Evaluation of Amendments to Law No. 7499 on Custodial Sentence as One Condition Requiring Guardianship

Abstract

The provision of Article 407/1 of the Turkish Civil Code, which mandates that every adult who has been sentenced to a term of imprisonment of one year or longer, along with the related provisions of Articles 407/2 and 471 of the same Code, have been annulled by the Constitutional Court. To address the legal vacuum and potential uncertainties in practise arising from the delayed implementation of this annulment decision, the legislator has reorganised the relevant provisions. Because of these amendments, custodial sentences will continue to exist as a condition requiring guardianship, albeit under different conditions. In this context, the idea that every adult who begins to serve a custodial sentence of a minimum fixed term duration should be restrained has been rejected. With the new regulation, it is not possible to restrict an adult who is in a penal institution for the execution of a finalised prison sentence without his or her request for this reason. For persons who have been sentenced to a total of five years or more of finalised imprisonment, a restraining order may be issued ex officio if deemed necessary for the protection of their personality or assets. The guardianship of a person who is restricted due to their custodial sentence shall be terminated automatically upon the lawful termination of this sentence. If the total sentence of imprisonment during the execution process is less than five years, the guardianship over the person must be terminated upon the request of the person. If the total imprisonment is five years or more, the court, which will conduct an examination upon the request of the person, may decide to terminate the guardianship if the reason for the protection of personality or assets disappears.