Qualified Sexual Abuse Of A Child And Sexual Relations With A Minor
5th Criminal Chamber 2018/1826 E., 2018/1439 K.
“Case Law Text”
Within the scope of the investigation numbered 2017/926 conducted by the Mut Chief Public Prosecutor’s Office for the crimes of aggravated sexual abuse of a child and sexual intercourse with a minor, the victim … was found to be 10 weeks and 3 days pregnant in the doctor’s report. Following the decision of the Mut Criminal Court of First Instance dated 18/05/2017 and numbered 2017/211, rejecting the request to terminate the pregnancy, and following the same Court’s decision dated 25/05/2017 and numbered 2017/219, rejecting the repeated request, the appeal against the aforementioned Court’s decision dated 16/06/2017 and numbered 2017/261, which rejected the same request, was dismissed on the grounds that the request was not of an investigative nature and that the Public Prosecutor should have directed the request for permission to the competent civil court of first instance, as per the Silifke Criminal Court of First Instance’s decision dated 24/ 06/2017 and numbered 2017/1301, which rejected the request for termination of pregnancy on the grounds that it fell within the jurisdiction of the Criminal Court of Peace, Following the decision of the Mut Criminal Court of Peace dated 30/06/2017 and numbered 2017/23, which ordered the file to be sent to the competent Mut Criminal Court of Peace, the decision of the Mut Criminal Court of Peace dated 10/07/2017 and numbered 2017/316, stating that there was no need to rule on the matter as the request had already been evaluated;
Article 99 of the Turkish Criminal Code No. 5237, titled “Inducing Abortion,” states:
“(1) A person who induces a woman to abort her child without her consent shall be punished with imprisonment from five to ten years.
(2) A person who causes a woman to abort her child when the pregnancy has exceeded ten weeks, even with her consent, shall be punished with imprisonment from two to four years. In this case, the woman who consented to the abortion shall be punished with imprisonment for up to one year or a fine.
(3) If the act described in the first paragraph causes harm to the woman’s physical or mental health, the person shall be punished with imprisonment for a term of six to twelve years; if the act causes the woman’s death, the person shall be punished with imprisonment for a term of fifteen to twenty years.
(4) If the act described in the second paragraph causes harm to the woman’s physical or mental health, the person shall be punished with imprisonment for a term of three to six years; if the act causes the death of the woman, the person shall be punished with imprisonment for a term of four to eight years.
(5) Even if based on consent, if a woman who is less than ten weeks pregnant has her pregnancy terminated by an unauthorized person, the person shall be sentenced to imprisonment for a term of two to four years. If the other acts defined in the above paragraphs are committed by an unauthorized person, the penalty to be imposed in accordance with these paragraphs shall be increased by half.
(6) If a woman becomes pregnant as a result of a crime of which she is the victim, no penalty shall be imposed on the person who terminates the pregnancy, provided that the pregnancy is not more than twenty weeks and the woman consents. However, for this, the pregnancy must be terminated by specialist physicians in a hospital setting.”
“Until the tenth week of pregnancy, the uterus shall be evacuated upon request if there is no medical risk to the mother’s health.
If the pregnancy exceeds ten weeks, the uterus shall only be evacuated if the pregnancy threatens or will threaten the mother’s life or will cause severe disability to the child to be born and subsequent generations, based on the reasoned reports of an obstetrician-gynecologist and a specialist in the relevant field, supported by objective findings.
In urgent cases where the life or a vital organ is threatened if immediate intervention is not performed, the uterus is evacuated by the authorized physician who determines the condition by performing the necessary intervention. However, before performing this intervention, or if this is not possible, within twenty-four hours of the intervention, the physician is required to report the identity of the woman who underwent the intervention, the intervention performed, and the reasons for the intervention to the provincial health and social assistance directorates or district government medical offices.
The nature of emergency interventions, the form and substance of the notification to be made, the form and filling principles of the consent form to be requested from those who accept sterilization and uterine evacuation, the locations where these will be performed, the health and other conditions that must be met at these locations, and matters related to the supervision and monitoring of these locations shall be specified in the regulation to be issued.” As stated in Article 6 of Law No. 2827, titled “Permission for Termination of Pregnancy,”
“The intervention specified in Article 5 is subject to the consent of the pregnant woman, the consent of the minor and the consent of the guardian in the case of minors, and the consent of the minor and the guardian, together with the permission of the justice of the peace, in the case of persons under guardianship who are not of legal age or discernment.” However, the consent of a pregnant woman who lacks free will due to mental disability is not required for uterine evacuation.
If the persons whose consent is required under the second paragraph of Article 4 and the first paragraph of Article 5 are married, the consent of the spouse is also required for sterilization or uterine evacuation.
Considering the explanations that “permission from a guardian or the court of peace is not required in urgent cases where life or a vital organ is threatened if permission is time-consuming and immediate intervention is not possible,”
In the investigation numbered 2017/926 conducted by the Mut Chief Public Prosecutor’s Office for the alleged aggravated sexual abuse of a minor and sexual intercourse with a minor, the Forensic Medicine Department of the Faculty of Medicine, Dean’s Office, Internal Medicine Department, Presidency of the University of …
dated 09/06/2017 and numbered 72846809/439708, which states “… As a result of the examination conducted at the Department of Child Psychiatry, it was learned from the history taken that she became pregnant for 12 weeks and 6 days as a result of sexual abuse. Due to the pregnancy being the result of abuse, the young age of the mother, and the mother experiencing a traumatic process psychologically, terminating the pregnancy would be in the medical interest of both the mother and the fetus (baby)…” and subsequently, in a petition addressed to the Mut Chief Public Prosecutor’s Office on 15/06/2017 by the victim and her parents, permission for abortion was requested.
Within the scope of the aforementioned legislation, it was determined that the task of evaluating the request to terminate the pregnancy in question fell within the jurisdiction of the Criminal Court of Peace. Therefore, upon the objection filed against the decision of the Mut Criminal Court of Peace dated 16/06/2017 and numbered 2017/261, rejecting the request to terminate the pregnancy in question, it was deemed necessary to evaluate the objection by examining the merits of the case, without considering that the request was not of an investigative nature, stating that the Public Prosecutor should have directed the request for permission to the competent Civil Court of First Instance, and that it was implicitly deemed to be outside the jurisdiction, and that the decision to reject the appeal was not appropriate, and therefore, it should be overturned in accordance with Article 309 of the Criminal Procedure Law No. 5271, as stated by the General Directorate of Criminal Affairs of the Ministry of Justice, In reference to the annulment in the interest of the law dated 19/01/2018 and numbered 94660652-105-33-8579-2017-Kyb, the notification from the Supreme Court Public Prosecutor’s Office was submitted to the Chamber with the case file, and the following was considered:
Article 5/1-d of the Child Protection Law No. 5395, titled “Protective and Supportive Measures,” states that “Health measures shall include temporary or permanent medical care and rehabilitation necessary for the protection and treatment of the child’s physical and mental health, as well as the treatment of those who use addictive substances.” and the fact that applying this measure during an investigation falls within the jurisdiction of the Criminal Court of Peace, the request is deemed to be within the scope of health measures. Therefore, the request is accepted, and the decision of the Silifke Criminal Court of Peace dated 24/ 06/2017 dated 24/06/2017 and numbered 2017/1301 is REVERSED in accordance with Article 309 of the Criminal Procedure Code, Subsequent proceedings shall be conducted by the competent authority in accordance with the grounds for reversal. The file shall be referred to the Chief Public Prosecutor’s Office of the Court of Cassation for return to the relevant court. This decision was made unanimously on 05/03/2018.