to be formal; it may be written or verbal, or arise from voluntary assumption of responsibility through actual circumstances. Individuals such as doctors, nurses, caregivers, child/baby caretakers, domestic helpers, tour guides, and teachers may be considered responsible for protection and supervision depending on the content of the contract.
The legal value protected by this crime is not only the right of individuals to life and bodily integrity but also ensuring that those with duties of protection and supervision fulfill their obligations, thereby creating social benefit. The material element of the crime is the “abandonment” of the victim who, due to age or illness, cannot care for themselves and is under a duty of protection and supervision. Within the context of the crime, “abandonment” occurs when the perpetrator temporarily or permanently severs the actual relationship with the victim and places them outside their sphere of control. The crime is completed the moment the abandonment occurs. The duration of abandonment, whether long or short, is not decisive; what matters is whether it creates a risk for the victim.
Abandonment occurs when the person under protection and supervision is left without care by the person responsible. If the act of abandonment occurs in an environment where others capable of assuming protection and supervision could intervene, the crime does not occur. For the crime to be constituted, the perpetrator must leave the victim to their fate without placing them under the control of a person or institution capable of fulfilling the protection and supervision obligations, or it must be uncertain who will fulfill these obligations at the time of abandonment.
The crime of abandonment can only be committed intentionally. The motive of the perpetrator is irrelevant. The perpetrator must act with the awareness and intent to abandon a person who, due to age or illness, cannot care for themselves and is under a duty of protection and supervision arising from law, contract, natural ties, or actual circumstances. In other words, the perpetrator must know and intend the consequences arising from the act of abandonment. The victim may be abandoned through active or passive behavior. The crime is a true omission offense and occurs when the legally prescribed obligatory behavior (not abandoning) is intentionally not performed.
Since the perpetrator has separate obligations to care for each victim, in cases where there are multiple victims, the rule of cumulative offenses applies. The provisions related to a series of offenses cannot be applied.
In the concrete case subject to the trial: The incident occurred when the perpetrator left the victim, born from an informal union, in front of an internet café called Doğan Net when she was 3.5–4 months old and then walked away, believing the child would be taken. Since the “abandonment” element of the crime did not occur, the crime of abandonment cannot be said to have occurred. However, failing to consider that the perpetrator’s actions constituted a violation of the duty of care and supervision towards the victim under Article 233 of the Turkish Penal Code, which regulates violations of obligations arising from family law, is contrary to the law. Since the appeal grounds of the defendant’s counsel are valid, the decision in the notice to approve is rejected, and THE JUDGMENT IS REVERSED…” (Court of Cassation, 4th Criminal Chamber, 2015/26957 E., 2016/668 K., 18.01.2016)
“…When the above explanations and the contents of the file are evaluated together, in the incident where the victim born from an informal union was left by the woman with whom the defendant was also involved to the defendant’s legally married wife, the element of ‘abandonment to one’s fate’ did not occur, and therefore the crime of abandonment cannot be said to have been committed. However, without considering that the defendant’s actions constituted a violation of the duty of care and supervision toward the child victim, which constitutes a complaint-based offense under Article 233 of the Turkish Penal Code regulating obligations arising from family law, a conviction for the crime of abandonment was issued on inappropriate grounds. Additionally, since the family registry record of the child victim was not present in the file, and given that the appeal grounds of the defendant are valid, contrary to the notice, THE JUDGMENT IS REVERSED…” (Court of Cassation, 4th Criminal Chamber, 2019/4766 E., 2021/27502 K., 24.11.2021)
The crime of abandonment is a crime of actual negligence and occurs when a specific mandatory behavior prescribed by law (not abandoning) is deliberately not performed. Since the perpetrator has a separate duty to care for, protect, and supervise each victim individually, if more than one person is the victim of the crime, the rule of real concurrence applies. The provision regarding continuing offense cannot be applied.
In the concrete case under trial:
Prior to being appointed as a guardian, the defendant resided in different districts from the victim; the bodily health of the restricted victim was sufficient to meet daily needs; the victim could sustain themselves by caring for 3–5 small livestock; the defendant did not receive any fee for the guardianship duty and, moreover, occasionally visited the victim and covered expenses incurred; in this context, since the element of “abandonment to one’s fate” did not occur, the acquittal decision was correctly determined by the Local Court.
