TCK Article 109 punishes "a person who unlawfully deprives a person of his/her freedom to go or stay somewhere". This crime, which is usually committed in the form of "detention", "kidnapping", "imprisonment", is aimed at the fundamental freedom of the person.
Elements of Crime
- Material element: Depriving the victim of freedom of action, actually or morally.
- Illegality: Lack of legal grounds such as decision of competent authority, consent, self-defense.
- Duration: Even if it is for a very short time, it constitutes a crime; duration affects the penalty.
Penalties
- Art.109/1 (basic case): 1-5 years imprisonment.
- Art.109/2: The action is carried out by force, threat or fraud: the penalty is increased by half.
- Art.109/3 qualified situations:
- With a gun.
- Together by more than one person
- Due to the public duty performed by the person.
- By abusing the influence of public office.
- Against ancestor, descendant or spouse.
- Against a child or a person who is physically or mentally unable to defend himself. → The penalty is doubled (range 2-10 years).
- Art.109/4: If the victim suffers a significant economic loss as a result of the action: additional increase.
- Art.109/5: Committing the act for sexual purposes: additional increase.
- Art.109/6: Death of the victim as a result of the action: aggravated life imprisonment.
Domestic Detention
- Preventing the spouse from leaving the house → Art.109 + qualified case (descendants/descendants/spouse).
- Detention of the child by a family member outside of custody rights → Art.234 + Art.109 evaluation together.
- Protection order is an urgent measure within the framework of Law No. 6284.
"Kidnapping" — Child Victim
Abduction of the child by a person who does not have custody rights:
- Not only TCK Article 234 (abduction and detention of a child).
- If there is a sexual purpose, art.109/5 + art.103.
- If killing/injuring occurs during kidnapping, art.81/87 + art.109.
Supreme Court 14th CD — Established Approach
14. CD states that the crime of deprivation of liberty can occur even in "very short-term detention", and that the victim's inability to actually move is sufficient; It is accepted that the punishment will increase rapidly as the period gets longer and the qualified situation is added.
"Effective Regret" Provisions
TCK Article 110: Autonomous release of the victim without harming his/her person within 1 week from the day the crime was committed: the penalty is reduced by 1/3-2/3.
Complaint and Ex officio Prosecution
- Art.109 shall be prosecuted ex officio.
- The victim's complaint is not required; However, the existence of a complaint has evidentiary value.
Practical Considerations
Kidnapping/detention cases may involve multiple crime combinations. Criminal and family law lawyer should evaluate together.