The crime of stalking is a relatively new type of offense under the Turkish Penal Code (TPC). Considering present-day conditions and the ordinary course of life, certain acts and behaviors that may cause serious harm to society and victims have been criminalized in order to prevent such conduct from persisting or escalating. To this end, the law defines particular acts as constituting the offense of stalking, and through the judicial evaluation of concrete cases, the scope of the crime continues to evolve. In this article, we examine the crime of stalking, which has only recently begun to establish its legal framework.
[i]STALKING
TPC Article 123/A – (Added: 12/5/2022 – Law No. 7406/8)
1. A perpetrator who persistently follows another person physically, or attempts to establish contact through communication tools, information systems, or third parties, thereby causing serious disturbance to the person or fear for the safety of themselves or one of their relatives, shall be punished with imprisonment from six months to two years.
2. The penalty shall be imprisonment from one to three years if the offense is committed:
a) Against a child or against a spouse from whom the perpetrator is separated or divorced,
b) In a way that causes the victim to change their school, workplace, residence, or to abandon school or work,
c) By a perpetrator who is subject to a restraining order or a prohibition from approaching
the victim’s residence, school, or workplace.
3. The investigation and prosecution of the offense regulated in this article are subject to complaint.
Among the behaviors posing the greatest threat to the protection of peace, security, and private life is the act of persistent stalking. With the rapid development of modern communication technologies, the prevalence of such conduct has markedly risen. Persistent stalking entails the sustained harassment and intimidation of the victim, leading to substantial interference with the ordinary course of daily life.
[ii]Stalking was first criminalized in the United States. In the 1980s, the rising number of stalking incidents, particularly those targeting celebrities, and some cases resulting in murder, led the State of California to define this conduct as a distinct criminal offense in 1990. Shortly thereafter, other states enacted similar provisions.
European countries began incorporating stalking into their legal frameworks in the late 1990s. Italy, the United Kingdom, and Germany were among the first to take action. Today, many European countries regulate stalking as a distinct criminal offense. The Council of Europe’s Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence explicitly lists stalking among the behaviors that member states are required to criminalize, thereby elevating the issue to international importance.
In Turkey, stalking had long not been regulated as a separate crime. The distress suffered by victims was often addressed under other offenses such as “threat,” “insult,” or “disturbing the peace and tranquility of persons.” However, this approach failed to provide sufficient protection and created legal gaps.
Turkey’s signing of the Istanbul Convention in 2011 marked a significant turning point for including stalking as an independent offense in Turkish law. Legal provisions specifically addressing stalking were introduced for the first time with Law No. 7406, adopted on May 12, 2022, which added Article 123/A titled “Persistent Stalking” to the TPC. The protected legal value in defining this crime is individual liberty. The provision aims both to safeguard personal freedom from violation and to protect victims by preventing intrusions into private life.
ELEMENTS OF THE CRIME
Objective Elements (Actus Reus)
A crime is defined as human behavior that fits a legal type, is unlawful, and is
subject to criminal sanction. In stalking, the objective elements consist of the
offender, the victim, the act, the causal link, the result, and objective attribution.
The subjective element is intent or negligence.
Victim and Offender
The victim and the offender can be any person. However, under Article 123/A(2)(a) and (c), the offender may only be certain individuals. These constitute special offenses.
The Act (Conduct)
The conduct constituting stalking is regulated in Article 123/A. The provision indicates that the offense may be committed through alternative behaviors:
1. Physically Following the Victim
The offender may persistently follow the victim physically. Persistence is required. Examples include continuously waiting in front of the victim’s house, repeatedly visiting their workplace, school, or social settings, following them home, blocking their way, or surveilling them. The act must be continuous and sufficiently disturbing. A single act of surveillance is not enough. Each case must be assessed concretely, considering the ordinary course of life.
2. Attempting to Establish Contact
The offender may also persistently attempt to establish contact through communication tools. Contact may occur by telephone calls, repeated text messages, continuous social media messages, tagging, emails, letters, gifts, or notes left at the victim’s door. Attempts through third parties are also covered. Importantly, success is not required: unanswered calls or unread messages are still sufficient.
Result, Causality, and Objective Attribution
Stalking is defined not merely as a conduct crime but as a result crime. It requires that the conduct cause serious disturbance or fear for safety. The harm must be substantial and not temporary. There must also be a causal link between the offender’s acts and the victim’s distress.
Subjective Element (Mens Rea)
No special form of intent is required. The offense is complete if the perpetrator acts intentionally. The offender’s motives—such as attempting to re-establish a relationship or emotional bond—do not negate the offense. Similarly, a prior relationship between the offender and victim does not legitimize the acts.
UNLAWFULNESS
The conduct must not be based on a lawful reason. For example, surveillance conducted by law enforcement within the scope of a lawful investigation does not constitute stalking.
AGGRAVATED CIRCUMSTANCES
1. Against a child or separated/divorced spouse – If the act targets persons under 18 or a spouse from whom the offender is separated or divorced, heavier penalties apply.
2. Forcing change in life circumstances – If stalking forces the victim to change their school, workplace, or residence, or to abandon them altogether, penalties increase.
3. Violation of protective orders – If stalking is committed despite a restraining or protective order (Law No. 6284, Art. 5/1-b and 5/1-c), the offense is aggravated.
