Following the diplomatic spat between Sweden and Turkey ignited by top Turkish court’s decision to annul a legal article on the sexual abuse of children, Ankara has moved to increase rather than decrease sentences for the crime.
As part of the plans initiated by Justice Minister Bekir Bozdağ, gradual punishments based on the age of the victims will go into law.
There will be a distinction made between victims aged under 12 and those aged between 12 and 18, with the new law toughening sentences for offenders targeting children under 12, according to sources.
In sexual abuse cases with victims under the age of 12, the minimum sentence will be 10 years, while in rape cases with victims under 12 the minimum sentence will be 18 years.
In sexual abuse cases with victims aged between 12 and 18, the current sentence term of eight to 15 years will remain the same, while in rape cases with victims aged between 12 and 18, the current minimum sentence of 16 years in jail will also remain the same.
1) How did the crisis between Turkey and Sweden that reached a peak over claims that Turkey was now permitting child abuse all begin?
The crisis began when some European officials misunderstood the Turkish Constitutional Court’s May 26, 2016, decision to annul an article of the Turkish Penal Code concerning sentences to be given to convicts over sexual abuse offenses against children under the age of 15.
However, when the Constitutional Court took the decision, it demanded the Turkish parliament re-regulate the article in six months and retain the rule until then to avoid creating any legal loopholes. As such, no offenses will go unpunished. Right-wing Austrian newspaper “Kronen Zeitung,” however, ran a story on a news ticker at Vienna airport which read: “Turkey allow sexual abuse against children under the age of 15.”
When Swedish Foreign Affairs Minister Margot Wallström subsequently shared this on her official Twitter account, a crisis erupted between Turkey and Sweden.
2) Is the crisis finished?
Not exactly. Although the Turkish Foreign Ministry launched a diplomatic initiative toward Sweden and explained the situation, there has been no change in the attitude of Sweden and the critical statements have continued. Both Justice Minister Bekir Bozdağ and Deputy Prime Minister Mehmet Şimşek highlighted that the problem was derived from misinformation. Bozdağ said there was no legal loophole and that the law would be re-regulated before the Constitutional Court’s anticipated time expired.
“There will be no lack of punishment,” he said. In response to this, Swedish Prime Minister Stefan Lövfen recently made a statement saying the top Turkish court’s decision was “worrisome” and that “there was risk that children rights might be rolled back. Children are children.”
3) Which article of Turkish Penal Code did the Constitutional Court annul?
In the Turkish Penal Court, sexual-related crimes against children are regulated under Article 103, which covers children’s sexual abuse. In this article’s first section, all sexual actions committed against children under the age of 15 are identified as “sexual abuse.” The Constitutional Court annulled this clause of the law, saying it would enter into force six months after it was published in the Official Gazette. The decision was announced in the Official Gazette on July 13, 2016, and therefore the deadline will expire on Jan. 13, 2017. The court took the decision with seven votes in favor and six votes against. This also shows that the court had a tough decision.
4) Why did the Constitutional Court take such a decision?
The court took the decision upon an appeal by a local court in the Bafra district of the northern province of Samsun. The appeal came with the view that the sentences stipulated by the Turkish Criminal Code (TCK) for such crimes were not proportional in light of a case that was opened after two children aged 15 became involved in a sexual relationship. In the appeal, the local court highlighted that the punishments for actions involving children who cannot defend themselves and those who had grown up to the age of comparative sexual maturity and were able to have sexual intercourse of his/her own free volition were regulated under the same fashion.
According to the court, this situation was disproportionate in terms of the penalty and legal benefit. The court also drew attention to the different punishments applied to children of different age groups in these crimes under the TCK, consequently arguing that the current law was against the constitution and demanded its overturn.
5) What is the justification for the Constitutional Court’s decision?
In its decision, the court annulled the “not exceeding” (age of 15) phrase in the Turkish Penal Code’s 103/1-a clause on the grounds that it “foresees a disproportionate punishment” and that was against the “principle of the state of law and enforcement.” In the decision, the court said: “there is no doubt that the fact that children’s sexual abuse was tied to heavy enforcement is for the realization of the child’s effective protection...The rule that was appealed had the character that in some situations, it would not comply with the characteristics of the concrete situation and would lead to heavy punishments that would greatly remove the legal balance that needs to be preserved between the crime and the punishment. Therefore the rule, since it foresees a disproportionate punishment, is against the principle of the state of law and punishment.
6) What will the criteria for the new regulation be based on?
The government will pass a new regulation that will rearrange the annulled decision in the upcoming six months through parliament. With the Justice Ministry, the work on this issue has begun. In the new regulation, it is expected that the sentences will be identified gradually just as how the constitutional court expects it to be. According to the study with the ministry, there will be criteria of “the suspect is as young as the victim,” “the intercourse is consensual” and other points. The sentences are also expected to vary as far as both the victims’ and the suspects’ ages are concerned.
7) Have there been any problems in the process?
Yes, there are. Since the old law will be in force until the new one comes out, there is no legal loophole at first glance. But an unavoidable consequence of the Constitutional Court’s decision is that the local court will suspend such cases until new regulation is implemented. The sources said courts tend to wait for the new law. In this situation, cases regarding the children’s sexual abuse will be suspended for a while.
8) Could the misunderstanding have been prevented?
It is obvious that there was a serious communication problem in the explanation of the Constitutional Court’s decision. Although there were no loopholes with the decision, the fact that this situation was not expressed well enough led to a misperception of the article that was written in a very technical legal language. Effective communication through the Constitutional Court or by the government when the decision was taken could have alleviated the misunderstandings. When the court made its explanation last Monday, it was too late. So it would not be wrong to say that the perception that emerged in the Europe was mostly based on misinformation.