Crime of defination

The basic aims and duties of the state in the preamble of the Constitution of the Republic of Turkey; "To protect the independence and integrity of the Turkish nation, the indivisibility of the country, the Republic and democracy, to ensure the welfare, peace and happiness of individuals and society; to remove the political, economic and social obstacles that limit the fundamental rights and freedoms of the person in a way that is incompatible with the social state of law and the principles of justice, and to prepare the necessary conditions for the development of man's material and spiritual existence." It was counted as . Again, in Article 2 of the constitution, the principle of respecting human rights is included among the fundamental characteristics of the Republic. One of the duties specified in Article 5 is to prepare the necessary conditions for the development of a person's spiritual existence. As a result of this duty, the state has to eliminate any danger to the honor and dignity of its citizens.

In this respect, the crime of insult is included in Article 125 of the Turkish Penal Code No. 5237, titled Crimes Against Honor. As stated in the justification of the article; The legal value protected by punishing acts of insult is the honor, dignity and honesty of individuals, their reputation in society, and their prestige in the eyes of other individuals. Thus, the constitutional obligation of the state is reflected in the regulation made in the criminal law.

According to the 1st sentence of the 1st paragraph of the 125th article of the Turkish Penal Code, the crime of insult is; It can be committed by attributing or cursing a person to a concrete act or fact that may offend his/her honor and dignity. In order for this crime to occur, the behavior must occur with the aim of humiliating the person. If the action carried out with one of the optional actions such as attributing a concrete act or fact or cursing is capable of offending the honor, dignity and respect of the individual, the crime of insult will occur.

Unlike the Turkish Penal Code No. 765, the law removes the distinction between insult and swearing and regulates the act of swearing as one of the optional acts of the crime of insult. Although it seems that the Turkish Penal Code No. 5237 aims to regulate crimes against honor together, some specific acts of insult are regulated in separate articles. For this reason, it should be noted that some acts such as insulting the president, inciting the public to hatred and hostility, or humiliating them are specifically regulated in separate articles.

PERPERT AND VICTIM IN THE CRIME OF INSULT

Anyone can be the perpetrator of the crime of insult. In this regard, no distinction is made. The perpetrator must be a real person. Legal entities cannot be the perpetrators of this crime. According to the regulations in the Press Law, in some cases the printer will be criminally liable. In case the printer is a legal person, the Press Law has no applicability against the Turkish Penal Code. For this reason, it should be noted that legal entities cannot be perpetrators in any way.

No specific characteristics were sought regarding the victim of the crime. Anyone can be a victim of this crime. There is no legal regulation stating that legal entities can be victims of the crime of defamation. Despite this, some opinions have been put forward in the doctrine that legal entities can be victims of crime. In our opinion, legal entities do not qualify as victims.

Crime can be committed against communities with or without legal personality. Therefore, it is possible for the community to become victims of the crime. For example, insulting a professional group causes the crime of insult. In such cases, a single crime of insult is deemed to have occurred. Every person in the community has the right to complain and follow up.

According to the Supreme Court, if one of the spouses is insulted, it is accepted that the other spouse is also insulted. T

According to TCK 125/5; If public officials working as a board are insulted due to their duties, the crime is deemed to have been committed against the members who make up the board. However, in this case, the provisions of the article regarding chain crimes apply. The fact that the crime is committed against public officials due to their duties is accepted as an aggravating circumstance.

The most important feature for the victim is that the victim is identifiable. In this respect, using a person's nickname to pronounce it is also considered an insult. Apart from this, if it can be determined to whom the insult was directed, it is still a crime. For example, if someone is insulted by using the term "known person" in a way that can be understood by everyone, a crime is committed.

DETERMINATION OF THE VICTIM IN THE CRIME OF INSULT

According to Article 126 of the Turkish Penal Code; Even if the name of the victim is not clearly stated in the commission of the crime of insult or the accusation is implicitly glossed over, if there is a situation that cannot be stopped when it is found to be of a nature and directed towards the person of the victim, both the name is stated and the insult is deemed to be explained.

As we stated above, if the victim of the crime of insult cannot be determined, the crime of insult will not occur. According to the justification of the article; In order for the crime of insult to occur, the victim must be identified or possible to be identified. With this article, the criterion is shown that when the identity of the victim is not clearly stated by the person who committed the crime, the name will be deemed to be stated and the insult to be declared.

In order to identify the victim, the perpetrator must use an expression that is understandable to everyone. The victim's nickname, or "that person", "known person", etc. used against a person known to have committed an action in a situation. expressions are in this scope. The Supreme Court decisions we will share below will help concretize the issue.

With witness statements, he insulted the participant O., the headman of the village of M..., where the defendant fed his animals, in front of the village mosque, with words such as "... Who was disturbed by my animals, did their horns sting somewhere, whoever complained about me, let the horns of the animals go up their ass, whoever complained, I'm talking to him...", these words were heard by the witnesses, and although the defendant did not mention the name of the participant in his insulting words, everyone knew that this was directed at the participant. In the face of the provision in Article 126/1 of the Turkish Penal Code, "Even if the name of the victim is not clearly stated in the commission of the crime of insult or if the accusation is implicitly passed over, if there is a situation that cannot be stopped when it is against the nature of the victim and the person of the victim, both the name is stated and the insult is declared.", whereas a verdict of conviction must be given based on the acceptance that the defendant insulted the participant, but an acquittal decision is given on the improper grounds that the insulting words were not directed at the participant. CD. K. 2015/3572

"In the action of the defendant, who was the canteen officer of the school where the participant served as the principal, writing insulting words such as "our principal is a... d**k..." under the post "Is your school principal with glasses or bald?" shared by the witness, who is a student of the same school, on his Facebook account, when the contradictory statements of the defendant about to whom he wrote these words and the scope of the entire file are evaluated together, when it was understood that these words were directed towards the person of the participant, the defendant was convicted of the crime charged instead. Giving an acquittal decision on the improper grounds that "the name of the victim was not clearly stated as stated in Article 126 of the Turkish Penal Code and there was no unmistakable clarity that the words spoken were directed at the person of the victim", 2-) Failure to take into account the fact that a fixed attorney's fee should be awarded in accordance with Article 324/1 of the CMK and Article 13/5 of the Minimum Fee Tariff for Lawyers, in favor of the defendant who was acquitted and had himself represented by an attorney. It is inaccurate." Y18. CD. K. 2015/3760

"At the rally organized by the provincial chairmanship of the political party, while the party leader and the participant who was the prime minister at the time of the crime was giving a speech, the defendant wore the t-shirt with the emblem on it and the words "Execution is carried out with care" and opened the banner saying "$ there is a thief $" in his hand. required." Y18. CD. K. 2019/30

HOW IS THE CRIME OF DEFINATION COMMITTED?

According to Article 125 of the Turkish Penal Code, the material elements of the crime of insult consist of attributing or cursing a concrete act or fact that may offend a person's honor, dignity and prestige. It should be said that this type of crime is an optional mobile crime.

