Legal nature of the prostitution offense under TCK 227 and the protected value
The provision within the offenses against public morality
TCK Article 227 is located in the part of the Code on offenses against public morality. In practice, however, its significance is not limited to public morality; it is also closely tied to protecting the individual from exploitation and to the special protection of children. The criminal position of the person who has been drawn into prostitution and the liability of the person who acts as an intermediary cannot be assessed in the same way.
Different definitions of the act for child victims and for adults
The first paragraph regulates inducing a child to prostitution, facilitating the way to it, procuring, accommodating and acting as an intermediary; the second paragraph regulates the acts of inducing, facilitating, acting as an intermediary in or providing a place for the prostitution of a person. The differences in wording between these provisions matter for the legal characterization of the offense.
Related guide: Offenses Against Sexual Inviolability: TCK 102–105, Elements of the Offenses, Penalties, Evidence and Court of Cassation Case Law.
TCK 227/1 on the prostitution of children
Basic penalty and preparatory acts
For acts concerning the prostitution of a child, TCK Article 227/1 provides for imprisonment of four to ten years and a judicial fine of up to five thousand days. The same paragraph also provides that preparatory acts directed at committing the offense are punished as if the offense were complete; the scope of this special provision cannot be interpreted without limits.
The child's age and the conditions of exploitation
The victim's age at the time of the incident, which alternative act the conduct falls under and its conformity with the statutory definition must each be established separately. Protecting the child from exploitation is the priority, and personal identity and sensitive information must be protected during the investigation.
Concurrence with sexual abuse
Sexual conduct connected with drawing a child into prostitution may also be assessed under TCK Article 103. The liability for several acts and of the perpetrator is determined by the elements of the offenses and the rules on concurrence of offenses.
TCK 227/2 and the alternative acts concerning adults
Inducement, facilitation, intermediation and provision of a place
Where one of the alternative acts in the statute is carried out in respect of adults, TCK Article 227/2 provides for imprisonment of two to four years and a judicial fine of up to three thousand days. The actual occurrence of sexual intercourse is not a necessary element for the completion of every act constituting the offense.
Benefiting from the earnings
Earning one's livelihood, wholly or partly, from the earnings of the person drawn into prostitution is treated by the statute as inducement to prostitution. However, the economic relationships between the persons and the source of those earnings must be investigated with concrete evidence.
Owning a business or premises is not sufficient on its own
That a person owns premises or is present at a workplace does not in itself show that the act in TCK Article 227 has been committed. The conduct of intermediation, of providing a place or of facilitation must be established in concrete terms.
TCK 227/3: distribution of products prepared for intermediation
Content of the product, purpose and the act of distribution
The third paragraph regulates the giving, distribution or dissemination of products containing images, writing and words prepared in order to facilitate prostitution or to act as an intermediary in it. It provides for imprisonment of one to three years and a judicial fine of two hundred to two thousand days.
Not every advertisement carries the elements of this offense
Whether an online advertisement or message fulfils the material elements of the offense must be examined in light of its content, its purpose and the conditions of its distribution. The existence of an advertisement does not in itself prove the whole of the liability of the perpetrators or any organizational links.
Force, threat, deceit and exploitation of helplessness
Aggravating circumstances under TCK 227/4
Where force, threat, deceit or the exploitation of helplessness is present in the course of sending a person into prostitution or making a person engage in it, the statutory increases may apply. The kind of pressure, its connection with the act and the intent of the perpetrator concerned must be reasoned.
Abuse of a relationship of trust and service
The aggravating circumstances in the statute based on kinship, care or supervision, public office and a service relationship are regulated in Article 227/5. Merely knowing the act or working in the same place does not by itself establish every aggravated form.
Organizational activity and legal entities
Where the offense is committed within the framework of an organization's activity, Article 227/6 may be assessed separately, and, as regards security measures specific to legal entities, Article 227/7. The organizational position of each defendant and the material act must be determined separately.
Distinguishing human trafficking (TCK 80) from prostitution (TCK 227)
TCK 80 is a different type of offense
TCK Article 80 regulates the procurement, transport, accommodation or other handling of a person for specified exploitative purposes and by means listed in the statute. There is a special provision for children. Not every act under TCK Article 227 turns into human trafficking by itself.
