ENTRANCE
Practices such as refusing to hand over a child or denying the child access to personal contact despite court
orders in connection with divorce, separation, or other domestic situations constitute a significant problem
in Turkish law. Such actions are not only considered violations of private law but also, in certain
circumstances, give rise to the sanction of preventive detention (disciplinary detention). This article will
examine in detail the conditions, competent authorities, procedural processes, and limits of this sanction
within the framework of current Turkish legislation.
1-) Reform Process of Legal Regulation- In the past, under Article 341 of the Enforcement and Bankruptcy Law, those who violated child surrender decisions
were subject to a preventive prison sentence of up to six months.- However, the problems in the implementation of this system (time loss, carrying out the trials through enforcement offices,
the perception of “debt collection”, the lack of a child-focused approach) were criticized.- With the amendments made by Law No. 7343, the system was renewed by abolishing articles 25–25/b of
the Execution and Bankruptcy Law and adding the regulation titled “Delivery of a child and establishing
personal relations with the child” to the Child Protection Law.- In the new system, instead of criminal courts, the active participation of family courts and Legal Support/Victim
Services Directorates in the process; the execution of judgments in special centers for the return of children; and
the role of state resources are highlighted.- This reform process has led to demands for limiting the concept of coercive imprisonment to “disciplinary
imprisonment”, reorganizing the sanction periods and renewing the procedural infrastructure.
2-) What is Custody and Who Has It? What is Establishing a Personal Relationship?
Custody refers to the rights and obligations granted to mothers and fathers in order to ensure the care
and education of minors and adult children who are restricted by the judge.- While the marriage continues, the mother and father share custody of the child.- In the event of a divorce, custody of the child is temporarily awarded to one party during the trial, in the
best interests of the child. If the case is awarded permanently to one of the parents, the other spouse’s
custody rights over the child are terminated.
Personal contact refers to the arrangements for the child to meet with the parent who is not
granted custody at specific times. The parent who is not granted custody is generally entitled to
have personal contact with the child on court-determined days and hours, as determined by the
court.- The party with custody of the child must not prevent the other party from establishing personal relations with
the child.
3-) What are the conditions for the crime of not showing children?
In order for the crime of not showing the child to occur and for the other party to have the right to
complain, the following conditions must be met:- There must be a decision or interim decision made by the court regarding the establishment of personal
relations.- If the child is not shown, enforcement proceedings must be initiated (former regulation) to enforce the decision
regarding child surrender. (With the new regulation, an application must be made to the Legal Support and Victim
Services Directorates.)- If the conditions stated above are met, the party to whom custody is not given will have the right to complain in
accordance with the Law.
4-) Punishment for the Crime of Not Showing Children- Article 41/F has been added with the side heading “Opposition to the execution of the judgment or injunction
regarding the surrender of the child and the establishment of personal relations with the child” under the title “Delivery
of the Child and Establishment of Personal Relations with the Child” after Article 44 of Law No. 7343 and Article 41 of the
Child Protection Law No. 5395;
(1) Those who act contrary to the order of surrender regarding the execution of the verdict or injunction regarding the surrender of the
child or those who prevent the execution of the order shall be punished with disciplinary imprisonment of up to three months, even if
the act constitutes a crime, upon a complaint to be made within one month.
(2) Those who act contrary to the surrender order regarding the execution of the judgment or injunction regarding
establishing personal relations with the child or those who prevent the execution of the order shall be punished with
disciplinary detention for three to ten days, upon a complaint to be made within one month.
(3) If the rightful owner to whom the child is handed over for the purpose of establishing personal relations does not bring the child to the designated
place at the end of the period specified in the judgment or injunction, upon a complaint to be made within one month, he/she shall be punished with
disciplinary imprisonment of up to three months, even if the act constitutes a crime.”
5-) Duration of Complaint for the Crime of Not Showing Child- The crime of not showing the child is a crime subject to a complaint and is not a crime that is prosecuted ex officio.- The party who is not granted custody but has been granted personal contact days with the child by the court
may request that the party granted custody be punished by filing a complaint with the court if the other party
does not hand over the child despite initiating enforcement proceedings.- According to Article 347 of the Enforcement and Bankruptcy Law, “The right to complain about the acts included in this Section expires after
three months from the date of learning of the act and, in any case, after one year from the date of the act being committed.”- In accordance with the said article, a complaint must be filed against the person who did not return the child
within three months and in any case within one year from the date of learning that the child was not returned.
If a complaint is not filed within the time limit, the creditor’s right to file a complaint is void.
