This offence is regulated in Article 109, in the section of the Turkish Penal Code (TCK) on offences against liberty:
Article 109– (1) A person who unlawfully deprives another of the liberty to go to a place or to remain in a place shall be sentenced to imprisonment from one to five years.
As is also clear from the text of the article, this offence is committed where persons are restricted in their liberty both to go to a place and to remain in a place. The legal interest protected in this offence is personal liberty and the freedom to act of one’s own will. “Unlawfulness” is a precondition for the offence to be committed.
The act in the offence is unlawfully depriving the victim of the liberty to go to a place or to remain in a place. As examples of such acts we may cite locking the victim up somewhere, tying him to something, forcibly taking him somewhere, or taking away the wheelchair of a person who cannot walk. In essence, the offence can be committed by a positive act, since depriving a person of the freedom to go to a place or to remain in a place can be done by positive acts. However, in some cases this offence may also be committed by omission. For example, it may be committed by omission where the doors of a house are locked in the belief that nobody is inside and are then kept locked even after it is realised that someone is there. The offence is both an offence with unrestricted means of commission and an offence with alternative acts.
Another important feature of this offence is that it is a “continuing offence”. As is known, the distinction between instantaneous offences and continuing offences arises from the difference between the criminal act and the completion and termination of the offence. If, in respect of an offence, the offence is completed together with the completion of the act and its execution does not continue, that offence is an instantaneous offence, as in the offence of intentional killing. However, if, although the offence is completed with the performance of the act described in its definition, its execution continues, we call such offences continuing offences. For example, where a person is locked up somewhere, the offence of deprivation of liberty will be completed. However, the execution of the offence continues. The offence has been completed but has not terminated. For the offence to terminate, the person must regain his liberty. With regard to continuing offences, some authors in the legal doctrine accept that it is the consequence that continues, while others accept that it is the act that continues. The generally accepted view, however, is that what continues is “the execution of the act”. The moment of termination of the offence will occur when the continuation ends. The continuation will also have ended in situations such as the offender himself putting an end to the offence, the victim dying, or the victim being rescued. However, the arrest of the offender does not directly mean that the continuation of the offence ends. For the offence to terminate, the victim must have regained his liberty. As long as the offender, despite having been arrested, does not disclose the victim’s whereabouts, and the victim continues to be held with his liberty restricted, the continuation will be ongoing. One category of continuing offences consists of “necessarily continuing offences”. These offences can only ever be committed in a continuing manner. The best example is the offence of deprivation of liberty. It is always required that it continue for a certain period. There is also the type of “potentially continuing offence”. These are in essence not continuing offences but instantaneous offences. However, certain acts of these offences may be of a continuous nature.
For example, the offence of theft in the transmission of energy in the third paragraph of Article 142 TCK:
“Where the offence is committed in respect of energy in liquid or gaseous form, and in facilities for the transmission, processing or storage thereof, imprisonment from five to twelve years shall be imposed.”
In instantaneous offences, the law to be applied is the law in force at the time the offence was committed. In continuing offences, by contrast, the law in force at the moment the continuation ends is applied. As for the limitation period, in instantaneous offences it begins to run from the date on which the offence was committed or the date on which the consequence occurred. In continuing offences, the limitation period begins to run once the continuation has ended. Whereas in instantaneous offences legitimate self-defence may be exercised at the time the offence is being committed or immediately before it, in continuing offences legitimate self-defence may be exercised for as long as the continuation lasts. Another difference is that in instantaneous offences participation may arise before the offence or at the time the offence is committed. In continuing offences, however, every form of participation, with the exception of instigation, is possible for as long as the continuation lasts. This is because the persons have by then already decided to commit the offence and the commission of the offence has begun. In instantaneous offences, the court with territorial jurisdiction is the court of the place where the offence was committed. In continuing offences, by contrast, the court of the place where the continuation was interrupted has jurisdiction.
Anyone may be the offender and the victim of the offence. However, its commission against certain persons or by certain persons will render the offence aggravated. The aggravated forms requiring a heavier penalty are:
(2) Where the person uses force, threats or deception in order to commit the act or while committing it, imprisonment from two to seven years shall be imposed.
