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UTU Hukuk ve Danışmanlık11 min readUpdate:
Regulated in Law No. 6284, protective and preventive measures are in the nature of interim legal protection measures. However, the measures regulated in Law No. 6284 that are in the nature of interim legal protection have different characteristics from the interim legal protection measures regulated in the Code of Civil Procedure and the Turkish Civil Code. First of all, there is a difference in terms of purpose.
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This article was prepared on the basis of the legislation and practice in force on the date of its publication. There may have been changes since then in the status of the international convention referred to in the article and in the provisions on measures and sanctions in Law No. 6284. You are advised to consult a lawyer regarding the current position.
While the purpose of the interim legal protection measures provided for in Law No. 6284 is to prevent violence against family members within the family and against women and children outside the family, the interim legal protection measures regulated in the Code of Civil Procedure and the Turkish Civil Code have no such purpose.
The interim legal protection measures regulated in Articles 161-163 of the Turkish Civil Code generally aim to protect the unity of the family, while the interim legal protection measures regulated in Article 389 et seq. of the Code of Civil Procedure aim to protect the right and receivable in dispute. Decisions on interim legal protection measures regulated in Law No. 6284 are subject not to cassation/appeal but to the legal remedy of objection. Under Law No. 6284, anyone may request an interim legal protection measure where there is violence or a risk of violence, whereas other interim legal protection measures may only be requested by the right holder.
Depending on their nature, the measures in Law No. 6284 may be ordered by a judge, a district governor (civil administrative authority) and, in exceptional cases, a law enforcement chief, whereas the interim legal protection measures in other laws may be ordered only by a judge.
Measures under Law No. 6284 and interim legal protection measures under the CCP and the TCC
| Law No. 6284 | HMK ve TMK | |
|---|---|---|
| Purpose | Preventing violence against family members within the family and against women and children outside the family | Turkish Civil Code: protection of the unity of the family; Code of Civil Procedure: protection of the right and receivable in dispute |
| Kanun yolu | Objection | — |
| Kim talep edebilir? | Anyone, where there is violence or a risk of violence | Sadece hak sahibi |
| Kim karar verir? | The judge, the local administrative chief and, in exceptional cases, the chief of the law enforcement unit | Sadece hâkim |
Measure decisions regulated in Law No. 6284 and in the nature of interim legal protection are short-term. They are not final decisions with permanent effect. They remain valid for the period determined at the discretion of the judge, the civil administrative authority or the law enforcement chief. Measure decisions are taken following a swift and simple examination. Measure decisions are coercive and binding. In particular, a breach of a preventive measure by the perpetrator of violence is subject to the sanction of coercive imprisonment.
Law No. 6284 has broadened the scope of those who may benefit from protective and preventive measures by extending it beyond the family. In addition to victims of domestic violence, the new Law has brought within its scope of protection women and children who are victims of violence outside the family and persons who are victims of stalking (Article 1).
Women who are subjected to violence or at risk of violence will be able to benefit from the protective and preventive measures regulated in Law No. 6284 (Articles 3, 4, 5). Whether the woman is married, single, divorced or under 18, or whether the violence occurs within or outside the family, is immaterial as regards benefiting from the measures. All acts of violence resulting in physical, sexual, psychological or economic harm and suffering inflicted solely because they are women or owing to gender-based discrimination fall within this scope.
On the basis of the definitions in the Turkish Criminal Code and the Child Protection Law, all individuals who have not yet reached the age of eighteen fall within the concept of a child under Law No. 6284 and will be able to benefit from protective and preventive measures.
Through the concept of family member, listed among the persons who may benefit from the measures under Law No. 6284, persons who are victims of any act of violence occurring between spouses, between mother, father, ascendants, children and stepchildren, between persons under the guardianship or protection of one of the spouses, between persons such as paternal and maternal uncles and aunts and brothers-in-law who are regarded as family members by virtue of blood relationship or relationship by marriage, between divorced or de facto separated spouses, and between persons actually living together in the same household without a marital bond, have been brought within the scope, even if they do not live in the same household or family unit.
