What is the Crime of Torture under TCK Article 94?

TCK Article 94 crime of torture, a public official against a person incompatible with human dignity by engaging in conduct that causes that person:

• physical or mental pain constituting,
• the capacity for perception or free will affecting,
• degradation causing

is a severe criminal law violation that arises under such circumstances.

The core concept here is that if a person exercising authority on behalf of the State abuses that power to subject an individual to treatment that is degrading and causes pain beyond a "standard intervention" the crime of torture may fall within the scope of.

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What are the Conditions (Elements) of the Crime of Torture?

Who Can Be a Perpetrator? (Public Official Requirement)

under TCK Article 94, the crime of torture principal perpetrator is a public official. In other words, an ordinary individual (who is not a public official) is not normally considered to have committed this offense as a "principal perpetrator".

However, the law other persons participating in the act of torture also shall be punished as a public official expressly regulates. Therefore, a person who is not a public official may also be held liable under TCK Article 94 if they participate in the act.

Who is the Victim?

General rule regarding the victim in the crime of torture: anyone can be a victim. The law also specifies commission against certain persons aggravated circumstance (such as children, pregnant women, and individuals unable to defend themselves).

What Must the Act Be Like? (Behavior Incompatible with Human Dignity)

The law does not provide an exhaustive list; it encompasses behaviors that are "incompatible with human dignity" and lead to severe consequences for the individual. In practice, when making an evaluation, the incident's:

• duration,
• intensity,
• the physical/psychological impact it creates on the victim,
• systematicity (repetition over a certain period or cumulative effect),
• its degrading nature

are evaluated together.

Result: Pain, Impairment of Will/Perception, or Humiliation

In the crime of torture, the acts are expected to cause physical/mental pain, impairment of perception/will or humiliation in the victim. The occurrence of one of these three results is critical for the assessment of the crime.

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What is the Penalty for the Crime of Torture under TCK Article 94?

Penalty for the Basic Form (TCK Art. 94/1)

Pursuant to TCK Article 94/1, the penalty for the crime of torture is:
Imprisonment from 3 to 12 years.

Lower Limit in Case of Commission Against Women

With the recent amendment to the law, if the crime is committed against a woman, the lower limit of the sentence cannot be less than 5 years.
This constitutes a significant aggravation regarding the "minimum sentence" in practice.

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Qualified Circumstances of the Crime of Torture (TCK Art. 94/2 and 94/3)

Against a Child, Pregnant Woman, or Person Unable to Defend Themselves (TCK Art. 94/2-a)

If the crime is committed;

• to a child,
• against a person unable to defend themselves physically or mentally,,
• against a pregnant woman,

the penalty is increased:
Imprisonment from 8 to 15 years.

This regulation aims to provide stronger protection for vulnerable groups.

Against a Lawyer or Public Official Due to Their Duty (TCK Art. 94/2-b)

The crime of torture;

• against a lawyer or
• against another public official

due to their duty if committed, again:
Imprisonment from 8 to 15 years the penalty shall apply.

The connection "due to their duty" is crucial here. In other words, the victim being targeted because of their professional activity aggravates the penalty.

Commission in the Form of Sexual Harassment (TCK Art. 94/3)

The act of torture sexual harassment if committed in this manner, the penalty is further increased:
Imprisonment from 10 to 15 years.

This is a qualified circumstance considered a severe violation of both sexual inviolability and human dignity.

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Complicity in the Crime of Torture: Are Non-Public Officials Also Punished?

Yes. Article 94/4 of the TCK explicitly states that other persons who participate in the commission of torture shall also be punished as public officials .

This means that:
If a person who is not a public official participates in the act of torture together with a public official or under their direction/participation, liability may arise under Article 94 of the TCK.

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What Does Torture by Omission (TCK 94/5) Mean?

Torture may sometimes arise not through commission (“doing”), but through omission (“not doing”). For example, situations such as a public official knowingly failing to prevent it despite having a duty of protection may become a subject of dispute.

According to Article 94/5 of the TCK, if the crime by omission even if committed no reduction in the sentence is made for this reason. In other words, the sentence cannot be mitigated by claiming it was “negligence”.

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Is There a Statute of Limitations for the Offence of Torture Under TCK Article 94?

No. According to TCK Article 94/6:
The statute of limitations does not apply to this offence.

This is a critical safeguard for the investigation and prosecution of acts of torture. Even if years pass, the path remains open for investigations and trials to be conducted (provided other conditions are met).

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Important Point in Practice: “Systematicity / Evaluation within a Process”

In practice, courts, when evaluating allegations of torture, examine whether the acts:

• occurred as a single instance or within a process,
• whether the same conduct recurred,
• whether different conducts as a whole created a severe impact on the victim

and similar points.

This distinction is particularly important for the following reason: In some cases, instead of the crime of torture, offenses such as intentional injury, threat, insult may come to the agenda separately. The nature of the specific case, the evidence, and the holistic gravity of the acts are decisive.

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Frequently Asked Questions (FAQ)

1) Does TCK 94 (crime of torture) apply only to police/gendarmerie?

No. Anyone within the scope of the concept of "public official" (depending on the nature of the duty) can be a perpetrator. Although law enforcement officers are frequently seen in practice, they are not the only group.

2) Can a person who is not a public official be convicted of the crime of torture?

Yes. To the act of torture accomplice participating parties may be punished as public officials pursuant to TCK art. 94/4.

3) Are the crime of torture and the crime of torment the same thing?

No. While both are types of ill-treatment, differences such as the involvement of a public official and the severity/systematic nature of the act arise in torture. The correct crime type is determined based on the specific nature of the case.

4) Does the crime of torture lapse due to the statute of limitations?

No. TCK art. 94/6 is clear: the statute of limitations does not apply to the crime of torture.

5) How does the penalty change if committed against a woman?

If committed against a woman, even in the base form, the lower limit of the penalty cannot be less than 5 years.

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Atty. Batın YILMAZ