TCK Article 226 and the Special Criminal Policy for the Protection of Children
TCK 226 Does Not Concern Children Alone
TCK Article 226 contains both various offences relating to obscenity and aggravated provisions specific to children. The subject matter of the first and second paragraphs differs from that of the third paragraph. For content involving children, Article 226/3 must be examined specifically.
The Legally Protected Interest and the Best Interests of the Child
It is important to prevent children from being exposed to sexual exploitation, to reduce the harm arising from the later circulation of images and to protect personal privacy. The identity and images of the victim must not be disclosed unnecessarily, even in published commentary on court decisions.
Related guide: Crimes Against Sexual Inviolability: TCK 102–105, Elements of the Offenses, Penalties, Evidence and Court of Cassation Case Law.
The Distinction in Penalty Between Using Children in Production and Possession and Distribution
First Sentence: Using Children in Production
The first sentence of TCK Article 226/3 regulates the use of children, representations of children or persons who appear to be children in the production of an obscene product; it provides for imprisonment from five to ten years and a judicial fine of up to five thousand days. Who carried out the act of production, and through what conduct, must be set out concretely.
Second Sentence: Reproduction, Storage, Possession and Sharing
The second sentence of the same paragraph separately regulates the acts of bringing these products into the country, reproducing them, offering them for sale, selling them, transporting them, storing them, exporting them, possessing them or making them available for others to use; it provides for imprisonment from two to five years and a judicial fine of up to five thousand days. Which of the alternative acts is alleged must be stated clearly.
Representations of Children and Persons Who Appear to Be Children
The statutory text lists not only real children but also representations of children and persons who appear to be children. Where necessary, the source of the image, the method of production and whether it falls within the statutory category require technical examination; not every artificial image automatically falls within the same category.
The Technical Nature of Digital Records and the Determination of Intent
The Presence of a File on a Device and the Alleged Use
The technical presence of a particular file on a computer or telephone and the allegation that the defendant knowingly obtained and stored it, or made it available to another person, are different facts. The path by which the record arrived, access traces, user accounts, application cache, date information and intent must be assessed together.
Automatic Cache, Synchronization and Sharing Records
Automatically created files, synchronization processes and shared use of the device may change the technical assessment of the event. These possibilities are not in themselves grounds for acquittal either; they must be investigated against the specific record and tested against the opposing evidence.
The Limits of the Technical Expert
The court-appointed expert may give an opinion on the nature of the file, how it was obtained and the digital findings. The legal characterization of the offence, the mental element and whether there is sufficient evidence for a conviction are for the court to assess.
Sensitive Data in Obtaining and Preserving Images of Children
Forensic Copy, Access Restriction and Personal Data Security
The obtaining, preservation and examination of the relevant digital records must be carried out in accordance with the provisions of the Code of Criminal Procedure (CMK) and with regard to personal data security. In particular, transferring images of children to persons outside the investigation or to publicly accessible sources may cause new victimization.
No Sample Images in Publications and Academic Research
In commentary on a judicial decision, no real or reconstructed sexually explicit image of a child is used. The nature of the act is described in legal terminology; decision and record details are anonymized.
Court of Cassation Case Law on the Distinction Between Production and Possession
18th Criminal Chamber of the Court of Cassation (Yargıtay 18. Ceza Dairesi), 2017/2091
The decision dated 22.02.2017, file no. 2015/29886 E., decision no. 2017/2091 K., discussed the recording of an image obtained over the internet and the act of using a child in production. The decision shows that digital methods of production other than physical filming equipment must also be examined legally.
12th Criminal Chamber of the Court of Cassation, 2025/4840
In the decision dated 26.05.2025, file no. 2025/58 E., decision no. 2025/4840 K., the act of recording a child during a video call was assessed as falling within the use of a child in production. The decision emphasized that the judicial fine component must also be taken into account.
The Opposing Legal Characterization: Violation of Private Life, Not Production
In the passages accessed from the decision of the 9th Criminal Chamber of the Court of Cassation dated 27.04.2023, file no. 2021/15468 E., decision no. 2023/2562 K., the limits of Article 226 and Article 134 were discussed with regard to the possession of a file and the recording of an image. Not every instance of possession can be treated as production; the different evidence in the case concerned and the outcome of the judgment must be examined separately.
Relationship with TCK 103, 105, 107 and 134
The Act of Sexual Abuse and the Production of Its Image
The act of sexual abuse directed at a child and the obtaining of an image of that act may have different statutory elements. Whether the offences are committed jointly and how they concur is discussed on the basis of the specific acts and the statutory limits.
Blackmail and Privacy of Private Life
Exerting pressure by means of an image of a child may bring TCK Article 107 into play, and the disclosure of an image from private life may bring Article 134 into play. It cannot be said that all offences are automatically committed in the same event.