Persons who are victims of unilateral persistent stalking and who have been subjected to, or are at risk of, violence may also benefit from protective and preventive measures (Arts. 3, 4, 5). Article 34 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence also uses a similar expression, “stalking”, which may correspond to “unilateral persistent stalking”. The expression “stalking” in the Convention is characterised as intentionally repeated threatening conduct directed at another person, causing them to fear for their safety.
It is sufficient that the persistent stalking gives rise to violence or is likely to do so; the means used are irrelevant. Persistent stalking may take the form of threatening by telephone or by confronting the person, conveying demands with threatening words, confronting the person without saying anything, or following them continuously from a certain distance.
In cases where delay would be harmful, the chief of the law enforcement unit may order the protective measures of providing suitable accommodation (Art. 3/1a) and placing under temporary protection (Art. 3/1ç) in respect of persons who have been subjected to, or are likely to be subjected to, violence and the children accompanying them (Art. 3/2). No definition has been given of a case where delay would be harmful.
Approval of the local administrative chief · 48 hours
In cases where delay would be prejudicial, the law enforcement chief must submit the measure decision, together with its documents, for the approval of the civil administrative authority within the first working day following the date of the decision. Measures not approved by the civil administrative authority within forty-eight hours lapse automatically (Article 3/2).
The preventive measures that may be ordered by a judge under Law No. 6284, in respect of persons who commit or are likely to commit violence, for the purpose of preventing violence, are as follows:
In cases where delay would be prejudicial, the law enforcement chief may order, in respect of persons who commit or are likely to commit violence, the following types of preventive measures: refraining from certain words and conduct towards the victim of violence (Article 5/1a), removal from the joint residence and the place where the protected person is and allocation of the joint residence to the protected person (Article 5/1b), not approaching the protected persons and the places where they are (Article 5/1c), and not approaching the protected person’s relatives, witnesses and children (Article 5/1d) (Article 5/2).
The measures regulated in Law No. 6284 may be ordered, at the request of the person concerned or upon the application of the Ministry, law enforcement officers or the public prosecutor, only by a family court judge, the civil administrative authority and, in exceptional cases, a law enforcement chief39 (Article 8/1). The family court judge has been given the power to order both protective and preventive measures, the civil administrative authority only protective measures, and the law enforcement chief, in exceptional cases and to a limited extent, both protective and preventive measures.
Authority to issue a protective measure order
| Merci | Koruyucu tedbir | Preventive measure |
|---|---|---|
| Aile mahkemesi hâkimi | Evet | Evet |
| Local administrative chief | Evet | No |
| Kolluk amiri | In exceptional cases, to a limited extent | In exceptional cases, to a limited extent |
A measure may be requested from the judge, the civil administrative authority or the law enforcement unit of the place that can be reached most quickly and easily (Article 8/1, last sentence).
Delil ve belge
Law No. 6284 provides that no evidence or documents that violence has been committed will be required only for protective measures. No statement has been made that evidence and documents will not be required for preventive measures (Article 8/3). The wording therefore implies that the family court judge or the law enforcement chief will require evidence and documents when ordering a preventive measure. The family court judge and the law enforcement chief will assess the evidence and documents according to the particular circumstances of the case and, if they conclude that violence has been committed or is likely to be committed, will order a preventive measure.
Since the measures in Law No. 6284 provide interim legal protection, they are time-limited. The decision must therefore indicate the period for which the measure will be valid. The continuation of the measure may be ordered for as long as the danger persists. Where the type of measure applied proves insufficient to prevent violence or protect the victim, the form of the measure may be changed of the authority’s own motion or at the request of those concerned.
The measure decision is pronounced or served on the perpetrator of violence and the protected person; during pronouncement and service, a warning is also given that coercive imprisonment will be applied to the perpetrator if he or she acts in breach of the measure decision (Article 8/5).
Measure decisions given under Law No. 6284 are subject to the legal remedy of objection. Those concerned may object to measure decisions before the family court judge within two weeks of the date of pronouncement or service.