1- Attributing a Concrete Act or Fact

The first of the material elements of the crime of insult consists of attributing a concrete act or fact that may offend a person's honor, dignity and prestige. As stated in the justification of the article; In order for the crime of insult to occur, a concrete act or fact must be attributed to the person. For example, if a public official is accused of receiving a certain amount of bribe from a person in exchange for a job, defamation is in question. It does not matter whether the concrete act attributed to the person is real or not in terms of the crime of insult. However, in cases where the alleged fact is proven to be true, the perpetrator will not be punished. This issue will be discussed below under the heading of proof of imputation.

To prove that the crime of insult was committed in this way, specificity is required in the alleged act. If there is no specificity regarding the time, place, subject and manner of realization of the act, it cannot be said that a concrete act or phenomenon is attributed to the person. Words that merely express value judgments are unacceptable in this context. When evaluating between value judgment and fact attribution, the criteria determined by the ECHR are taken into account. As stated in the established jurisprudence of the Supreme Court of Appeals CGK; According to the ECHR, it must first be determined whether the statements are an imputation of fact or a value judgment. While the attribution of fact is a verifiable matter, even requesting proof of a value judgment may be considered an interference with freedom of expression. If the statements that are the subject of the trial contain a value judgment and a concrete fact cannot be attributed, the ECHR considers whether there is a "sufficient infrastructure" to support the value judgments. Because it is accepted that even value judgments must contain a certain level of factual basis. On the other hand, a value judgment that is not based on any data and has no infrastructure is not accepted by the ECHR within the limits of freedom of expression. Regarding statements containing factual imputation, it is accepted that evidence that appears reliable at least at first glance must be presented. Of course, if this evidence cannot be presented, the ECHR expects the truth of the allegations to be proven.

But it would be wrong to conclude that words about value judgments will not be considered an insult. Because it is obvious that if a person is said a word containing an abstract value judgment such as "thief", that person will be offended. In this case, it must be said that the perpetrator committed the crime of insult by swearing.

As a matter of fact, in the justification of the article, this situation; "The crime of insult occurs when a person is attributed to a person abstractly, without associating it with any event. Words expressing a bad quality or habit still constitute the crime of insult, even though they are not associated with a concrete act or phenomenon. For example, if a person is called "tramp", "scoundrel", "animal", there is no concrete action imputation. Likewise, the person is called "thief", "briber", "thief", "briber", etc. in the abstract. "Insulting is also a crime if epithets such as "fraud" or "prostitute" are used." It is stated with expressions.

Words made based on the possibility of happening in the future cannot be considered as an attribution of concrete fact. For example, a statement such as "If this man is short on money, he will steal" cannot be accepted as an attribution of fact. However, here too, the crime of insult by swearing is considered to have been committed.

The imputation is required to be of a nature that could offend someone else's honor, dignity and prestige. Based on this, situations such as criticism, complaints, and curses should be evaluated. We will make these evaluations under separate headings below. However, it should be noted here that words that remain in the form of criticism, curses and rude words do not cause the crime of insult. Any harsh criticism or disturbing words directed at individuals should not be evaluated within the context of the crime of insult, and the words must clearly constitute an attribution of a concrete act or fact that may offend honor, dignity and prestige, or an act of swearing.

The imputed fact must offend the honor and dignity of the person. Each concrete event requires separate evaluation. While making an evaluation, the judge must take into account criteria such as customary rules, the personal characteristics of the victim, the time when the crime was committed, and the public opinion of the country.

The evaluation of whether the accusation offends the honor and dignity of individuals is made according to objective criteria. Whether an accusation is hurtful or not may vary depending on time, person and environment. What needs to be considered here is not whether the victim is actually hurt or not, but the common perceptions of people with the same social memory and similar social and intellectual positions regarding this act. (Murat Kayançiçek, Crimes Against Honor, 2008 ed. p. 67)

2- Swearing

Another optional act of the crime of insult is "swearing". While explaining the act of attributing facts above, we talked about specific and demonstrable concrete behaviors. We also made statements regarding value judgments. It should be noted that only words expressing value judgments will be accepted in terms of swearing. As a matter of fact, "swearing is uttering words that do not contain a concrete action or fact, express an abstract value judgment and may offend a person's honor, dignity and prestige." It is defined as . (Parlar, Ali/Hatipoğlu, Muzaffer, Turkish Penal Code Comment No. 5237, Yayın Matbaacılık, Ankara 2007.)

It is not possible to limit this way of committing the crime of insult. There is more than one word or behavior that can commit the crime of insult by swearing. The decisive criterion here is that the victim has been insulted. In addition, there is an opinion in the doctrine that, in addition to words, some actions that constitute the crime of injury can also constitute the crime of insult. Accordingly; It should be said that the essential element that distinguishes swearing from other similar crimes is the moral element. For example, slapping should be considered cursing unless there is an intention to injure. However, although it is expressed this way theoretically, it is difficult to reveal this distinction in practice. (Özbek, Doğan, Bacaksız Turkish Criminal Law Special Provisions 15th Edition p.512)

The crime of insult is also considered to have been committed in cases such as introducing people by stating their physical characteristics. According to the justification; The crime of insult is also committed by expressing a person's physical malfunction or attributing a disease to the person. No distinction is made between whether the phenomenon attributed to it is physical or psychological. For example, the person is called "blind", "cross-eyed", "lame", "hunchbacked", "bald", etc. by saying; Calling a person "psychopath", "syphilitic" or "with AIDS" commits the crime of insult.

For the element of swearing to occur, the perpetrator must direct his behavior towards a specific person or persons. A drunkard's cursing in public without a target is not considered an insult. Conditional swearing is not within the scope of the crime of insult. According to the decision of the 18th Criminal Chamber of the Supreme Court of Appeals No. 2016/14515:

"When it was understood that the defendant responded to the defendant's statement in the message he sent to the defendant that he would not give up his rights by saying "...if you have the right to me, do not do it for the sake of God, if you do, you are dishonorable...", it is wrong to decide on the defendant's conviction without taking into consideration that the accusation was expressed as a conditional or probable possibility and that it was not acted with the intention of insulting.

The crime of insult by swearing can also be committed through writing, pictures, signs or hand gestures. Here it is necessary to make an evaluation according to time and place. If the action offends the person, the crime of insult will be brought to the agenda. In its decision numbered 2006/12542, the 4th Criminal Chamber of the Supreme Court of Appeals ruled that "However, during the council meeting of the defendant, who is a Municipal Council Member, the words "declare your decency and good manners", clearly referring to the participant, were humiliating to the participant, these words emphasized that the interlocutor lacked decency and decency, and the acquittal was given on illegal grounds, without considering that the action constituted the crime of cursing the officer."

