Article 123/A of the Turkish Penal Code criminalizes persistent pursuit (stalking), defining it as persistently following an individual physically or attempting to contact them repeatedly via telecommunication, digital messaging, or social media networks, thereby causing serious unease or reasonable fear for personal safety. Enacted as a distinct statutory offense, stalking carries imprisonment from 6 months up to 3 years.

Although the increasing number of femicides in our country and the legal dimension of the measures taken in this regard have been on the public agenda for a long time, the acts of violence against women, mostly by ex-spouses and/or ex-lovers, have diversified to such an extent that they cannot be handled only on the level of “physical violence“. It has become necessary to make new regulations and take further measures in this regard.

It has been bitterly experienced that in the majority of acts of violence that focus on women and children in general, the sad consequences in question can be foreseen before the events that result in death or serious injury to the victim.

As a matter of fact, it is known that in most of the violence cases in question, the victim is followed persistently by the perpetrator and is constantly and systematically harassed. However, it is obvious that the measures taken against the people who commit these acts are often not sufficient. The new crime regulation made in the Turkish Penal Code No. 5237 on 12.05.2022 is very important in order to prevent the said actions and thus to put an end to the murders and injuries that are often the last link of these actions. That being said, the only thing that can be done within the scope of criminal law is that these acts, which are the footsteps of violence, are included in the scope of crime and penalized as necessary.

In this context, in this article, we would like to convey comprehensive statements and legal analysis regarding the Turkish Penal Code article 123/A regulation enacted with Law No. 7406 dated 12/5/2022.

What is Persistent Pursuit Crime?

The text of article 123/A of the Turkish Penal Code with the margin title “Persistent Pursuit” is as follows:

(1) From six months to two years imprisonment is given for the perpetrator who causes serious unease to a person or worries about the safety of themself or one of their relatives by persistently following physically or trying to contact by using communication tools, information systems, or third parties.

(2) Crime;
a) If it is committed against the child or the spouse from whom a separation decision has been made or divorced,
b) If caused the victim to change school, workplace, residence or quit school or work,
c) If it is committed by someone who has been banned from entering a residence, a school, or a place of employment, the punishment can range from one year to three years in prison.

(3) The investigation and prosecution of the crime regulated in this article depend on the victim’s complaint.

In the text of the article, the actions that will give rise to the crime of “Persistent Pursuit” are defined. In accordance with the principle of “Legality in Crime and Penalty“, typical actions specified in the law must occur for a crime to occur. This is a requirement of the typical elements of the crime. In other words, in order for us to talk about the formation of the crime, the actions defined in the legal regulation regarding the relevant crime must take place; otherwise, a crime cannot be mentioned.

Typicality consists of two elements. These are the material (the appearance of the action in the outer world) and the spiritual (the psychic-spiritual field of the perpetrator and their world of imagination). The material elements of typicality are the act, the result, the causal link, the perpetrator, the victim, and the subject of the crime. The spiritual aspects are; intent, negligence, and motive. Below, the crime of stalking will be evaluated in terms of typicality and illegality.

Persistent Pursuit Crime in Terms of The Material Elements of The Offense

1. Action

Per the text of the article, the nature of the acts organized within the scope of the crime can be classified under the following headings:

a. Classification by Number of Behavior

Persistent pursuit crime is regulated as an “elective act” regarding the number of actions constituting the crime. In the penalty norm, sometimes more than one movement is shown independently of each other. The realization of any of these constitutes a crime. In the text of the article, “physically following or trying to contact by using communication tools, information systems or third parties persistently“, and the regulation that a crime can be committed by the realization of any of these actions shows that the crime of persistent pursuit is regulated as an optional behavior crime.

Elective actions are physically following and trying to establish contact using communication tools, information systems, or third parties.

The purpose of communication tools is to convey the feelings and thoughts of people. Social media, such as Instagram, Twitter, and WhatsApp, which we use widely today, are also included in communication tools. Based on the fact that the legislator uses a general term instead of counting some of the communication and information systems, it can be said that the provision of article 123/A of the Turkish Penal Code can also be applied in terms of different communication tools and information systems that may appear in the future.

Especially today, the actions of some users on social media in the form of persistent messaging and trying to interact, reaching the level of harassment, have become widespread. This issue certainly falls within the scope of the said regulation.

If the perpetrator performs one or more of the elective acts specified, a crime will be deemed to have been committed. There is no difference between the two cases regarding the realization of the crime. However, suppose the crime is committed with a few optional acts specified in the law. In that case, it will be taken into account by the judge in determining the sentence under article 61 of the Turkish Penal Code.

Persistent pursuit crime, regulated by article 123/A of the Turkish Penal Code, is also a habitual crime type.

For us to talk about a habitual crime, the action must be repeated a certain number of times, showing the presence of the perpetrator’s obedience. In terms of the crime of persistent pursuit, the follow-up must be carried out more than once in order for the follow-up to reach the level of persistence. In this sense, the crime of persistent pursuit is routine. As the Court of Cassation stated in a decision in which evaluations were made regarding the crime of disturbing the peace and tranquility of individuals, the birth of an element of persistence depends on the occurrence of the unlawful act more than once.

Again, the article’s justification is as follows:

“Insistence means insisting on an idea or behavior, and it expresses the repetition of the actions specified in the article. Insistence is a criterion that expresses the extent to which the act necessitates punishment in terms of the content of injustice. This crime will not occur if the act that constitutes an injustice is carried out to a reasonable extent. In terms of the existence of insistence, it is optional to repeat the same action several times. The perpetrator may insistently repeat one of the elective acts specified in the article or show their will of insistence by repeating different elective acts at other places and times. The judge will determine whether the insistence factor has taken place or not within the framework of the concrete case.”

b. Classification by Type of Behavior

In terms of the form of the act, the types of crimes can be executive (active) or negligent (passive). Voluntary human behavior that brings about change in the external world manifests itself as either doing something, doing it, or not doing it.

Enforcement action violates the norms that appear as prohibitions and that order not to engage in behavior that disrupts the social order. In other words, positive behaviors that say “don’t commit” and break the prohibition rule give rise to perpetual crimes.

The acts that occur in the form of not fulfilling or not doing a legal obligation will give rise to negligence crimes. The provision of article 98 of the Turkish Penal Code with the margin title “Failure to Fulfill The Obligation of Assistance or Notification” is an example of a crime that can be committed by negligence.

The crime of “persistent pursuit”, which is the subject of our article, can be committed by executive action. As a matter of fact, when we look at the criminal acts regulated in the text of the article:

• Physically follow-up,
• Trying to contact using communication tools, information systems, or third parties.

It can be understood that this crime cannot be committed by negligence. For the perpetrator to commit the crime, they must act in violation of the order rules in the law.

c. Classification According to Whether The Execution of The Act Continues or Not

This crime is a sudden action crime depending on whether the execution of the act continues or not. Instant action crimes are completed with the realization of the typicality and end simultaneously (the execution of which does not continue). In this respect, persistent execution of the act of follow-up will be considered an act of execution, and with this, the crime will be completed.

In short, the crime will be completed with the realization of the actions that are regulated as criminal acts in the text of the article, and the result expressed as “…causing serious uneasiness on a person or worrying about the safety of themself or one of their relatives…”.

2. Result

The change that takes place in the outside world, apart from the act that gave rise to the act, is the result. The consequences caused by criminal acts are called “result” in criminal law terminology.

In terms of this crime, the result regulated in the text of the article is that there is a serious uneasiness in the victim and that the victim is concerned about the safety of themself or one of their relatives.

Thus, the crime of persistent pursuit, which is separated from the crime of “Disturbing The Peace and Tranquility of People” regulated following article 123 of the Turkish Penal Code, is a crime of “harm” in this respect. This issue is mentioned in the justification of the provision of article 123/A of the Turkish Penal Code:

“Again, since the crime of persistent pursuit is regulated as a harm crime, it differs from the crime in Article 123, which is regulated as a danger crime.“

“A real harm occurs on the subject of the crime with the commission of the act that constitutes an injustice in damage crimes.“

The act that will constitute the crime must be objectively suitable to cause uneasiness or anxiety. Whether the act constitutes a crime or not should not be determined by the victim’s personal situation (subjective criterion). That is, in the text of the article, whether the actions described as “…persistently physically following or trying to contact using communication tools, information systems or third parties…” are suitable to cause uneasiness and anxiety are not evaluated by taking into account the personal characteristics of the victim. It will be examined whether it is suitable to cause uneasiness and anxiety in an average person under average conditions.

If the serious uneasiness or anxiety that will occur causes the victim to result in more serious or other results than the perpetrator intended, the person must act with negligence, at least in terms of this result, to be held responsible for it (Turkish Penal Code article 23). For example, if the victim’s mental health deteriorates due to serious discomfort or anxiety, aggravated crime provisions will be applied due to the result.

3. Perpetrator

There is no regulation in the law regarding the title of the perpetrator. Anyone can commit this crime, but in some cases, the legal situation of the perpetrator will make the crime qualified. These cases are; committing the crime against the spouse who has been separated or divorced and in the event that the perpetrator is suspended or a measure of not approaching the residence, school, or workplace is given.

4. Victim

Everyone can have victim status in terms of the crime of persistent pursuit.

Persistent Pursuit Crime in Terms of The Spiritual Elements of The Crime

It can be said that the crime of persistent pursuit can only be committed with intent. Caste is the knowing and willful realization of the elements in the legal definition of the crime (Turkish Penal Code article 21). In order for a crime to be committed by negligence, it must be specifically demonstrated by the Turkish Penal Code. In terms of the crime of persistent pursuit, there is no regulation that this crime can be committed by negligence.

Motive, aim, or purpose is an emotion or thought that precedes the caste and prepares the caste. As a rule, the motive is not a sought-after element for the formation of the crime. If we evaluate it in terms of the crime of persistent pursuit, the realization of this crime is not dependent on any motive.

As a matter of fact, in the justification of the article, “It is sufficient for the perpetrator to act deliberately for the crime of stalking to occur. The purpose for which the perpetrator has carried out the act of stalking is not important in terms of the occurrence of the crime.” statements show that the perpetrator’s deliberate act is sufficient for the crime to occur and that no special motive is sought.

If the perpetrator has committed the act with sexual motives, they will be held responsible for the crime of sexual harassment, not the crime of stalking. In this sense, the motive of the perpetrator is a concept that the judge should especially evaluate.

What Are The Qualified Conditions of Persistent Pursuit Crime?

In the provision of article 123/A-2 of the Turkish Penal Code, qualified forms of stalking offenses that require more punishment are regulated. The relevant provision is as follows:

• a) If it is committed against the child or the spouse from whom a separation decision has been made or divorced,
• b) If caused the victim to change school, workplace, residence or quit school or work,
• c) If it is committed by the perpetrator, against whom a decision to ban or not approach the residence, school, or workplace is decided, the perpetrator is sentenced to imprisonment from one year to three years.

As can be seen, with the amendment made in subparagraph (a), more severe penal sanctions are envisaged if the crime is committed against children and women, who are generally the focus of violence.

The regulation made in subparagraph (b), on the other hand, is included in the scope of qualified cases where the victim has to make certain changes in his daily life as a result of persistent follow-up.

Subparagraph (c) regulates the case of a precautionary decision taken against the person who committed the crime.

When the qualified cases are examined, it is seen that the perpetrator’s persistence and dangerousness are punished more severely.