In such cases, imprisonment ranges from one to three years.
[iii]SPECIAL FORMS OF APPEARANCE
Attempt
The crime may remain at the stage of attempt if the offender is prevented from achieving their aim. In such cases, penalties are reduced proportionally.
Participation
Stalking can be committed jointly by more than one person acting under a common plan. Joint perpetrators share liability.
Concurrence of Offenses
Rules on concurrence may apply if, for instance, stalking targets multiple individuals or continues after a complaint. Apparent concurrence applies where one act requires a heavier penalty.
[iv]SANCTIONS
Complaint requirement: Prosecution depends on a complaint filed within six months from awareness of the act and perpetrator.
Simplified procedure: Applicable because the maximum penalty is two years for the basic form.
Suspension of pronouncement of judgment (SPJ): Possible if the offender has no prior convictions, admits the act, and the court is convinced they will not reoffend.
Exclusion from reconciliation: Article 253/3 of the Code of Criminal Procedure expressly excludes stalking from reconciliation.
Jurisdiction: The Criminal Court of First Instance is competent, determined by the place of commission or where the stalking ended.
CASE LAW: THE ELEMENT OF PERSISTENCE
Given the novelty of the regulation, judicial precedents concerning the element of “persistence” under Article 123 of the TPC function as authoritative guidance. The jurisprudence clarifying which specific acts qualify as persistence remains scarce. Consequently, courts often rely on decisions rendered under Article 123 TPC (Disturbing the Peace and Tranquility of Persons) for interpretative reference. For example;
[v]Court of Cassation, 18th Criminal Chamber, Decision No. 2017/7323 E. – 2019/12883 K.
“Upon appeal of the judgment rendered by the Local Court, the case file was reviewed in light of the time of the offense, the nature of the judgment, and the timeliness of the appeal:
Since no grounds were found to reject the request for appeal, the merits of the case were examined. Based on the transcripts reflecting the trial proceedings, the documents, and the reasoning forming the court’s conviction, no further grounds were deemed necessary.
The legally protected interest under the offense of disturbing the peace and tranquility of persons is defined as the protection of individual liberty and ensuring that individuals are not psychologically or mentally disturbed, thereby enabling them to maintain their lives in a healthy manner. For this offense to be constituted, it is not sufficient that the conduct listed in the statute—such as making phone calls, creating noise, or engaging in other unlawful acts with the same intent—is committed only once. The acts must be persistently repeated, display continuity, and be committed solely with the intent of disturbing another person’s peace and tranquility.
In the concrete case, according to the defendant’s statement and HTS (call detail) records, the defendant sent one message and made one phone call to the complainant on the same day. Without adequately explaining how the element of persistence was fulfilled, and by accepting that the defendant insulted and threatened the complainant by phone call and message, the trial court rendered a conviction for the alleged offenses. However, under the rules of apparent concurrence (fictitious concurrence of offenses), the offense of disturbing the peace and tranquility of persons should not have been deemed to exist in addition to the other crimes. Therefore, the judgment was rendered with insufficient reasoning.
HELD: The judgment was unlawful. In accordance with the grounds of appeal submitted by the Office of the Chief Public Prosecutor, and consistent with the opinion of the Office of the Prosecutor General, it was unanimously decided on 24/09/2019 to QUASH THE JUDGMENT and remit the file to the trial court for retrial starting from the pre-annulment stage.”
The Court emphasized that for the offense of disturbing the peace and tranquility of persons to occur, acts such as phone calls or noise must be persistently repeated with the sole intent of disturbance. In the case examined, a single message and call were deemed insufficient to meet persistence. The judgment of conviction was therefore quashed.
CONCLUSION
The crime of stalking is regulated as a complaint-based and continuing offense that aims to protect both victim safety and public order. It is not subject to reconciliation, though the prosecutor may defer prosecution. Jurisdiction lies with the place where the offense was committed or ended. The simplified procedure applies to the basic form, while aggravated circumstances carry heavier penalties. Through recent judicial interpretations, the scope of persistence and other elements continue to take shape, ensuring both the protection of victims and the effective pursuit of justice.
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Melek ERSAN
Uçar Law & Consultancy Office
Editor: Baver UÇAR (Attorney at Law)
REFERENCES
[i] Grand National Assembly of Turkey. (2004). Turkish Penal Code No. 5237. Retrieved from https://mevzuat.gov.tr/mevzuatmetin/1.5.5237.pdf
[ii] Özar, S. (2022). Crime of persistent stalking (Article 123/A of the Turkish Penal Code). Ankara University Faculty of Law Journal, 71(3), 1397–1430. https://dergipark.org.tr/tr/download/article-file/2425483
[iii] Koca, M., & Üzülmez, İ. (2020). Turkish criminal law: Special provisions (7th ed.). Adalet Publishing.
[iv] Grand National Assembly of Turkey. (2004). Criminal Procedure Code No. 5271. Retrieved from https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=5271&MevzuatTur=1&MevzuatTertip=5
[v] Supreme Court of Turkey, 18th Criminal Chamber. (2019, September 24). Decision No. 2019/12883, Case No. 2017/7323: Judgment of the 18th Criminal Chamber on disturbing the peace by repeated acts. Retrieved from
