New Draft Law on Children Drafted into Crime

New Draft Law on Children Drafted into Crime. The draft law on children involved in crime, which has become a major topic on Turkey’s agenda and created significant public reaction, has initiated a profound debate at the intersection of criminal law, children’s rights, and social policies. This regulation aims to redefine the criminal liability of children, ranging from simple offenses to severe homicides, punish the exploitation of children by organized crime groups, and strengthen rehabilitation mechanisms. The following report comprehensively examines the fundamental changes anticipated by the draft, analyzing their legal and social implications within the framework of existing legislation (TCK and ÇKK).

1. Legal Framework and Societal Sensitivity

This report provides an in-depth examination of the legal, social, and philosophical dimensions of the highly sensitive draft law concerning children involved in crime, which has recently caused intense public debate. According to statements made by the Minister of Justice, the regulation is expected to be included in the 11th Judicial Package, likely a comprehensive judicial reform package. The analysis evaluates the four main provisions envisaged in the draft within the framework of the existing Turkish Penal Code (TCK) and the Child Protection Law (ÇKK) No. 5395.

1.1. Current Legal Paradigm: The Protection Law and the Principle of the Child’s Best Interest

Turkish Criminal Law adopts the fundamental principle that children should be treated under a different legal status than adults. The main purpose of the Child Protection Law No. 5395 is to regulate the procedures and principles related to safeguarding the rights and well-being of children in need of protection or those involved in crime. Law focuses on the procedures and principles for protective measures to be taken for children in need of protection and security measures to be applied to children involved in crime, as well as defining the establishment, duties, and authorities of juvenile courts.This approach reflects the principle of considering the child’s best interest, adopted in international law.

The most controversial parts of the draft, as reflected in the public sphere, suggest a potential shift from this established axis of protective-preventive measures towards a more punitive (retributive) axis. This shift is of a nature that questions the fundamental philosophy of the juvenile justice system.

2. Rehabilitation and Early Intervention: Strengthening the Protective Approach

The first article of the draft law stipulates that children who commit minor offenses will be monitored and rehabilitated. This provision is in full harmony with the spirit of the existing Child Protection Law and the principles of the right to development and the right to protection under the United Nations Convention on the Rights of the Child (CRC). The primary goal is to remove the child from the factors that led them to crime at an early stage and ensure social integration.

2.1. Current Rehabilitation Mechanisms and ÇODEM Capacity

The Child Protection Law prescribes child-specific security measures to be applied to children involved in crime.Rehabilitation services are at the heart of these measures. One of the main institutions providing these services in the country is the Child Support Centers (ÇODEM – Çocuk Destek Merkezleri). ÇODEMs offer treatment and rehabilitation services, especially within the scope of combating substance addiction. For instance, it has been documented that 6009 children received services in 13 ÇODEMs specialized in substance addiction between 2015 and the end of July 2020.

Legislative studies have also revealed the need to expand this range of protective-preventive measures. In the literature, it is discussed that new protective-preventive measures such as recreation and sports should be added to the Child Protection Law to support the psychosocial development of children involved in crime. Such multidisciplinary approaches encompass the protection and rehabilitation of children from neglect, abuse, and exploitation.

2.2. Effectiveness of Policy Resources and Importance of Follow-up Quality

The realization of the ideal structure of the follow-up and rehabilitation system for minor offenses depends directly on the physical and personnel capacity of the relevant social service institutions. If the parts of the draft law requiring severe penalties gain more public attention and divert the system’s resources towards penal institutions, rehabilitation mechanisms face the danger of becoming inadequate. This situation creates a systemic cycle that prevents the achievement of the legal objective, leading children to re-offend shortly.

Furthermore, the success of the follow-up system established for minor offenses depends on the ability to correctly diagnose not only the act but also the underlying economic, social, and psychological factors. This necessitates improving the quality of social investigation reports , which are mandatory under Article 31 of the Turkish Penal Code, and the speed of their preparation. If multidisciplinary teams fail to make accurate and impartial diagnoses, the follow-up itself could turn into a tool for stigmatization. Given the existing negative framing and stigmatization tendency towards children involved in crime in the media, the state’s follow-up mechanisms must aim for protection, not stigmatization.

