The Child Protection Law, which observes the principle of the best interests of the child, stipulates the procedure and sanctions to be followed in case of opposition to the execution of decrees or precautionary decisions regarding the delivery of children and establishment of personal relations with children. In this context, the Law regulates different situations that constitute opposition to the execution of decrees and precautionary decisions regarding the delivery of children and establishment of personal relations with children.
One of these situations is acting contrary to the delivery order regarding the execution of decrees or precautionary decisions regarding the delivery of children or obstructing the execution of the order.
According to Article 41/F-1 of the Children’s Law; Those who act contrary to the delivery order regarding the execution of decrees or precautionary decisions regarding the delivery of children and those who obstruct the execution of the order shall be punished with disciplinary imprisonment of up to three months upon a complaint to be filed within one month, even if the act constitutes a crime.
If the person responsible for the judgment or cautionary decision regarding the delivery of the child and establishing personal contact with the child does not fulfill the requirements of this decision voluntarily, the right holder may apply to the directorate[1] for the execution of the judgment or cautionary decision in accordance with Articles 41/B and 41/C of the Law. The directorate that receives the request contacts the responsible person using all means of communication and immediately notifies the directorate that the child be brought to the designated place to be delivered to the right holder on the day and time determined by the directorate; it records in the minutes that this notification has been made or that the responsible person cannot be contacted. If the responsible person cannot be contacted or if the responsible person declares that they will not bring the child or if the responsible person does not bring the child to the designated place, the directorate immediately sends a delivery order to the responsible person regarding the delivery of the child or establishing personal contact with the child.
It is mandatory to clearly state in the delivery order that the child must be brought to the place specified in the order on the day and time specified in the verdict or injunction decision, or if the day and time are not specified, on the day and time specified by the directorate, that if the child has a legitimate excuse preventing him/her from bringing the child to the place specified in the order, he/she must notify the directorate before the delivery date and request that the child be picked up by the directorate, and that if the order is not fulfilled, he/she will be punished with disciplinary detention. Otherwise, it will not be possible to apply the disciplinary detention sanction.
Those who act contrary to the delivery order or prevent the fulfillment of the order will be punished with disciplinary detention for up to 3 months, provided that a complaint is filed within 1 month.
Another situation is that the right holder, to whom the child was delivered for the purpose of establishing a personal relationship, does not bring the child to the designated place at the end of the period. According to Article 41/F-3 of the Law; If the right holder, to whom the child was delivered for the purpose of establishing a personal relationship, does not bring the child to the designated place at the end of the period specified in the judgment or measure decision, he/she shall be punished with disciplinary detention for up to three months, even if the act constitutes a crime, upon a complaint to be made within one month.
As mentioned above, in cases where the execution of the judgment or measure decision is ensured by the directorate, the child brought to the place determined by the directorate shall be delivered to the right holder. The right holder shall be notified by recording in the minutes that he/she is obliged to bring the child to the designated place at the end of the period specified in the judgment or measure decision, that if he/she does not bring the child or brings him/her late, except for reasonable reasons not originating from him/her, he/she will be punished with disciplinary detention, and a criminal complaint will be filed against him/her. If the child is not brought to the designated place, a criminal complaint shall be filed against the right holder by the directorate and the responsible person shall be informed about the subsequent process.
If the rightful owner, who is decided to establish personal relations with the child, does not bring the child to the specified place at the end of the period, he/she shall be punished with disciplinary imprisonment for up to three months upon a complaint to be made within one month, even if the act constitutes a crime.
It should be noted that the common point in all the situations foreseen in the Law is that the sanction to be applied is the same. In case of opposition to the execution of the verdicts and precautionary decisions regarding the delivery of the child and the establishment of personal relations with the child, the sanction to be applied is disciplinary imprisonment.
According to the Code of Criminal Procedure, disciplinary imprisonment refers to the imprisonment given due to the act that has been sanctioned in order to maintain a partial order, cannot be converted into alternative sanctions, cannot be subject to prepayment, is not based on recurrence, cannot be subject to conditional release provisions, cannot be postponed and cannot be recorded in the criminal record.[2]
Another issue that needs to be emphasized is the determination of the authority where the complaint will be made and which will decide on disciplinary detention. According to the Law, the competent and authorized court that will hear the complaint is the family court where the directorate that carries out the process is located. The directorate that carries out the process is the court where the child resides. Therefore, in case of opposition to the execution of the orders regarding the delivery of the child or establishing personal relations with the child, the competent and authorized court that will hear the complaint is the family court where the child resides. It should be noted that there is no clear regulation in the Law that allows the complaint to be made to the prosecutor’s office. However, when we consider that the complaint is subject to a limitation period, we are of the opinion that complaints made to the prosecutor’s offices will also produce legally effective results as a requirement of the freedom to seek justice. In such a case, it will be sufficient for the relevant prosecutor’s office to report the complaint to the competent family court. If the family court determines that the complainant has acted contrary to the order of delivery, prevented the fulfillment of the order or has not brought the child to the designated place by the end of the period, it shall decide to punish him with disciplinary detention, otherwise, it shall decide to reject the complaint. Decisions regarding punishment with disciplinary detention shall be executed by the Office of the Chief Public Prosecutor after they become final. These decisions cannot be implemented after two years from the date of finalization. In addition, if the complaint is withdrawn or the child is delivered to the person entitled to custody, the case and the penalty together with all its consequences shall be dismissed.
An objection may be filed to the family court that made the decision against disciplinary detention, which was made by the family court upon complaint, within two weeks from the date of notification.
REFERENCE
Selçuk, S. (2024). Çocuk Teslimi ve Çocukla Kişisel İlişki Kurulmasına İlişkin İlâm ve Tedbir Kararlarının Yerine Getirilmesine Muhalefet. Ankara Üniversitesi Hukuk Fakültesi Dergisi, 73(1), 309-354.
Child Protection Law and Related Legislation
[1] Directorate: Directorate of Legal Support and Victim Services (Article 41/A-1)
[2] Selçuk, S. (2024). Çocuk Teslimi ve Çocukla Kişisel İlişki Kurulmasına İlişkin İlâm ve Tedbir Kararlarının Yerine Getirilmesine Muhalefet. Ankara Üniversitesi Hukuk Fakültesi Dergisi, 73(1), 309-354.