Cross-border acts and prosecution in Türkiye
As to cross-border movement, the foreign element and the place where the act was committed, TCK Articles 8–13 may be considered. TCK Article 13/1-g separately lists the offense of prostitution for certain acts committed abroad; it cannot be concluded that Turkish courts automatically have jurisdiction in every international case.
Scrutiny of the act element in Court of Cassation decisions
14th Criminal Chamber of the Court of Cassation (Yargıtay 14. Ceza Dairesi), 2011/2977
In the decision of 15.11.2011, E. 2011/2604, K. 2011/2977, it was stressed that the occurrence of sexual intercourse is not necessary for one of the alternative acts in Article 227/2 to be completed. The decision shows the conditions under which the offense of inducement and intermediation is completed.
18th Criminal Chamber of the Court of Cassation (Yargıtay 18. Ceza Dairesi), 2020/1559
The passages accessible from the decision of 16.01.2020, E. 2019/898, K. 2020/1559, contain the enumeration of the alternative acts in Article 227/1 concerning the prostitution of children and the distinction from the acts regulated in different words for adults. The characterization of the offense must be examined on the basis of this distinction.
Why should favorable and unfavorable approaches be examined together?
That in one case an act of providing a place or of intermediation is held to be established by concrete evidence, while in another the mere existence of premises is held insufficient, is not necessarily a conflict in case law. The decisive act and the level of proof must be compared.
Evidence, protection of the victim and fair trial
Communications, money movements and digital records
The communications of intermediaries, money transfers, records of place and accommodation, and camera or platform data must be obtained lawfully. Intermediation in prostitution should not be inferred directly from an isolated money movement; the nature and context of the movement must be investigated.
Protecting the person drawn into prostitution as a victim
The safety and confidentiality of the person drawn into prostitution, and any need for psychological support, must be assessed under the relevant legislation. As a rule, identity, health and private-life data of child victims must not be published.
A separate charge against each perpetrator in the indictment
In investigations with multiple defendants, it must be shown for each suspect which alternative act was committed, when the act took place and what the intent was. Being at the same workplace cannot be treated as proof of the equal liability of all defendants.
Complaint, limitation period and avenues of recourse
Ex officio investigation and concrete conditions
The prosecution of the offenses in TCK Article 227 is assessed under the relevant statutory provision; the date of the offense, the competent judicial district and, where relevant, the foreign element are examined separately. A statement of complaint is not to be confused with the ex officio investigation of the offense.
Regional appeal, cassation appeal and legal consequences
The characterization of the offense, the proof of aggravated forms, the increases applied, the calculation of the penalty and the reasoning for protective measures may be subject to review on appeal. It cannot be said in advance that every decision is open to cassation appeal.
The system of TCK Article 227 for child and adult victims
Special preparatory acts of the offense of prostitution of children
TCK Article 227/1 separately regulates inducing a child to prostitution, facilitating the way to it, procuring or accommodating for that purpose, and acting as an intermediary in the prostitution of a child. The punishment of preparatory acts directed at committing the offense against a child as if it were a complete offense cannot be extended to every act concerning an adult victim. In accordance with the principle of legality, this special provision must be interpreted narrowly and carefully. A child's consent does not by itself make the acts of exploitation listed in the statute lawful.
The act must be clearly shown in the statute for adults
TCK Article 227/2 regulates the acts of inducing, facilitating, acting as an intermediary in and providing a place for prostitution. That a business is operating, that accommodation is provided or that there is ordinary communication between persons does not, by itself, prove that one of these has concretely occurred. In an allegation of intermediation in particular, what link the person knowingly established, for what purpose the premises were provided in an allegation of providing a place, and whether intent existed must be examined.
Completion of the offense and the material element in Court of Cassation decisions
The occurrence of sexual intercourse is not required in every case
In the accessible reasoning of the decision of the 14th Criminal Chamber of the Court of Cassation (Yargıtay 14. Ceza Dairesi), 15.11.2011, E.2011/2604, K.2011/2977, it was stressed that, as regards an adult, the actual occurrence of sexual intercourse is not required for the completion of statutory acts such as intermediation in prostitution and providing a place. This conclusion does not remove the requirement that the act of intermediation or of providing a place has actually been proved. The existence of the statutory act and the sexual act that actually takes place are two separate facts.