Evidence and Reasoning Review in the Proceedings
Reasoned Classification of the Content
The reasoning must state why the images fall within the statutory category, which alternative act was committed and by what evidence the mental element of the offence was established. The name of the content or the file extension is not in itself a legal characterization.
Application in Time and Amendments to the Law
Because TCK Article 226 has been amended over time, the provision in force on the date of the act, subsequent amendments and the principle of the more favorable law must be considered together. No definitive claim that a provision is current should be made about a regulation whose official text could not be accessed.
Two Independent Groups of Alternative Acts Within TCK Article 226/3
Using Children in Production and Possession Are Not the Same Act
The first sentence of TCK Article 226/3 regulates the use of children, representations of children or persons who appear to be children in the production of obscene products. The second sentence contains different acts, such as the reproduction, sale, transport, storage, possession or making available to others of products of the kind listed in the statute. The presence of a file on a computer does not automatically prove that the person produced that file himself. Conversely, where the person who technically carried out the production also holds the file, concurrence and the offence conduct are assessed separately.
Representations of Children, Images of Real Children and Technical Characterization
The statutory text refers to representations of children and persons who appear to be children as well as real children. These categories cannot be determined solely on the basis of a technical file extension, the fact that an image was generated using artificial intelligence, or the file name. The nature of the content, the alleged act and the statutory definition must be related to one another by separating the factual findings of the expert examination from the legal characterization by the court. Reproducing the identity or image of a child victim in a publicly available commentary on a decision is unacceptable.
The Court of Cassation's 2025 and Earlier Decisions on the Act of Production
12th Criminal Chamber of the Court of Cassation, 26.05.2025, E.2025/58, K.2025/4840
In the accessed passage of the decision, the event in which the offender forced the child into a video call and recorded images of the child without permission during the call appears to have been assessed as falling within the use of a child in production under TCK Article 226/3. The same decision states that a judicial fine was also provided for in addition to imprisonment, but that the deficient penalty was not made a ground for reversal because there was no appeal to the defendant's detriment. This shows that the offence should not be described solely in terms of the prison sanction. This finding in the accessed part of the decision should not be generalized to the other paragraphs or to all types of cases.
18th Criminal Chamber of the Court of Cassation, 22.02.2017, E.2015/29886, K.2017/2091
In the accessed reasoning of the decision, the recording of obscene images of the child by means of a webcam and software was assessed with regard to the act of production. The legal outcome depends on who made the recording and how. The mere presence on a device of an image created earlier is not equivalent to the recording of a conversation.
The Boundary Between the Nature of the Image and the Privacy Offence
In the accessed passages of the decision of the 9th Criminal Chamber of the Court of Cassation dated 27.04.2023, E.2021/15468, K.2023/2562, the distinction was discussed between the presence of images of children on a storage device and the production or systematic possession of a statutory product within the meaning of TCK Article 226/3. The conditions under which such records may fall under TCK Article 134 must be assessed on the basis of the full reasoning in the case. It cannot be claimed that a single decision resolves all possibilities.
Examination of Digital Devices and the Admissibility of Evidence as a Basis for Judgment
The Meaning of the File Path and Creation Date
Whether an image on a device was knowingly downloaded by the user, saved to the automatic cache or arrived through synchronization, and who had access to the file, are separate technical questions. The examination must be carried out together with the original device, the imaging record, the file properties, user profiles and access logs. The mere existence of a file cannot be regarded as proof that each alternative act and the intent were realized.
Unlawfully Obtained Evidence and Protecting the Image of the Child Victim
In search, seizure, digital imaging and content examination, the applicable safeguards of the CMK must be observed. It is risky to reach a definitive conclusion solely on the basis of an expert summary without checking that the records were lawfully obtained and are intact. Images relating to the child victim must not be put into circulation outside the court and must not be reproduced unnecessarily in open case file attachments. Even the description of visual evidence in a publication should be limited to what is necessary.
Victim Rights, Stopping the Spread and Comparative Remedies
Circulation of Content and Protection of the Child Victim
The investigation can proceed separately from measures aimed at preventing the images from spreading again online. The notice and content removal mechanisms of the relevant platform should be considered together with, where necessary, the judicial applications provided for in the legislation. Gathering evidence from publicly shared posts must not cause the image to be put back into circulation.
Concurrence Among TCK 103, TCK 107 and TCK 226
A sexual act directed at a child, the production of images, and the later demand for a benefit under the threat that those images will be disclosed may be separate acts. The whole of the event, the material and mental elements of each offence, the act of the offender and the rules of concurrence must be examined separately. The presence of all these acts in one case file does not automatically result in the same penalty.
Distinguishing Production, Possession and Distribution in Digital Image Offences
The First and Second Sentences of TCK Article 226/3 Punish Different Acts
Under TCK Article 226/3, the use of children, representations of children or persons who appear to be children in the production of an obscene product, and the bringing into the country, reproduction, sale, transport, storage, possession or making available to others of that product, are separate groups of alternative acts. Therefore, from the mere fact that a single digital file is present on a computer, it cannot be concluded that the defendant used a child in producing that file. For each allegation, the nature of the product, which act the person concerned carried out and the mental element must be determined separately. The gravity of a criminal norm protecting children does not remove the requirement that the act be proved in concrete terms.
