The Normative Position of the Stalking Offence in Turkish Criminal Law and its Interaction with Law No. 6284

Attorney Dr. Tolga Ersoy | Criminal Law | September 14, 2025

Stalking is a form of violence whose visibility has increased in modern societies, particularly with the proliferation of digital technologies, and which poses a multi-dimensional threat to an individual's fundamental rights. This pattern of behavior, intertwined with elements such as psychological pressure, surveillance, threats, violation of privacy, and persistent harassment, creates a specific area of harm that cannot be adequately addressed by traditional criminal law typologies. For this reason, stalking is regarded not merely as an individual nuisance or harassment practice, but as a systematic violent behavior directly targeting personal autonomy, the flow of daily life, and the sense of security. Indeed, as violence against women in Turkey has acquired a structural and chronic character, stalking has begun to be discussed as a distinct category among societal violence practices; even the mere experience of psychological pressure and fear by the victim, without requiring physical harm, has been recognized as a risk area necessitating legal intervention.

In line with these developments, Article 123/A, added to the Turkish Penal Code in 2022, is a concrete manifestation of the legislator's will to regulate stalking behavior as an independent offense. As emphasized in the rationale of the law, the aim of this regulation is to subject the perpetrator's "persistent" and systematically repeated stalking behaviors, which create fear, anxiety, and insecurity in the victim, to criminal sanction. Thus, the legal framework has holistically defined the type of harm, previously addressed dispersedly among typologies such as threat, insult, obstruction of communication, or disturbing the peace and tranquility of individuals, under a single norm. This normative transformation aims both to clarify the typicality of the offense and to strengthen victim protection.

On the other hand, understanding the criminal dimension of the stalking offense is not limited to evaluating it solely within the framework of the Turkish Penal Code (TPC). This is because Law No. 6284, a fundamental element of policies to combat violence against women in Turkey, adopts an approach centered on protective and preventive measures, stipulating that the victim's physical and psychological integrity must be safeguarded independently of the criminal process. Measures such as restraining orders, communication bans, and housing allocation provided under Law No. 6284 often prevent stalking acts before they escalate to the stage of a criminal offense. Therefore, it can be stated that there is a functional complementary relationship between the criminal norm and the protective legal institution.

Although the legal subject matter of the stalking offense might initially appear to be the protection of the victim's peace and tranquility, it actually encompasses a much broader set of values. The offense type aims to simultaneously safeguard multiple fundamental rights of the individual, such as privacy of private life, personal security, psychological integrity, and freedom of movement. The legislator, without waiting for the act to escalate into a physical assault, has deemed the fear, anxiety, and perception of threat created in the victim by repeated stalking behaviors sufficient for criminal sanction, thereby expanding the concept of personal security into a broad area of protection.

In this context, one of the legal values protected by the offense is individual autonomy. Stalking often creates a mechanism of pressure that restricts the victim's daily life routine, social relationships, professional life, and even fundamental freedom of movement. The victim may feel controlled, monitored, or threatened due to the perpetrator's constant pursuit, messages, surveillance, or proximity. This situation can lead to outcomes that weaken the victim's capacity for rational behavior, forcing them to withdraw from social environments or change their living space. Consequently, the offense type does not merely punish "causing annoyance"; it reflects a broader understanding of public order based on the individual's right to live a free and secure life.

Another fundamental value protected by the stalking offense is psychological integrity. Although psychological harm has traditionally been considered less visible than physical harm in criminal law, modern approaches acknowledge that psychological devastation can have consequences as severe as physical harm. The perpetrator's stalking behaviors can lead to symptoms of traumatic stress, sleep disorders, panic attacks, loss of self-confidence, and a constant perception of threat in the victim. Therefore, Article 123/A of the TPC constitutes a contemporary criminal norm that, without requiring physical assault, considers the impairment of the victim's internal sense of security as harm in itself.

Among the values protected by the offense, privacy of private life holds a central position. The perpetrator's access to the victim's personal information, location tracking, monitoring of social media accounts, or persistent presence in areas where the victim is located, narrows the sphere of privacy as a modern form of surveillance. This situation constitutes a direct violation of the right to protection of private life, guaranteed by Article 20 of the Constitution and Article 8 of the European Convention on Human Rights. Therefore, the criminal regulation of the stalking offense can also be regarded as a requirement for compliance with international human rights norms.

This offense is also significant in terms of public safety and social peace. Considering the structural nature of violence against women, stalking can often constitute a preliminary stage for more severe forms of violence. The normative position of this offense type therefore encompasses an approach aimed not only at individual protection but also at societal risk management. For this reason, the legal subject matter of the stalking offense lies at the intersection of multiple values and clearly demonstrates the expanding function of criminal law in the axis of individual security.

