Subject 10- Offences Against Public Morals in the Digital Environment
- Introduction
According to the decision of the Supreme Court Criminal General Assembly case no 2014/603, decision no 2015/66 and decision date 24.03.2015, the word “Müstehcen” is derived from the Arabic word ‘Hücnet’ and has been adopted into Turkish. The term ‘Hücnet’ is defined in dictionaries as ‘obscenity, confusion, vulgarity, inferiority, bad behavior.’ Based on this definition, the term ‘müstehcen’ is explained in the same dictionaries as ‘indecent, improper, disgusting, lewd, contrary to decency, inappropriate.’
At the present time, most countries have enacted laws prohibiting obscene materials and have attempted to establish control through criminal laws. The primary focus of our discussion is the offense regulated in the third paragraph of Article 226 of the Turkish Penal Code (TCK).
Article 226 (3) – A person who uses children in the production of obscene written or audio-visual materials shall be sentenced to a penalty of imprisonment for a term of five to ten years and a judicial fine of up to five thousand days. Any person who conveys such material into the country, who copies or offers for sale such material or who sells, transports, stores, exports, retains possession of such material or offers such material for the use of others shall be sentenced to a penalty of imprisonment for a term of two to five years and a judicial fine of up to five thousand days.
Although the terms “pornography” and “child pornography” are not explicitly mentioned in the article, they are encompassed within the offense of obscenity. The concept of obscenity has a broader meaning that includes pornography. However, “child pornography” is now an internationally accepted term in legal contexts. The term is used in the treaties and protocols to which our country is a party.
In recent years, a significant increase has been observed in explicit content, characterized as child pornography, including in many countries, including Turkey, through explicit photos or videos.
The National Center for Missing & Exploited Children (NCMEC) initiates criminal proceedings by regularly receiving reports from member service providers, such as Facebook and Twitter, regarding uploads of child pornography.
Especially in recent years, the Cyber Crimes Department of the General Directorate of Security of the Republic of Turkey, based on the reports received from here, conducts investigations and examinations. Following the determination of individuals through these investigations, searches are carried out in their homes or workplaces, and examinations are conducted on materials such as computers, CD-ROMs, hard disks, flash drives, and memory cards.
While emphasizing that specific differences will be considered for each case, according to the following articles and Supreme Court practices, a person who brings into the country, reproduces, offers for sale, sells, transports, stores, exports, possesses, or makes available to others child pornography or child pornographic content in materials such as computers, CD-ROMs, hard disks, flash drives, and memory cards, including watching on the internet, may be sentenced to imprisonment for a period ranging from two to five years and fined up to five thousand judicial days.
- Obscenity Offense and Child Pornography:
According to Article 6 of the Turkish Penal Code, the term “child” refers to an individual who has not yet reached the age of 18 in the application of criminal laws.
According to the Article 226 ;
(1) Any person who:
- a) gives to a child obscene written or audio-visual material; or who reads or induces another to read such material to a child or makes a child watch or listen to such material;
- b) makes public the content of such material in a place accessible or visible to a child, or who exhibits such material in a visible manner or who reads or talks about such material, or who induces another to read or talk about such material to a child;
- c) offers such materials for sale or rent in such a manner as to reveal the content of that material;
- d) offers for sale, sells or rents such materials, in any place other than a specified points of sale;
- e) gives or distributes such materials along with the sale of other products or services as a free supplement; or
- f) advertises such products shall be sentenced to a penalty of imprisonment for a term of six months to two years and a judicial fine.
(2) Any person who broadcasts or publishes obscene written or audio-visual material or who acts as an intermediary for this purpose shall be sentenced to a penalty of imprisonment for a term of six months to three years and a judicial fine of up to five thousand days.
(3) A person who uses children in the production of obscene written or audio-visual materials shall be sentenced to a penalty of imprisonment for a term of five to ten years and a judicial fine of up to five thousand days. Any person who conveys such material into the country, who copies or offers for sale such material or who sells, transports, stores, exports, retains possession of such material or offers such material for the use of others shall be sentenced to a penalty of imprisonment for a term of two to five years and a judicial fine of up to five thousand days.
(4) Any person who produces, conveys into the country, offers for sale, sells, transports, stores or offers for the use of others written or audio-visual materials of sexual acts performed with the use of force, animals, a human corpse, or in any other unnatural manner shall be sentenced to a penalty of imprisonment for a term of one to four years and a judicial fine of up to five thousand days.
(5) Any person who broadcasts or publishes the materials described in paragraphs three and four or who acts as an intermediary for this purpose or who ensures children see, hear or read such materials shall be sentenced to a penalty of imprisonment for a term of six to ten years and a judicial fine of up to five thousand days.
(6) Legal entities shall be subject to specific security measures for involvement in these offenses.
(7) The provisions of this article shall not apply to academic works. The provisions of this article shall not apply, except for paragraph 3, to artistic or literary works where children are prevented from accessing such.
Turkish Supreme Court 14th Criminal Division Case Number: 2012/9694, Decision Number: 2013/14022
The investigation, initiated upon a report from the Austria Interpol regarding the defendant downloading images related to child pornography, led to a lawful search of the defendant’s workplace. During this search, his computer was seized. Subsequent examination of the seized computer revealed that the defendant had stored 507 obscene images related to child pornography. This act constitutes the offense specified in Article 226/3-c 2 of the Turkish Penal Code. Considering the number of images, the defendant’s defense claiming unintentional downloading of the images appears unconvincing.