In another Supreme Court decision; "In the verdict established against the defendant for the crime of committing indecent acts towards the participant...; considering the participant's statements and the content of the CD, it was understood that the defendant tried to unzip his trousers and said "take this and pull this" towards the participant who recorded the incident on camera. Therefore, the verdict was made for the crime of committing indecent acts based on faulty evaluation, without considering that the defendant's action did not have a sexual purpose and constituted the crime of insult regulated in Article 125/1 of the Turkish Penal Code." (Y4.CD K. 2021/13783)

The person who is insulted does not need to be offended. Here, it is required that the act be of an offensive nature. Therefore, the fact that a person is more touchy or more careless than anyone else in the society he lives in will not be effective in the occurrence of the crime. It should be noted that in this form, the crime of insult is a crime of danger. The performance of the acts is sufficient for the crime to occur. As we mentioned above, the evaluation of whether the behavior offends the honor and dignity of individuals is made according to objective criteria. Whether an accusation is hurtful or not may vary depending on time, person and environment. What needs to be taken into consideration is not whether the victim is actually hurt or not, but the common perceptions of people with the same social memory and similar social and intellectual positions regarding this act.

Finally, it should be noted that abusive expressions considered as blasphemy constitute the crime of insult in any way. According to the decision of the General Criminal Assembly of the Supreme Court of Appeals numbered 2008/220; "Sinkaf words" are derogatory and insulting words at any time and in any environment, whether they are said to criticize the different practices of the police force in the adjacent Çiçekdağı district, whether they are said under the influence of drunkenness or for other reasons. In our case; The insulting words were said to the police officers on duty because they were trying to fulfill their duties, even if they were not directly targeted at the victims and were expressed more generally, including the institution to which the victims were members; Due to the environment they are in, they contain humiliating and hurtful emphasis on the police officers they are in and create the image of not using their authority fully. In this respect, the action is clearly an attack on honor.

Is cursing considered an insult?

It is necessary to distinguish between the act of cursing and the concept of curse. This distinction is expressed as follows in the CGK decision we share below.

The legal value protected by punishing insulting acts is the honor, dignity and prestige of individuals, and in order for this crime to occur, the behavior must occur with the aim of humiliating the person. Whether an action is insulting or not is relative in some cases and may vary depending on time, place and situation. Any harsh criticism or disturbing words directed at individuals should not be evaluated within the context of the crime of insult, and the words must clearly constitute an attribution of a concrete act or fact that may offend honor, dignity and prestige, or an act of swearing. On the other hand, in the Turkish Language Association's Great Turkish Dictionary, curse; "Wishing someone to be in a bad situation, wishing badly for someone, bad prayer, curse, curse" means "trouble"; It is defined as "an undesirable situation that is difficult to get out of, an event or person that causes great harm and distress, and deserved punishment."

It is not possible to accept words that wish the Creator to cause harm or distress to a person as an insult, unless they clearly contain a concrete act or fact imputation that could offend the honor, dignity and prestige of the person, or do not constitute the act of swearing.

In this context, a curse expressed only with the sentence "May God damn you" cannot be considered a crime within the meaning of Article 125 of the Turkish Penal Code, since it is not a concrete act allegation or cursing that, although disturbing, may offend honor, dignity and prestige. As a matter of fact, in the decision of the General Criminal Assembly dated 03.07.2001 and numbered 132-155; It has been pointed out that the words "God damn you" mean a request for divine punishment and a curse, and cannot be said to contain insult or ridicule. YCGK 2014/386 K.

As can be seen, curses are not considered as swearing. However, it is also observed that in some cases the Supreme Court accepts curse words as insults. These contradictory decisions lead to different evaluations. In our opinion, curse words should not be considered as insults under any circumstances. As we stated above, whether or not the crime of insult humiliates a person is determined not by whether the victim is actually hurt or not, but by looking at the common perceptions of people with the same social memory and in a similar social and intellectual position regarding this act. While the Supreme Court of Appeals considered it a crime to say the words "God damn you" to the court judge, in another decision it ruled that the same word was not a crime. Not making subjective evaluations in terms of the crime of insult and making decisions along the same lines will be beneficial in ensuring legal certainty. In fact, making these determinations should not be left to the discretion of the courts in terms of concrete concepts such as "curse". As a matter of fact, we think that every segment of society can distinguish between curses and curses.

Are Rude Words Considered Insults?

Rude words that do not amount to insults do not constitute a crime. Some Supreme Court decisions on the subject are as follows:

"Any severe criticism or disturbing words directed at people should not be evaluated within the context of the crime of insult; the words must clearly constitute a concrete act or fact imputation or an act of cursing that may offend honor, dignity and prestige. The elements of the crime of insult have not been formed since the uncivil and rude expression such as "are you a man..." spoken by the defendant towards the participant on the day of the incident was not at a level that offended the honor, dignity and prestige of the participant." Y4CD. 2021/2728 K.

"When the statements made by the defendant to the victim such as "I'm not being examined, what kind of doctor is this, who put this here, there is no disguise as a doctor" are evaluated as a whole, the words directed by the defendant to the victim are not at a level that offends the honor, dignity and respect of the victim, they are disturbing, rude and discourteous behavior - heavy criticism and the elements of the crime of insult are not formed." Y18 CD. 2017/8977

"In Article 125 of the Turkish Penal Code No. 5237, titled "insult", it is stated that: "Any person who attributes a concrete act or fact that may offend a person's honor, dignity and prestige, or attacks a person's honor, dignity and prestige by swearing, is punished with imprisonment from three months to two years or a judicial fine. In order for insult to be punished in the absence of the victim, the act must be committed by having sex with at least three people." It must be carried out with the aim of humiliating. If the action carried out with one of the optional actions such as attributing a concrete act or fact or cursing is capable of offending the honor, dignity and respect of the individual, the crime of insult will occur. Whether an action is insulting or not may vary depending on time, place and situation. All kinds of harsh criticism or disturbing words directed at people should not be evaluated in the context of the crime of insult, the words clearly refer to a concrete act or fact that can offend honor, dignity and respect. It must constitute the act of swearing. In the concrete case examined, it is against the law to decide on the defendant's conviction instead of acquittal for the crime of insult, without taking into consideration that the elements of the crime of insult are not met, since the words of the defendant, which were rude expressions such as "Does your family know about your ugly state?", which are accepted to be said to the participant on the day of the incident, did not offend the honor, dignity and respect of the participant. Y4CD 2021/19214 K.

"In the incident subject to trial, the defendant's words such as 'Who are you, are you a judge or a prosecutor', which are accepted to be uttered towards the participant, are discourteous and vulgar, and without considering that they do not constitute the legal elements of the crime of insult, instead of acquitting the defendant, a written judgment is made with improper justification," Y4CD. 2021/18639

"On the day of the incident, the defendant, who was a bailiff, wanted to enter the house to make a foreclosure and said, "Is this the top of the mountain?" Where are you entering? "Are you a bandit?" It was unanimously decided to overturn the verdict on the grounds that "the words such as "Are you a bandit?" and the rude address style were not at a level that offended the honor, dignity and prestige of the participant and the conviction was given without considering that the elements of the crime of insult were not formed." Y18CD K. 2017/12287

TYPES OF INSULT

The second paragraph of Article 125 of the Turkish Penal Code states: "In order for insult to be punished in the absence of the victim, the act must be committed with at least three people." It is arranged as follows. According to the conclusion of the article, the crime of insult can be committed in two ways: in the presence and in absentia. Again 125/2. Article "If the act is committed with a voice, written or visual message addressed to the victim, the penalty specified in the above paragraph is imposed." It is arranged as follows. Thus, committing the crime of insult through an audio, written or visual message addressed to the victim has been accepted as another type of insult in the presence of the victim.