Technical Copy Versus Knowing Possession
Cache, temporary files, automatic downloads by a messaging application, cloud synchronization, backups and a file the person has knowingly saved in a dedicated folder are not the same technical event. In digital forensic examination, the full path where the file is located, the creation and last-access times, which application saved the file, the user's access authority and the application's default download behavior must be investigated. The assertion that an automatic copy was created does not in itself remove responsibility; conversely, knowing possession and the existence of intent must not be accepted without examining the possibility of automatic creation at all.
The Scope of the Court of Cassation Decisions
In the decision of the 18th Criminal Chamber of the Court of Cassation, 22.02.2017, E.2015/29886, K.2017/2091, the recording of a child's image through a computer camera and special software was assessed with regard to the act of production under TCK Article 226/3. In the decision of the 12th Criminal Chamber of the Court of Cassation, 26.05.2025, E.2025/58, K.2025/4840, the production of an obscene product involving children, through pressure on the child during an internet call and unauthorized video recording, was examined. These decisions do not show that the creation, downloading and possession of every file are the same. Whether another offence, for example blackmail, is present in the same event is a separate examination of legal characterization.
Reviewing the Digital Expert Report and Protecting the Victim
Technical Facts the Report Must Verify
The expert report must explain how the device under examination was taken into custody, the forensic copying procedure, the hash values verifying file integrity, the search method, the location of the files and the data linking them to the user of the device. Stating only the number of files in the report does not mean that each file constitutes an independent offence, that the defendant personally produced the files or that all the files were knowingly held. The digital forensics expert explains the technical findings; which type of offence has been committed is ultimately decided by the court.
Cross-Examination and the Admissibility of Evidence as a Basis for Judgment
The statutory conditions for the searches, copying and seizures carried out on computers and digital data under CMK Article 134, and, in accordance with CMK Articles 206 and 217, whether the evidence was lawfully obtained and discussed at the hearing, must also be examined separately. Missing path, date or attribution information in the technical report can be completed; where necessary, a supplementary report or a new expert examination may be requested. This method does not require copies of the images of the children to be spread; the examination must be carried out in a secure environment with restricted access.
Protecting the Identity and Images of the Child Victim
In a case file concerning obscene content, sharing children's personal information, images or distinguishing features in publicly available legal publications may cause further serious harm. This article discusses the technical evidence without showing any content involving a real child. The victim's statement and protection processes and the defendant's rights of defense and to test the evidence must be assessed together within the framework of the special procedures.
Related articles: Sexual Abuse of Children: TCK 103, Age Limits, Penalties, Aggravated Forms and Court of Cassation Case Law; Blackmail and Threats with Sexual Images: TCK 107, Digital Evidence, Legal Characterization and Victim Rights.
Conclusion
Criminal liability for obscene content involving children depends on the separate proof of the statutory elements of the acts of production, storage, possession and making available to another. The digital examination must be carried out without re-traumatizing the victim, and the technical report must be kept distinct from the court's legal characterization.
Frequently Asked Questions
What Is the Penalty for the Production Offence Under TCK 226/3?
Under the conditions set out in the statute, imprisonment from five to ten years and a judicial fine of up to five thousand days are provided for.
Are Possession and Production the Same Offence?
No; alternative acts and separate sanctions are regulated in different sentences of the same paragraph.
Is the Presence of a File on a Computer an Automatic Conviction?
No; the file, the statutory nature of the act, intent and lawfully obtained evidence are assessed together.
Can an Image of a Child Victim Be Published as an Example in an Article?
No; the legal and ethical objections to such publication are serious, and images of real victims must not be made part of a legal publication.
Can Artificial Images Also Fall Within the Scope of the Statute?
TCK 226/3 lists representations of children and persons who appear to be children; whether the specific content falls within the statutory category is determined separately.
Sources and legal bases
- Law No. 5237, Turkish Criminal Code (TCK) (in particular the relevant articles), Ministry of Justice UYAP Legislation. mevzuat.adalet.gov.tr
- Law No. 5271, Code of Criminal Procedure (CMK), relevant procedural and evidentiary provisions. mevzuat.adalet.gov.tr
- Law No. 6098, Turkish Code of Obligations (to the extent it applies to the subject). mevzuat.gov.tr
- Court of Cassation 18th Criminal Chamber, E. 2015/29886, K. 2017/2091, 22.02.2017
- Court of Cassation 12th Criminal Chamber, E. 2025/58, K. 2025/4840, 26.05.2025
- Court of Cassation 9th Criminal Chamber, E. 2021/15468, K. 2023/2562, 27.04.2023