Criminal General Assembly 2017/244 E. , 2018/6019.
“Text Of Jurisprudence”
Who Made The Decision
Office of the Supreme Court : 14. Criminal Department
Court of First Instance : Criminal
Number : 537-48
The decision dated 05.04.2012 and numbered 172-121 issued by the Cesme Magistrate’s Court on the acquittal of the accused … for sexual harassment was appealed by the Public prosecutor, who examined the file of the Supreme 14. By the Criminal Department dated 23.06.2015 and numbered 10886-7569;
“Given the detailed testimony of the client, who did not have any animosity reflected in the file between the accused and the investigation phase, and the witness Fevziye’s statements at the stages, the defendant called from the mobile phone used by the client on different dates as part of the execution of a crime decision and said that he liked, loved, his blood was boiling, and on the second call he made the next day, he said that he sincerely loved, because it is clear from the contents of the file that he committed the crime by saying that the defendant committed the crime of muesnet decriminalization wake up TCK’s 105/1,43/1. instead of being punished in accordance with the articles, it was decided that his acquittal would be overturned due to his ”failure to be acquitted on written grounds that do not fall within the scope of the occurrence.
Fountain 2. The Criminal Court of First Instance is dated 11.02.2016 and numbered 537-48;
”… Even if it is accepted that the words that the defendant made to the client are a description of feelings, are not made for sexual purposes in the sense sought by the law, and the words are considered morally critical given the age difference between the defendant and the complainant, it should be accepted that these words will not give rise to the crime of sexual harassment …”, resisting the deconstruction, he decided to acquit the defendant, as in the previous judgment.
Upon appeal of this provision by the Public prosecutor, the file received by the First President of the Supreme Court dated 30.05.2016 and numbered 187118 with the notification of the “approval” of the Prosecutor General of the Supreme Court dated 14.12.2016 and numbered 873-1723 by the Criminal General Assembly; 38 of Law No. 6763. article 10 of the provisional Law added to the Law No. 5320. the Court of Cassation, whose decision was resisted in accordance with the article, was sent to the apartment and conducted an examination in accordance with the same article 14. The file returned to the First President of the Supreme Court of Cassation by the Criminal Department dated 06.03.2017 and numbered 375-1186, after the decision to resist was not considered in place, was evaluated by the Criminal General Assembly and decided on the grounds described.
ON BEHALF OF THE TURKISH NATION
THE DECISION OF THE CRIMINAL GENERAL ASSEMBLY
Disputes arising between the Special Department and the Local Court, which must be resolved by the Decency General Assembly;
1- Whether the offence of sexual harassment committed against the accused is formed by the legal elements,
2-If it is concluded that the elements of the crime are formed, it is necessary to determine whether there are conditions for applying the provision of a chained crime,
It is related to the determination of
The complainant … is 27 years old and single as of the date of the crime, and the defendant … is 50 years old and married,
After the complainant applied to the Cesme Public Prosecutor’s Office on 25.07.2005 and declared that the accused had harassed her, the investigation against the accused began,
The indictment of the public prosecutor dated 27.10.2009 875-415 No. Fountain, “the complainant and the suspect’s family they met the suspect on the date of the event at 23.00 in the evening with a phone call to the complainant itself, like love from the heart, your blood start to boil said, after a while, the complainant called again on the suspect’s phone, and upon opening out of the speaker phone of the complainant, the complainant addressed to the witness fevziye in the same environment of ‘from a human heart can’t love, I loved you dearly, I’m sure, tell your family that you have misunderstood,” in which he said the following words …” in which the defendant is asked to be punished for sexual harassment,
It is understood.