1- INSULT IN PRESENCE

In this type of insult crime, the victim instantly learns about the insult directed at him. In this type, the victim witnesses the insult personally and there is no intermediary involved. The victim and the perpetrator do not need to be face to face. Visual and auditory perceptions produce the same result. However, the victim must have directly dealt with the insult, that is, must have witnessed the insult. According to the decision of the 4th Criminal Chamber of the Supreme Court of Appeals No. 2002/16137; It is against the law to give a verdict of conviction in accordance with Article 482/3 and paragraph of the Turkish Penal Code, without taking into consideration that the element of swearing to the face will not occur, since it is understood from the statement of the complainant and the mentioned witness that he did not hear the abusive words of the defendant towards him from the street while he was sleeping at the complainant's house, and that he heard the incident from his wife Kudret Bilir in the morning.

If the crime of insult is committed in presence, the crime is completed as soon as the victim learns of the insulting act. As we mentioned above, the crime of insult is a crime of abstract danger.

The question of when the victim will be considered ready has led to different opinions in doctrine and practice, and although some authors have argued that it is necessary for the perpetrator and the victim to come face to face and see each other; In the doctrine, it is stated by the majority of the writers that it is not necessary for the act to be committed directly in the face of the victim, that it is sufficient for the victim to hear the words spoken by the perpetrator and for the perpetrator to know this. The Italian Supreme Court of Appeals also accepted that the condition of peace is met "even if the victim is not physically present, if he is in a position to actually hear the words said due to the conditions of the crime scene", (quoted from Manzini, Erman-Insulting and Sövme Crimes, p. 103) In its decision dated 17.12.1973 and numbered 116/833; It has been stated that in the action of "the defendant, whose house was filled with soot from the stove lit by the victim, called the victim, whom he knew was inside the house, a vile woman" in a way that he could hear, the defendant's intention was not to insult in absentia, and that the action took place face to face.

Another point that causes disagreement on this issue is whether the victim must be required to hear and understand the words spoken in order to be considered ready, or whether just the opportunity to hear and understand will be sufficient.

"Although it is stated in the doctrine by Prof. S. Erman that "the victim's actual and direct learning of the insulting accusations is a must for the crime to be deemed to have been committed in the presence of others" (Erman, Sahir, Insult, p.103), Prof. D. Tezcan states, "It is sufficient for the perpetrator to have created the opportunity for the insulting word to be heard, whether the said word has actually been heard or not is not important for the application of the aggravating factor" (Erman, Sahir, Insult, p. 103) Tezcan, Durmuş, Private Criminal Law, p. 487) Prof. D. Soyaslan stated that "being in the presence means actually being present or being able to hear what is said and see what is shown." (Soyaslan, Doğan, Criminal Law Special Provisions, p. 222).

It has been accepted by the Italian Supreme Court of Appeals that there is insult in the presence of "if the victim cannot understand the real meaning of the accusations directed at him due to his imperfect hearing or absent-mindedness or existing noises, and learns this by asking the people present" (as cited by Erman, Insult, p. 104). The 2nd Criminal Chamber of the Supreme Court of Appeals in its decision dated 9.5.1950 and numbered 6580/5451. Similarly, it concluded that "in an act of insult committed in public, the hard hearing of the victim will not prevent the crime from occurring." YCGK 2003/25 K.

2- COMMITMENT OF THE CRIME OF DEFAMATORY WITH A VOICE, WRITTEN OR VIDEO MESSAGE

TCK 125/2. In the article; "If the act is committed with a voice, written or video message addressed to the victim, the penalty specified in the above paragraph is imposed." It has been said.

If the crime is committed in this way, the provisions regarding insult in public will apply. Accordingly, the crime of insult can be committed by letter, telephone, telegram, mobile phone (voice or message) or e-mail. Messages and conversations made through social media applications are also evaluated in this context.

In this type of insult, insulting words or behaviors must be sent or directed to the victim. For example, the phone conversation must be made with the victim or the messages must be sent to the vehicles used by the victim. Interviews with a third party cannot be evaluated within this scope. For example, a message sent to a third person is not sufficient to constitute the crime of insult. In this case, the application of the provisions regarding insult in absentia is subject to the condition of conflict.

However, in cases where the insult is committed by the means listed, and in cases where it is certain that the sent person will give these to the victim due to his close relationship with the victim, the crime of insult is committed in the presence of the person. Crimes committed through the press are also evaluated within this scope.

3- INSULT THROUGH THE INTERNET - SOCIAL MEDIA

There is no special regulation regarding the crime of insult being committed over the internet. However, considering that the internet is one of the tools mentioned above, it can be said that if the victim is insulted via the internet, the crime of insult is committed in presence. Insulting actions must be done in a way that the victim can see.

A crime occurs if an insulting post is shared, just as an insulting tweet is retweeted. Liking shares is not included in this scope. An example Supreme Court decision on the subject is as follows:

"The case is about the crime of insult with an audio, written or visual message. As soon as the Public Prosecutor learns of a situation that gives the impression that a crime has been committed, through a tip-off or any other means, he immediately begins to investigate the truth of the matter in order to decide whether there is a need to file a public lawsuit. If the evidence collected at the end of the investigation phase creates sufficient suspicion that the crime has been committed, he issues an indictment. Posts (retweets) mentioning the complainant on the Twitter account named @..., where the name and surname of the suspect are written. "It is clear that the existing evidence creates sufficient suspicion for an indictment that the crime of insult has been committed against the suspect. Whether the suspect's action is proven or not must be determined by discussing and evaluating all the evidence together. The decision of the Chief Public Prosecutor's Office regarding the non-prosecution of the suspect and the decision of the Criminal Court of Peace with different case number to reject the objection to this decision are against the law." Y18. CD. 2019/1445 K.

It is also possible to commit the crime of insult in absentia over the internet. If the perpetrator posts insulting content in an environment where the victim is not present, the crime of insult in absentia will occur. For this, a condition of separation is required. This form of crime is mostly seen in posts made from secret social media accounts. Apart from this, insulting posts made on public profiles should be considered as an insult in public.

There are also Supreme Court decisions stating that there is an element of publicity in the crime of online insult. In this case, the punishment to be given to the perpetrator is increased.

Although there is a problem of proof here, there are possibilities of identifying the perpetrators in various ways.

4- INSULT IN NIGHTLIFE

The type of insult in absentia, also known as controversial insult, is regulated in the second sentence of Article 125 of the Turkish Penal Code. Here, unlike acting in peace, the occurrence of the crime is conditioned on three people other than the victim learning about the incident. According to the justification of the article, this condition is a result of the criminal policy followed.

