What is Deprivation of Liberty? (TCK Art. 109)

Deprivation of liberty, of a person unlawfully:

• preventing someone from going to a place or
• forcing someone to stay in a place by means of removing freedom of movement means.

The critical point here is: The intervention made to the person's freedom unlawful must be. For example, such as an arrest/protective measure expressly permitted by law grounds for justification exist (evaluated on a case-by-case basis), the crime may not have been committed.

The Court of Cassation explicitly emphasizes that the value protected by this crime is the freedom of individuals to act within the framework of their own desire and free will .

Subject Matter of the Crime: The freedom "to go to a place" or "to remain in a place"

This crime with alternative conduct is considered:

• The restriction of only the freedom "to go" may be sufficient,
• The restriction of only the freedom "to remain" may be sufficient,
• Both may occur simultaneously.

Penalty for the Offense of Deprivation of Liberty (TCK Art. 109/1)

According to TCK Article 109/1, the penalty for the basic form of the crime the penalty for the basic form:

• imprisonment from 1 to 5 years

This basic form may arise, for example, through acts such as keeping a person in a room by locking the door, preventing them from going outside, or physically hindering them from going somewhere (all circumstances of the case are additionally important).

What Happens If Committed Through Force, Threat, or Fraud? (TCK Art. 109/2)

If the perpetrator, while restricting the victim's liberty:

• duress (physical force),
• threat (intimidation),
• fraud (deception), the penalty is aggravated.

TCK Article 109/2 penalty

• imprisonment from 2 to 7 years

Examples of force, threat, and fraud (general explanation)

• Detaining the victim in a place by pushing, holding, or dragging them (force)
• Waiting at the door by saying, "If you come out, I will harm you" (threat)
• Redirecting the victim to another place by saying, "I am taking you," and preventing them from escaping (fraud/deception)

Note: Which act constitutes "force/threat/deception" shall be evaluated based on the evidence of the specific case.

Qualified Circumstances: When Is the Penalty Doubled? (TCK Art. 109/3)

Article 109/3 of the TCK stipulates that in certain cases, the sentence determined pursuant to the above paragraphs shall be increased by one fold .

Qualified circumstances within the scope of Article 109/3 of the TCK

1) Commission of the offense with a weapon

If the perpetrator commits with a weapon the act, the sentence shall be increased.

2) Being committed by more than one person together

If the act is committed jointly by more than one person , the sentence shall be increased.

3) Due to a public duty or by abusing public authority

• The victim being targeted due to their public duty, or
• The perpetrator abusing the influence provided by their public office

the sentence shall be increased.

4) Being committed against an ascendant, descendant, spouse, or divorced spouse

An increase has been introduced in the law specifically regarding victimization within the family and close relationships.
The current wording in this subparagraph is important: "against a spouse or divorced spouse".

5) Being committed against a child or a person unable to defend themselves

Victim:

• child or if
• unable to defend themselves physically or mentally in the event that
  penalty increased by one half.

If the Victim Suffers Significant Economic Loss (TCK Art. 109/4)

If the act of deprivation of personal liberty causes a significant economic loss to the victim:

• In addition to the prison sentence,
• judicial fine up to one thousand days may come up.

This provision may be debated, for instance, in cases where serious damage arises regarding the victim's job/income (depending on the specific case).

Commission for Sexual Purposes (TCK Art. 109/5)

Crime for sexual purposes is committed, the penalties determined pursuant to the above paragraphs:

• increased by half.

This regulation prescribes a heavier sanction in cases where the restriction of the victim's freedom is connected to a sexual purpose.

What Happens If Intentional Injury Is Also Involved? (TCK Art. 109/6)

If during the commission of the crime or for this purpose intentional injury occurs and the injury qualified circumstances resulting in aggravated consequences if committed:

• additionally provisions on intentional injury shall apply.

Thus, in a single incident, both TCK 109 and, if the conditions are met, injury criminal liability may also arise in terms of.

Key Points in Yargıtay Practice

1) The brevity of the duration does not automatically eliminate the crime

In Yargıtay precedents, regarding the formation of the crime the duration being excessively short or long is not solely decisive such evaluations are encountered; the core issue is whether the victim's freedom was unlawfully deprived.

2) Restrictions that "necessarily accompany" the execution of certain crimes

Particularly in the commission of certain offenses such as sexual assault, detaining the victim for a very short period may not be separately evaluated under TCK Article 109 in some cases; however, from the target crime independent or before/after if there is a restriction of liberty, TCK 109 may also come into question (the evaluation in the 6th Criminal Chamber decision shared above explains this distinction).

Frequently Asked Questions (FAQ)

1) What is the crime of depriving an individual of their liberty?

A person unlawfully holding someone in a place or preventing them from going somewhere removing freedom of movementtr (TCK 109).

2) What is the penalty term under TCK 109?

• Base form: 1 to 5 years imprisonment (TCK 109/1)
• If force/threat/fraud is involved: 2 to 7 years imprisonment (TCK 109/2)
• Penalty under aggravated circumstances increased by one half (TCK 109/3).

3) What do coercion, threat, or deception change?

The use of coercion/threat/deception constitutes an aggravated circumstance for the crime and increases the sentencing range to 2 to 7 years .

4) Does the penalty increase if committed by more than one person together?

Yes. By more than one person acting together if committed, the sentence increased by one half (TCK 109/3-b).

5) What happens if it is committed against a child?

If the victim is a child, the penalty increased by one half (TCK Art. 109/3-f).

6)How does the penalty change if there is a sexual purpose?

If committed with a sexual purpose, the penalty determined according to the relevant paragraphs increased by half (TCK Art. 109/5).

7)What happens additionally if the victim suffers an economic loss?

If the victim suffers a significant economic loss, judicial fine up to one thousand days may also be added (TCK Art. 109/4).

Atty. Batın YILMAZ