3. Redefining Criminal Liability: Non-Reduced Sentences and Judicial Discretion

The most debated provisions of the draft, which deeply affect the legal philosophy, concern the non-application of reductions for child murderers and the ability of the judge to impose non-reduced sentences on children who commit crimes, based on judicial discretion.

3.1. Current Minor Age Reduction Mechanism (TCK 31)

Article 31 of the Turkish Penal Code (Minor Age) scales the criminal liability of children according to their age and provides for mandatory sentence reductions or exemptions for specific age groups. In the current system:

12-15 age group: The determination of the capacity to discern (the ability to perceive the legal meaning and consequences of the crime) is mandatory for these children. This determination must be made through a forensic report, prepared in a clinical setting by a forensic medicine specialist, psychiatrist, or, when necessary, an expert physician, using psychological and cognitive tests. Mandatory reduction is applied for those with the capacity to discern. A social investigation report is also mandatory for this age group.
15-18 age group: Even if the capacity to discern is considered full for these children, a mandatory sentence reduction applies due to minor age. While a social investigation report is not mandatory, the grounds for not obtaining one must be stated in the reasoned decision.

3.2. Legal Analysis of the Principle of Non-Reduction for Child Murderers

New Draft Law on Children Drafted into Crime. The draft’s provision on the non-application of reductions for child murderers has emerged as a direct response to the prevalent “sense of impunity” in the public sphere. The difficulty the public has in reconciling the mitigation of punishment due to child status, especially in severe crimes, with the sense of justice has created pressure on the legislative body towards “toughness.”

However, this provision creates a serious conflict point with the fundamental philosophy of criminal law. Criminal law conditions punishment on the perpetrator’s capacity for culpability (legal and moral responsibility). The minor age reduction is based on the assumption that the child cannot possess full culpability due to their biological and psychological developmental level. Completely removing this reduction means that the law evaluates the crime according to adult norms, regardless of the child’s age and developmental status. This approach shifts the legal philosophy from the perpetrator’s culpability (perpetrator-focused justice) towards the severity of the act (outcome-focused justice).

3.3. Expansion of Judicial Discretion and the Risk of Arbitrariness

New Draft Law on Children Drafted into Crime. The most radical aspect of the draft is granting the judge the authority to impose a non-reduced sentence on children who commit crimes. Under the current TCK 31 system, the judge does not have the authority to waive the mandatory age reduction. This signifies an expansion of the judge’s discretion from being limited to procedural issues, such as the failure to obtain a mandatory social investigation report, to directly intervening in the quantum of the sentence.

This regulation carries the risk of producing an outcome similar to “Waiver/Transfer Laws” (trying as an adult) in the US system. Such practices are severely criticized by experts in the field of children’s rights on the grounds that they lead to children being placed in adult correctional settings and eliminate the chance for rehabilitation.

If the criteria for the judge’s authority to impose a non-reduced sentence are not clarified and strictly limited by scientific data such as the child’s developmental level, social investigation reports, and the determination of the capacity to discern, the risk of arbitrariness in the judicial process emerges. The situation where a reduction is applied to one child who committed the same crime, but not to another, may violate the right to a fair trial and the principle of equality before the law. This will create significant uncertainty in the judiciary until healthy jurisprudence is established by the Court of Cassation (Yargıtay).

3.4. Comparative Analysis of TCK 31 and the New Draft Provisions

The following comparative analysis is presented to clearly illustrate the effects of the proposed changes in the draft on the current protection system:

Comparative Analysis of TCK 31 and New Draft Provisions

Current Provision (TCK 31 – Minor Age)	Proposed Draft Provision	Legal Outcome and Impact Analysis
Mandatory age reduction (after determination of capacity to discern for 12-15 age group; in all cases for 15-18 age group).	Non-application of reductions for child murderers.	Paradigm Shift: Symbolizes a transition from the child’s culpability capacity (perpetrator-centric) to the severity of the act (crime-centric). Leads to the narrowing of the protective system.
Requirement to mandatorily obtain a social investigation/forensic report during trial (especially for 12-15 age group).	Ability of the judge to impose non-reduced sentences based on discretion.	Value of Reports: The judge’s discretion risks overshadowing the psychological and cognitive findings of expert reports. The risk of subjectivity and arbitrariness in the trial process increases.
Application of child-specific security measures instead of punishment (ÇKK 12).	Not specified, but bypassing these measures with a non-reduced sentence.	Subordination of Rehabilitation: The effectiveness of protective and security measures, which is the primary goal of the ÇKK, decreases with the increase in entry into penal institutions.