Acting in absentia occurs when a person is insulted in an environment where he is not present or in a way that he cannot be directly aware of.

In order for insult to be punished in absentia, the act must be committed in the absence of the victim and in the presence of at least three people. Whether these people are grouped or dispersed has no effect on the occurrence of crime. According to the justification; The victim can also be insulted by engaging with one or two people. In such cases, an injustice actually occurs. However, in accordance with the criminal policy followed, in order for insult in absentia to be punished, it is required that the insult be made by meeting at least three people in the absence of the victim, that is, by addressing at least three people.

Conversation can occur by meeting people one-on-one, or by sending a letter, phone call, SMS or e-mail to three or more people. However, for the element of ihtilat to occur, it is not enough for the perpetrator to say the words in an environment and in a way where at least three people can hear them; the interlocutors must personally understand and be knowledgeable.

THE CRIME OF DEFAMATORY AND THE RIGHT TO CRITICISM

It should be noted that critical remarks directed at individuals are exempt from the crime of insult. However, criticism must be measured in accordance with both the ECHR decisions and the Constitution and ECHR provisions. Because critical words will remain unpunished only within the scope of freedom of expression. In order to determine this criterion, it is necessary to observe international norms and make an evaluation at the constitutional level.

The decision of the Supreme Court Criminal General Assembly No. 2020/143 K. is very important due to its general evaluations regarding the crime of insult and its determinations regarding the measure of the right to criticism. The relevant parts of this decision are as follows:

"Freedom of expression, which is accepted as a natural right, has an indispensable and inalienable quality in pluralistic democracies. Although there are different definitions in the doctrine, it is generally accepted that freedom of expression/thought is the opportunity and freedom of a person to freely obtain ideas, not to be condemned for the ideas and opinions he has acquired, and to express them through legitimate methods. Freedom of expression, which is the "sine qua non" of democracy, is the basis of many rights and freedoms, and the personal freedom of expression. It is also the source of social development. Because of this feature, freedom of expression has been evaluated within the scope of fundamental rights and freedoms and has been subject to many international documents and has been subject to detailed regulations in the Constitution of the Republic of Turkey.

In this context;

Article 19 of the Universal Declaration of Human Rights states: "Everyone has the right to freedom to express his opinions and ideas. This right entails the right not to be disturbed because of one's opinions and to seek, receive and disseminate information and ideas through all media, regardless of frontiers."

In the first paragraph of Article 10 of the European Convention on Human Rights; "Everyone has the freedom to express and express his views. This right includes freedom to hold opinions and to receive and impart information and ideas regardless of frontiers or interference by public authority. This article does not prevent states from subjecting radio, television and cinema enterprises to a permit regime."

When we look at our Constitution;25. in the article

Under the title of "Freedom of thought and opinion"; "Everyone has the right to freedom of thought and opinion. No one can be forced to express their thoughts and opinions for any purpose. He cannot be condemned or blamed for his thoughts and opinions."

26. In the article, similar to the regulation in the first paragraph of Article 10 of the ECHR;

"Everyone has the right to express and disseminate his thoughts and opinions, individually or collectively, through words, writings, pictures or other means. This freedom includes the freedom to receive and impart information and ideas without interference from official authorities. The provision of this paragraph does not prevent broadcasts made through radio, television, cinema or similar means from being connected to the permit system."

European Court of Human Rights regarding the issue; "Freedom of expression constitutes one of the fundamental foundations of a democratic society, one of the essential conditions for the progress of society and the development of every human being. Freedom of expression applies, within the limits of Article 10, not only to 'information' and 'ideas' which are favorably received or regarded as inoffensive or indifferent, but also to news and ideas which are offensive to, striking or disturbing the State or a section of the population. These are the requirements of pluralism, tolerance and broad-mindedness; these are the requirements of pluralism, tolerance and broad-mindedness." This means, among other things, that every 'formality', 'condition', 'prohibition' and 'penalty' imposed in this field must be proportionate to the legitimate aim pursued." stated the following opinion ( Handyside / United Kingdom, App. No: 5493/72, 07.12.1976 ). As can be seen, freedom of expression (thought) is guaranteed in the broadest sense in the first paragraph of Article 10 of the Convention and Articles 25 and 26 of the Constitution.

In today's libertarian democracies, with exceptions, a wide range of expressions of thought are protected and the rights provided by freedom are enjoyed to the fullest extent by being evaluated within the scope of freedom of expression.

However; Slander, swearing, words and statements that damage honor, dignity and prestige, obscene words, writings, pictures and statements, incitement to war, statements that aim to change the legal order through force and create hatred, discrimination, hostility and violence do not receive legal protection in the context of freedom of thought, and are subject to criminal sanctions by being considered a crime.

The legal value protected by punishing insulting acts is the honor, dignity and prestige of individuals, and in order for this crime to occur, the behavior must occur with the aim of humiliating the person. Whether an action is insulting or not is relative in some cases and may vary depending on time, place and situation.

Criticism, on the other hand, is the views and thoughts put forward in order to examine any person, work, event or subject in depth, in depth, in every aspect, to measure and evaluate it according to certain criteria, and to display its right and wrong sides. Although disliking is generally accepted as finding fault, there is no doubt that one of the purposes of criticism is to make the subject understandable, draw conclusions and direct the society.

Any serious criticism or disturbing words should not be evaluated in the context of the crime of insult, and the words must clearly constitute an attribution of a concrete act or fact that may offend honor, dignity and prestige, or an act of swearing."

Insult and Criticism through the Press

It should be noted that the right to criticism is frequently used by the media. In examining the crime of insult through the press, it is necessary to examine whether the expressions used are insulting to people and whether they exceed the limits of freedom of expression. Otherwise, there will be a violation of the constitutional right to inform. In order for an event to be considered criticism, it must meet the following conditions:

1- The event must be real.

2- The incident must be current.

3- There must be public interest in disclosing the news.

4- There must be an intellectual connection between criticism and the crime committed.

It should also not be forgotten that; Journalists in particular have the right to exaggerate to some extent.

Due to the importance of the issue, we find it appropriate to examine another Supreme Court decision below:

" In the concrete case subject to review; In the news about the participant and the interview content published in Bizim Antalya Newspaper and on the newspaper's website, "Is Mr. M. using his parliamentary role when threatening you?", "... is lying..", "How did he shout at ......", "Who received the prison sentence of 1 year and 8 months?", "Did ... protect the defendant?", "Why did he fire the victim?", "... did my wife, the deputy prime minister, threaten to put you in prison?", "How did he threaten the victim with..., AK Party?" It is understood that statements such as "were from the AK Party, we will slander you" were included.

First of all, it should be noted that, although it is clearly understood that the statements in the news content are disturbing, the statements in the news and the news headline must be evaluated in the context of freedom of expression, which is given special importance in the Constitution, ECHR and ECHR jurisprudence.

