WHAT IS THE CRIME OF PERSISTENTIAL STALKING?

The crime of persistent stalking (also known as stalking crime) Article 123/A , which punishes acts that systematically disturb the peace and tranquility of individuals, causing them fear or anxiety.

This crime has been specifically regulated to prevent the violation of individuals' psychological boundaries, physical stalking, and harassment, particularly with the widespread use of digital communication tools.

1. Material Elements and Methods of Commission of the Crime

According to the law, actions that persistently harass a person physically or through communication tools, thereby causing serious fear or anxiety in the victim, constitute this crime. These actions generally take the following forms:

• Physical Stalking: Following the victim, consistently waiting around their home, workplace, or school, and tracking them step-by-step without their consent.

• Harassment through communication: Persistently calling, messaging, or disturbing someone via telephone, text message (SMS), social media accounts, email, or similar digital channels.

• Pressure through Third Parties: Attempting to contact the victim or create unrest through their relatives, family, or colleagues.

• Various forms of contact: Sending gifts, visiting someone's door, or making any unwanted, persistent contact without the victim's consent.

2. Essential Conditions for the Commission of a Crime

• Persistence (Continuity/Repetition): The action must not be a one-time occurrence; it must be repeated over a certain period and exhibit continuity.

• Evoking Fear or Anxiety: The actions must have caused the victim to experience significant fear, anxiety, or unease.

3. Criminal Sanctions and Basic Penalties

• Basic Penalty: Individuals who commit the crime of stalking to imprisonment for a period of 1 to 3 years .

• Investigation and Prosecution Requirement: Investigation and prosecution of this crime are dependent on a complaint. Judicial authorities cannot initiate an investigation ex officio unless the victim files a complaint or withdraws their complaint.

4. Aggravating Circumstances (Reasons that Increase the Penalty)

The second paragraph of the law lists the circumstances that warrant a more severe punishment for the crime as follows:

• Committing crimes against a child or a separated spouse,

• The perpetrator persistently stalks the victim, attempting to enter or approach their school, workplace, or home in a way that cannot be prevented

• It involves serious threats to the life or safety of the victim or a member of their family,

• Committing crimes against persons who are physically or mentally unable to defend themselves.

In the presence of these aggravating circumstances, the prison sentence is increased, and in some cases, an investigation may be conducted without requiring a complaint.

Examples of Stalking Crimes

• Continuously physically monitoring the person,
• Sending constant follow requests or messages to someone on social platforms (Instagram, YouTube, Twitter, TikTok, Facebook, etc.)
• Trying to reach them through different means on social platforms (Instagram, YouTube, Twitter, TikTok, Facebook, etc.)  ,
• Attempting to contact the victim by using third parties as intermediaries,
• Actions such as repeatedly appearing before a person in places like work, school, home, market, or bazaar may constitute the crime of stalking.

Supreme Court Decisions Regarding the Crime of Stalking

1. Court of Cassation, 4th Criminal Chamber — Case No: 2022/12450, Decision No: 2023/8920

• Case Summary: The incident involves the defendant repeatedly loitering around the workplace of his ex-wife, and persistently calling and sending messages via phone and social media at different times of the day. The victim, experiencing great fear and anxiety as a result, filed a complaint.

• Supreme Court Review: The Supreme Court highlighted the elements of the crime of persistent stalking, as defined in Article 123/A of the Turkish Penal Code. It stated that the actions were continuous, disturbed the victim's peace and tranquility, caused significant anxiety, and that the crime was committed against a separated spouse, thus warranting consideration as an aggravated offense. Therefore, the local court's conviction was upheld.

2. Court of Cassation, 4th Criminal Chamber — Case No: 2023/3410, Decision No: 2023/15400

• Case Summary: The defendant attempted to contact the victim, whom he wanted to meet but received a negative response from, by waiting in front of her house for a long time, constantly leaving flowers and gifts, and calling from different phone numbers. In his defense, the defendant argued that his only intention was to express his feelings.

• Supreme Court Assessment: The Supreme Court emphasized that the defendant's actions were non-consensual and persistent, and that these stalking and contacts, carried out against the victim's will, instilled feelings of fear and insecurity in the victim. The court determined that the defendant's defense of "emotional motive" did not negate the commission of the crime, and found the sentencing decision to be lawful.

3. Court of Cassation, 4th Criminal Chamber — Case No: 2022/21100, Decision No: 2023/4120

• Case Summary: A public prosecution was initiated against the defendant for persistently sending messages to the victim and stalking her around her workplace. During the trial, the victim stated that she withdrew her complaint during both the investigation and prosecution phases.

• Supreme Court Assessment: The Supreme Court reminded that the investigation and prosecution of the fundamental crime of persistent stalking, regulated in Article 123/A, paragraph 1 of the Turkish Penal Code, are dependent on a complaint. It considered the continuation of the trial and the issuance of a conviction without considering that the case should be dismissed if the victim withdraws their complaint within the legal time limit as grounds for reversal.

Stalking Crime: Evaluation and Conclusion

Stalking is a modern crime that directly violates individuals' personal inviolability, mental integrity, and right to live in peace, and has become widespread, especially with the ease of communication brought about by the digital age. This provision, legally protected by Article 123/A of the Turkish Penal Code, is revolutionary in that it legally sanctions the psychological pressure and insidious behaviors that precede violence suffered by victims.

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

• Involuntary Contact and the Element of Fear: For an act to be considered a crime, a single instance of contact is not sufficient; the actions must be persistent and continuous. Furthermore, it is essential that these stalking and contacts, carried out against the victim's will, have created concrete fear, anxiety, or unease in the victim. This is a fundamental material and moral element required.

• Aggravating Circumstances and Distinction: The legislator has increased penalties when the crime is committed against a former spouse, child, or in the vicinity of a residence or workplace. While this crime, in its basic form, is subject to complaint, allowing considerable flexibility for the victim's will and intention to file a complaint, public order concerns are also taken into account in aggravating circumstances.

• Balance Between Individual Liberty and the Law: Judicial decisions clearly emphasize that emotional motives or defenses such as "the desire to communicate" do not legitimize actions that systematically damage the peace and tranquility of the victim. The effective application of the law regarding the crime of stalking plays a vital role in protecting individuals' psychological boundaries and preventing cycles of violence before they escalate into physical violence.