6-) Legal Nature, Purpose and Limits of Sanctions
6.1 Nature and Purpose of Sanction- Rather than being a full-blown “punishment” in the sense of criminal law, coercive imprisonment is one of the sanctions
specific to enforcement law; it is a complementary and coercive sanction. (Because the primary purpose is to ensure the
enforcement of court decisions.)- This sanction must be balanced between the principle of “proportionality” and the principle of the best interests of the child;
excessive imprisonment or arbitrary practices may violate the principle of personal liberty and fair trial guarantees in the
Constitution.- With the reform, the concept of “disciplinary imprisonment” came to the fore; with this concept, the duration of imprisonment and the
conditions of its application were intended to be more limited and regular.
6.2 Sanction Duration and Limit- In the old system, up to six months of detention could be imposed within the scope of Article 341 of the EBL.- With the new regulation, the periods determined by the judge/court have been regulated with limits such as “disciplinary
detention up to three months”.- It is stated that in practice, the prison term for decisions regarding establishing personal contact with the child is
foreseen as disciplinary detention from 3 to 10 days.- In addition, it is stipulated in the temporary article of Law No. 7343 that the cases related to the acts committed before this
Law came into force will still be concluded by the enforcement court within the framework of the old norms.
6.3 Limits of Sanctions- Preventive imprisonment only comes into effect in case of non-compliance with the court decision / verdict / interim decision; it cannot be
applied arbitrarily or subject to additional conditions.- After the execution of the prison sentence has begun, release is possible once the obligation is fulfilled.- In the regulation, the power of enforcement (by law enforcement) in case of violation of the decision on personal contact with the child is not
clearly regulated; in other words, the power to use force has become limited with the decision of imprisonment.- In addition, in order for the sanction to be applied, the violation of the act must be clearly determined and procedural security elements must be
observed; a process or decision contrary to the procedure may lead to the annulment of the judgment.
7-) Competent and Authorized Court
7.1 Competent Court (Old System)- In the old situation, the court in charge of the proceedings related to coercive imprisonment was the enforcement court / enforcement criminal court.- In particular, the Enforcement Criminal Court had the authority to make such criminal/disciplinary decisions.
7.2 Court of Jurisdiction in the New Regulation- With the reform, Family Courts and Legal Support / Victim Services Directorates took an active role in the
execution of the processes; direct connection with enforcement offices was reduced.- The competent court is the family court where the child resides.- In practice, special locations are designated for the execution of judgments; while the child surrender procedures are
carried out in these locations, the expenses (excluding attorney fees) are covered by the state budget.
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7.3 Competent Court- In the old system, the competent court was the criminal enforcement court where the enforcement proceedings were carried out.- In the new system, authority is regulated under the umbrella of the family court, where basic decisions regarding the child are
made.- However, during the transition period, exceptions were granted for complaints filed under the old norms to be
finalized in the old courts.
😎 Implementation of Coercive Detention / Disciplinary Detention: Conditions and Procedural Rules
8.1. Required Conditions / Elements- In order for a decision of coercive detention / disciplinary detention to be made, the following conditions must be met:- Court decision (verdict or interim decision / precautionary decision)- Existence of a final or provisional court decision regarding the delivery of the child or the establishment of personal contact
with the child.- The reasons and conditions of the decision must be clear.
Commitment of Violation / Actual Behavior- Failure to comply with the decision or behavior that obstructs its implementation (e.g. hiding the child, refusal to hand over,
behavior contrary to the decision).- If there is a decision to establish a personal relationship, the act of preventing the meeting or refusing to meet with the child can also
be evaluated within this scope.
Complaint / Application- The rights holder (the party to whom the child’s handover decision or personal contact decision was made) must pursue a complaint.
The sanction does not apply automatically; the requirement of “upon complaint” is important.- In the old system, this right was limited to a limited period (e.g. three months from the date of learning of the act; one year
from the date of committing the act).
Sentencing by Court Decision- The complaint is examined; if it is found to be lawful in terms of procedure and substance, the court may decide on preventive detention /
disciplinary detention.- The decision must be reasoned, its duration and conditions must be clearly stated, and there must be no procedural deficiencies.
- During the execution of the prison sentence, the person is given the opportunity to be released if the decision is complied with.
8.2. Procedural Rules and Deadlines- Complaint Period:In the old system, for a complaint under the EBL, there was a limitation period of three months from the
date of learning of the act, and in any case, one year from the date of the act.- It is stated that in the new system, the complaint period for disciplinary detention is set as one month.
Simple Trial Procedure:It is envisaged that the simple trial procedure will be applied in requests for personal contact
with the child.
Making Decisions in a Timely Manner: It is important that the decision-making process is not delayed in order to prevent
harm to the child.
Execution and Release:After the prison sentence is imposed, a decision of release may be made if the obligation
is fulfilled.
Transitional Provisions:Exceptional transitional provisions apply to cases filed under old norms.
CONCLUSION
Preventive detention, imposed for failure to appear, is an important and coercive sanction designed to ensure the
enforcement of court orders. However, because this sanction directly interferes with fundamental rights and
freedoms, it must be implemented meticulously, in accordance with its legal basis, procedural rules, and, in
particular, the principle of the best interests of the child. The regulations introduced by Law No. 7343 constitute a
positive reform in that they limit preventive detention to disciplinary detention and ensure its implementation
through family courts and legal support units.