Freedom of expression, which is accepted as the ability of a person to freely access news, information and the ideas of others, not to be condemned for the thoughts and opinions he has acquired, and the ability to freely express, defend and disseminate them in various ways alone or together with others, constitutes one of the main elements that form the basis of a democratic society and one of the basic conditions necessary for the progress of society and the development of the individual.

Article 26 of the Constitution states, "Everyone has the right to express and disseminate his thoughts and opinions, individually or collectively, through speech, writing, pictures or other means." provision is included. In addition, this right has been the subject of many international documents and court decisions. The ECHR, whose jurisdiction Türkiye has accepted, has reiterated in many decisions that, without prejudice to the 2nd paragraph of Article 10 of the European Convention on Human Rights (the Convention), freedom of expression applies not only to "information" and "ideas" that are accepted by society or considered harmless or irrelevant, but also to information and ideas that hurt, shock or worry. According to the ECHR, freedom of expression is a requirement of pluralism, tolerance and open-mindedness, without which we cannot talk about a "democratic society".

The ECHR has stated in many of its jurisprudence that Article 10 of the Convention safeguards not only the substance of the ideas or information expressed, but also the manner in which they are conveyed. In this sense, in the jurisprudence of the ECHR, the press is accepted as one of the spokespeople of the society and with the idea that everyone has the right to obtain information that concerns the public, a special importance is attached to the freedom of the press, which allows providing information and ideas on issues that concern the public.

According to the ECHR, it must first be determined whether the statements are an imputation of fact or a value judgment. While the attribution of fact is a verifiable matter, even requesting proof of a value judgment may be considered an interference with freedom of expression. If the statements subject to trial contain a value judgment and a concrete fact cannot be attributed, the ECHR considers whether there is a 'sufficient infrastructure' to support the value judgments. Because it is accepted that even value judgments must contain a certain level of factual basis. On the other hand, a value judgment that is not based on any data and has no infrastructure is not accepted by the ECHR within the limits of freedom of expression.

As for statements containing factual imputation, it is accepted that evidence that appears reliable at least at first glance must be presented. Of course, if this evidence cannot be presented, the ECHR expects the truth of the allegations to be proven.

As a result, some of the expressions used in the news texts published in the newspaper of which the defendant is the editor-in-chief and in the interview conducted by the defendant have the nature of value judgments with a factual basis. In this respect, they cannot be accepted as attributing a concrete act or fact. Although some statements point to a concrete fact, the content of the article and interview are based on real information and it is not intended to deceive other people with this information. AİHM içtihatlarında da belirtildiği üzere, özellikle gazeteciler bir dereceye kadar abartma hakkına sahiptirler. The expressions in the article and interview content, considering the place and time in which they are uttered, are not at a level that offends the honor, dignity and respect of the participant, but are in the nature of criticism.

Otherwise, it may mean an immeasurable expansion of the value sought to be protected by crime and an interpretation that is incompatible with the idea of universal law that prioritizes freedom of expression. In this respect, it is against the law to give a verdict of conviction instead of acquittal of the defendant, regardless of whether the elements of the crime of insult are present in the concrete case. Y4.CD. 2021/11709 K.

CLAIM AND DEFENSE IMMUNITY IN THE CRIME OF DEFAMATION

As a result of the freedom to seek rights regulated in Article 36 of the Constitution; Everyone has the right to a fair trial and to claim and defend as plaintiff or defendant before the judicial authorities by using legitimate means and means.

A regulation parallel to the Constitution has been added to Article 128 of the Turkish Penal Code, and immunity from claim and defense has been regulated as a reason for compliance with the law. This situation is also stated in the justification of the bill; "The text of the article regulates the immunity of claim and defense, which is a reason for compliance with the law and is also guaranteed in our Constitution (Article 36)." It is expressed as follows.

128. According to the article; If concrete allegations or negative evaluations are made about individuals within the scope of written or oral applications, claims and defenses made before judicial authorities or administrative authorities, no penalty will be imposed. However, for this to happen, the accusations and evaluations must be based on real and concrete facts and must be related to the dispute.

When it comes to immunity of claim and defense, the first thing that comes to mind is the words and imputations used in trial activities. The situation in terms of judicial authorities is as follows; party to the case; The defendant, plaintiff, personal plaintiff, participant, defendant and prosecutor may make certain allegations under certain conditions in order for the claim and defense to be made properly. While doing this, it is foreseen that they may sometimes use expressions that degrade their interlocutors, and such actions should be considered lawful, provided that they are proportionate to the necessity of the claim and defense. However, in order to benefit from the right to claim and defense immunity, the following conditions are required:

a) The action must be done in writing with documents in the nature of claim or defense, or orally during the claim and defense (Form requirement),

b) The action must be taken in petitions submitted to the judicial bodies or in the presence of these bodies (Location requirement),

c) Not exceeding the limit when exercising the right (Proportionality condition).

Here, it is necessary to especially emphasize the condition of proportionality. If the expressions used within the scope of claim and defense activities exceed the limits, it will be necessary to mention the crimes of insult or slander. Therefore, it should be noted that it will not be possible to talk about immunity from claim and defense in acts of swearing. In the following decision of the Supreme Court of Appeals, it was stated that the lawyer should be convicted because the words spoken were considered as swearing and exceeded the limit:

"In the concrete case, the defendant, who served as the defendant's attorney, exceeded the limits of defense by making an assessment that the "plaintiff" was an intruder and thief, by expressing in an abstract and derogatory way of expression, without relying on any information or documents, that the new evidence was "dubious, obtained as a result of rape and theft", just like the plaintiff's other evidence, even if it was for the purpose of refuting the evidence in the plaintiff's response petition, and that he had immunity from defense. It must be accepted that it violates the "condition of proportionality".

In this respect, it should be decided to overturn the decision to resist, which is not deemed appropriate, since the defendant's action exceeded the limits of defense immunity and constituted the crime of swearing."

According to the regulation in the Turkish Penal Code, applications made to administrative authorities as well as judicial authorities remain within the scope of immunity of claim and defense. In authorities other than this, it is not possible to benefit from the immunity of claim and defense due to legality. Nitekim gerekçede belirtildiği üzere; Everyone who has the right to live in a society of law has the right to demand from the state to prevent crimes from being committed and to punish criminals because they are disruptive to social peace. An individual who learns that a crime has been committed has the right to report or complain about it to the competent authorities.

The following statements are included in the justification and the conditions of immunity for claim and defense are explained as follows:

- Within the scope of claim and defense, concrete allegations about individuals must be true and negative evaluations must be based on concrete facts. Likewise, concrete allegations or negative evaluations must be related to the dispute; However, it should not be expected to be useful in terms of resolving the dispute.

- Even if the allegations that are not related to the concrete dispute are real, the existence of immunity from claim and defense cannot be mentioned. Likewise, it is not possible to exercise the right to claim and defend in terms of negative evaluations that are unrelated to the dispute, even if they are based on concrete facts.