Persistent Pursuit Crime in Terms of Unlawful Elements

Unlawfulness is the element that the act committed and found in accordance with the definition in the law is not allowed by the legal order, that this act is not considered permissible, and that it does not create conflict not only with the criminal law but also with the whole legal order.

The reasons for compliance with the law specified per the Turkish Penal Code make the act lawful by removing it from being a crime. These are mainly;

• Fulfillment of the law (art. 24/1),
• Execution of the legal order (art. 24/2),
• Self-defense (art. 25/1),
• The exercise of the right (art. 26/1), and
• Consent of the person concerned (art. 26/2).

It will be evaluated whether the provisions of the law mentioned above will find an area of application in the relevant crime:

• Fulfilling the law’s provision: Can be considered a reason for compliance with the law in terms of persistent pursuit. For example, it is the fulfillment of the provisions of the law in cases where notification is required by law or in cases where obligatory litigation arises, and it will not give rise to the crime of persistent pursuit.
• Execution of a lawful order: If the given order does not constitute a crime, it is lawful.
• Exercise of the right: It will be determined whether the crime has occurred or not according to the conditions of the concrete case. As an example, in the case of residential and roofed workplace rents, the appropriate warning made by the lessor to the tenant in order to ensure the performance of the debt upon the default of the tenant in paying the due rent will not give rise to the crime of persistent pursuit.

In the crime of persistent pursuit, to make the consent of the person concerned legal, this consent must be given for an absolute right that can be disposed of, and the victim must be capable of expressing their consent. In the crime of persistent pursuit, the act of “committing against the child” will not become lawful with consent.

It is possible to do acts against the victim lawfully with the consent of the person concerned; the explicit consent of the victim will ensure this to the contacts made by the perpetrator. Because it is seen in forensic medicine reports and psychological reports that the perpetrator and their free will generally suppress the victims of stalking crime is impaired in the decisions they make. Since the investigation and prosecution of the related crime are subject to complaint, it cannot be evaluated ex officio by the official authorities. This situation may cause problems in practice. This situation is called “dark field / black numbers in crime” in criminology.

Persistent Pursuit Crime in Terms of Attempt

The attempt is regulated under article 35 of the Turkish Penal Code. It can be defined as the failure to complete the execution of the crime for reasons beyond the perpetrator’s control. Attempting to pursue the crime of persistent pursuit is impossible because the actual action against the victim is described as a mere action. Actual offenses are complemented by the execution of the executive action by virtue of their nature. From this point of view, it is not possible to attempt these crimes.

Persistent Pursuit Crime in Terms of Affiliation

More than one person can commit the crime of persistent pursuit together, that is, to participate in the crime. In the text of article 123/A of the Turkish Penal Code, as it can be understood from the expression “trying to contact by using third parties“, the acts of the third person who is a partner in the crime will be evaluated according to the conditions of the concrete case.

If the acts of the third person in question are mandatory for the execution of the crime, in other words, if it is not possible to complete the crime without the acts of the third person, the third person will be punished as a “joint perpetrator” as if they had committed the crime alone.

However, if the actions of the third person are considered only as helping the perpetrator materially and morally in the execution of the crime, then the third person will be punished with the title of “helper”.

One can be the instigator in the crime of persistent pursuit. In this case, “the person who incites someone else to commit a crime is punished with the penalty of the crime committed“ (Turkish Penal Code article 38). The instigator in the justification of article 38 of the Turkish Penal Code is defined as “a person who does not yet have an idea about committing a certain crime is persuaded to decide to commit this crime by someone else“.

Persistent Pursuing Crime in Terms of Community (Concurrence)

In this crime, the provisions of real or intellectual meeting (concurrence) will be applicable. If the perpetrator’s acts constituting the crime also constitute the legal elements of another crime (typicality), the perpetrator will also be responsible for this crime. However, in terms of some crimes, if the nature of the follow-up gives rise to a different crime, the perpetrator will not be held responsible for persistent pursuit but for the concrete crime whose legal elements are provided. As an example of these:

• If the perpetrator threatens the victim with their actions, they will be responsible for the crime of threat (Turkish Penal Code article 106).
• If the nature of the contact made by the perpetrator is insulting, the perpetrator will be responsible for the crime of insult (Turkish Penal Code article 125).
• Regarding contact made with sexual motives, it is also necessary to be prosecuted not for stalking but for sexual harassment (Turkish Penal Code article 105).
• In cases where the perpetrator is a public official, if the perpetrator committed the crime with the abuse of power and influence arising from public office, the perpetrator is also responsible for this crime per the same kind of intellectual meeting provisions (Turkish Penal Code article 43/2).

In terms of this crime, it is important whether the provisions of the chain crime will be applied or not. Because the insistence on the follow-up against the victim in order for the offense to arise is included in the legal expression, here, the persistence classification of the follow-up will be ensured by performing it more than once.

What is The Penalty For Persistent Pursuit Crime?

The basic form of stalking is punishable by imprisonment from six months to two years. The qualified state is punished with imprisonment from one year to three years.

Investigation and Prosecution of Pursuing Pursuit Crime

The prosecution and investigation of this crime are subject to complaint. This complaint must be made by the person who is the victim of the perpetrator’s unlawful acts. The victim must use this right within six months of learning about the perpetrator and the act, in accordance with the Code of Criminal Procedure provisions.

Pursuant to article 66 of the Turkish Penal Code, the crime of persistent pursuit is subject to a statute of limitations of eight years, and the complaint must be made within eight years in any case.

Persistent Pursuit Crime in Terms of Arrest Measure

According to the Turkish Criminal Procedure Code, detention/arrest measures cannot be applied for crimes whose upper limit is not more than two years.

At this point, we need to evaluate in terms of the persistent pursuit crime. The upper limit of the penalty stipulated in the law for the provision of article 123/A-1 of the Turkish Penal Code, which regulates the basic form of the crime, is two years. Therefore, detention cannot be applied in terms of the basic form of the crime.

In addition, in the provision of article 123/A-2 of the Turkish Penal Code, the qualified cases of the crime of stalking are specified. An upper limit of three years has been determined for the penalty to be applied due to these qualified cases. This situation has removed the qualified version of the crime of stalking from the scope of the detention ban. Therefore, an arrest measure can now be applied against the person concerned if such a situation occurs.

Persistent Pursuit Crime in Terms of Forensic Control

In terms of judicial control measures, the upper limit of the penalty stipulated for the crime is not decisive. Judicial control measures may also be applied for crimes within the scope of the detention ban.

If it would be beneficial to order one or more judicial control measures against the person concerned, such a decision may be made. At this point, both the conditions of the concrete case and the outcome of the claims and defenses put forward in the process are the factors that will determine the result.

Persistent Pursuit Crime in Terms of Delay of Punishment

Regarding the institution of “deferral of prison sentence” regulated under Article 51 of the Turkish Penal Code:

(1) A person sentenced to a prison sentence of two years or less for the crime they have committed may be suspended. The upper limit of this period is three years for persons who have not completed the age of eighteen or who have completed the age of sixty-five at the time of the act. However, in order for the postponement decision to be made, the person;
a) Not having been previously sentenced to more than three months imprisonment for an intentional crime,
b) After committing the crime, there must be a conviction in the court that they will not commit the crime again due to the remorse they showed during the trial process.

(2) Postponement of punishment may be subject to the condition that the damage suffered by the victim or the public is completely remedied by restitution or compensation. In this case, the sentence continues to be served in the execution institution until the condition is fulfilled. If the condition is fulfilled, the convict is immediately released from the execution institution by the judge’s decision.

As it can be seen, if the person has not committed an intentional crime before and the sentence imposed on him is a sentence of two years or less, the judge may order the postponement of the penalty if they are convinced that the perpetrator will not commit the crime again.

In this case, the perpetrator’s punishment will not be executed. Suppose they act by the necessary obligations within the audit period to be determined between one and three years at the end of the period. In that case, the sentence in question will result as if it was executed.

In this case, a five-year audit period is in question. If an intentional crime is committed within the mentioned five-year period, both the execution of the previous crime is carried out, and the provisions of the new crime come into play. If no intentional crime is committed within these five years, at the end of five years, that crime is no longer recorded in the criminal record, and the result is as if no punishment was given.

What is The Persistent Pursuit Crime in Terms of Conciliation?

The “conciliation” institution, which is regulated following Article 253 of the Criminal Procedure Code, is the process in which the parties are brought together during the investigation process, and the conflict between the perpetrator and the victim is tried to be resolved through the mediation of an impartial mediator. In this process, the institution aims to end the conflict without the need for criminal processes by providing communication between the perpetrator and the victim.

According to Article 253 of the Criminal Procedure Code, not every crime will be subject to mediation, but mediation provisions can only be applied for crimes with certain characteristics. Persistent pursuit crime is not within the scope of mediation under Article 253/2 of the Criminal Procedure Code. The relevant provision is as follows:

“Even if the investigation and prosecution depend on the complaint, reconciliation cannot be made in crimes against sexual immunity and the crime of persistent pursuit.” (Article 123/A)

As can be seen, although the crime of persistent pursuit in accordance with the relevant regulation is a crime subject to complaint, it is specifically excluded from the scope of conciliation.

Persistent Pursuit Crime and its Punishment (Turkish Penal Code Art. 123/A) yazısı ilk önce HP Hayalioğlu & Partners Hukuk Bürosu üzerinde ortaya çıktı.

Tax evasion crime (vergi kaçakçılığı suçu) is governed by Article 359 of the Turkish Tax Procedure Law (Law No. 213). It penalizes deliberate fraudulent practices designed to evade tax obligations, including concealing or altering books and records, issuing or utilizing misleading/false invoices (sahte fatura / naylon fatura), and unauthorized printing of tax documents. Offenders face severe prison sentences from 18 months up to 8 years, prosecuted independently of administrative tax fines.

Tax evasion is a serious crime subject to criminal sanctions in the legal systems of many countries. Tax evasion can be carried out by giving false information or incomplete declarations in tax returns, avoiding paying tax debts, or failing to fulfill tax obligations by other means.

This crime negatively affects the country’s economy by damaging the functioning of the tax system and is a crime that should be deterred with criminal sanctions. For an effective fight against tax evasion, it is important to strengthen the tax system and control mechanisms and raise public awareness.

What is Tax Evasion?

Tax evasion is avoiding or under-declaring tax payments in violation of Tax Laws. This action is taken by people who do not fulfill their tax obligations or submit misleading information on their tax returns. Tax evasion harms the tax system and the country’s economy, causes a decrease in tax revenues, and disrupts justice and equality.

Tax evaders are penalized by the Tax Administration, and the penalties are deterrents. To combat tax evasion, it is important to strengthen the tax system, activate control mechanisms and raise public awareness. In this way, tax evasion is prevented, the country’s economy is strengthened, and the citizens’ sense of rights and justice is preserved.

Introduction: Tax Evasion

Tax is the payments that the state or public legal entities with taxation authority receive from the taxpayers in accordance with the laws according to their financial power to meet the public expenditures based on the sovereign power.

As a result of not fulfilling the tax-related obligations stipulated by the laws with some acts, the nature of the tax, which exceeds its economic power, is related to the public order. For this reason, those who commit these acts are punished with the restraint of freedom. The act doesn’t have to cause a loss of tax, that is, tax loss, to impose a penalty that binds freedom. Tax evasion crime is also a social crime that has a liberty-binding penalty.