Money order dated 25.07.2008 presented the petition to the public prosecutor complaining … the fountain; family friendly, the defendant, at the telephone call itself on 22.07.2008 23.06 than liked, but he himself was supposed to be married to his son, who is Mustafa cokbasarici you said you wanted to, when he didn’t accept it for you “is moving, and my blood is boiling, my heart I love you,” he said of the state is the defendant’s wife and then the next day back at the mill 11.16 call the defendant himself “I’m sure tell you misunderstood me,” he said to himself complained that he was accused of harassing,
At the DA’s office; a friend of the defendant’s family residing in Izmit, that he was on the phone with him a family-friendly 55-60 years old because it is a wantonness to be in the conversation you didn’t call on the phone itself but for the defendant’s 22.07.2008 at 23.06 like love from the heart, your blood start to boil said, it said, “You’re my uncle, girl when you say, how can you think that by saying” he closed the phone, said the situation the next day to his own family, the family of the situation, he informed his wife of the defendant, on 23.07.2008, the defendant called his daughter’s line again and asked her to tell him that it was very complicated, that she had misunderstood him and to close the matter,
Witness….the D. A; the plaintiff on 22.07.2008 started crying while talking on the phone, the person “how clever uncle, your uncle I call you’re my father’s age, how can you say such a thing,” you say, and hang up the situation, he told himself, the next day, the complainant again looking the defendant, the plaintiff was the speaker of the speeches, when the complainant and accused “a person can’t love dearly, I loved you dearly, and it was messy, misunderstood, tell your family,” he said,
At The Hearing; that’s aunt was the daughter of the complainant, the defendant, the complainant’s brother-in-law is in the fountain in the history of the event together with the complainant, the complainant and the defendant himself for work call herself, “I didn’t get to you my son, but I want you for myself” she said told her, again call upon the defendant on the evening of that day, the complainant opened the speaker the defendant to the complainant “I like you, I love you with all my heart,” you say, if the complainant’s You “you’re my uncle, how can you think that by saying” he closed the phone, after a while, the defendant called again to tell the complainant that he loved her from the bottom of his heart and asked her to tell her family that there was a misunderstanding because it would get complicated,
They have declared.
The defendant …; argued that he said the words specified in the indictment, committed ignorance, regretted, and made these words thinking that the complainant was warm-blooded.
In the event that it is reached that the sexual harassment offence committed against the accused is based on the legal elements and the elements of the crime are formed, the chain crime provision should be applied in the case of evaluating the dispute issues related to the existence of conditions for their implementation together;
105 of the Turkish Criminal Code No. 5237, which was in force at the time of the crime. in the article;
“(1) Upon the complaint of the victim, a prison sentence or a judicial fine of three months to two years shall be imposed on the person who has sexually harassed a person.
(2) these verbs; hierarchy, service, or education and training, relationship or family relationship arising from abuse or benefiting from the ease of working in the same workplace is committed, according to the paragraph above, the sentence is increased by half. If the victim was forced to quit his job, leave school or his family due to this act, the punishment to be given cannot be less than one year,”the regulation states.
In the Turkish Dictionary of the Turkish Language Institution, harassment is defined as ”making people nervous, uncomfortable, or distressed”.
Although there is no clarity in the law on what kind of behavior an act of sexual harassment defined as “offending the victim in violation of moral cleanliness in a sexual way” can be committed, in teaching and judicial decisions, it is accepted that the crime of sexual harassment can be committed with words or behaviors directed at the victim’s sexuality without violating his body immunity.
In order for acts of sexual harassment to be considered a crime, it is mandatory that these acts were committed unlawfully, in other words, with the consent of the victim. A person who has a driver’s license to disclose consent may commit acts of sexual harassment in accordance with Article 26 of the TCC. the consent that he will show under the article will remove criminal liability. The presence of consent will be determined by the specifics of the concrete event.
Behaviors that will constitute sexual harassment can be sudden provided that the victim’s body is not contacted, as well as continuous in nature. In order for a crime to occur, the perpetrator must have a sexual purpose and the act must have been committed against a specific person or persons.
As stated in the decision of the Criminal General Assembly of the Supreme Court of Cassation dated 24.03.2015 and numbered 2014/669-68; The material element of the crime of sexual harassment is to sexually harass a person. The spiritual element of the crime is caste, and the perpetrator must have a sexual purpose.
In determining whether the act was committed for sexual purposes or which act constitutes a crime of sexual harassment, the requirements of social life, the positions of the parties and the relationship between them should be observed, in this context, it should be accepted that marriage proposals, requests to meet or expressions of appreciation in accordance with dec rules will not constitute a crime of sexual harassment. However, marriage or friendship request, as was the case with the words for gift or lingerie rude and annoying towards sexuality in a manner to be done with the realization, rejected the proposal, however, the action of the victim or the victim in a way that makes it uncomfortable to be maintained according to the provisions of the Civil Code of, or who do not have the means to marry a child as in the case of one of the parties being married, marriage or friendship in front of the presence of legal or moral barriers in cases of the crime of sexual harassment occur when there is not any doubt.
In the light of these explanations, when the issues of dispute are evaluated,
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