Scope of the acts specific to children
In the accessible parts of the decision of the 18th Criminal Chamber of the Court of Cassation (Yargıtay 18. Ceza Dairesi), 16.01.2020, E.2019/898, K.2020/1559, the difference between the acts concerning the prostitution of a child and the provision concerning adults was assessed. Which alternative statutory act is covered by conduct such as transporting a child or providing a place must be separately reasoned; general concepts should not be used to widen the limits of the offense concerning children in an indeterminate way.
Effect of the absence of the act element on acquittal
The accessible dissenting opinion in the decision of the 4th Criminal Chamber of the Court of Cassation (Yargıtay 4. Ceza Dairesi), 19.09.2022, E.2020/18170, K.2022/17190 contains the view that the acts of inducement, facilitation, intermediation or providing a place were not proved in the case. The dissenting opinion must not be presented as the majority ruling. This distinction matters for explaining the nature of different judicial assessments of the same case.
Limits between human trafficking under TCK Article 80, TCK Article 227 and other offenses
Purpose of exploitation and the separate elements of the offense of human trafficking
Human trafficking is regulated in TCK Article 80 as a separate offense. The procurement, transport or accommodation of a person by specified methods for the purpose of exploitation and the alternative acts concerning prostitution in TCK Article 227 do not consist of the same material elements. Elements such as force, threat, deceit, abuse of influence and exploitation of helplessness must be separated out in the concrete case file. The legal effect of the victim's consent cannot be considered apart from the specific provisions of the type of offense.
Organizational activity, legal entities and the individual liability of perpetrators
The presence of more than one person does not in itself show that a criminal organization exists. If there is organizational activity and aggravating circumstances under TCK Article 227, the elements of each must be proved separately. Where a security measure against a legal entity comes into question, its statutory conditions do not replace the criminal liability of the natural-person perpetrator.
Protecting the victim, investigation and legal liability
Child victims, statements and social support
For child victims, the special procedures for giving statements regulated in the child monitoring centers (Çocuk İzlem Merkezi, ÇİM) and judicial interview rooms (Adli Görüşme Odası, AGO) and in CMK Article 236 may be considered according to the nature of the incident. Methods that prevent the child from being traumatized again must be balanced against the defense's right to test the evidence in adversarial proceedings. The victim's identity, health information and records of private life must not be disclosed in public.
Case-file evidence, money records and digital intermediation
Account movements, messages, accommodation records, witness statements and other concrete data may be examined. It cannot be accepted that a bank transaction on its own proves intermediation in prostitution or that a hotel record automatically constitutes evidence of the offense. Which alternative act and which intent the transactions support must be explained with reasons.
Compensation and other avenues of recourse
Independently of the criminal investigation, legal avenues may arise as regards the victim's personality rights, pecuniary or non-pecuniary damage and need for support. In a claim under Articles 49 and 58 of the Turkish Code of Obligations (TBK), damage, unlawfulness and causation are assessed concretely.
Preparatory acts, child victims and completion in the offense of prostitution
Acceptance of a completed offense specific to children
TCK Article 227/1 regulates the acts of inducing a child to prostitution, facilitating the way to prostitution, procuring or accommodating for that purpose and acting as an intermediary in the prostitution of a child. The statute expressly provides that preparatory acts directed at committing this offense are also punished as if the offense were complete. Accordingly, it is not correct to treat the occurrence of sexual intercourse as a necessary part of the result as regards inducement of a child to prostitution. Punishing the preparatory act does not mean that any suspicious conduct can be treated as an offense without a concrete connection. For which act of prostitution the preparation was directed, and the intent of the perpetrator, must be established with evidence.
Distinction from the second paragraph on adults
In TCK Article 227/2, inducing a person to prostitution, facilitating prostitution, acting as an intermediary or providing a place forms a different group of acts. The special regime of preparatory acts in the first paragraph, which concerns children, cannot be carried over automatically to this paragraph. In the decision of the 18th Criminal Chamber of the Court of Cassation (Yargıtay 18. Ceza Dairesi) of 16.01.2020, E.2019/898, K.2020/1559, the separation of the alternative acts concerning the prostitution of children from the paragraph on adults and the scope of the statutory definition were examined. In the accessible part of the decision of the 14th Criminal Chamber of the Court of Cassation (Yargıtay 14. Ceza Dairesi) of 15.11.2011, E.2011/2604, K.2011/2977, it is stated that for intermediation in prostitution or providing a place in respect of an adult, the actual occurrence of sexual intercourse is not required. Decisions concerning different paragraphs must not be confused with one another.