Upon review, since the appeal claims of the Public Prosecutor of that jurisdiction and the representative of the complainant A.. T.. regarding the act and the alleged crime were found to be without merit, in accordance with the notice, THE APPEAL CASE IS REJECTED ON THE MERITS AND THE JUDGMENT IS AFFIRMED… (Court of Cassation, 4th Criminal Chamber, 2014/32889 E., 2015/33634 K., 11.09.2015)
“…It is understood that the defendants are husband and wife, the victims are their joint children, they make a living through animal husbandry, and in their region people generally practice pastoral farming. The defendants have tried to raise their children in accordance with the lifestyle and culture of their place of residence and within their means. During the school periods, when they took their animals to the highlands, they left their school-going children in their home within the village so that their education would not be disrupted. They took their 4-year-old child, who had not yet reached school age, with them. The village also included close relatives of the defendants, and when they went to the highlands, they would occasionally come back to check on their children, taking care of their meals and cleanliness. It is further understood that defendant Sariye, despite being congenitally deaf and mute, attempted to fulfill her maternal duties toward the victims within her means.
In this context, since the element of “abandonment to one’s fate” did not occur, and no behavior incompatible with mercy and compassion was present, neither the crime of abandonment nor the crime of ill-treatment was established. Therefore, the acquittal of the defendants by the Local Court for the charges brought against them was correctly decided.
Since the appeal claims of the representative of the complainant A.. M.. regarding the acts and the alleged crimes were found to be without merit, contrary to the notice, THE APPEAL CASE IS REJECTED ON THE MERITS AND THE JUDGMENTS ARE AFFIRMED…” (Court of Cassation, 4th Criminal Chamber, 2015/10385 E., 2015/34360 K., 30.09.2025)
“…In the review conducted based on the appeal of the Ministry’s representative regarding the judgment against the defendant …; it was established that the defendants … and … are distant relatives, that defendant …, after officially divorcing her spouse, lived for a period with a person named Ufuk, from whom she had another child, and later had a relationship with a person she previously knew, named …, with whom she occasionally had sexual relations. According to the defendant’s claim, during their last encounter, … forced her into sexual intercourse, resulting in pregnancy. The defendant did not want to carry the pregnancy to term but, due to her poor financial condition, was unable to terminate it and attempted a miscarriage unsuccessfully. On the date of the incident, when labor pains began, she sent her other children to the home of her elder brother living upstairs, gave birth in her home bathroom around 19:00, and delivered a male child. She cut the umbilical cord by herself but did not tie it, wrapped the baby in a jacket, and placed him in a cloth bag. She then called …, who arrived by motorcycle; she asked to be taken to her sister’s house, giving directions for the route, and got on the motorcycle. At a certain point near Post Office Street, she asked … to stop, handed over the bag, and said she would return. The defendant left the baby next to a post beside a construction site around 23:00, out of sight of …, and the body was discovered the following day around 10:00 by construction workers.
According to the First Forensic Medicine Board’s report dated 09.08.2021 (No. 40968900-101.01.02-2021/82457-4210), “The fetus, having developed in utero, was born alive. Death may have occurred due to respiratory failure caused by intrauterine lung infection, widespread amniotic and meconium aspiration, or as a combined effect of not tying the umbilical cord, exposure to a cold environment, and intrauterine lung infection with widespread amniotic and meconium aspiration. With the current data, these mechanisms cannot be medically distinguished,” was stated by majority opinion. In the report dated 22.12.2021 (No. 40968900-101.01.02-2021/149914-7033), the Board concluded unanimously that “the newborn, suffering from intrauterine lung infection and widespread amniotic and meconium aspiration, should have had the umbilical cord tied immediately, been dressed to raise body temperature, breastfed, and taken to a hospital; however, even if all these measures were taken, survival would not have been guaranteed.”
As a result, the deceased, left in a cold and uninhabited area, died due to intrauterine lung infection, aspiration of amniotic fluid and meconium, exposure to cold, and failure to tie the umbilical cord. During the third trial proceedings, all procedures were carried out in accordance with law and procedure; claims and defenses raised at all stages were discussed along with collected evidence in the reasoned judgment; evidence forming the basis of the judgment and evidence rejected were clearly indicated; the court’s factual judgment was consistent with the documents and information in the file; it was determined that the act was committed by the defendant; the defendant’s right to a fair trial and defense was not violated; and conditions for applying mitigating provisions in favor of the defendant were not met. Accordingly, there is no legal violation in the judgment, except for reasons for reversal.