The competent court examining the objection must give its decision within one week. The decision given by the court upon objection is final (Article 9/3).
The procedure described in the article consists of the following stages:
Law No. 6284 states that measure decisions will be notified by the swiftest means to the Ministry’s relevant provincial and district directorates and, depending on the nature of the decision, to the Chief Public Prosecutor’s Office or the police (Article 10/1).
The law enforcement unit of the place of residence of the persons against whom a protective or preventive measure has been ordered, the place where they are, or the place where the measure is to be implemented has jurisdiction and competence for the implementation of the decision (Article 10/3)
Breach, by the person who commits or is likely to commit violence, of preventive measures ordered by the judge or, in cases where delay would be harmful, by the chief of the law enforcement unit, is subject to the sanction of coercive imprisonment. In the event of breach of the measure, even if the act constitutes another offence, coercive imprisonment of three to ten days will be imposed on the perpetrator of violence by decision of the judge, according to the nature of the measure breached and the seriousness of the breach (Art. 13/1). On each repetition of the breach of the measure decision, the duration of coercive imprisonment may be increased to fifteen to thirty days, again according to the nature of the measure breached and the breach. However, the total duration of coercive imprisonment may not exceed six months (Art. 13/2).
In case of breach · Art. 13/1
Coercive imprisonment of three to ten days
On each repetition · Art. 13/2
Fifteen to thirty days; the total period may not exceed six months
Owing to the nature and consequences of coercive imprisonment, in other words compulsory imprisonment, it cannot be converted into alternative sanctions, prepayment cannot be applied, it does not form a basis for recidivism, the provisions on conditional release cannot be applied, it cannot be suspended and it cannot be entered in criminal records.
Related page: Divorce Lawyer in Ankara — uncontested and contested divorce, custody, maintenance and division of property
Related page: Custody Lawyer in Ankara — custody actions, change of custody and personal relations
Related legislation: Law No. 6284 on the Protection of the Family and the Prevention of Violence against Women (mevzuat.gov.tr)
According to the article, the measures under Law No. 6284 aim to prevent violence; the measures under the TMK aim to protect family unity, and those under the HMK (Code of Civil Procedure) aim to protect the right or claim in dispute. Moreover, measures under Law No. 6284 are challenged by way of objection, and they may be ordered by a judge, the local administrative chief and, exceptionally, the chief of law enforcement.
Şiddete uğrayan veya uğrama tehlikesi bulunan kadınlar, on sekiz yaşını doldurmamış çocuklar, Kanun’da sayılan aile bireyleri ve tek taraflı ısrarlı takip mağduru kişiler tedbirlerden yararlanabilir. Kadının medeni durumu ya da şiddetin aile içinde veya dışında olması önemli değildir.
The judge may order a change of workplace, the designation of a separate place of residence, the annotation of a family residence restriction on the land register, the change of identity and related information and documents, and similar protective measures depending on the circumstances of the case.
Kolluk amiri gecikmesinde sakınca bulunan hâllerde barınma yeri sağlanması ve geçici koruma altına alınması koruyucu tedbirlerine, ayrıca Kanun’da sayılan bazı önleyici tedbirlere karar verebilir. Koruyucu tedbir kararı ilk iş günü içinde mülki amirin onayına sunulur; kırk sekiz saat içinde onaylanmazsa kendiliğinden kalkar.
Kanun’da yalnız koruyucu tedbirler için şiddetin uygulandığına dair delil ve belge aranmayacağı öngörülmüştür. Makalede, önleyici tedbirlerde ise hâkim veya kolluk amirinin somut olaya göre delil ve belge değerlendirmesi yapacağı görüşü yer almaktadır.
Interested parties may object to measure orders before the family court judge within two weeks of the date of pronouncement or service. The court examining the objection gives its decision within one week, and that decision is final.
A person who breaches a preventive measure is subjected, by order of the judge, to coercive detention of three to ten days. For each repeated breach, the period may be fifteen to thirty days; the total period may not exceed six months. A warning regarding this sanction is given when the measure order is served.
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