Apart from the Penal Law, crimes and punishments can also be established in other laws. However, tax evasion is also a crime but is regulated in the Tax Procedure Law. However, per Article 5 of the Turkish Penal Code (TPC), the general provisions in the TPC are also applied to crimes and penalties in other laws. The criminal court of the first instance is the court in charge of the proceedings related to this crime.

What Are The Acts and Sanctions Constituting The Offense of Tax Evasion?

The crime of tax evasion is regulated in Article 359 of the Tax Procedure Law, titled “Smuggling Crimes and Penalties“. The acts specified in this Article are the acts constituting the crime. The punishment for each act is also specified in the law.

Clause a of Article 359 of the Tax Procedure Law is related to the books that are kept or arranged under the Tax Laws and that have to be kept and presented; in the first paragraph of this paragraph, three different offenses are considered. According to this:

Accounting Fraud in Books and Records

It is the act of passing a transaction done correctly before to a ledger that must be kept according to Tax Laws differently than it is.

Opening an Account on Behalf of People Who Are Not Real or Have Nothing to Do With Recorded Transactions

To reduce the tax base, it is a common tax evasion crime that people who do not work or are not related to the recorded transactions are prepared as working payroll, which is stated as an expense.

To Record The Accounts and Transactions That Need to be Recorded in The Books in Whole or Part to Other Books, Documents, or Other Recording Media in Such a Way as to Result in a Decrease in The Tax Base

For the crime to occur, the tax base must be reduced by keeping it notarized for that year and writing it in other illegal books without registering it in the books that must be kept. If it is recorded in the books that are required to be kept and preserved, and if it is recorded in the illegal books, the element of the crime will not occur.

Three acts constituting the crime are specified in the second part of the same paragraph. According to this:

Hiding Notebooks, Records, and Documents

When the books, records, and documents are notarized or fixed by other means, it constitutes the crime of concealing the books and documents by not submitting them to the persons authorized for tax inspection during the examination. Although it is mandatory to keep the books and records that are not kept, and the documents that are not arranged do not constitute the subject of the crime.

Tampering with Books, Records, and Documents

The falsification of duly kept documents, which are obliged to regulate or keep taxpayers in the legislation, constitutes the subject of this crime. The crime of tampering is different from the crime of destruction. Here, the material assets of the documents are protected. However, the contents of these documents can be changed contrary to the law’s and the truth’s correction procedures.

Editing or Using a Misleading Document by Content

A misleading document in terms of its content is a document that is based on a real situation but reflects this situation in an untrue way in terms of nature or amount. These documents are invoices with different upper and lower copies and invoices with incomplete sales.

For example, if an invoice of 200 TL is issued despite selling goods worth 700 TL, this document is misleading regarding its content. While the crime of issuing misleading documents is a crime that the taxpayer can only commit, the crime of using misleading documents is also a crime that can be committed by people who are not taxpayers. The crime of issuing misleading documents occurs during the preparation of documents, and the crime of using the document occurs with the use of the document.

The sanction of the aforementioned crimes, namely those specified in Article 359/a of the Tax Procedure Law, is a prison sentence of eighteen months to five years.

Acts Regulated Under Article 359/b of The Tax Procedure Law

In subparagraph b of Article 359 of the Tax Procedure Law, two acts are envisaged for tax evasion crime:

1. Destroying The Books, Records, and Documents Obligated to Keep, Arrange, Store, and Submit under The Tax Laws, or Putting Other Sheets or Not Putting Any Sheets Instead of Destroying The Ledger Pages

The subject of the crime is the books and documents that must be kept and presented. The most important issue that should not be overlooked here is; although it is obligatory to keep the books and records that are not kept and the documents that are not regulated, they do not constitute the subject of this crime. Another important point is; the act of destroying the books and records kept by the taxpayer voluntarily and the books and records whose retention period has expired do not constitute this crime.

2. Making or Using the Originals or Copies of Documents as Wholly or Partially Forged

In the law, a forged document is “a document that is prepared as if there is no real transaction or situation“. If a forged document is prepared to show that a crime, treatment, or situation has occurred, it constitutes the crime of issuing forged documents. In contrast, the use of such a document by recording it in the records constitutes the crime of using a forged document. The sanction of these two crimes, regulated in Article 359/b of the Tax Procedure Law, is specified as imprisonment for three to eight years.

Subparagraph c of Article 359

In subparagraph c of Article 359 of the Tax Procedure Law, the act of printing or knowingly using documents that can only be printed by persons who have an agreement with the Ministry of Finance, although they do not have an agreement with the Ministry, is regulated.

Here, the point at issue is to ensure that the documents are not printed in a printing house of the taxpayer that does not have an agreement with the Ministry of Finance. However, knowingly using the documents printed in this way also constitutes this crime. The penalty for this act is imprisonment from two to eight years.

Subparagraph ç of Article 359 (Added on 29.04.2021)

According to the additional provision “ç” added on 29.04.2021, removing the seal of the payment recording device and changing its hardware or software without authorization from the Ministry of Treasury and Finance constitutes a criminal offense.

In addition, physically or digitally interfering with the memory units, electronic circuit elements, external hardware or software connection systems of the payment recording device, electronic control, monitoring systems, or related systems established to prevent off-the-record sales, whether authorized or not, also constitutes a criminal offense.

In addition, software that prevents the recording of financial documents or information related to sales, changing or deleting the recorded information on the payment recording device or other connected hardware and systems, preventing the transmission of documents, information, or data that must be transmitted electronically to the Ministry of Treasury and Finance or other public institutions by electronic control and monitoring systems or related systems established to prevent off-the-record sales, or causing them to be transmitted inaccurately, are also considered as criminal offenses.

The punishment for these offenses is imprisonment for three to eight years. However, individuals who report their involvement to the relevant authority following Article 371 of the Tax Procedure Law may benefit from the provisions of Effective Remorse, and this sanction will not be applied to them.

In Article 359 of the Tax Procedure Law, new paragraphs were added in 2022, and some reductions regarding sanctions were regulated. According to this:

• Depending on the determination of the loss of tax due to the actions written in this Article, the whole of the tax, default interest and late fee, and half of the fines and the corresponding late fee, if paid during the investigation phase, the penalty to be imposed is reduced by half.
• In cases where no penalty is imposed depending on the tax and tax original, the penalty to be imposed is reduced by half.
• To benefit from the penalty reduction stated in the paragraphs above, it is obligatory not to file a lawsuit in the tax court, to waive it if it has been filed, not to resort to legal remedies, or to abandon it if it has been applied.
• In case the crimes regulated in this Article are committed within the scope of the execution of the decision to commit the same crime within more than one calendar year or taxation period, Article 43 of the Turkish Penal Code is applied.
• Implementing the penalties in this Article for those who commit smuggling crimes does not prevent the additional application of the tax loss penalty written in Article 344.

What is The Subject of Tax Evasion Crime?

As understood from Article 359 of the Tax Procedure Law, the material subject of the crime of tax evasion is the special books and documents or other recording media in which accounting and transactions are recorded outside of the books, records, and documents that must be kept or issued, and that have storage and submission obligations under Tax Laws.

What is The Prerequisite For Tax Evasion Crime?

Article 359 states that many optional behaviors can be carried out on the books, documents, and records that must be kept or issued and have storage and submission obligations under Tax Laws. Therefore, the books, records, and documents that must be present for the crime of tax evasion can be considered a prerequisite for the offense from one perspective.

It is important to determine whether the mentioned issues are a prerequisite or an element of the crime to determine the existence of intent. If the required condition is a prerequisite, it is sufficient for the perpetrator to be aware of it, whereas if the required condition is an element, the perpetrator must know and want it to occur.

What Are The Elements of Tax Evasion Crime?

The legal and material element of the tax evasion crime is contained in Article 359, the Article in which it is regulated. Accordingly, penalizing those who act in violation of the provisions of the Article only with the penalties specified in the law constitutes the legal element, and acting in violation of the provisions of the Article constitutes the material element of the crime.

However, as stated in Article 331, it is an element of unlawfulness that the legal order does not accept acts complying with the law’s definition. While you can understand all this by looking at Article 359, the moral element of the crime is not explicitly included.

However, in Article 5 of the Turkish Penal Code, “The general provisions of this law are also applicable to crimes in special penal laws.” according to the provision; the moral element, which is one of the founding elements, should also be sought in the formation of the crime of smuggling regulated in the Tax Procedure Law.

Intent (caste) is regulated in Article 21/1 of the Turkish Penal Code. If the person knowingly and willingly commits the acts in Article 359 of the Tax Procedure Law, they are held responsible for intent. Possible intent is regulated in Article 21/2 of the Turkish Penal Code.

However, in the justification of Article 21 of the Turkish Penal Code, it is foreseen that crimes that can be committed intentionally can be committed directly and with probable intent in principle. In this case, it is accepted that the acts constituting smuggling crimes can also be committed with probable intent.

Regarding intent, general intent, knowing and wanting the act, is sufficient. To complete the spiritual element, there is no need for it to be processed for a specific purpose (special intent). However, some authors look for special intent, which causes a decrease in the tax base and causes tax loss in the accounts and transactions that need to be recorded in the books of smuggling.

Since no clear provision in the Article states that smuggling acts can be committed by negligence, as regulated in Article 359 of the Tax Procedure Law, tax evasion cannot be committed by negligence, per the principle of legality in crime and punishment.

What is The Concept of a Perpetrator in Tax Evasion Crime?

In Criminal Law, the perpetrator is the person(s) who commit acts defined as crimes by law. Anyone with rights and duties within the Tax Law relationship is considered a perpetrator when they violate the provisions of Tax Laws, regardless of whether they are taxpayers.

As it can be understood from Article 359 of the Tax Procedure Law, since the legislator did not impose any restrictions on the commission of the crime, the crime is not specific, anyone can commit it, and the perpetrator can be anyone.

The perpetrator can be a natural or a legal person. In legal persons, real persons who use their capacity to act on behalf of the legal entity are held liable. Therefore, legal persons become the perpetrators of the crime due to their acts contrary to the Article.

What is The Concept of a Victim in Tax Evasion Crime?

In legal doctrine, the victim, in other words, the passive subject of the crime, is divided into two: general and specific. The general passive subject is the state because it is the state that suffers as a result of every crime. A private passive subject is a natural and legal person whose rights and interests are damaged due to the crime. In tax evasion crime, as in all crimes, the state, as a general passive subject, is the victim. However, the public also suffers as a private passive subject. The criminal remedy in these crimes is opened in the name of the public.

What Are The Circumstances Eliminating The Fault in The Offense of Tax Evasion?

However, the fact that the perpetrator has made an act of necessity, fulfilling the orders of the superior, material/moral coercion, and unavoidable mistakes are the reasons that affect the perpetrator’s responsibility for fault. If one of the reasons affecting the fault is found, the penalty is reduced or not given, but the act is still unlawful.

In other words, while the Private Law side of responsibility for the crime continues, the penalty is reduced in the sense of Criminal Law, or no penalty is given. The reasons affecting the defectiveness should be evaluated separately for each concrete case.

It is stipulated that no penalty will be imposed for the crime of tax evasion due to force majeure in Article 373 of the Tax Procedure Law. On the other hand, in Article 13 of the Tax Procedure Law, force majeure is discussed. In 13/3, “compulsory absences that occur against the will of the person“, and in 13/4, “the fact that the books and documents are lost due to reasons beyond the will of the owner” are listed. It is located between moral/material coercion among the reasons affecting the defectiveness.