4. Combating Organized Crime and Punishing the Exploitation of Children

New Draft Law on Children Drafted into Crime. A significant provision in the draft is the one-fold increase in the penalties given to criminal organizations that use children as perpetrators (“hitmen”) for every type of crime.

4.1. Purpose of the Measure and Expert Criticisms

This provision aims to increase deterrence against organized crime groups that exploit children by leveraging their low criminal liability, forcing them into crime. The acceptance of a child’s participation in crime as a factor that increases the severity of the organizational crime is, in principle, a positive step in terms of child protection.

However, there are serious criticisms regarding the effectiveness of such punitive hardening measures. Expert circles, such as the Platform for Women’s Equality (Eşitlik için Kadın Platformu), state that increasing individual penalties will remain ineffective unless a comprehensive fight is waged against organized crime groups. It is emphasized that due to the nature of these organizations, they can easily incorporate new children to replace incarcerated members and continue their illegal activities freely. Therefore, the penalty increase risks remaining merely as “an easy, cost-free, but ineffective response to the public’s demand for justice” unless it touches the structural integrity or financial resources of the organization.

4.2. Need for Structural Struggle Instead of Penalty Increase

Increasing penalties by one fold should be considered an insufficient strategy in the fight against organized crime, as it only targets individual actors within the organization. The real and lasting solution is based on drying up the economic resources of organized crime groups, addressing the socio-economic inequalities that push children into these organizations , and cutting off the contact between children and the organizations by strengthening early intervention systems (ÇODEM ).

The current proposal carries the risk of remaining only a symbolic step in the legal field, rather than a comprehensive strategy for combating organized crime.

4.3. Critical Importance of Defining “Use as a Perpetrator”

The breadth of interpretation of the phrase “use as a perpetrator” (tetikçi olarak kullanma) in the law is critically important for the effectiveness of this provision in practice. If this definition is not broadened to include not only acts involving physical violence or homicide but also the use of children in simpler roles such as logistics, drug transport, or theft by criminal organizations, the deterrent effect of the law will be limited. A detailed and comprehensive legal definition will determine the power of the provision in combating organized crime.

Effectiveness Evaluation of Organized Crime Measures

Draft Measure	Short-Term Impact (Intended Outcome)	Expert Opinions and Long-Term Structural Risks
One-fold increase in penalty for organizations using children.	Increased individual deterrence for leaders and members of the criminal organization.	This penalty increase does not create an operational cost for the organizations; they have a high potential to easily recruit new members and continue their activity. The law increases only the punishment of the perpetrator, not the crime itself.
Mandatory follow-up and rehabilitation for minor offenses.	Children being separated from organizational structures at an early stage and protected.	Depends on the capacity of ÇODEM and the multidisciplinary quality of the follow-up. Inadequate rehabilitation and follow-up increase the risk of the child returning to the organization.
Socio-economic dimension of combating organized crime.	(Not directly addressed in the draft.)	The most fundamental solution: Addressing social inequalities and poverty that push children into crime through socio-economic policies.

5. Conflict of Legal Philosophy: Best Interest Principle and Punitive Tendencies

The new draft law threatens the critical balance in the criminal justice system between the principle of the child’s best interest and the public’s demand for punishment.

5.1. Narrowing of the Best Interest of the Child Principle

The Convention on the Rights of the Child mandates that all decisions concerning children must be based on the “child’s best interest.” Mandatory age reductions in TCK 31 are one of the most concrete safeguards embodying this principle in national law.

The removal of the reduction or leaving it to judicial discretion could mean prioritizing the public’s demand for revenge or punishment (retributive justice) over the child’s best interest when determining the child’s criminal liability (capacity for culpability). Application of comprehensive economic, social, and political policies and upholding the child’s best interest are fundamental requirements in combating juvenile delinquency. The new regulation jeopardizes this fundamental requirement.