The evidence, claims, and defenses, as well as the proceedings of the trial, have been analyzed and evaluated, taking into consideration the facts presented during the hearing. The actions whose existence has been proven were described and applied in accordance with elements beyond criticism. Therefore, the objections raised by the defense counsel, which were not found valid, are rejected, and the verdict, which is in accordance with both procedural and substantive law except for criticism, is CONFIRMED by unanimous decision on December 26, 2013.
The commission of this crime through the use of information technology tools in a virtual environment is also possible.
The Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through These Publications includes provisions for blocking access to content when there is sufficient suspicion that it constitutes an obscenity offense.
According to Article 8 of Law No. 5651 titled “Execution of Decisions for Removal of Content and Blocking Access,
(1) Decisions shall be made for the removal and/or blocking of content regarding publications made on the internet, which are suspected of constituting the offenses listed below, where there is sufficient cause for suspicion about their content.
- a) Those specified in the Turkish Penal Code dated 26/9/2004 and numbered 5237;
1)Directing Suicide (Article 84)
2)Child molestation (Article 103/1)
3)Facilitating the Use of Narcotics or Psychotropic Substances (Article 190)
4)Supply of Substances Dangerous to Health (Article 194)
5)Obscenity (Article 226)
6)Prostitution (Article 227)
7)Providing an Environment or the Means for Gambling (Article 228)
- Prostitution
Prostitution is regulated under Article 227 of the Turkish Penal Code (TCK), and it is subject to the following sanctions;
(1) Any person who encourages a child to become a prostitute, facilitates a child becoming such or supplies or accommodates a child for such purpose, or acts as an intermediary for the prostitution of a child, shall be sentenced to a penalty of imprisonment for a term of four to ten years and judicial fine up to five thousand days. Preparatory acts and activities for commission of this offense shall be punished as a completed offense.
(2) Any person who encourages another to become a prostitute or who facilitates or acts as an intermediary for such or who provides an environment for such purpose shall be sentenced to a penalty of imprisonment for a term of two to four years and a judicial fine up to three thousand days. Earning a living, totally or partially, from the proceeds of prostitution shall be presumed to be an encouragement to prostitution.
(3) (Abolished on 6/12/2006 – By Article 45 of the Law no. 5560) Any person who provides, distributes, or disseminates products containing images, writings, or statements prepared to facilitate prostitution or mediate in prostitution is subject to imprisonment for one to three years and a judicial fine ranging from two hundred to two thousand days.
(4) The penalty to be imposed according to the aforementioned paragraphs shall be increased by one half to two folds where a person is encouraged to engage in acts of prostitution or secures an individual to engage in prostitution through the use of threat, violence, deceit, or by taking advantage of another’s desperation.
(5) The penalty to be imposed according to aforementioned paragraphs shall be increased by one half where the offense is committed by a spouse, direct-antecedents, direct antecedents-in-law, sibling, adopting parent, guardian, trainer, educator, nurse or any other person responsible for the protection and supervision of a person; or by a public officer or employee who misuses the influence derived from their positions.
(6) The penalty to be imposed according to aforementioned paragraphs shall be increased by one half where the offense is committed within the framework of the activities of a criminal organization.
(7) Legal entities shall be subject to security measures for involvement in these offenses.
(8) Any person who has been forced into prostitution may be given treatment or psychological therapy.
In the justification of the law:
- In the first paragraph of the article, enticing a child into prostitution, facilitating the path to prostitution for a child, procuring or harboring a child for this purpose, or mediating in the prostitution of a child is defined as a crime. Moreover, in international agreements, the completion of preparatory actions for the commission of this crime is accepted to be punished as a completed offense. As gaining profit is possible through the commission of this crime, in addition to imprisonment, a judicial fine is also envisaged.
- According to the second paragraph, encouraging, facilitating, or brokering prostitution constitutes a separate offense. In this context, benefiting partially or entirely from the earnings of an individual induced into prostitution is considered as promoting prostitution. Additionally, as there can be a financial gain through the commission of this offense, both imprisonment and a judicial fine are envisaged as penalties.
- In the third paragraph, the act of trafficking individuals into the country for the purpose of prostitution or facilitating their exit from the country is also defined as a crime. However, in determining the penalty to be imposed for this offense, a distinction is made based on whether the victim of the crime is a child or an adult. Accordingly, if the victim is a child, the penalty will be imposed in accordance with the provisions of the first paragraph; if the victim is an adult, then the penalty will be imposed in accordance with the provisions of the second paragraph.
- In the fourth paragraph, compelling or inducing an individual into prostitution, or ensuring their engagement in prostitution through force, threat, deception, or taking advantage of their helplessness is considered as an aggravated form of the offenses defined in the first, second, and third paragraphs, necessitating a more severe penalty.
- According to the fifth paragraph, if the offenses described in the above paragraphs are committed by a spouse, ascendant, step-ascendant, sibling, adopter, guardian, educator, instructor, caregiver, or other individuals with the obligation of protection, care, and supervision, or through the abuse of influence derived from a public duty or service relationship, the penalty to be imposed according to these paragraphs will be increased to a certain extent.
- In the sixth paragraph of the article, it is acknowledged that if these offenses are committed within the framework of organized criminal activity established for the purpose of committing crimes, the penalty to be imposed according to the above paragraphs will be additionally increased. It should be noted that this aggravating factor does not prevent separate punishment for establishing or leading an organization for the purpose of committing crimes or being a member of such an established organization.
- In the seventh paragraph, it is accepted that specific security measures will be imposed on legal entities for the offenses defined within the scope of this article.
- In the eighth paragraph, it is acknowledged that individuals induced into prostitution will undergo treatment or therapy. In this regulation, for the person engaged in prostitution, there is not a punitive measure but a specific security measure envisaged. This is because the person engaged in prostitution is subjected to the sexual behaviors of others on their body.
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