WHAT IS THE CRIME OF DEPRIVED OF LIBERTY?

The crime of depriving a person of their liberty in Article 109 . In its legal definition, this crime is a serious offense punishable by the unlawful and forceful restriction of a person's freedom of movement (freedom to choose, travel, and go or not go wherever they wish) and preventing them from going to or staying in a place.

The fundamental legal value protected by this crime is the right to personal liberty and security, guaranteed by the Constitution

1. Material Elements and Methods of Commission of the Crime

According to the law, a crime occurs when a person's freedom to act freely is unlawfully violated. It can be committed in various ways:

• Physical Force or Coercion: Physically confining, tying up, or preventing a victim from leaving a place by force.

• Threat or Deception: Intimidating or tricking the victim into going to a specific location and forcing them to stay there (for example, locking them in a room with a false promise or holding them in a vehicle under threat of a weapon).

• Duration of Detention: For the crime to occur, it is not necessary for the victim to be held captive for days; it is sufficient that the act of deprivation of liberty continues unlawfully for a certain period of time .

2. Basic Form of the Crime and Punishment

• Basic Penalty: The crime of depriving a person of their liberty punishable by imprisonment for a period of 1 to 5 years .

• Investigation and Prosecution: The investigation and prosecution of the basic form of this crime are not dependent on a complaint. Judicial authorities initiate investigations ex officio (on their own initiative) from the moment they become aware of the crime.

3. Aggravating Circumstances (Reasons that Increase the Penalty)

Article 109, paragraphs 2 and 3 of the Turkish Penal Code regulate the circumstances that warrant a more severe punishment for the crime. Accordingly, the crime;

• With a weapon,

• By more than one person together,

• By taking advantage of the fact that the person is unable to determine their location or defend themselves,

• By taking advantage of the ease provided by public authority,

• Against an ascendant, descendant, spouse or sibling, or against a child or a person who is unable to defend themselves physically or mentally,

• With a monstrous feeling or by being directed and controlled,

• For the purpose of gaining an economic benefit,

If committed in this manner, the prison sentence will be increased. Furthermore, if the crime of injuring the victim is committed during the commission of this crime, a separate sentence will be imposed for the crime of injuring (subject to the rules of concurrent offenses).

EFFECTIVE REMORSE IN THE CRIME OF DEPRIVED OF LIBERTY 

• In this type of crime, the provision of effective repentance is accepted as a mitigating factor. the crime of depriving a person of their liberty voluntarily releases the victim to a safe place without causing them any harm before the investigation begins, the sentence may be reduced by up to two-thirds. The provision of effective repentance is regulated in Article 110 of the Turkish Penal Code No. 5237. The legal provision is stated below:

IS IT POSSIBLE TO ATTEMPT THE CRIME OF DEPRIVED A PERSON OF THEIR LIBERTY?

• Attempting to commit the crime of depriving a person of their liberty is possible. An attempt is when the perpetrator begins the execution of the crime but is unable to achieve the desired result due to reasons beyond their control. Since the execution of the crime of depriving a person of their liberty can be divided into specific parts, attempts are possible in both the simple and aggravated forms of the crime.

IS CONCURRENCE OF OFFENSES POSSIBLE IN THE CRIME OF DEPRIVED OF LIBERTY?            

• According to Article 109/6 of the Turkish Penal Code No. 5237, if the aggravated circumstances of the crime of depriving a person of their liberty occur as a result of intentional injury committed with the aim of committing the crime or during its commission, the perpetrator is also punished by applying the provisions relating to the crime of intentional injury.
• If the crime of unlawful deprivation of liberty is committed for sexual purposes, the perpetrator is punished separately for both the sexual offense and the crime of unlawful deprivation of liberty

THE CRIME OF DEPRIVED OF LIBERTY AND PARTICIPATION IN THE CRIME 

• Depriving a person of their liberty is possible through complicity; according to Article 109/3-b of the Turkish Penal Code, the commission of the crime by more than one person is considered a special reason requiring an increase in the punishment.

WHAT IS THE STATUTE OF LIMITATIONS FOR THE CRIME OF DEPRIVED OF LIBERTY?

•  The statute of limitations for the crime of depriving a person of their libertyvaries depending on how the crime is committed. For the basic form of the crime, the statute of limitations is eight years. For the aggravated forms of the crime, the statute of limitations is fifteen years. This is specifically stated in Article 66 of the Turkish Penal Code.