5.2. Media Framing and the Risk of Stigmatization

Juvenile delinquency, especially in digital media, is often presented in a negative frame, with children being stigmatized and shown as “a threat or danger element.” User comments also generate and circulate this discriminatory and exclusionary hate speech, parallel to the news framing.

The legislature granting the judge the authority to impose a non-reduced sentence risks legitimizing this negative societal frame at the legal level. When a child is legally punished like a full adult, they are socially stigmatized in a way that is difficult to reverse. However, the main goal of the Child Protection Law is to reintegrate the child into society through rehabilitation; this approach reduces the child’s chances of social integration.

5.3. Risk of Transfer to the Adult Prison System and Judicial Burden

Children who receive non-reduced sentences will have an increased likelihood of physically remaining in adult penal institutions due to the length of their sentences. This represents a radical deviation from the child-specific security measures and protective structure that form the foundation of the ÇKK. International standards strictly require the separation of children from adult prisons. Transfer to the adult prison system multiplies the risks of physical, psychological, and sexual abuse for the child.

Furthermore, should the judge utilize the power to impose a non-reduced sentence, they will be required to justify this decision in detail—in a way that does not contravene the spirit of TCK 31, the child’s developmental level, and social investigation reports —to lay the groundwork for precedent case law. This will significantly increase the complexity of trials and the burden of justification during the appeal processes. If the scientific findings of mandatory forensic and social investigation reports can be easily disregarded by the judge’s discretion, the weight of expert opinion in the judicial process diminishes.

6. The Critical Balance Between Protection and Punishment

New Draft Law on Children Drafted into Crime. This draft law has the potential to mark a turning point in national policy regarding children involved in crime. While the draft supports the spirit of the Child Protection Law by taking positive steps with follow-up and rehabilitation for minor offenses, it simultaneously undermines the core protective philosophy of TCK 31 by proposing non-reduced sentences and expanded judicial discretion for severe crimes. This dichotomy threatens the consistency of the system.

6.1. Detailed Policy Recommendations for Implementation

In light of the analyzed data and the resulting legal conflicts, the following policy recommendations are presented to ensure the effectiveness and legal certainty of the regulation:

6.1.1. Tying Judicial Discretion to Strict Criteria

If the judge is granted the authority to impose a non-reduced sentence, the use of this authority must be strictly based on the scientific and definitive findings of the capacity to discern determination (TCK 31) and social investigation reports. Discretion should be tied solely to the proof that the child’s psychosocial maturity is at an adult level, independent of the severity of the crime. This must raise the standard for justifying decisions and mitigate the risk of arbitrariness. Considering the provision that child-specific security measures must be applied even if the children are mentally ill , treatment and protection specific to children should be prioritized over punishment.

6.1.2. Imperative for a Comprehensive Strategy in Combating Organized Crime

While the penalty increase for organizations using children is appropriate, for this measure to be effective, units like the Financial Crimes Investigation Board (MASAK) must also focus on the economic resources of these organizations, and social policies that address the socio-economic inequalities and poverty that push children into crime must be simultaneously strengthened. Punitive measures will remain superficial unless supported by structural reforms.

6.1.3. Immediate Increase in Rehabilitation Center Capacity

To fulfill the promise of follow-up and rehabilitation for minor offenses, the physical and qualified personnel capacity of Child Support Centers (ÇODEM) and similar support centers must be immediately increased. The scope of these centers’ activities should be broadened to cover all causes of involvement in crime, not just substance addiction. Sufficient capacity will play a key role in reducing the risk of stigmatization by diverting children in minor offense cases away from the justice system.

6.2. The Importance of Protective and Educational Justice

New Draft Law on Children Drafted into Crime. The legislative body should adopt a scientifically grounded approach aimed at ensuring the child’s long-term welfare and reintegration into society, rather than managing short-term public reactions. The juvenile justice system must inherently remain educational and protective, not punitive. Otherwise, punishing children like adults will create a system that violates international obligations while failing to increase public safety because it does not resolve the root causes of juvenile delinquency.