Coercion is regulated in Article 28 of the Turkish Penal Code; while moral coercion is intimidation and threat, material coercion is coercion and violence. In the case of two other force majeure listed in Article 13 of the Tax Procedure Law, no tax penalty is imposed.

This situation, according to Article 13/1-2 of the Tax Procedure Law, is “a serious accident, serious illness, and detention that prevents the fulfillment of any of the tax duties” and “disasters such as fire, ground shaking (earthquake) and flooding that will prevent the fulfillment of tax duties“.

In Article 369 of the Tax Procedure Law, titled “Error and Change of Opinion“:

“If the competent authorities have given a wrong explanation to the taxpayer in writing or if a case law regarding the implementation of a provision has changed, no tax penalty will be imposed, and no delay interest will be calculated.“

As it is understood from this Article, while the taxpayer’s mistake does not affect the criminal responsibility, in case of a wrong explanation to the taxpayer, the criminal liability of the taxpayer is lifted. However, it is accepted that the rulings issued by the institutions whose purpose is the protection of the rights and interests of their members to announce to their members also remove criminal responsibility.

What Are The Circumstances Eliminating the Crime of Tax Evasion?

The circumstances that eliminate the guilt are considered legal justification reasons. Even though a crime is committed, it can become lawful for certain reasons and no longer be considered a crime. In such cases, the individual’s responsibility arising from the crime is eliminated in terms of Criminal Law and Private Law.

The Turkish Penal Code regulates the legal justification reasons in three Articles and four paragraphs. These are:

• The execution of the statutory duty stipulated in Article 24 of the Turkish Penal Code,
• Legitimate defense and necessity regulated in Article 25 of the Turkish Penal Code, and
• The exercise of right and consent of the person concerned stipulated in Article 26 of the Turkish Penal Code.

The state of necessity in Article 25 of the Turkish Penal Code is defined as:

“The perpetrator is not punished for acts committed against a right that belongs to him/her or someone else, for which there is no deliberate reason and cannot be protected by any other means, with the necessity of getting rid of a grave and certain danger or saving someone else, and on the condition that there is a proportion between the gravity of the danger and the subject and the tool used.“

What Are The Changes Coming With The Latest Regulation on Tax Evasion Crime?

Regarding Article 359 of the Tax Procedure Law, in the Law on the Evaluation of Immovable Property Owned by The Treasury and Amendment of The Value Added Tax Law, which entered into force after being published in the Official Gazette dated 15.04.2022, significant reforms were introduced according to the 4th, 5th, and 6th Articles of the relevant law:

1. The Upper Limit of Prison Penalties Has Been Increased

Accordingly, while the upper limit was three years in clause a and five years in clauses b, c, and ç depending on the gravity of the acts, with this amendment, the upper limit of three years in clause a was increased to five years. The upper limit of five years in clauses b, c, and ç was increased to eight years.

2. Effective Remorse

A regulation similar to the Effective Remorse system in implementing the Turkish Penal Code has also begun to be applied to tax evasion crimes. An additional paragraph was added to the relevant Article on 8.04.2022. According to this:

“If it is determined that tax was wasted due to the acts written in this Article, the penalty to be imposed is half of the tax, default interest, and late fee, and half of the fines imposed and the corresponding late fee if it is paid during the investigation phase until a verdict is given during the prosecution phase; the penalty to be imposed is reduced by one third.“

3. Chain Crime

The principle of applying the chain crime provisions in the Turkish Penal Code is adopted for the prison sentences for smuggling crimes. However, determining whether there is a chain crime or not will be made by holding a hearing. An additional paragraph was added to the relevant Article on 8.04.2022. According to this:

“In case the crimes regulated in this Article are committed within the scope of the execution of the decision to commit the same crime within more than one calendar year or taxation period, Article 43 of the Turkish Penal Code shall apply.“

4. Regulations Regarding The Trial Process

“Those who have been sentenced but are in the enforcement phase of their files can benefit from the Effective Remorse regulation for the investigation stage stipulated in this Article, provided that they pay the full amount of the tax assessed due to the determination of tax damage caused by the acts specified in Article 359, along with the delay interest and delay penalties imposed, as well as half of the fines and related delay penalties within one year from the date of entry into force of the Law that introduced this Article. To benefit from the penalty reduction stipulated in this paragraph, it is a requirement that no lawsuit is filed in the tax court, or if one has been filed, it must be waived, and no legal remedies are sought, or if they have been sought, they must be waived. The provisions of the first paragraph also apply to files in the investigation and prosecution phase at the time of the publication of the Law that introduced this Article. In this case, payment must be made until the sentence is given. For files under review in the appeals or cassation stages for offenses falling within the scope of Article 359 at the time of the publication of the Law that introduced this Article, decisions to overturn will be made for files where favorable evaluation is required due to the regulations made with this Article. Files in the Office of the Prosecutor General of the Court of Cassation are sent to first-instance courts by the proper procedure upon arrival.“

Effective Remorse in Tax Evasion Crime

As a result of Effective Remorse, the penalty to be given to the person(s) is reduced, or no penalty is given. It can be applied in the Turkish Penal Code and the Tax Procedure Law only in cases specified in the law.

According to the paragraph added to Article 359 of the Tax Procedure Law on 29/4/2021, “The provision of this Article does not apply to those who report the situation to the relevant authorities per the conditions of remorse in Article 371.” Accordingly, the perpetrator must notify the relevant units of the situation to implement the Effective Remorse and reform provision mentioned in Article 371.

In the law that entered into force with the Official Gazette dated 15.04.2022, temporary Article 34 was added to Article 359 of the Tax Procedure Law. According to this Article, Effective Remorse in smuggling can also be applied during the investigation or prosecution phase. As a result of Effective Remorse, the penalty to be imposed for tax evasion is reduced.

In this regulation, no provision prevents them from benefiting from the provision of Effective Remorse in case of recurrence of the crime.

What is Tax Evasion Crime and its Penalty? yazısı ilk önce HP Hayalioğlu & Partners Hukuk Bürosu üzerinde ortaya çıktı.

Under the Turkish Commercial Code (TCC) and Turkish Penal Code (TPC), company directors, board members, and authorized signatories are personally and individually liable for criminal offenses committed through company activities. While civil liabilities can sometimes be mitigated by internal delegation directives, criminal liability adheres strictly to individual fault (şahsilik ilkesi). Prominent exposure areas include tax evasion (VUK 359), commercial bribery, fraud, and environmental non-compliance.

The importance of company executives in the business world is indisputable. However, this great responsibility also brings along legal obligations and various responsibilities within the criminal law framework. The topic of “The Responsibilities of Company Executives from a Criminal Law Perspective in Turkey” is of vital importance that everyone who takes on an executive role should carefully examine.

In this detailed article, we cover the responsibilities of company executives under Turkish criminal law, potential legal consequences, and information on how executives can prevent such issues. As the legal world constantly changes, having current and accurate information helps executives protect not only themselves but also their companies.

Responsibilities of Company Executives From a Criminal Law Perspective in Turkey

Natural and legal persons are distinguished according to Turkish Civil Code No. 4721. Accordingly; individuals are natural persons, whereas legal entities are organized groups of persons with an existence of their own and independent communities dedicated to a specific purpose.

According to Article 20 of the Turkish Penal Code No. 5237, titled “The Personal Nature of Criminal Liability”:

“Criminal liability is personal, and no one can be held responsible for the actions of another. Additionally, criminal sanctions cannot be imposed on legal entities. Only the implementation of security measures foreseen by law is possible.”

The general provision regarding security measures specific to legal entities is regulated in Article 60 of the law, and it is stipulated that the provisions of this article will only be applied in cases expressly mentioned by the law. In other words, for security measures to be applied to a legal entity, the law under which the crime is regulated must expressly stipulate that security measures will be applied to legal entities responsible for the commission of this crime.

As stated in the aforementioned provisions, criminal sanctions cannot be imposed on legal entities, and criminal liability is personal. Therefore, in the event of a crime committed through a legal entity, real persons within the legal entity may be held accountable for the crime based on their guilt. Any liability arising from criminal law that a company executive may face due to management activities will be examined under the criminal liability of the company executive.

When looking at the responsibility of a company executive, the criminal law principles we need to primarily base on are the principles of the personal nature of criminal liability and fault, as mentioned above. Indeed, in modern criminal law, there must be fault in the action carried out for a person to face criminal sanctions.

The main fault standard in criminal liability is intent. According to Article 21 of the Turkish Penal Code, the commission of a crime is dependent on the existence of intent. Intent is the deliberate and knowing commission of the elements stated in the legal definition of the crime. Exceptionally to this rule, the provision of negligence is regulated in Article 22.

According to the second paragraph of Article 22, negligence is the commission of an act contrary to the obligations of care and diligence without foreseeing the result specified in the legal definition of the crime. However, negligence is an exceptional situation, as stated in the first paragraph of Article 22: “Acts committed through negligence are punished only in cases expressly specified by law.” In other words, for the negligent commission of a crime to be punished, the legal provision of that crime must expressly regulate negligent liability. In summary, in Turkish criminal law, intent is fundamental. If a crime does not have an explicit provision for negligent commission and there is no intent on the part of the perpetrator, punishment will not be possible.

As stated above, criminal liability is personal; only the individuals who commit a crime will be held responsible. However, the Court of Appeals (Court of Cassation) has developed a jurisprudence holding that the representatives and management organs of the company should be held responsible if it is not proven that company employees have violated the explicit orders and prohibitions of their superiors.

However, this view almost introduces a presumption of liability against the company’s representatives and management organs, reversing the principle of liability and effectively requiring them to prove their innocence rather than requiring the prosecution to prove their guilt. Indeed, in modern criminal law, no one can be considered guilty unless their guilt is proven. This is also referred to as the presumption of innocence, expressed in Article 38 of the Constitution as: “No one shall be considered guilty until proven guilty by the court.” In contrast to the strict liability view of the Court of Appeals, there are also decisions against this view, but recent decisions frequently revert to the presumption of managerial liability.

Executives Who Can Be Held Accountable in Company Management

Within the corporate organizational structure, the following individuals can be held accountable in terms of company management:

• Joint-stock companies: The founders, board members, managers, liquidators, and other authorized company staff;
• Partnerships: Managing partners and/or representative partners or company managers;
• Limited partnerships: Due to the fact that there are both limited and general partners, the partners who possess the authority to manage and represent the company;
• Limited liability companies: The company managers (müdürler);
• Associations: The board members;
• State economic enterprises and their establishments: The institution’s manager or relevant personnel.

These individuals will be the perpetrators of crimes committed on behalf of the company through the management powers they hold. To be deemed a perpetrator, these individuals must be directly involved in or participate in the acts that constitute a crime in the specific case.

In addition to committing the crime directly, individuals with management authority can also commit a crime by making decisions, giving instructions, or deliberately abandoning their supervisory obligations. In cases where decisions are taken by a collegiate board, board members who vote in favor of the decision that constitutes a crime will be criminally responsible, whereas members who do not participate in the vote or who formally vote against will not be held responsible.

Furthermore, even if they do not hold managerial authority, individuals with representation authority can be held criminally liable when acting or failing to act on behalf of the company. However, in this case, an executive who has lawfully transferred the representation authority in accordance with internal directives at the time of the commission of the crime cannot be punished. If the person holds authority on paper but did not exercise that authority in the context of the criminal act, criminal liability will not arise for them; it will be necessary to establish who actually exercised the authority and who is the true perpetrator.

