Constitutionality Review

11/6/2021
Press Release No: Plenary Assembly 16/21
Press Release concerning the Decision Finding Constitutional the Provision Prescribing Punishment for Those Having Sexual Intercourse with Minors
The Constitutional Court, at its session dated 18 March 2021, dismissed the request for annulment of Article 104 § 1 of the Turkish Criminal Code no. 5237, as not being unconstitutional (file no. E.2020/82). |
Contested Provision
The contested provision stipulates that those who have had sexual intercourse with a minor at the age of 15 without the use of force, threat or deception shall be sentenced, upon a criminal complaint, to imprisonment from 2 to 5 years.
Ground for the Request for Annulment
It was maintained in brief that the contested provision was unconstitutional since the offence of having sexual intercourse with minors was of a nature different than that of the other offences laid down in the Turkish Criminal Code and prosecuted upon a criminal complaint and criminalising the act of having sexual intercourse with minors at the ages of 15-18 without the use of any force, threat and deception was contrary to the relevant international conventions.
The Court’s Assessment
The contested provision has been examined from the standpoints of Articles 13, 20 and 38 of the Constitution.
In Article 20 § 1 of the Constitution, it is set forth that everyone has the right to respect for his private life, and the inviolable nature of private and family life is also enshrined. Acts and conducts of sexual nature, performed within the most intimate area, fall under the scope of the right to respect for private life.
The contested provision, however, imposes a restriction on this right for criminalising, and prescribing punishment for, the act of having sexual intercourse with minors. As laid down in Article 13 of the Constitution, any restriction on the right to respect for private life must be prescribed by law, based on any of the grounds for restriction specified in the Constitution and comply with the requirements of democratic society and principle of proportionality.
The principle of nullum crimen nulla poena sine lege enshrined in Article 38 of the Constitution is a special aspect of the rule envisaging that fundamental rights and freedoms may be restricted only by law, which is laid down in Article 13 of the Constitution, in respect of offences and penalties.
As all elements of the offence of having a sexual intercourse with minors are explicitly specified in the relevant provision, the contested provision cannot be said to be unclear and unforeseeable. In this sense, the contested provision satisfies the lawfulness requirement within the meaning of both Articles 13 and 38 of the Constitution.
However, undoubtedly, as is the case with any other provisions, certain troubles may occur in relation to the implementation of the contested provision. It is obvious that the disputes, which may be resolved by interpreting the wording and objective of the provision together and considering the generally-recognised principles of criminal law, arise out of implementation. Therefore, the troubles that may arise on account of not the provision itself but rather its interpretation fall outside the scope of the constitutionality review.
It is set forth in Article 20 § 2 of the Constitution that the right to respect for private life may be restricted on certain various grounds. These grounds cannot be however considered, within the meaning of Article 20, as a justified ground for restriction of the contested provision. However, this right may be restricted also on account of the duties incumbent on the State, which are stated in the other provisions of the Constitution.
In this sense, Article 41 of the Constitution provides for “The State shall take measures for the protection of the children against all kinds of abuse and violence”. It appears that the contested provision is intended for the protection of children, within the meaning of Article 41, by prescribing punishment for the sexual acts performed with minors of a specified age range. Accordingly, the contested provision clearly has a legitimate aim within the meaning of the Constitution.
Those, who are aged 15, have reached sexual awareness but may not be able to duly comprehend the outcomes of having a sexual intercourse as their personality has not completely developed yet. Therefore, the contested provision, intended to ensure the effective protection of children, is intended to meet a pressing social need in a democratic society. Besides, subjecting the act of having a sexual intercourse with minors to a criminal sanction upon a criminal complaint is sufficient and necessary for attaining the aims of protecting sexual inviolability of children and ensuring their development free of unfavourable effects.
The contested provision makes the prosecution of the criminal act in question conditional upon a criminal complaint. Given that the prosecution of this act is conditional upon a complaint, the nature and gravity of the corresponding sanction, and the opportunity of challenging the decisions to be issued with respect thereto, it has been concluded that the restriction prescribed by the contested provision is commensurate and thus in keeping with the principle of proportionality.
Consequently, the Court has found the contested provision constitutional and accordingly dismissed the request for its annulment.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect. |