“…a new complaint period starts for each current monthly alimony payment that is not paid; for the existence of the crime of non-compliance with the alimony decree, there must be at least one month of current alimony debt accrued between the notification of the execution payment order and the date of the complaint; since there is a one-month payment period for each alimony installment amount, the date of notification of the execution order must be taken as the basis in determining the start date of the period,…”
T.R. COURT OF CASSATION 19th PENAL CHAMBER
Basis No: 2016/15184 Decision No: 2017/2239 Date: 15.03.2017 “Case Precedent”
SUMMARY: Regarding the acquittal of the defendant (…) for the crime of non-compliance with the alimony obligation, the Ministry of Justice requested a reversal for the benefit of the law (kanun yararına bozma) against the decision of the Istanbul Anadolu 8th Enforcement Penal Court dated 16/03/2016, which rejected the objection to the acquittal decision.
LEGAL ANALYSIS: Although the lower court initially ruled for acquittal on the grounds that a prior enforcement imprisonment sentence (tazyik hapsi) had been issued for the same execution file regarding previous months; it is established that:
A new period for filing a complaint starts for each current monthly alimony payment that remains unpaid.
For the crime of non-compliance with the alimony decree to occur, there must be at least one month of current alimony debt (cari nafaka borcu) accrued between the date the execution payment order was served and the date the complaint was filed.
Each installment has a one-month payment period, and the date of service of the execution order is the basis for determining the start of this period.
In the concrete case, the execution payment order was served to the defendant’s counsel on 30/12/2014. Therefore, the installment for each month must be paid within one month starting from the 30th day of that month until the same day of the following month. The complainant filed a petition on 02/11/2015, alleging that the alimony for August, September, and October of 2015 was not paid. As of the complaint date, the alimony debts for August and September 2015 had become due and payable (muaccel). Since there was no prior enforcement imprisonment sentence issued specifically for these months, the defendant should have been sentenced to enforcement imprisonment.
CONCLUSION: As the content of the notification by the Chief Public Prosecutor’s Office of the Court of Cassation was found justified, it was UNANIMOUSLY DECIDED on 15/03/2017 to REVERSE the decision of the Istanbul Anadolu 8th Enforcement Penal Court pursuant to Article 309/4-c of the Criminal Procedure Code (CPC), provided that it does not prejudice the prior status of the defendant.