Negligent Offenses and the Diligence of a Prudent Manager

Regarding negligent crimes, company managers have legal obligations to prevent crimes within their sphere of control. If they fail to fulfill these obligations, they may be held responsible for crimes committed through negligent behavior. This fundamental duty of care of corporate managers is codified in Article 369 of the Turkish Commercial Code (TCC):

“Members of the board of directors and third persons responsible for management are obliged to perform their duties with the diligence of a prudent manager and to observe the interests of the company in accordance with the rules of honesty.”

Crimes Regulated Across Turkish Legislation Establishing Executive Liability

Crimes that can give rise to the criminal liability of company managers are primarily regulated by the Turkish Criminal Code, Tax Procedure Law, Enforcement and Bankruptcy Law, Turkish Commercial Code, Banking Law, and Capital Markets Law. While offenses against life and bodily integrity (such as occupational safety accidents) can bring personal liability, crimes with economic characteristics are evaluated below:

1. Turkish Criminal Code (TPC) Offenses

In the Turkish Criminal Code, corporate executive liability arises prominently across several chapters:

• Crimes Against Private Life and Personal Data: In crimes related to personal data under Law No. 6698 (PDPL) and TPC Arts. 135–136, company executives acting on behalf of legal persons that qualify as data controllers may face criminal prosecution if they unlawfully record, disclose, seize, or fail to erase personal data within statutory timeframes.
• Crimes Against Property (White-Collar Offenses): Especially abuse of trust (TPC Art. 155), fraud (TPC Art. 157–158), fraudulent or negligent bankruptcy (TPC Arts. 161–162), and disseminating false information regarding companies or cooperatives (TPC Art. 164). In particular, breach of trust occurs when company executives exploit trade or service relations to embezzle or misappropriate company assets (corporate fraud).
• Crimes Related to the Economy, Industry, and Trade: Bid rigging (TPC Art. 235), disrupting contract performance in public tenders (TPC Art. 236), and disclosing trade secrets, banking secrets, or client secrets (TPC Art. 239).
• Crimes Against Public Administration: Bribery (TPC Art. 252) and influence peddling (TPC Art. 255), where the company executive who offers or facilitates unlawful advantages alongside a public official will be held criminally liable as a principal perpetrator or accomplice.

2. Turkish Commercial Code (TCC) Crimes

Under the Turkish Commercial Code, executives face penal sanctions for:

• Illegally adding suffixes to the trade name or unlawfully transferring the trade name;
• Committing acts of unfair competition pursuant to Articles 55 and 62 of the TCC;
• Forging or falsely recording documents related to the company’s establishment, capital increase or decrease, merger, division, change of type, and issuance of securities;
• Making false declarations regarding company capital or borrowing capital despite insufficient funds;
• Engaging in fraudulent practices when valuing corporate assets or contributions in kind;
• Collecting money from the public contrary to Capital Markets Board regulations;
• Failing to establish and maintain an official company website as required by commercial regulations.

3. Enforcement and Bankruptcy Law Crimes

Under the Enforcement and Bankruptcy Law, actions such as unauthorized abandonment of trade, making false declarations of assets, failing to apply for bankruptcy when legally obligated, breaching formal commitments, and fraudulent diminution of assets directly establish personal executive responsibility.

4. Tax Procedure Law (TPL Art. 359) — Tax Smuggling and Evasion

Article 359 of the Tax Procedure Law defines tax smuggling crimes (tax evasion). Company executives who participate in the issuance, receipt, or accounting of falsified or misleading invoices, ledger tampering, or destruction of statutory records will be held personally accountable to criminal prosecution.

5. Banking Law (Art. 160) — Banking Embezzlement

Under Article 160 of the Banking Law, bank executives and managers who embezzle customer assets or bank resources placed under their supervision will be held liable for qualified embezzlement, reflecting the principles of TPC Article 155 within the regulated financial sector.

6. Capital Markets Law (CML No. 6362) — Market Manipulation and Insider Trading

Under Article 106 (insider trading) and Article 107 (market manipulation) of Law No. 6362, executives of publicly traded entities who trade on confidential material information or execute manipulative orders and spread false market information face heavy criminal sentences and severe judicial fines.

Conclusion and Practical Governance Measures

In the face of potential criminal liabilities, it is essential for company boards to accurately and comprehensively define internal representation and binding signature authorities through formal internal directives (iç yönerge) and clear job descriptions. Documenting delegated powers and establishing robust internal compliance and audit mechanisms ensures transparent allocation of duties, identifying the actual decision-makers and effectively shielding non-participating executives from unfounded vicarious liability.

Liabilities of Company Executives Under Turkish Criminal Law yazısı ilk önce HP Hayalioğlu & Partners Hukuk Bürosu üzerinde ortaya çıktı.

The financial crime of manipulation (market abuse) is governed by Article 107 of the Turkish Capital Market Law (Law No. 6362). It penalizes both transaction-based manipulation (fictitious trading, wash sales, pump-and-dump) and information-based manipulation (disseminating false rumors or misleading forecasts to influence capital market prices). Conviction results in heavy prison sentences and mandatory judicial fines tied to the illicit profit obtained.

The crime of manipulation, regulated in the Capital Market Law No. 6362 (CML), is among the most consequential financial crimes in modern economic legislation. The legislator has criminalized market manipulation to protect individual and institutional investors from fraudulent distortions, establishing deterrent and effective enforcement mechanisms to safeguard transparency, fairness, and public trust in capital markets.

What is The Capital Market?

The capital market is an organized financial system in which financial intermediaries transfer the savings of fund providers to parties demanding long-term capital. Fund demanders and fund suppliers establish institutional relations through capital market intermediaries, exchanges, and regulatory bodies. The crime of manipulation regulated under Article 107 of Law No. 6362 primarily targets the abuse of capital market instruments.

A general definition of capital market instruments is provided in Article 3 of the Capital Market Law as: “Securities, derivative instruments, and investment contracts, including other capital market instruments determined by the Board to be within this scope.” For an economy to develop sustainably, capital markets must maintain a transparent, stable, fair, and secure structure. Because the capital market is one of the cornerstones of the national economic order, penal sanctions are strictly envisaged to preserve market integrity.

What is The Crime of Manipulation?

Under Turkish Capital Market Law, market manipulation is classified into two distinct typologies:

• Transaction-Based Manipulation (Market Fraud — Art. 107/1): Executing artificial buy or sell orders, transactions, or account movements;
• Information-Based Manipulation (Information Fraud — Art. 107/2): Disseminating false, misleading, or deceptive news, comments, or reports to alter prices.

Pursuant to Article 107/1, those who execute buy or sell transactions, give orders, cancel orders, change orders, or carry out account activities regarding the prices, price changes, supply, and demand of capital market instruments to create a false or misleading impression shall be punished with imprisonment from three to five years and a judicial fine from five thousand to ten thousand days.

Legal and Material Subject of the Crime of Manipulation

The primary legal interest protected in the crime of manipulation is the national economy and the integrity of the financial system. Artificial manipulation of securities distorts the prices of financial assets, misdirects capital allocation, affects bank interest rates, and damages the economy. Additionally, the regulation protects the fair, transparent, and competitive functioning of the market. Manipulating instruments directly harms individual and institutional investors. In both transaction-based and information-based market fraud, the material subject is capital market instruments.

Transaction-Based Manipulation (CML Art. 107/1)

As the perpetrator does not require specific personal status, transaction-based manipulation is not an exclusive or specific crime (özgü suç); anyone can commit it. Those who make purchases, sell, give orders, cancel orders, amend orders, or conduct account movements are defined as perpetrators. Legal entities cannot be perpetrators of a crime under Turkish criminal law; however, administrative fines and corporate security measures (TPC Art. 60) may be imposed on legal entities benefiting from manipulation.

Regarding the victim, in the broad sense the victim is the State and society as a whole, while in the specific sense the victims are investors whose investments are compromised. The crime is committed through active commissive acts with alternative elective forms of action:

• Buying or Selling: Executing artificial trades through intermediary institutions on the exchange to steer market prices;
• Giving, Cancelling, or Amending Orders: Transmitting unexecuted or deceptive orders to create fictitious order depth. Cancelling or amending orders transmitted to Borsa Istanbul with manipulative intent constitutes the offense even if the initial order submission was not illegal per se;
• Performing Account Activities: Making transfers between accounts or using straw-man/nominee accounts to obscure true ownership and generate fictitious market activity.

Moral Element (Specific Intent)

The crime requires direct intent accompanied by special intent (specific motive). Because the statutory definition incorporates the wording “to create a false or misleading impression,” the perpetrator must act with this specific intent. Neither eventual intent (olası kast) nor negligence can constitute market manipulation.

Statutory Grounds of Justification (CML Art. 108)

Article 108 of the Capital Market Law outlines specific lawful operations that do not constitute manipulation:

• Transactions executed by the Central Bank of the Republic of Turkey (CBRT) or authorized public entities implementing monetary, exchange rate, public debt management, or financial stability policies;
• Share repurchase programs executed in accordance with Capital Markets Board regulations, or share acquisition programs directed at company employees and subsidiaries;
• Price-stabilizing operations and market-making activities performed in strict conformity with Board regulations to support market liquidity for predetermined periods.

Manipulative Transaction Typologies Identified by the CMB

In practice, the Capital Markets Board has identified recurring transaction patterns that constitute transaction-based manipulation:

• Wash Sales: Simultaneous fictitious buying and selling where the beneficial ownership of the security does not change, creating artificial volume;
• Matched Orders: Collusive pre-arranged orders where parties coordinate price, quantity, and execution timing;
• Concentration (Runs): Aggressively purchasing large volumes of floating shares to artificially drive up market valuations;
• Impossible Orders / Spoofing: Placing large non-bona-fide orders to fabricate demand or supply with the intention of cancelling them before execution;
• Cornering: Hoarding available supply of an instrument or derivative underlying to dominate price discovery;
• Marking the Close (Opening/Closing Manipulation): Entering transactions at the opening or closing bells to artificially dictate benchmark closing prices.

Information-Based Manipulation (CML Art. 107/2)

Information-based manipulation is regulated under paragraph 2 of Article 107. Anyone can commit this offense. The elective actions include:

• Giving false or misleading information;
• Spreading fabricated rumours (such as unfounded claims of corporate bankruptcy or windfall contracts);
• Publishing manipulative news stories or press releases;
• Making biased comments or preparing and circulating deceptive analytical reports.

Crucially, unlike transaction-based manipulation, information-based manipulation is not a mere act crime. The statutory definition explicitly requires the perpetrator or third parties to obtain a material benefit as a result of the elective act. If false information is spread but no material gain is realized, the completed crime does not occur.

Special Forms: Attempt, Concurrence, and Complicity

Attempt: Both forms are amenable to attempt. For transaction-based manipulation, an attempt occurs if the divisional execution of orders is interrupted. For information-based manipulation, if false news is circulated but the perpetrator is apprehended before securing the intended financial benefit, the offense remains at the stage of attempt.

Successive Offenses (Chain Crimes — TPC Art. 43): If multiple manipulative transactions or deceptive publications are executed at different times under a single criminal resolution, chain crime provisions apply, increasing the statutory penalty.

Ideal Concurrence (TPC Art. 44): Where an act simultaneously violates another statute—such as Article 164 of the TPC (disseminating false information about companies)—Article 107 of the CML applies as the heavier and specialized statutory provision.

Complicity: General criminal rules on co-perpetration, incitement, and aiding apply fully to manipulative rings and syndicate arrangements.