- Although they are related to a concrete dispute, it is not possible to consider defamatory writings and words that exceed the limits of claim and defense within the scope of the right to claim and defense. However, the use of these expressions can be tolerated. Because, in such cases, the limits of claim and defense are often exceeded by the influence of anger and wrath. In fact, the state of anger and rage is a factor that affects the ability of will, which is an element of culpability, and this situation should be evaluated in the context of determining the fault of the person due to the crime of insult committed.

REASONS FOR PERSONAL IMPUNITY IN THE CRIME OF INSULT

The legislator accepted the applicability of the provisions of unjust provocation in the crime of insult, but introduced special regulations different from the general provisions. Accordingly, if the crime of insult is committed as a reaction to an unfair act, the penalty may be reduced by up to one third or the penalty may be waived.

129. In the 2nd paragraph of the article, it is stated that the crime is committed as a reaction to the crime of intentional injury. Accordingly; If the crime is committed as a reaction to the crime of intentional injury, the person is not punished.

The third paragraph of the article regulates mutual insults. According to the article; If the crime of insult is committed mutually, depending on the nature of the incident, the penalty to be imposed on both or one of the parties may be reduced by up to one third, or the penalty may be waived.

Bir diğer şahsi cezasızlık sebebini ise isnadın ispatı oluşturur. Based on this systematic, each case will be evaluated under separate headings.

A- PROOF OF THE ACCUSATION IN THE CRIME OF DEFINATION

We mentioned above that one of the optional actions of the crime of insult is proof of accusation. Insulting actions committed in this way will be punished. However, in some cases, the legislature has given the accused the chance to escape punishment. It should not be forgotten that the possibility of salvation will only come to the fore in the presence of actions involving the imputation of facts. Acts of swearing cannot be evaluated within the scope of this article.

According to Article 127 of the Turkish Penal Code; If the alleged and criminal act is proven, the person will not be punished. If a final conviction is given against the person insulted for this crime, the accusation is deemed proven. In other cases, acceptance of the request for proof of the accusation depends only on the public interest in understanding whether the alleged act is true or not, or on the complainant's consent to proof.

As can be understood from the regulation, the following conditions must be met in order for the perpetrator to benefit from the right of proof in defamation cases made by imputing a concrete act or fact:

1-The accusation relates to an act that constitutes a crime,

2-There is a public interest in understanding the accuracy of the alleged act or phenomenon,

3-The victim of the crime of insult must consent to the proof of the accusation.

As stated in the justification of the law article:

According to the system accepted in the text of the article, in order to prove the accuracy of the accusation, the accusation must be related to a criminal fact. In other words, the person must have been insulted because he committed a certain crime. In addition, at the time the insult is made, a verdict must not have been given against the person for the crime that is the subject of the accusation.

In this system, the accuracy of the accusation is not proven in the court where the lawsuit filed for the crime of insult is heard. The court where the lawsuit filed on the grounds that the crime of insult has been committed should consider it as a pending matter to find out whether this crime has actually been committed, in case the concrete factual allegation constitutes a crime, and should therefore wait for the outcome of the lawsuit that has been filed or will be filed. Proof of the accuracy of the accusation can only be made in the relevant court in the context of a criminal case filed due to the fact of the crime in question.

If, as a result of the criminal case filed due to the fact of the crime in question, a final conviction is given against the person insulted due to this crime; The accusation is deemed proven and in accordance with the first paragraph of the article, the person making the insult is not punished.

However, if the insulted person is acquitted by a final verdict in the lawsuit filed against him due to the alleged act, the accusation is deemed not proven and the insulted person is punished. In case of a decision of non-prosecution or dismissal of the case filed against the person who has been insulted due to the alleged act; The accuracy of the accusation will be deemed not proven.

According to the second paragraph of the article; If a person is insulted by an act that has been proven to have been committed in a case that has been finalized, a penalty is imposed. Thus, it was emphasized that it is unacceptable for a person who was previously convicted for a crime to be insulted by this crime.

There is no doubt that if the person against whom a decision of non-prosecution or a decision of dismissal or acquittal of the case has been made as a result of the investigation initiated, is insulted with reference to the act that is the subject of the investigation or prosecution, the insulter will be punished.

B- COMMITMENT OF THE CRIME OF DEFAMATORY AS A REACTION TO AN UNFAIR ACT

The legislator has introduced a special provocation regulation for the crime of insult, unlike the general unfair provocation regulated in Article 29 of the Turkish Penal Code. When the conditions for the application of Article 129 of the Turkish Penal Code are met, the trial will be carried out within the framework of this provision and the provisions of Article 29 will not be taken into account.

The biggest difference between the two provisions stems from the requirement that the crime must be committed "under the influence of anger or severe pain caused by an unjust act". According to the opinion of the General Criminal Assembly of the Supreme Court of Appeals, which we also agree with; In Article 129, it is deemed sufficient that the act of insult is committed as a reaction to an unfair act, and it is not required that the act be committed under the influence of anger or severe pain. The crime must have been committed as a sudden reaction to an unjust act.

In order for the provision of TCK 129/1 to be implemented, there must be an unfair act. If you pay attention, the injustice of the act is sufficient and the crime is not required. Therefore, the first condition for unfair provocation reduction due to the crime of insult is the existence of an unfair act.

The tort here does not have to be a tort in the sense of private law. It is necessary and sufficient that the act is against the law. However, it is not considered appropriate to respond to every unlawful act with insults. There must be a proportionality between insult and tort.

The insult against the tort must be committed within the causal link. As in the general unfair provocation provisions, here too, the tort does not necessarily have to be directed towards the perpetrator, but the reaction must definitely be directed towards the person who committed the tort.

C- MUTUAL INSULT CRIME

TCK 129/3. According to the article; If the crime of insult is committed mutually, depending on the nature of the incident, the penalty to be imposed on both or one of the parties may be reduced by up to one third, or the penalty may be waived.

In order for this provision to be implemented, the crime committed mutually must be the crime of insult, the first action must be insulting and unfair, and there must be a causal link between the two actions.

As stated in the justification of the article, in cases of mutual insult, the judge may reduce the penalty to be given to both or one of the parties, taking into account which is the reason, or may refrain from imposing a penalty altogether.

In cases of mutual insult, it is generally decided that there is no need to impose a penalty.

"While it should have been determined that the incident was a mutual insult and that "there is no need to impose a penalty" in accordance with Article 129/3 of the Turkish Penal Code, it is erroneous to decide "to waive the punishment" after the verdict is given." Y3. CD. K. 2019/21058

D- COMMITMENT OF THE CRIME OF INSULT AS A REACTION TO THE CRIME OF INTENTIONAL INJURY

According to TCK 129/2; If this crime is committed as a reaction to the crime of intentional injury, the person will not be punished.

The legislator has included a reason for impunity, limited only to intentional wounding crime. Other crimes and the crime of negligent injury are not within this scope.

The insult must be committed by the person to whom the act of intentional injury is directed. Additionally, the insult must be directed at the person who committed the intentional injury.