Force means physical strength used in pursuit of an aim. A threat is disturbing a person’s inner peace by notifying him that an attack will be carried out, or some other harm done, against his person or his relatives, his assets, his sexual inviolability or his right to life. Deception, in turn, is the intentional misleading or deceiving of a person. For example, causing a person to be admitted to a psychiatric hospital by means of forged documents. The victim of the offence must be a person who has freedom of movement. However, whether this offence can be committed against persons who lack freedom of movement for permanent or temporary reasons (persons who are paralysed, disabled, asleep, passed out under the influence of alcohol or drugs, etc.) is disputed in the legal doctrine. According to one view, persons temporarily deprived of freedom of movement may be victims of the offence, because with the commission of the offence the potential freedom of movement of these persons is also restricted. According to the other view, whether the condition is temporary or permanent, since these persons do not have freedom of movement at the moment the offence is committed, the offence will not be committed because an element of the offence has not been fulfilled.
The other aggravated forms of the offence are listed in the third paragraph:
(3) Where this offence is committed;
a) With a weapon,
b) Jointly by more than one person,
c) By reason of the public duty performed by the person,
d) By abusing the influence afforded by a public office,
e) Against an ascendant, descendant or spouse, or a divorced spouse,
f) Against a child or a person who is not in a position to defend himself physically or mentally,
The penalty to be imposed under the above paragraphs shall be doubled.
The fourth paragraph provides that, where the victim suffers an economic loss because of the offence, a judicial fine shall additionally be imposed:
(4) Where this offence causes the victim a significant economic loss, a judicial fine of up to one thousand days shall additionally be imposed.
As for the fifth paragraph of the same article:
(5) Where the offence is committed with a sexual purpose, the penalties to be imposed under the above paragraphs shall be increased by one half.
That is how the provision reads. If the offender has deprived the victim of his liberty for the purpose of satisfying his sexual desires, he will be liable under this aggravated form even if he has not achieved his aim. If sexual harassment or sexual assault has been committed against the victim, he will additionally be punished for those offences as well. The aggravated form here arises by reason of the motive of the offence (the motive of a sexual purpose). Article 110 TCK also regulates effective repentance, which reduces the penalty:
Article 110– (1) If the person who commits the offence defined in the above article, before an investigation is commenced in respect of this offence, voluntarily releases the victim in a safe place without having caused harm to the victim’s person, the penalty shall be reduced by up to two thirds.
For effective repentance to be applied, the offender must restore the victim’s liberty of his own free will. He must also not have caused harm to the victim’s person. Another condition is the requirement that the release take place before the investigation is commenced. The meaning of the time at which the investigation begins is that the law enforcement authorities or the public prosecutor’s office have not yet learned of the suspicion of an offence. The victim must also be released to or at a safe place. Once the victim has regained his freedom, conditions must exist that would enable him to get himself away from that place. For example, where the victim is left on a desolate mountain top, the provisions on effective repentance will not be applied.
The sixth and final paragraph of Article 109:
(6) Where, for the purpose of committing this offence or in the course of its commission, the forms of the offence of intentional injury aggravated by consequence occur, the provisions relating to the offence of intentional injury shall additionally apply.
That is how the provision reads. The point to note here is that real concurrence may be applied only where the form of intentional injury aggravated by consequence is in question. In the case of injury not amounting to an aggravated degree, and of force, the offender will not be punished for these offences. Where more than one person is deprived of liberty by a single act, the provisions on homogeneous notional concurrence of offences will be applied. If the same person deprives the victim of liberty at different times for certain periods, the provisions on successive (continuing) offences will be applied.
Another case of real concurrence is regulated in the fourth paragraph of Article 223 TCK, in the offence of “Hijacking or seizure of means of transport”:
(4) A separate penalty shall additionally be imposed by reason of the restriction of persons’ liberty in the course of the commission of these offences.
Turning to the procedure for the offence of deprivation of liberty, this offence is investigated ex officio and is not subject to complaint. Furthermore, the court having subject-matter jurisdiction is the Criminal Court of First Instance. The limitation period for prosecution is 8 years, and if the trial is not conducted within this period, the prosecution becomes time-barred. In the aggravated forms, this period is 15 years. It is not an offence subject to conciliation.
This is an English translation of the author’s article originally written in Turkish.
Link to the original article on Hukuki Haber: https://www.hukukihaber.net/kisiyi-hurriyetinden-yoksun-kilma-sucu