Penal Sanctions Under Article 107

Penalties for market manipulation combine imprisonment and non-optional judicial fines:

• Transaction-Based Manipulation (Art. 107/1): Imprisonment from 3 to 5 years and a judicial fine from 5,000 to 10,000 days. The statute expressly mandates that the judicial fine imposed cannot be less than the material benefit obtained from the crime.
• Information-Based Manipulation (Art. 107/2): Imprisonment from 3 to 5 years and a judicial fine of up to 5,000 days.

Effective Remorse in Financial Crime of Manipulation

An effective remorse provision is explicitly provided for transaction-based manipulation under Article 107/1. If the perpetrator shows remorse and transfers to the Treasury an amount not less than five hundred thousand Turkish Liras, representing twice the amount of the benefit obtained or caused to be obtained:

• Before investigation begins: No criminal penalty shall be imposed;
• During the investigation stage: The penalty to be imposed is reduced by one-half (1/2);
• During the prosecution stage (until verdict): The penalty is reduced by one-third (1/3).

Note: Effective remorse is not applicable to information-based manipulation under Article 107/2.

Competent and Authorized Court

Pursuant to the decree of the Council of Judges and Prosecutors (HSK First Chamber, dated 09/05/2013 and numbered 864), the Criminal Courts of First Instance (Asliye Ceza Mahkemeleri) hold designated subject-matter jurisdiction over capital market crimes. Because the transactions are transacted through the systems of Borsa Istanbul, the Istanbul Criminal Courts of First Instance hold territorial jurisdiction.

Bibliography

• Coskun, Secil. Manipulation Crime in the Law of Capital Market. (Ankara: Ankara University, Institute of Social Sciences, Master’s Thesis, 2020).
• Duman, Buminhan. Manipulation Crime (Manipulation) in the Law of Capital Market (Ankara: Adalet Press, 2020).
• Pasaoglu Koroglu, Duygu. Manipulation Crime in the Context of Art. 107 of Capital Market Law (Istanbul: Medipol University, Institute of Social Sciences, Master’s Thesis, 2019).

Financial Crime of Manipulation yazısı ilk önce HP Hayalioğlu & Partners Hukuk Bürosu üzerinde ortaya çıktı.

Economic and white-collar crimes in Turkey encompass financial offenses committed in commercial, corporate, and public spheres. Governed primarily by the Turkish Penal Code (Law No. 5237), Turkish Commercial Code (Law No. 6102), and Banking Law (Law No. 5411), prominent offenses include Aggravated Fraud (TCK 158), Abuse of Trust (TCK 155), Fraudulent Bankruptcy (TCK 161), Bribery (TCK 252), Bid Rigging (TCK 235), and Banking Embezzlement.

The economy—defined as how societies produce goods and services to sustain life, distribute wealth, and manage commercial relationships—is essential for the survival and progress of modern nations. The nature of state intervention in economic affairs reflects the underlying economic regime. While socialist models maintain pervasive state direction, liberal free-market systems are founded upon private enterprise and voluntary exchange, epitomized by Adam Smith’s principle of “laissez-faire, laissez-passer.”

Nevertheless, even in market-oriented economies, the state intervenes to ensure market fairness, protect free competition, prevent monopolistic abuses, and maintain macroeconomic trust. These interventions manifest through private law frameworks, administrative market regulations (such as antitrust and energy oversight), and, ultimately, economic criminal law, which attaches penal sanctions to serious violations of the economic order.

Defining Economic Crimes, White-Collar Crimes, and Financial Crimes

Within legal doctrine, several related terms are deployed to describe non-violent commercial wrongdoing:

• Economic Law: The holistic body of legal norms through which the state governs and regulates commercial and fiscal life;
• Economic Criminal Law: The specialized branch of criminal law wherein the state deploys punitive mechanisms to protect the integrity of the economic system;
• White-Collar Crimes: A criminological concept traditionally distinguishing managerial and professional actors from blue-collar labor. In corporate settings, it describes offenses committed by executives and professionals utilizing their corporate position for enrichment;
• Financial Crimes: Offenses directed specifically against public finances, the treasury, or the financial banking apparatus, such as tax fraud, customs evasion, and money laundering;
• Economic Crimes: An overarching umbrella concept that encompasses both white-collar offenses and financial crimes, evaluated through its distinct sociological and doctrinal characteristics.

Characteristics and Criminological Profile of Perpetrators

Perpetrators of economic crimes differ fundamentally from perpetrators of violent street crimes. They are typically established economic operators, seasoned professionals, corporate executives, or technical specialists with substantial social standing and high self-confidence. In most instances, these individuals do not commit offenses to escape poverty, but rather to multiply existing wealth or consolidate commercial advantages. The defining criterion is the perpetrator’s reliance upon specialized commercial expertise, procedural sophistication, and institutional trust.

Furthermore, economic crimes jeopardize both individual interests (the private assets of specific victims) and supra-individual interests (collective public confidence in credit, commercial trade, and capital market stability). Without criminal enforcement against bad-faith market actors, the security of credit relations deteriorates, lenders withdraw capital, and economic liquidity freezes. Economic criminal law provides certainty that the state will enforce commercial integrity.

The Ultima Ratio Principle in Economic Criminal Law

A cardinal pillar of criminal jurisprudence is the ultima ratio principle: criminal law must serve strictly as an instrument of last resort. The state must first exhaust civil law remedies (contractual damages, restitution) and administrative law sanctions (monetary fines, regulatory warnings) to regulate economic conduct. Only where an unlawful act produces substantial injustice that lesser sanctions cannot remedy should the criminal justice system intervene.

Perpetrators of economic crimes frequently rationalize their actions as “a calculated business risk on the road to success,” underestimating the societal harm. Prominent categories of economic crimes codified in Turkish legislation include:

• Fraud and aggravated fraud (TPC Arts. 157–158);
• Commercial bribery and influence peddling (TPC Arts. 252, 255);
• Counterfeiting of currency, valuable documents, and official seals;
• Fraudulent and negligent bankruptcy (TPC Arts. 161–162);
• Issuing bad checks under the Check Law No. 5941;
• Capital market manipulation and insider trading under Law No. 6362;
• Trademark and patent infringements under Industrial Property Code No. 6769;
• Tax smuggling and tax evasion under Tax Procedure Law No. 213;
• Illegal betting and gambling operations.

Typically, these offenses are non-violent, multi-victim, strictly intentional, multidisciplinary, and structured as danger crimes (tehlike suçları), where the creation of systemic risk suffices for culpability even before catastrophic harm materializes.

Penal Sanctions and Confiscation Regimes in Turkey

Modern penal systems counter economic crimes not only through custodial sentences (imprisonment) and judicial fines, but predominantly through economic deprivation mechanisms targeting illicit gains:

1. Confiscation of Goods and Proceeds (TPC Arts. 54 & 55)

Under Article 54 of the Turkish Penal Code, goods used in, allocated to, or generated by the commission of an intentional offense are confiscated to the State. Under Article 55, the material benefits derived from the crime, or economic assets representing their conversion, are subject to confiscation of earnings, provided such assets are not restituted to the legitimate victim. Importantly, Article 54/3 establishes a proportionality test: if confiscation produces consequences disproportionately harsher than the offense itself, the court may refrain from ordering it. General confiscation of an offender’s entire estate is strictly prohibited under Article 38/10 of the Turkish Constitution.

2. Corporate Security Measures (TPC Art. 60)

Where intentional economic crimes are committed for the benefit of a private legal entity through the participation or misuse of authority of its management organs or representatives, the operating license granted by public authorities shall be revoked. If license revocation would produce disproportionate hardship, the court exercises judicial discretion not to order the measure.

3. Deprivation of Rights and Professional Debarment (TPC Art. 53)

Perpetrators of intentional economic offenses face statutory deprivation of civil rights, including disqualification from holding corporate management roles, participating in public tenders, practicing regulated professions (e.g., law, accountancy), and holding public office.

Constitutional Principles Governing Economic Offenses

Prohibition of Imprisonment for Debt: Codified in Article 38/8 of the Turkish Constitution, Article 1 of Protocol No. 4 to the ECHR, and Article 11 of the ICCPR: “No one shall be deprived of their liberty merely because they are unable to fulfill a contractual obligation.” While debtors cannot be imprisoned for mere civil default, the Turkish Constitutional Court has affirmed that penal sanctions for bad checks or fraudulent bankruptcy enforce statutory duties to the legal order, not private debt collection, and thus withstand constitutional scrutiny.

Economic Sanctions for Economic Crimes: To ensure effective deterrence, modern doctrine advocates imposing substantial economic penalties rather than solely short custodial sentences. Under Turkish capital market legislation, for instance, judicial fines imposed cannot be less than twice the financial benefit obtained, ensuring that crime remains unprofitable.

Investigative Measures and Modern Challenges

Because economic offenses are orchestrated by seasoned professionals with sophisticated corporate veils, the Criminal Procedure Code (CMK) authorizes specialized protective measures, including asset freezing, undercover investigators, telecommunication interception, and technical financial accounting audits. In recent years, novel phenomena such as cryptocurrency laundering and market hoarding/stocking during supply chain crises have expanded the scope of economic criminal enforcement in Turkey.

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Criminal extradition in Turkey is governed by Law No. 6706 on International Judicial Cooperation in Criminal Matters and the European Convention on Extradition (ECE). Extradition involves surrendering a foreign national located in Turkey to a requesting state for criminal prosecution or sentence enforcement. While the competent High Criminal Court (Ağır Ceza Mahkemesi) evaluates the legal admissibility of the request, final extradition requires executive approval by the President of Turkey.

The state’s criminal jurisdiction authority, which the state has been granted by its sovereign nature, is critical regarding public security and justice. The principle of territoriality, which prevails in Criminal Law, eliminates the possibility of punishing a person who absconds to a foreign state after committing a crime. In such cases, the international legal mechanism of “extradition of criminals” (criminal return) comes to the fore.

What is Extradition?

Extradition is the formal surrender and return of alleged offenders or convicts—who have committed a crime in a state’s territory and subsequently fled to another state’s jurisdiction—to the jurisdiction where the crime was committed or where a sentence is to be executed.^[1]

In accordance with the principles of International Law, states investigate and prosecute their own citizens according to their own domestic legislation, and the extradition procedure will generally not be applied when it comes to a state’s own citizens. Regarding the extradition of criminals in Turkish Law, extradition procedures are governed primarily by The International Judicial Cooperation Law in Criminal Matters (Law No. 6706) and the European Convention on Extradition (ECE), to which Turkey is a party.

What Are The Conditions For Extradition?

Extradition will take place with the condition that the state requesting extradition and the state in whose territory the offender is found (the requested state) have an international agreement or treaty. Thus, the specific provisions of the convention apply. For instance, the states party to the ECE have mutually agreed to extradite offenders who are being prosecuted for violating the law or who are wanted by judicial authorities for the execution of a custodial penalty or security measure, under the conditions set out in the convention.^[2]

In the absence of a multilateral or bilateral treaty between the requesting and requested states, extradition operates in accordance with the domestic law of the states (Law No. 6706 in Turkey) and the principles of mutual goodwill and diplomatic reciprocity.

1. Presence of Crime and Double Criminality

The person whose extradition is requested must have committed, or be credibly alleged to have committed, a recognized crime. Under the fundamental “principle of double criminality”, the act in question must constitute an extraditable criminal offense under the domestic laws of both the requesting and requested states. In addition, the alleged offense must not be barred by a statute of limitations (prescription) or amnesty/remission of punishment under either legal system.