IS THE CRIME OF DEPRIVED OF LIBERTY SUBJECT TO COMPLAINT?

•  The investigation and prosecution of this crime are carried out ex officio by the relevant authorities; a complaint is not required. Even if the victim withdraws their complaint, the investigation and prosecution continue.

Supreme Court Decisions

1. Court of Cassation, 8th Criminal Chamber — Case No: 2022/4120, Decision No: 2023/2510

• Summary of the Incident: The incident involves the defendant forcibly putting the victim into a vehicle due to a debt dispute between them, taking them to an empty plot of land outside the city, and threatening to not let them leave unless they paid the debt, preventing them from getting out of the vehicle for hours.

• Supreme Court Review: The Supreme Court emphasized that for the crime of depriving a person of their liberty, as defined in Article 109 of the Turkish Penal Code, it is sufficient that the victim's freedom of movement is unlawfully restricted. The Court upheld the conviction, which included the application of aggravating circumstances due to the act being committed by multiple individuals and through deception/coercion, noting that the purpose of debt collection does not negate the crime of depriving a person of their liberty.

2. Court of Cassation, 8th Criminal Chamber — Case No: 2021/16500, Decision No: 2022/9800

• Summary of the Incident: The defendants, due to a dispute between them, went to the victim's house, threatened him, forcibly took him outside, and locked him in the basement of a building. The victim remained locked up for a long time before being rescued with the help of people nearby.

• Supreme Court Review: The Supreme Court stated that confining a victim against their will and restricting their freedom of travel and movement constitutes the crime of depriving a person of their liberty. Considering that the crime was committed jointly by multiple individuals and through the use of force, the court found the conviction to be lawful, noting that the basic penalty should be increased accordingly.

3. Court of Cassation, 8th Criminal Chamber — Case No: 2023/1210, Decision No: 2023/7450

• Case Summary: A public prosecution was initiated against the defendant for the crime of depriving the victim of their liberty. During the trial, a settlement was reached between the parties, or the victim withdrew their complaint, requesting the dismissal of the case.

• Supreme Court Assessment: The Supreme Court reminded that the basic and aggravated forms of the crime of depriving a person of their liberty, regulated in Article 109 of the Turkish Penal Code, are not subject to complaint and that the investigation and prosecution are carried out ex officio (automatically). Therefore, it considered the written decision to dismiss the case, which failed to take into account that the victim's withdrawal of the complaint or their intention to reach a settlement would not result in the dismissal of the case, as grounds for reversal.

The Crime of Depriving a Person of Their Liberty: Evaluation and Conclusion

The crime of depriving a person of their liberty is a serious offense that directly targets the right to liberty and security of person , one of the most fundamental rights and freedoms guaranteed by the Constitution, and severely violates social peace and individual inviolability. This provision, regulated in Article 109 of the Turkish Penal Code, is one of the most important legal safeguards protecting individuals' freedom to travel, be wherever they wish, and act according to their will against unlawful interference.

The key issues highlighted in practice and in the jurisprudence of the Supreme Court can be summarized under the following headings:

• Restriction of Freedom of Movement and Duration Element: For the crime to occur, it is not necessary for the victim to be held in a confined space for days; it is sufficient that they are forced to remain in a place against their will or prevented from going somewhere by force, threat, or deception. The Supreme Court rulings clearly emphasize that debt collection or similar personal disputes cannot constitute a justification or legal basis for committing this crime.

• Aggravating Circumstances and Reasons: Penalties are significantly increased when the crime is committed with a weapon, by multiple individuals acting together, by exploiting the ease provided by a public office, or against close relatives such as descendants, ancestors, or spouses. These regulations are directly proportional to the danger inherent in the act and the traumatic impact it has on the victim.

• Ex Officio Investigation and Public Order: Unlike some other crimes against liberty, the investigation and prosecution of the crime of depriving a person of their liberty is not dependent on a complaint. Judicial authorities initiate proceedings ex officio from the moment they become aware of the crime; therefore, the victim's subsequent withdrawal of the complaint or a settlement between the parties does not result in the dismissal of the case. This approach clearly highlights the aspect of the crime that directly concerns public order and the physical and moral integrity of the individual.

• Protection of Individual Freedoms: As underlined in the decisions of the judicial organs, the freedom of will and physical integrity of individuals are indispensable foundations of the modern rule of law. Uncompromising combat against this crime is vital for preventing extra-legal coercion and pressure methods and ensuring individual security.