The Offense of Abortion (Illegal Abortion) Or Abortion

2022-03-04T22:04:05+00:00 2 November 2021|

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TCK m. 99

(1) Anyone who causes abortion by a woman without her consent is punished with imprisonment from five years to ten years.

(2) A person who aborts the child of a woman whose gestation period is more than ten weeks, even if there is no medical necessity, is punished with imprisonment from two years to four years. In this case, the woman who consents to the abortion of her child is sentenced to imprisonment of up to one year or a judicial fine.

MATERIAL AND SPIRITUAL ELEMENTS OF THE CRIME OF ACHIEVEMENT

The subject of the crime of abortion is the fetus and the mother’s body. The legal value protected by this crime is the life of the unborn child and, in the second degree, the health of the mother.

In terms of TCK article 99, the perpetrator of the crime can be any person other than the woman carrying the fetus. The abortion of a woman is also regulated in Article 100 of the TCK.

The act that constitutes the material element of the crime is the miscarriage of a woman’s child. The act is performed by a third person other than the woman carrying the fetus. The crime can only be committed by executive action, it cannot be committed by negligence. Crime is a consequential crime.

SITUATIONS INCREASING THE PENALTY FOR THE CRIME OF ACHIEVEMENT

QUALIFIED CASES

  • The fact that the act causes harm to the woman in terms of her physical and mental health (TCK art. 99/3-4)
  • Processing the act by unauthorized persons (Article 99/5 of the TCK)
  • The act causing the death of the woman (TCK art.99/3-4)

The crime of abortion can be committed intentionally. The intent of the perpetrator must be to abort the child. Causing abortion by negligence does not constitute this crime.

REASON FOR LEGAL COMPLIANCE FOR THE CRIME OF ACHIEVEMENT

Based on TCK m.99/2, if there is a medical necessity, the state of necessity can be applied for compliance with the law. If the woman becomes pregnant as a result of a crime committed by the woman, the person who terminates the pregnancy is not punished, provided that the duration is not longer than 20 weeks and the woman’s consent is obtained. This is grounds for impunity. If the woman consents to the commission of the crime, a decision can be made to defer the announcement of the sentence regarding the lower limit of imprisonment. In cases where the amount of imprisonment sentenced by an unauthorized person for the crime of abortion does not exceed 2 years, a decision to postpone the announcement of the verdict may be made.

IS THE CRIME OF ACHIEVEMENT SUBJECT TO COMPLAINT?

The crime of abortion (illegal abortion) is not a crime subject to complaint and reconciliation. The crime is investigated by the prosecution ex officio. The statute of limitations for the crime of consensual abortion is 8 years. The statute of limitations for the crime of abortion against consent is 15 years.

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