2. The Severity of The Offense

Pursuant to Article 10/2 of Law No. 6706, in order for extradition provisions to apply:

“Request for extradition may be accepted during the investigation or prosecution phase for offences which require the upper limit of the sentence of deprivation of liberty to be at least one year according to both the law of the requesting state and Turkish Law. With regard to finalized convictions, the request for extradition may be accepted if the imposed sentence is deprivation of liberty for at least four months. In the event that the person whose extradition is requested has committed more than one offence, these offences may be included in the request for extradition even if the stipulated sentence for some of them is less than the specified period.”

Article 2 of the European Convention on Extradition sets out equivalent threshold requirements regarding the minimum severity of extraditable sentences.

Extraditable Characteristics and Categories of Offenses

Article 3 and subsequent provisions of the ECE and Law No. 6706 specify key limitations across categories of offenses:

Political Crimes

Crimes against the State, its national security, sovereignty, independence, the exercise of public freedoms, or violation thereof are considered political crimes.^[3] Pursuant to Article 3 of the ECE and Turkish law, extradition procedures shall not be granted for purely political crimes. However, Article 3/3 of the ECE stipulates an essential exception: an attempt against the life of a Head of State or a member of their family shall not be deemed a political crime (the attentat clause).

Furthermore, under Article 3/2 of the ECE, the requested state shall refuse extradition if there are substantial grounds for believing that the request was made for the purpose of prosecuting or punishing a person on account of race, religion, nationality, or political opinion, or that the person’s position may be prejudiced for any of these reasons.

Military Crimes

Pursuant to Article 4 of the ECE, extradition procedures do not apply to purely military offenses that do not constitute crimes under ordinary criminal law.

Financial Crimes

Financial crimes are offenses committed against the financial or fiscal system of a state, including violations regarding taxes, customs duties, currency exchange, and tariffs. Pursuant to Article 5 of the ECE, extradition for fiscal and financial crimes is subject to agreement between the contracting parties.

Circumstances Where Extradition is Inadmissible

Under Law No. 6706, extradition cannot be granted under the following circumstances:

• Turkish Citizenship (Art. 11/1-a): Except for obligations arising from membership in the International Criminal Court, a Turkish citizen shall not be extradited;
• Prior Acquittal or Conviction in Turkey (Art. 11/1-ç): In accordance with the ne bis in idem principle, if the person has already been acquitted, convicted, or pardoned in Turkey for the act in question, extradition is denied;
• Death Penalty or Inhuman Treatment (Art. 11/1-d): Extradition is impermissible if the offense is punishable by the death penalty, torture, or inhuman/degrading punishment, unless the requesting state provides binding and sufficient diplomatic guarantees that such punishment will not be imposed or carried out;
• Humanitarian and Proportionality Grounds: In the landmark Nivette v. France (44190/98, July 3, 2001) case, the European Court of Human Rights (ECtHR) affirmed that extraditing an individual where they face a real risk of treatment contrary to Article 3 of the ECHR constitutes a convention violation. Furthermore, extradition may be refused if the requested person is under 18 years of age, has longstanding familial ties in Turkey, or if severe illness makes extradition grossly disproportionate.

Extradition Procedure and Competent Judicial Bodies

In Turkey, the judicial phase of extradition is handled as follows:

• Competent Court: The decision on the admissibility of the extradition request falls within the jurisdiction of the Heavy Criminal Court (Ağır Ceza Mahkemesi) of the territorial district where the requested person is located. If the person’s whereabouts in Turkey cannot be established, the Ankara Heavy Criminal Court holds jurisdiction;
• Executive Discretion (Art. 19 of Law No. 6706): Even where the Heavy Criminal Court finds the extradition request legally admissible, the actual execution and surrender of the individual remains subject to the formal proposal of the Minister of Justice and the final approval of the President of the Republic, in consultation with the Ministry of Foreign Affairs and Ministry of Interior;
• Postponement of Surrender (Art. 20 of Law No. 6706): If the person is subject to an ongoing criminal investigation, prosecution, or prison sentence in Turkey for another crime, or is medically unfit to travel, the Central Authority may postpone the surrender.

Non-Extradition Jurisdictions

States such as Lebanon, Tajikistan, Jordan, Uzbekistan, Pakistan, Syria, Mongolia, Egypt, and Libya maintain stringent constitutional or statutory prohibitions against extraditing their own nationals or lack reciprocal extradition treaties, making extradition contingent upon specialized ad hoc diplomatic negotiations.

References & Sources

• [1] ŞAFAK, Ali, Ansiklopedik Hukuk Sözlüğü, Genişletilmiş ve Gözden Geçirilmiş 4. Baskı, Ankara, 2002, s. 527.
• [2] ÖÇER, Oktay, “Extradition of Criminals and the European Convention”, Adalet Dergisi, Issue 1-12, Ankara, 1974, pp. 179-193.
• [3] BAYRAKTAR, Köksal, Political Crime, Istanbul, 1982, pp. 84-88.

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Under Article 134 of the Turkish Penal Code (Law No. 5237), unlawful intrusion into an individual's confidential private life, non-consensual audio or video surveillance, and unauthorized disclosure of personal private records are serious criminal offenses punishable by up to 6 years of imprisonment. In Turkish criminal jurisprudence, non-consensual recordings generally constitute inadmissible unlawful evidence in court proceedings.

In today’s world, the issue of privacy has become a crucial concern for individuals, governments, and corporations alike. Rapid advancements in technology and communications have made it easier than ever for personal information, private moments, and confidential data to be recorded, shared, and exploited without consent. The invasion of privacy is a serious offense that can result in significant harm to an individual’s reputation, emotional well-being, and social standing. In this comprehensive study, we analyze the crime of Violation of Privacy under Article 134 of the Turkish Penal Code (TPC No. 5237), examining its statutory elements, qualified forms, procedural safeguards, case law, and international human rights benchmarks.

I. Introduction and Fundamental Human Rights Guarantees

Living as part of society requires individuals to interact within a collective order. However, the fact that an individual has obligations towards society does not mean they surrender their personal sphere. Every person possesses a private life distinct from the collective sphere, which demands absolute respect from all other individuals and the state.

The right to privacy is universally safeguarded across constitutional and international conventions:

• Article 8 of the European Convention on Human Rights (ECHR): “Everyone has the right to respect for his private and family life, his home and his correspondence.”
• Article 20 of the Turkish Constitution: “Everyone has the right to demand respect for their private and family life. The privacy of private and family life is inviolable.”
• Article 24 of the Turkish Civil Code: Provides comprehensive civil protection for personal rights against unlawful encroachments.^[1]

II. Definition and Statutory Elements of the Crime (TPC Article 134)

A. General Definition and Boundary Distinctions

The crime of violation of privacy is codified under Article 134 of the Turkish Penal Code No. 5237, aimed at protecting individual habitat, intimate space, and personal autonomy pursuant to constitutional principles and ECHR Article 8.^[2]

It is essential to distinguish Article 134 from neighboring penal provisions:

• Violation of Dwelling Immunity (TPC Art. 116): Unlawfully entering a residence or workplace without permission, or refusing to vacate upon request, violates dwelling immunity.^[3] However, using technical surveillance devices, hidden microphones, or telescopic lenses to peer or eavesdrop into private life within a residence constitutes the crime of violation of privacy under Article 134.
• Breach of Secrecy of Communication (TPC Art. 132): Intercepting, recording, or disclosing telecommunication or postal correspondence between specific parties constitutes the specialized crime under Article 132. Article 134 acts as a general, residual norm governing all other unlawful encroachments upon private life.^[4]

B. Objective Elements of Typicality (Material Facts)

1. Matter of Fact (The Three Spheres Doctrine): Neither the Penal Code nor the Constitution provides a rigid definition of “private life.” In legal doctrine, human living space is categorized into three spheres:^[5]

• Public Sphere (Ortak Alan): Activities conducted openly before everyone, where observation causes no societal injury;
• Private Sphere (Özel Hayat Alanı): The sphere shared only with family, relatives, and close acquaintances;
• Secret Sphere (Gizli Alan): The innermost intimate realm reserved exclusively for oneself or select confidants, encompassing sexual life, physical privacy, confidential beliefs, and personal medical data.

Crucially, being in a public space does not mean an individual consents to continuous, secret recording or surveillance. As established by the Court of Cassation (Yargıtay):

“The concept of private life is not confined to what occurs behind closed doors and four walls. It encompasses all private events and information that an individual does not wish to disclose to the general public. Being in a public area does not constitute consent to unauthorized listening, recording, or continuous visual surveillance. In public spaces, the principle of remaining obscure in the crowd applies.”^[6]

Key precedents illustrating this principle include:

• The Street Recording Precedent: A perpetrator who concealed a camera in a coal cellar near his house to secretly record women and girls walking along the street—zooming in on physical privacy—was convicted under Article 134. The Supreme Court overturned an acquittal, establishing that privacy is personal, not purely spatial.^[7]
• The Disguised Surveillance Precedent: A spouse who wore a hat and mask to secretly stalk and photograph his estranged wife with a companion in public venues during pending divorce litigation was convicted under Article 134.^[8]
• Persistent Following: Persistently trailing a woman and photographing her from a 25-meter distance was held to constitute an unlawful invasion of privacy.^[9]

2. Perpetrator and Victim: Anyone can commit the offense. Spouses maintain enforceable privacy rights against one another; marital status does not extinguish individual privacy.^[10] Anyone alive can be a victim. Defaming or disclosing images of a deceased person constitutes the separate offense of insulting the memory of a deceased person under TPC Article 130/2.

3. Act, Consequence, and Causality: Article 134 codifies two distinct criminal acts:

• TPC Art. 134/1 — Basic Violation of Privacy: Punishable by one to three years of imprisonment. If privacy is violated by recording images or sounds, the penalty is increased by one fold (doubled). The offense is a dangerous crime (tehlike suçu); proof of tangible material loss is not required.^[11][12]
• TPC Art. 134/2 — Unlawful Disclosure of Images or Sounds: Punishable by two to five years of imprisonment. If disclosed through the press, internet, or broadcasting media, the statutory penalty applies equally. Unlawful disclosure occurs whenever intimate data is disseminated without consent, even if the initial recording was made lawfully (e.g., souvenir photos from a private party posted online without consent).^[15][16][17]

Distinction from Personal Data Crimes (TPC Art. 136): The Supreme Court Criminal General Assembly has ruled that sharing non-intimate daily life photographs on social media without consent constitutes the crime of illegally giving or disseminating personal data under TPC Article 136. To constitute a violation of privacy under TPC Article 134, the recording or image must capture the intimate private sphere of the individual.^[13][14]

C. Aggravating Circumstances (TPC Art. 137)

Pursuant to Article 137 of the Turkish Penal Code, the penalty is increased by one-half (1/2) if the crime is committed:

• By a public official abusing the authority conferred by their official duties (TPC Art. 137/1-a);
• By taking advantage of the convenience provided by a specific profession or trade (TPC Art. 137/1-b), such as a retail manager installing hidden cameras in clothing fitting rooms;^[20]
• By personnel of enterprises providing electronic communication services governed by Law No. 5809.