The link with human trafficking, the position of the perpetrator and separate evidentiary questions
TCK Article 80 and Article 227 are not the same offense
In the offense of human trafficking, acts such as procuring, transporting, sending or accommodating the victim, the purpose of exploitation and the other elements required by the statute are significant. In the offense of prostitution, by contrast, the acts of inducement, facilitation, procuring, accommodation, intermediation and providing a place determined by TCK Article 227 are separately regulated. Where both offenses are alleged in a single incident, which material act meets which statutory element, the role of force, threat and deceit, and the concurrence of the offenses must be reasoned. A person's presence at the same premises does not on its own prove intent to commit human trafficking or to act as an intermediary in prostitution.
Proof of force, threat, deceit and exploitation of helplessness
As regards the aggravating circumstances in TCK Article 227/4, the concrete conduct that affected the victim's will, the economic and social conditions of the relationship, communications, and records of accommodation and money transfers must be examined. That the victim was in economic hardship cannot alone be treated as automatic proof that the perpetrator knowingly exploited it; conversely, the absence of visible physical coercion does not by itself refute an allegation of exploitation.
Legal entities, organizational activity and benefit derived from the offense
Under TCK Article 227/5–7, the abuse of family or professional influence, organizational activity and the security measures that may be applied to legal entities depend on different conditions. It is not correct to treat every employee of a business as a member of an organization or all of an institution's revenue as value derived from the offense. Bank, reservation, communication and business records may be used to determine the role of the concrete perpetrator; legal liability must be established at the level of the person and the act.
Conducting protection and effective investigation together
For children in particular, confidentiality of identity, expert-assisted statements, safe accommodation and the relevant social service measures are important. The investigation must, while preventing the victim from being traumatized again, establish the identity of the perpetrator and each element of the offense with verifiable evidence. An investigation under TCK Article 227 does not automatically remove the need to examine other offenses committed against the victim.
Conclusion
Under TCK 227, the special protection against the prostitution of children, the acts of inducement and intermediation in respect of adults, force and the abuse of influence, and the boundaries with human trafficking cannot be treated as one and the same. A sound characterization of the offense and a sound calculation of the penalty cannot be built without determining each perpetrator's concrete act and the alternative act that was carried out.
Frequently Asked Questions
What is the penalty for the offense of acting as an intermediary in the prostitution of a child?
TCK Article 227/1 provides for imprisonment of four to ten years and a judicial fine of up to five thousand days.
Must sexual intercourse take place for intermediation in the prostitution of an adult?
The occurrence of one of the alternative acts in TCK Article 227/2 may be sufficient; the completion of intercourse is not necessarily required in every case.
Does merely owning premises constitute an offense?
No; it must be shown in concrete terms that the perpetrator carried out the act of intermediation, facilitation or providing a place referred to in the statute.
Are prostitution and human trafficking the same offense?
No; TCK Articles 80 and 227 contain different acts and elements.
Are preparatory acts directed at the prostitution of a child punished?
TCK Article 227/1 specifically provides that preparatory acts directed at committing this offense are punished as if the offense were complete.
Sources and legal bases
- Law No. 5237, Turkish Criminal Code (Türk Ceza Kanunu) (in particular the relevant articles), Ministry of Justice UYAP Legislation. mevzuat.adalet.gov.tr
- Law No. 5271, Code of Criminal Procedure (Ceza Muhakemesi Kanunu), relevant procedural and evidentiary provisions. mevzuat.adalet.gov.tr
- Law No. 6098, Turkish Code of Obligations (Türk Borçlar Kanunu) (to the extent applicable to the subject). mevzuat.gov.tr
- Court of Cassation (Yargıtay) 14th Criminal Chamber, E. 2011/2604, K. 2011/2977, 15.11.2011
- Court of Cassation (Yargıtay) 18th Criminal Chamber, E. 2019/898, K. 2020/1559, 16.01.2020