TURKISH CONSTITUTIONAL COURT AND MARGOT WALLSTROM

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United Nations Secretary-Generals’ special envoy of conflict and in charge of the fight against sexual assault Margot Wallström (between 2010-2012), wrote message from his Twitter account On August 14, and asked from Turkey to revoke the permit sexual intercourse for children under 15 years of age from Turkey.

After the Social Democrats coming to power in Sweden in 2014, the process has begun. Wallström was brought to the Swedish Foreign Ministry. And then the process which started with his message continued with the cancellation desicion of Constitutional Court about the Turkish Penal Code (TCK)’s Article 103 first paragraph, regulating the exploitation of sexually ” all forms of sexual behavior to a child who have not completed the age of 15 will be considered as sexual exploitation of children”.

The full provision whose part was cancelled with the decision of Turkish Constitutional Court (TCC) is stated below:

Child molestation

ARTICLE 103-(1) Any person who abuses a child sexually is sentenced to imprisonment from three years to eight years.

Sexual molestation covers the following acts;

  1. a) All kinds of sexual attempt against children who are under the age of fifteen or against those attained the age of fifteen but lack of ability to understand the legal consequences of such act,
  2. b) Abuse of other children sexually by force, threat or fraud.

(2) In case of performance of sexual abuse by inserting an organ or instrument into a body, the offender is sentenced to imprisonment from eight years to fifteen years.

(3) In case of performance of sexual abuse by antecedents, second or third degree blood relations, step father, guardian, educator, trainer, nurse and other persons rendering health services and responsible from protection and observation of the child, or by undue influence based on public office, the punishment to be imposed according to the above subsections is increased by one half.

(4) In case of execution of sexual abuse against the children listed in paragraph (a) of first subsection by use of force or threat, the punishment to be imposed is increased by one half.

(5) The provisions relating to felonious injury are additionally applied in case the acts of force and violence cause severe injury to the person subject to sexual abuse.

(6) In case of deterioration of corporal and spiritual health of the victim as a result of offense, the offender is sentenced to imprisonment not less than fifteen years.

(7) In case the offense results with death or vegetal existence of the victim, the offender is punished with heavy life imprisonment.

Facing lawsuits alleging sexual abuse of a child in Bafra, Bafra Criminal Court, apply to the Constitutional Court on the grounds that it –the article 103- is contrary to the Constitution. The applicant claimed that, Article 103, does not make any distintion for different age groups and the criminal sanctions include actions for all victims in different age groups. And added that, the penalty should include a gradual understanding of the criminal sanctions for different age groups. Argued that, by determining the minimum age of 15 for he major of the crime prevent to disrupt the ratio between sanctions and the desired legal benefits.

The Supreme Court cancelled, TPC’s first phragraph of the article 103 stating “All kinds of sexual attempt against children who are under the age of fifteen or against those attained the age of fifteen but lack of ability to understand the legal consequences of such act,..” with the vote of 7 members against 6; by showing the justification of the decision Turkish Penal Code 103/2, which was given before for the.

It was stated that both provisions was cancelled because of not giving the discretion to the Courts which is just for cases and not foreseeing restorative legal institutions.

Explanation of Swedish Foreign Minister, in social media,”the age of 15 in Turkey, released the sexual exploitation of children” is obviously not true. The truth is, The Supreme Court has given a time to Turkish Grand National Assembly for reform the provision. Currently in Turkey, it is still sexual abuse against children under 15 years old. Contrary to what has been brought forth, acts of sexual abuse committed against children who is under age of 15, was not removed an offense.

Turkish Penal Code Article 103 (1) of the lower limit of the sentence in paragraph according to the characteristics determining the present case to be granted the opportunity to staging may be needed, has been founded contrary to the principle of proportionality and has been cancelled on the basis of technical legal reasons.

In fact, for not to be born loopholes, was decided that, the cancellation will enter into force six months after published in the Official Journal. Annulment was published on July 13, 2016. By doing that way the legislature has the opportunity to make a new arrangement which meet technical and legal issues specified in the decision.

Swedish Foreign Minister is not only one, unfortunately, in Germany and Austria was given a great place for that news/press. In the electronic board of the Kronen Zeitung taking place in Vienna International Airport passenger lounge, was claimed that: “Turkey allow the abuse of children under the age of 15”.

This is a rather deliberate negligence is an event for defamation to Turkey. And this is a serious situation. Unfortunately Europe does not understand the great law deliberality resistance, public’s resistance. But we should explain our commitment to law with all our strength by using our media, our businesses, our universities and civil society organizations.

After the Swedish Foreign Minister’s statement, there was a huge public reaction in Turkey. Turkish Ministry of Foreign Affairs, Vienna A report in the electronic board at the airport, reacted with a written statement. Deputy Prime Minister Mehmet Simsek, showed a strong response to Swedish Foreign Minister Margot Wallström, sharing false information about Turkey on Twitter. Lightning, “You informed clearly wrong. There is nothing like that stupid in Turkey. Please know the facts.” said. Because tweets Wallström at the Swedish Embassy in temporary charge d’affaires was summoned to the Foreign Ministry Lohmar Hedvig Klara Erika Hogg.

Foreign Minister Mevlut Cavusoglu considered Wallström’s claims, “the foreign minister unbecoming a lie and a statement made on false information”. Justice Minister Bozdag, reported that, in Turkey there is no legal gap about the punishment of sexual abuse against children.

Falsity of the agenda in European countries is evident with the present example. A number of countries of Europe unfair behaviors, which were shown by security forces to people gathered to support the citizens of Turkey, the country managers’ implies about “return to Turkey to support” and shaking Turkish flag considered as the provocation, are human right violations. With compensating the errors of the past, Turkey becoming a state of law, on the other hand human rights emphasis, which is imposed by the West, was shown that only work for themselves.

Abdulvahap DUMAN

Bu yazının Türkçesi için : “ANAYASA MAHKEMESİ VE MARGOT WALLSTRÖM”

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Konuk Yazar

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