However, in practice, balancing the principle of proportionality with the best interests of the child remains challenging,
and psychological and social dimensions are not sufficiently considered in the enforcement of personal relationship
decisions. Furthermore, uncertainties surrounding jurisdiction and procedure during the transition between the old and
new systems negatively impact the effectiveness of legal processes.
Therefore, it is crucial that expert opinions based on child psychology be mandated in preventive
detention practices, that sanctions be applied only in cases of violations of the decision and in a
proportionate manner, that alternative sanctions be developed, and that courts conduct
comprehensive assessments in their decisions. In this context, preventive detention should be
restructured in line with the principles of children’s rights, personal liberty, and fair trial, and in line
with the rule of law and social justice.
THE MOST COMMENTS ABOUT THE PRESSURE IMPRISONMENT FOR NOT SHOWING CHILDREN
WONDERING QUESTIONS
1-) What is coercive imprisonment?
Preventive imprisonment is a short-term prison sentence imposed to ensure compliance with a court
order. The purpose is not to punish, but to compel compliance. If the child is not produced, the court
may order preventive imprisonment if the child is not returned.
2-) What does not showing the child mean?
Failure to appear is the failure of a parent, granted personal contact or custody by court order, to hand over
the child to the other parent. This act negatively impacts the child’s best interests and carries legal penalties.
3-) In what cases is coercive detention applied?
Failure to return the child on the delivery day and time determined by the court decision,
In cases where the parent deliberately hides the child or avoids surrendering the child, compulsory detention may
be applied.
4-) How long is the period of coercive detention?
For failure to appear, preventive detention can generally be imposed for up to six months. The court determines the term based on the specific
circumstances. The detention ends immediately upon compliance with the decision.
5-) Is coercive imprisonment a punishment or a precaution?
Coercive imprisonment is not a punitive sanction; it is a coercive measure. The purpose is to ensure the enforcement of the decision by short
term imprisonment for those who fail to comply, and to protect the best interests of the child.
6-) Can other sanctions be applied to the parent who does not show the child?
Yes. In addition to coercive imprisonment:- Change of custody,- Fine,- Additional measures (delivery under expert supervision) may be applied by the court.
7-) How is coercive imprisonment executed?- When the decision becomes final, the court or the Legal Support and Victim Services Directorate (ADM) gives
instructions.- When necessary, execution is ensured with the cooperation of the prosecutor’s office and law enforcement forces.- If the decision is implemented, the person is released immediately.
😎 Does the child’s opinion affect the decision on preventive detention?
Yes. The child’s views are taken into account, especially for children over the age of 12. The court may consider the duration of
preventive detention or the method of its implementation based on the child’s psychological state and wishes.
9-) Is there a warning before a coercive sentence?
The court generally first issues a written or verbal warning to surrender the child. Coercive detention is
a coercive measure used if the decision is not followed.
10-) What is the role of ADM?
With post-2021 regulations, child rendition will be conducted through the ADM. The ADM provides expert support
(psychologist, social worker) during the child rendition and notifies the court of any situations requiring preventive
detention.
11-) What happens to the child during the period of coercive detention?
The child’s safety and psychological well-being are paramount. While the child is not released, care and
supervision are typically provided through temporary arrangements or social services determined by a
judge.
12-) Can a coercive sentence be appealed?
It is not possible to appeal the decision; however, if the decision is considered to be irregular or
unlawful, the family court may be requested to change the decision or re-evaluate its duration.
13-) What is the relationship between coercive imprisonment and custody rights?
The practice of child custody and coercive detention are crucial for protecting custody rights.
In cases of persistent violations, the court may change custody or revise the terms of the
relationship.
14-) How can the best interests of the child be protected through coercive detention?
Because coercive detention is a short-term sanction, it is administered under expert
supervision to prevent trauma to the child. The goal is to ensure the child’s safe return and
minimize conflict between the parents.
15-) What are the most common mistakes made regarding not showing the child and coercive
detention?- The idea that coercive imprisonment is used for punitive purposes,- The misconception that the role of the ADM is merely a formality,- Prioritizing parental interests over the best interests of the child,- Implementation of coercive imprisonment as a long-term punishment.
THE IMPORTANCE OF LAWYER SUPPORT
Child custody cases require technical knowledge, legislative expertise, and in-depth expertise in judicial
practices. While the legal provisions are clear, each case has its own unique circumstances, and even a
small mistake can lead to loss of rights. Therefore, working with an experienced attorney from the
beginning of the process is crucial to determining the right strategy, protecting your rights, and
achieving the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications.
A professional lawyer will guide you not only in preparing the petition but also in gathering evidence,
representing the court, negotiating, and pursuing alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.