D. Subjective Element

The crime requires general criminal intent; it cannot be committed through negligence. Eventual intent (olası kast) is legally sufficient, in which case sentencing mitigation applies pursuant to TPC Article 21/2. The perpetrator’s specific underlying motive or curiosity is immaterial to culpability.^[21]

E. Grounds of Justification and Compliance with Law

• Performance of Legal Duty: Covert surveillance, undercover investigators, or technical monitoring executed under judicial warrants pursuant to the Code of Criminal Procedure (CMK Arts. 139, 140) are lawful. However, CMK Article 140/5 strictly prohibits technical surveillance inside private residences; recordings inside a residence remain illegal and inadmissible even if conducted by law enforcement.^[22]
• Valid Consent: Consent of the entitled party precludes unlawfulness, provided the acts do not exceed the scope of consent or infringe human dignity. Consent to enter a premises does not imply consent to record or broadcast.
• Freedom of Press and the Right to Inform: Journalistic publication of matters touching private life is lawful only where four criteria are cumulatively satisfied: the event is real, current, possesses genuine public interest, and maintains proportional intellectual connection to the reporting.^[24] In Von Hannover v. Germany (ECtHR, 2004), the European Court affirmed that the public’s morbid curiosity regarding the private lives of public figures who do not perform official state functions does not justify privacy infringements under Article 8.^[25]
• Legitimate Defense of Rights in Sudden Emergencies: Where an individual faces sudden criminal conduct (such as extortion, blackmail, or sexual abuse) and has no immediate opportunity to summon public authorities, recording speech or images solely to prevent evidence destruction and submit it to judicial authorities does not constitute a criminal violation of privacy.^[26] However, deliberate entrapment or premeditated surveillance across spouses (e.g., hidden room bugs or VGA monitoring cables in divorce disputes) is deemed unlawful by high court doctrine.^[27]

III. Special Forms: Attempt, Concurrence, and Participation

Attempt: Because Article 134/1 is a formal act crime, attempt is possible only where the execution of acts is divisible in time. In Article 134/2 (disclosure), if the perpetrator attempts to sell intimate recordings to media outlets but is apprehended prior to publication, attempt provisions apply.^[28]

Real Concurrence and Intellectual Concurrence: If the same individual both records intimate material (Art. 134/1 sentence 2) and subsequently discloses it to third parties (Art. 134/2), the perpetrator is punished separately for both offenses under real concurrence rules.^[30][31]

In a notable case where a defendant stapled photographs of his former partner to intimate clothing and scattered them across public streets in Adapazarı, the Court of Cassation applied intellectual concurrence under TPC Article 44 (applying Article 134/2 as the heavier offense) combined with chain crime provisions under Article 43 for repetitive acts.^[32] Furthermore, if disclosure is accompanied by extortionate threats, separate charges for blackmail under TPC Article 107 apply.^[34]

IV. Complaint, Conciliation, and Court Jurisdiction

Pursuant to Article 139 of the Turkish Penal Code, offenses under Article 134 are strictly subject to victim complaint:

• Complaint Period: The victim must lodge a formal complaint within six months from the date they become aware of the act and the perpetrator. Failure to file within six months extinguishes the right of action. The statutory limitation period for prosecution is 8 years.
• Mandatory Conciliation (Uzlaştırma): Because the offense is subject to complaint and not excluded by statute, it is subject to mandatory pre-trial conciliation under CMK Article 253. If the parties reach agreement before an official conciliator, a decision of non-prosecution (KYOK) or dismissal of the case is rendered.
• Competent Court: The Criminal Court of First Instance (Asliye Ceza Mahkemesi) holds subject-matter jurisdiction to hear trials under Article 134.
• Withdrawal of Complaint: The victim may withdraw the complaint at any stage of the investigation or prosecution prior to final judgment, resulting in termination of criminal proceedings.

V. Sentencing, Judicial Fines, HAGB, and Deferment

• Conversion to Judicial Fine: If the custodial sentence imposed under Article 134/1 is one year or less, it may be converted into a judicial fine pursuant to TPC Article 50.
• Suspension of Pronouncement of the Verdict (HAGB): If the sentence imposed is two years or less and the defendant has no prior intentional conviction, the court may defer the announcement of the verdict under CMK Article 231, placing the offender under a 5-year supervision period. Upon successful completion, the conviction is expunged.
• Postponement of Sentence: Sentences of two years or less may be postponed under TPC Article 51 subject to probation of one to three years.

VI. Non-Pecuniary Compensation and Civil Liability

An unlawful violation of privacy constitutes an actionable tort infringing personal rights under Articles 56 and 58 of the Turkish Code of Obligations (TBK). The injured party may institute an independent civil action before the Civil Courts of First Instance (Asliye Hukuk Mahkemesi) to claim non-pecuniary moral damages (manevi tazminat) for emotional distress, humiliation, and psychological suffering. The civil action proceeds independently from the criminal proceedings, although findings of fact established in criminal court provide persuasive evidentiary support.^[35]

VII. Arrest and Protective Injunctions Under Law No. 6284

Under Article 100 of the Code of Criminal Procedure, an arrest warrant requires concrete evidence demonstrating strong criminal suspicion alongside specific grounds for detention (flight risk or risk of evidence tampering). While offenses under Article 134 are not catalogue offenses, the statutory maximums (3 years for 134/1 and 5 years for 134/2) legally permit arrest if judicial control measures are deemed inadequate.

Furthermore, under Law No. 6284 on the Protection of Family and Prevention of Violence Against Women, victims of psychological violence or digital stalking resulting from privacy violations may obtain immediate protective injunctions, including restraining orders, surrender of recording equipment, and barring contact.

VIII. Classification Regarding Disgraceful Offenses (Yüz Kızartıcı Suçlar)

The concept of “disgraceful offense” is codified in Article 76 of the Turkish Constitution and specific civil service statutes (such as Civil Servants Law No. 657), establishing disqualifications for public office. In Turkish jurisprudence, the list of disgraceful offenses is strictly limited by statute (theft, fraud, bribery, embezzlement, forgery, fraudulent bankruptcy, etc.). Violation of privacy (TPC Art. 134) is not classified as a disgraceful offense under Turkish law.

IX. Telecommunications Surveillance and Access Blocking (Law No. 5651)

Supervision of Communication: Interception and recording of communications under CMK Article 135 is reserved strictly for catalogue crimes, which do not include Article 134. However, historical traffic records (HTS metadata regarding call dates, durations, and numbers) may be subpoenaed through the Information and Communication Technologies Authority (ICTA / BTK).^[37][38]

Internet Access Blocking (Law No. 5651 Art. 9/A): Where intimate photographs or private videos are uploaded online (e.g., social media or video streaming platforms), victims or their legal counsel can apply directly to the ICTA for immediate URL-based access blocking. The ICTA executes blocking within four hours, and the measure is submitted to the Criminal Judgeship of Peace (Sulh Ceza Hakimliği) for judicial confirmation within 24 to 48 hours.

X. Conclusion

As affirmed in the landmark ruling of the Turkish Constitutional Court (dated 31.03.1987, E: 1986/24, K: 1987/8):

“The protection of private life means, above all, preserving the confidentiality of that life and shielding it from unconsented disclosure. One of the most fundamental rights of the individual is to ensure that what transpires in their private realm is known only to themselves and those they choose. Respect for private life is indispensable for human dignity, personal happiness, and societal tranquility.”

Privacy is a foundational human right protected across constitutional norms and international conventions. Any unauthorized invasion—whether committed in person, through optical surveillance, or across digital platforms—engages strict criminal responsibility, civil liability, and statutory protective measures under Turkish law.

References & Sources

• [1] HAFIZOĞULLARI, Zeki; ÖZEN, Muharrem, “Crimes Against Private Life and Secret Area of Life,” Ankara Bar Association Journal, Issue: 4, 2009.
• [2] EKER KAZANCI, “Protection of Taking Unauthorized Images of Persons in Accordance with TPC Art. 134”, DEU Faculty of Law Journal, Vol. 9, Issue 1, p. 142; AKYÜREK, Güçlü, Özel Hayatın Gizliliğini İhlal Suçu, Seçkin Yayıncılık, Ankara, 2014, p. 188.
• [3] EKER KAZANCI, ibid., p. 143.
• [4] EKER KAZANCI, ibid., p. 142; ZAFER, Hamide, Ceza Hukuku Bakımından Özel Hayatın ve Gizli Alanın Korunması, Beta, İstanbul, 2011, p. 178.
• [5] AKYÜREK, ibid., p. 194.
• [6] Court of Cassation 12th Criminal Chamber, File No: 2015/9708, Decision No: 2016/10986, 29.06.2016.
• [7] Court of Cassation 12th Criminal Chamber, Decision No: 10841/8373, 07.04.2014.
• [8] Court of Cassation 12th Criminal Chamber, File No: 2015/4903, Decision No: 2018/11371, 28.11.2018.
• [9] Court of Cassation 12th Criminal Chamber, File No: 2016/2244, Decision No: 2017/5453, 21.06.2017.
• [10] ZAFER, ibid., p. 186.
• [11] AKYÜREK, ibid., p. 192.
• [12] AKYÜREK, ibid., p. 193; Court of Cassation 12th Criminal Chamber, 19.01.2015, 11530/584.
• [13] Court of Cassation Criminal General Assembly, 17.06.2014, 1510/331.
• [14] Court of Cassation 14th Criminal Chamber, 11.10.2017, 9227/4650.
• [15] EKER KAZANCI, ibid., p. 151.
• [16] TEZCAN, Durmuş; ERDEM, Mustafa Ruhan; ÖNOK, Murat, Teorik ve Pratik Ceza Özel Hukuku, Seçkin Yayıncılık, Ankara, 2020, p. 722.
• [17] EKER KAZANCI, ibid., p. 149.
• [18] EKER KAZANCI, ibid., p. 150.
• [19] EKER KAZANCI, ibid., p. 150.
• [20] Court of Cassation 12th Criminal Chamber, 24.11.2014, 7518/23588.
• [21] EKER KAZANCI, ibid., p. 154.
• [22] EKER KAZANCI, ibid., p. 154.
• [23] TEZCAN et al., ibid., p. 723.
• [24] TEZCAN et al., ibid., p. 723.
• [25] European Court of Human Rights, Von Hannover v. Germany, App. No. 59320/00, 24.06.2004; TEZCAN et al., ibid., p. 724.
• [26] Court of Cassation 12th Criminal Chamber, 13117/14791.
• [27] TEZCAN et al., ibid., p. 726.
• [28] EKER KAZANCI, ibid., p. 155.
• [29] Court of Cassation 9th Criminal Chamber, 09.11.2016, 9893/12504.
• [30] TEZCAN et al., ibid., p. 728.
• [31] TEZCAN et al., ibid., p. 728.
• [32] TEZCAN et al., ibid., p. 728.
• [33] TEZCAN et al., ibid., p. 729.
• [34] Court of Cassation 8th Criminal Chamber, 29.09.2014, 1714/18859.
• [35] OĞUZMAN, M. Kemal; ÖZ, Turgut, Borçlar Hukuku Genel Hükümler, Vedat Kitapçılık, İstanbul, 2019, p. 317.
• [36] Court of Cassation 2nd Civil Chamber, File No: 2020/2346, Decision No: 2020/3302.
• [37] KUNTER, Nurullah; YENİSEY, Feridun; NUHOĞLU, Ayşe, Muhakeme Hukuku Dalı Olarak Ceza Muhakemesi Hukuku, Beta, İstanbul, p. 1354.
• [38] ÜNVER, Yener; HAKERİ, Hakan, Ceza Muhakemesi Hukuku, Adalet Yayınevi, Ankara, p. 433.

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