The addition of stalking as Article 123/A to the Turkish Penal Code in 2022 should be regarded as the result of the legislator's will to fill a long-debated gap. Prior to this regulation, stalking behaviors were often evaluated dispersedly within different offense types such as threat (TPC Art. 106), disturbing the peace and tranquility of individuals (TPC Art. 123), insult (TPC Art. 125), or violation of privacy (TPC Art. 134); however, the continuous nature of these behaviors could not be adequately addressed by existing typologies. This situation both complicated the holistic punishment of the perpetrator's actions and led to the inability to concretely define the threat experienced by the victim. Article 123/A, therefore, aimed to provide clarity in the typicality of criminal law by consolidating systematic and repetitive stalking behaviors under a single norm.

The placement of the new regulation within the "Offenses Against Liberty" section of the TPC is a conscious normative choice. This placement acknowledges that stalking is fundamentally a behavior that violates the victim's liberty, i.e., their right to move safely, plan their life, be in desired locations, and freely establish social relationships. Consequently, the essence of the offense rests on the threat to personal freedom of movement rather than the victim's physical integrity. The legislator did not consider the absence of physical contact in the acts as a justification to exclude them from the scope of the offense; instead, systematic stalking behaviors that generate fear and insecurity in individuals have been positioned as an assault on liberty. This approach is consistent with a contemporary normative trend in criminal law where psychological and behavioral pressure elements are directly recognized as violations of liberty.

Article 123/A of the TPC also parallels international norms concerning the concepts of "harassment" and "stalking" in criminal law. The offense of "Nachstellung" regulated under §238 of the Strafgesetzbuch in Germany, stalking behaviors covered by the "Protection from Harassment Act 1997" in England, and "stalking" typologies in US state legislations have formed a comparative normative background for the Turkish regulation. As seen in this comparison, modern legal systems address persistent stalking behaviors not merely as a disturbance of peace, but as a serious threat to an individual's liberty, and therefore regulate the act as an independent offense type. This expansion of Turkish criminal law is consistent with both international obligations and the requirements of policies adopted in the fight against violence against women.

The normative position of TPC Article 123/A is also manifested in the principle that "the offense does not require a resulting harm to be constituted." While the article considers creating fear, anxiety, apprehension, or insecurity in the victim as a fundamental element of the typicality, it does not stipulate that these emotions must transform into a concrete, materialized harm. This situation is closely related to the concept of abstract danger offenses found in the classical understanding of criminal law. The legislator has deemed the perpetrator's systematic stalking behavior itself sufficient for the emergence of danger; at this stage, where the victim's liberty is threatened, it has been deemed appropriate for criminal law to intervene.

Another normative feature of this article's provision within the TPC system is that the offense is subject to complaint. While this might initially appear as a choice that increases the victim's autonomy in criminal law, it is actually part of a broader system when considered alongside the protective/preventive measure mechanisms of Law No. 6284. While the initiation of the criminal process depends on the victim's statement, the same condition is not sought for protective measures; thus, a functional division of labor is established between protective law and criminal law. However, the debate on the requirement of a complaint is sometimes criticized in practice due to risks such as the victim being forced to make a statement under perpetrator pressure; academic opinions are emerging that the norm should be made subject to ex officio investigation in the future.

The typicality of the stalking offense is that it constitutes a general offense type, as no special qualification is sought for the perpetrator or the victim; however, it is mandatory for the victim to be a specific individual. The perpetrator's actions must be objectively capable of creating a perception of threat and must target the victim's liberty, private sphere, or psychological integrity. The elements of the offense require both the victim's subjective feeling of fear and insecurity and the objective reasonableness of this feeling; thus, it becomes possible to distinguish between oversensitivity and genuine danger.

"Persistence," the most distinctive element of TPC Article 123/A, is a normative behavioral integrity determined by criteria of repetition, continuity, and intensity. Single acts do not meet the typicality of the offense; the stalking behavior must extend over a certain period, involve continuous interference with the victim's living space, or intense contact through communication tools. This element focuses not only on the number of acts but also on the perpetrator's general attitude that creates systematic pressure. Thus, the offense is structured in a manner consistent with danger offenses in modern criminal law.

Regarding the mental element, the offense is committed with intent; although it is not mandatory for the perpetrator to have the specific intent to create fear in the victim, it is sufficient for them to know and accept that their actions could produce this outcome. In this context, the defense of "I had no ill intent" does not negate criminal liability if it contradicts the nature of the actions. Grounds for legality are applied restrictively; mandatory contacts, such as the handover of a child due to custody or an official notification process, are not considered stalking solely for this reason. Thus, the typicality is placed within a balanced normative framework that prioritizes victim safety but prevents confusion with lawful conduct by the perpetrator.

The stalking offense is a concrete example of the transformation of modern criminal law, which expands individual security against psychological and behavioral threats. The relationship between TPC Article 123/A and Law No. 6284 demonstrates that the normative division of labor between punishment and protection is operated in a balanced manner. A full understanding of the offense requires not only a technical analysis of its typicality elements but also a holistic assessment of its effects on individual autonomy, private life, and sense of security. Considering both national law and international norms, the stalking regulation has emerged from a societal need; it constitutes a contemporary criminal law norm that enables the integrated operation of protection and punishment mechanisms in the fight against violence against women.