Article 97 of Law No. 5237 regulates the crime of abandonment, defining abandonment as an independent offense in its first paragraph. The second paragraph provides that if the victim suffers illness, injury, or death due to abandonment, the perpetrator shall be punished according to the provisions for an aggravated offense. The offense targets individuals who, due to age or illness, are incapable of self-care, and the perpetrator must be a person responsible for their protection and supervision. The crime may occur either by leaving the person to their fate or through an act of commission. According to the second paragraph, if the abandoned person suffers illness, injury, or death, the perpetrator may be held liable for the aggravated consequence, requiring at least negligence regarding that outcome. However, in abandonment cases, the perpetrator often acts with probable intent regarding the result.
In this case, the defendant, having an infant born with intrauterine lung infection and widespread amniotic and meconium aspiration under her care, left the child in front of a construction site, committing the crime of abandonment through an act of commission. However, instead of being punished under Article 87, paragraph 4, last sentence, of Law No. 5237 for the aggravated consequence resulting in death, the act was treated as a homicide under probable intent. This constitutes a mischaracterization of the offense, rendering the judgment legally incorrect…” (Court of Cassation, 1st Criminal Chamber, 2023/1363 E., 2024/6613 K., 15.10.2024)
“…In the concrete case under trial; Tuncay, who was convicted of violating obligations arising from family law and who lived with the defendant in an informal relationship, left the victim children—Vural (born 1999), Büşra (born 2000), and Hatice (born 2002)—alone with the defendant Ümmühan and went to Kayseri. Considering that Tuncay did not provide any financial support and the defendant lacked the economic capacity to care for the victims, and also that the defendant left the house after instructing the victims to go to their grandmother’s house after school to ensure they have a good life, the child Vural, disliking his grandmother, did not follow his mother’s instructions and returned home with his siblings.
In this incident, since the element of “abandonment to one’s fate” did not occur and the act did not constitute a violation of the defendant’s obligations of care and supervision, this behavior did not constitute the offense of violation of obligations arising from family law under Article 233 of the Turkish Penal Code. Therefore, the acquittal decision by the Local Court was correctly determined.
Since the appeal claims of the Public Prosecutor regarding the act and the alleged crime were found to be without merit, contrary to the notice, THE APPEAL CASE IS REJECTED ON THE MERITS AND THE JUDGMENT IS AFFIRMED…” (Court of Cassation, 4th Criminal Chamber, 2014/27032 E., 2015/33636 K., 11.09.2015)
“…It was established that the victim … was born on 09.01.2013 from the relationship of the defendants … and …, who lived together without a formal marriage contract. On the date of the incident, defendant … left the child, whom she was unable to care for, at the hospital. According to the Social Services Unit’s assessment report dated 12.03.2013, the child, left at the hospital emergency department, had parents who were addicted to alcohol and drugs. Defendant … requested that the child be placed in an orphanage, as the parents were unable to care for the child. The report further indicated that the child had no health problems and did not require medical treatment, and that the defendant provided her address, phone number, and identity information for the child to be registered in the orphanage. Subsequently, the infant victim was placed in the child protection institution.
In these events, without considering that the mental element of “abandonment to one’s fate” did not occur, convicting the defendant instead of acquitting her constitutes a violation of the law. Since the appeal objections of the Public Prosecutor were therefore found to be justified, THE JUDGMENT IS REVERSED pursuant to Article 321 of the former Criminal Procedure Code No. 1412, as applied under Article 8/1 of Law No. 5320…” (Court of Cassation, 4th Criminal Chamber, 2015/21076 E., 2019/17077 K., 04.11.2019)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
ANTALYA CRIMINAL LAWYER – ANTALYA LAWYER
The crime of abandonment, as defined in the Turkish Penal Code, occurs when a person leaves their spouse, children, or relatives in need without care, placing them in a difficult situation. In such cases, it is crucial to conduct the legal process meticulously to protect the rights of the victim. Legal support from an Antalya-based lawyer plays a critical role both during the investigation and throughout the trial to ensure that the parties do not suffer any loss of rights. A professional lawyer assists in achieving justice by providing the client with the most appropriate legal solutions regarding filing complaints, gathering evidence, and navigating court proceedings under the scope of the crime of abandonment.
