Violence against women constitutes a vital social problem in Turkey. According to the report shared by the We Will Stop Femicide Platform, 280 women were killed by men, and 217 women were found suspiciously dead in 2021. Stalking, which is accepted as a form of violence against women, is an important part of this problem as well. Research on Domestic Violence Against Women in Turkey shows almost nearly 3 out of 10 women in Turkey have been the victim of stalking at least once in their life. Besides being a kind of violence against women by itself, stalking commonly foreshadows physical and/or sexual violence. When cases of violence against women ending in homicide are examined, it is possible to observe the previous behavior of the perpetrator constitutes stalking. Stalking is not currently regulated as a crime in the Turkish Penal Code (TPC). There are various statements about this issue: recently, in December 2021, the Minister of Justice stated that a new crime is on their agenda, aiming to punish more severely the “disturbing” acts against women. However, there is currently no draft shared with the public or a bill of law on the agenda of the Grand National Assembly of Turkey.
Although it is not considered as a crime, stalking is accepted as a type of violence against women, and there are various remedies to combat stalking in Law for Protection of the Family and the Prevention of Violence Against Women (“Law No: 6284”). This law enacted on 8/3/2012 to address violence against women and states in its article 1: “The aim of this law is to protect the women, the children, the family members, and the victims of stalking, who have been subject to the violence or to the risk of violence, and to regulate procedures and principles with regard to the measures of preventing violence against them”. The Turkish legislature has chosen the term “tek taraflı ısrarlı takip” which can be translated as “unilateral persistent following” instead of “stalking”. In Law No: 6284 there is no set definition of “unilateral persistent following”, however an explanation can be found within the regulation which shows rules about implementation of Law No: 6284. According to article 3 paragraph ş, the regulation doesn’t take into consideration the nature of relationship between perpetrator and victims, while qualifying acts as stalking. The perpetrator can be an ex-spouse, a family member, or a complete stranger. It is sufficient that the perpetrator’s behavior occurs in a way that causes fear in the victim and, no matter the context, all sorts of contact by verbally, physically, written or any means of communication constitute stalking. It can be said that the regulation brings a highly comprehensive definition, which is in compliance with the Istanbul Convention.
Depending on the nature of the impugned act, there are various civil remedies available to victims of violence, victims of stalking included. The measures are divided into two categories: “protective” and “preventive”. Public authorities shall take some protective measures such as temporary financial aid, psychological, professional, legal, and social guidance and counseling service, providing shelter to the victims of violence, and providing temporary protection in case of life-threatening danger. In cases where any delay poses a risk, the chief of law enforcement forces may take the last two measures mentioned above, but their decision must be approved by province governor, otherwise the measure becomes automatically invalid. (Law No: 6284, Article 3). The judge, which refers to the judge of a family tribunal, can also order some protective measures that differ from the measures which are taken by public authorities under article 4. The judge or the public authorities also have the faculty to take similar protective measures not mentioned in the legislation. According to paragraph 3 of Article 8 of the Law, no evidence or document is required regarding the use of violence to decide on protective measures. In addition, the judge can also order preventive measures such as removal from matrimonial home, prohibition of approaching the victims’ residence, school, or workplace for the perpetrator of violence, prohibition of disturbing the victim by means of communication or any other means (Law No: 6284, Article 5). However, all these measures are not sufficient to deal with stalking. Furthermore, in practice, victims have difficulties in having recourse to these measures, which can be due to negligence of public officers or lack of knowledge or training of staff who work on this field. Besides, in some cases, because of implementation failures, the victims cannot be rescued from violence. Dilara Yıldız who was a lawyer practicing in Istanbul, was murdered by her ex-boyfriend on 10 January 2022. The killer followed her, sent numerous threating messages, and although there was a protection order for her, unfortunately Dilara Yıldız lost her life.
Under Turkish Penal Code, there are various types of offenses that occasionally overlap with the acts which constitute stalking; however, these offenses cannot be considered sufficient to punish the acts that constitute stalking as a whole. These offences are TPC 123 (disturbing the peace and tranquility of persons), TPC 106 (threatening), TPC 105 (sexual harassment), and TPC 96 (maltreatment). “Disturbing the peace and tranquility of persons” is regulated in article 123, which is the most similar offense to stalking. “Persistently calling a person on their phone, making noises, or committing similar unlawful acts with the intention to disturb their peace and tranquility shall be sentenced to imprisonment from three months to one year.” Both offenses require commission of more than one act: like stalking, TPC 123 cannot be committed with a single act. It is possible to say that both crimes might be considered as a type of “harassment”, but the impact of stalking on the victim is more severe. Furthermore, as mentioned in the GREVIO report, article 123 is far from being inclusive and reflecting the seriousness of the crime. For this reason, stalking should be regulated as a new type of offense in detail, taking into account the severe consequences it may cause for the victim.
According to article 106 (threatening) of the Turkish Penal Code, “Whoever threatens a person with carrying out an attack on their life, physical or sexual inviolability or of a person close to them, shall be liable to imprisonment from six months to two years.” The victim must be threatened with the mention that one of their legally protected interests will be harmed. In other words, in order to accept an act as a threat, the victim should know the content of the threat against them or at least be able to know it, whereas there is no such requirement for stalking to occur. Unpredictability of the perpetrator’s behavior is the cause of fear in crime of stalking. Following the victim, showing up in places where victim is, trying to reach out to them are not basically considered as a threat according to Turkish Penal Code.
Sexual harassment is regulated under Article 105 of the Turkish Penal Code: “Whoever sexually harasses someone shall be imprisoned from three months to two years or a judicial fine.” Stalking can be categorized as a type of harassment; but in the case of stalking, the perpetrator harasses the victim on all aspects of life, sexual or not. It is likely that perpetrator of stalking would have a sexual intent, but even in the absence thereof, if the acts cause fear, they should be accepted as stalking. Indeed, sexual harassment can be committed in one single act and, does not require the element of “causing fear in the victim”.
Another type of crime that comes to mind in cases of stalking, is maltreatment, regulated in TPC 96. The article has caused various debates in terms of the principle of lawfulness, especially the principle of legal certainty, in Turkish law. Pursuant to the article, “Whoever commits acts that will cause a person to suffer is sentenced to imprisonment from two to five years.” As can be seen by the wording of the provision, the legislator preferred to make a very broad definition that is almost ambiguous. At first sight, it is likely to be used for sentencing the perpetrators who commit stalking by virtue of this offense. However, in the Turkish law practice, there is a particular meaning of the term “maltreatment”. The legislature wants to punish the conducts that are incompatible with human dignity, the physical or mental suffering or humiliation with this offense, as it comes right after the crime of “torture”. Stalking causes fear, the victims feel themselves as if being in a prison because of the perpetrator’s acts, and in some cases, changing one’s lifestyle becomes obligatory to get rid of perpetrator, but it is hard to say that stalking would fall under “maltreatment” within meaning of TPC 96.
It is an obligation for the countries that are party to the Istanbul Convention to criminalize stalking, but even if there no such obligation exists, it should be a requirement for any state that aims to combat violence against women. For Turkey, notwithstanding the withdrawal from the Istanbul Convention in 2021, this obligation should be fulfilled without further delay.
* Selin Türkoğlu is PhD student in Galatasaray University and visiting PhD student in University of Pisa