Israrlı Takip Suçu

This article examines in all its legal aspects the offence of "stalking" (persistent pursuit), added to the Turkish Criminal Code as Article 123/A by Law No. 7406 in 2022. The author analyses in detail the historical development of the offence, its place in comparative law and its elements, while also offering criticism of, and proposals concerning, the text of the provision.

Historical Background and Fundamental Concepts

Stalking was first criminalised in 1990 in the State of California, in the wake of grave incidents arising from the pursuit of celebrities. In Türkiye the conduct long went unregulated as an independent offence; following criticism in the doctrine and the obligations introduced by the Istanbul Convention, it entered the legislation in 2022.

For a better understanding of the offence, the study defines the basic concepts: "persistence" (insistence, importunity), "pursuit" (following), and their combination, "persistent pursuit". Stalking is explained as the offender's creating fear, anxiety and unease in the victim through repeated conduct of pursuit, threat or harassment.

Legal Analysis of the Offence

The elements of the offence under Article 123/A are examined as follows:

• Material elements:
• Conduct: the offence is one of alternative acts. The offender must "persistently" perform one or more of the following: physically following the victim; seeking contact by means of communication instruments; seeking contact by means of information systems; seeking contact through third persons.
• Result: this is a "harm offence": the offender's acts must cause "serious unease" in the victim, or cause the victim to fear for their own safety or that of a relative.
• Offender and victim: anyone may be the offender or the victim of this offence.
• Aggravated forms: the penalty is increased where the offence is committed against a child or a former spouse; where the victim is compelled by the conduct to leave school or work; or where the offender is subject to a restraining order.
• Mental element: no specific motive is required; general intent — knowing and willing performance of the act — suffices.
• Special forms of appearance: if the acts of stalking are performed but the required result of unease or fear does not ensue, the offence remains at the stage of attempt. Commission by several offenders (participation) is possible. The author maintains that this offence is a special form of the offence of disturbing a person's peace and tranquillity, and that it should be punished separately (real concurrence) from graver offences — such as intentional wounding or killing — that may subsequently be committed.

Investigation, Prosecution and Proposals

Investigation and prosecution of the offence depend on the victim's complaint. The author criticises this, observing that, particularly in the aggravated forms, the victim may be unable to complain out of fear, and that in such cases the investigation should be conducted ex officio.

The author further argues that the statutory exclusion of this offence from the scope of victim–offender reconciliation obstructs alternative avenues of resolution that could protect the victim's interests, and that the prohibition should be lifted. It is also proposed that the aggravated forms be broadened to include commission "with sexual motive" and cases where "the victim is a woman".