QUALIFIED CONDITIONS OF THE CRIME OF DEFINATION

TCK 125/3. The article includes qualified forms of the crime of insult. Accordingly; The crime of insult;

a) Due to his duty towards the public official,

b) For explaining, changing and trying to spread his religious, political, social and philosophical beliefs, thoughts and opinions, and for acting in accordance with the orders and prohibitions of the religion he belongs to,

c) If the crime is committed with reference to values considered sacred according to the religion the person belongs to, the lower limit of the penalty cannot be less than one year.

But aggravating circumstances are not limited to this article. 125/4 of the law. According to the regulation in the article, committing the crime publicly will cause the punishment to be aggravated.

The fact that the crime of insult is committed against a public official is considered a qualified situation is subject to objection and has been brought to the Constitutional Court. According to the issues stated in the justification of the objection; "The investigation procedure and punishment envisaged in the contested rules have a deterrent effect on individuals' freedom of expression and eliminate the possibility of monitoring the public by citizens, providing greater protection to public officials in the crime of insult than other persons in the crime of insult by the rules and investigating the crime in question without seeking a complaint are incompatible with the principles of the rule of law and equality before the law, and this situation also violates the right to a fair trial. Prescribing imprisonment for the said crime causes disproportionality between crime and punishment, and this situation requires the state to protect the fundamental rights and freedoms of individuals." "It has been claimed that the rules are contrary to the 2nd, 10th, 26th, 36th and 40th articles of the Constitution, stating that they are incompatible with its obligations and are not compatible with the international agreements to which our country is a party."

We agree with the above reasoning and think that this king is unconstitutional. However, in its decision numbered 25.12.2025 T and 2025/277 K., which is the subject of the objection, the Constitutional Court decided to reject the objection because the rule is not contrary to Articles 2 and 10 of the Constitution.

Finally, TCK 125/5. It is necessary to mention the regulation in . Accordingly, if the crime is committed against public officials working as a committee due to their duties, chain crime provisions will be applied.

Based on the frequency of encounters in practice, the case of committing the crime openly will be examined under a separate heading.

PUBLIC COMMITMENT OF THE CRIME OF INSULT

As stated in the justification section of Article 125 of the Turkish Penal Code, the basic criterion sought for publicity is that the act is not specific due to the circumstances in which it took place and can be perceived by more than one person.

According to the decision of the 18th Criminal Chamber of the Supreme Court of Appeals No. 2019/13140; TCK 125/4. In order for the publicity foreseen as an aggravating factor in the article to be possible, the presence of others at the scene is not sufficient, the insult must have the possibility of being seen, heard and perceived by an undetermined number of people and everyone, and must be committed in places open to everyone without any restrictions.

It is accepted that crimes committed through the press contain the element of publicity. Again, the Supreme Court ruled that there is an element of publicity in posts made publicly on the internet.

Public places open to the public and places that anyone can enter are considered public. In this respect, places such as parks, gardens, streets and coffee houses are considered places where the element of publicity will occur. The existence of the element of publicity is not dependent on conflict.

PUNISHMENT FOR THE CRIME OF INSULT

The basic case of the crime of insult requires a prison sentence of 3 months to 2 years. In terms of penalty rates, there is no difference whether the crime is committed in presence, in absentia, or through means of communication. The crime of insult;

a) Due to his duty towards the public official,

b) For explaining, changing and trying to spread his religious, political, social and philosophical beliefs, thoughts and opinions, and for acting in accordance with the orders and prohibitions of the religion he belongs to,

c) Talking about the values that are considered sacred according to the religion the person belongs to,

If committed, the lower limit of the penalty cannot be less than one year.

If the insult is committed publicly, the penalty is increased by one sixth.

If public officials working as a board are insulted due to their duties, the crime is deemed to have been committed against the members who make up the board. However, in this case, the provisions of the article regarding chain crimes apply.

CRIME OF DEFAMATORY COMPLAINT, TRIAL, CONCILIATION AND PAYMENT

The pursuit of qualified cases of the crime of insult, other than its basic form and the fact that it is committed against a public official due to his/her duty, depends on the complaint of the victim. The complaint period is 6 months from the date the victim learned about the act and the perpetrator. However, with Law No. 7511 (9th Judicial Package) and TCK art. According to the last amendment made in Article 131; The complaint period for the crime of insult cannot exceed two years from the date of the act, in any case. If the crime is committed against a public official due to his/her duty, a complaint is not required and the investigation is carried out ex officio by the prosecutor's office.

Current Status of Conciliation and Prepayment Institutions: In the past years, cases of the crime of insult that were subject to complaint were subject to conciliation provisions. However, as a result of the latest developments in the legislation (the annulment decision of the Constitutional Court dated 27.03.2025 and the subsequent legal regulations made with the 11th Judicial Package), the system has completely changed.

According to the current legal situation; All forms of the crime of insult, except the crime committed against a public official due to his/her duty, are included in the scope of prepayment. Code of Criminal Procedure art. Since conciliation provisions cannot be applied in crimes within the scope of prepayment in accordance with Article 253/3, the conciliation procedure is no longer applied in the crime of insult, and direct prepayment provisions (TCK Article 75) are applied. The minimum down payment amount determined for the year 2026 in the crime of insult is 9,000 TL, and it is offered to the suspect by adding notification and other trial expenses to this amount at the prosecution stage.

As a result, it cannot be said that the rule that creates a difference between the perpetrator who commits the crime of insult through an audio, written or video message addressed to the victim and the perpetrator who commits the crime of insult directly in the presence or in absentia, without an objective and reasonable basis, in terms of the application of the prepayment provisions, is compatible with the principle of equality before the law." AYM 2024/197 E.

After the annulment decision, Article 75 of the Turkish Penal Code was amended. According to the regulation introduced with the 11th judicial package, the crime of insult has been included in the scope of prepayment. Prepayment institution will be applied in all cases except when the crime is committed against a public official due to his/her duty. The minimum payment amount for the crime of insult for 2026 is 9,000 TL. Trial expenses are also added to this amount.

In case of insult, a HAGB decision may be given against the perpetrator.

The trial of the crime is carried out by the criminal courts of first instance.

The statute of limitations for the lawsuit is 8 years.

CHAINING CRIME APPLICATION IN THE CRIME OF INSULT

Chain crime provisions may be applied in the crime of insult. If the crime is committed against the same victim at different times, chain crime provisions apply. However, in crimes committed against more than one victim with the same action, it is necessary to punish each victim separately.

TCK 125/5. According to the special regulation in the article; If public officials working as a board are insulted due to their duties, the crime is deemed to have been committed against the members who make up the board. However, in this case, the provisions of the article regarding chain crimes apply.

CRIME OF INSULT AND THREAT

The crime of insult should be distinguished from threat crime. In some cases, the perpetrator's behavior may contain the element of insult and may be aimed at threatening the victim. In such cases, the incident should be considered as a whole and it should be determined whether the perpetrator's intention is to offend or threaten the victim. According to the following CGK decision:

"During the hearing of the trial held on file number 2013/100 of Denizli 2nd High Criminal Court on 14.05.2013, the defendant... said "I will kill you!" to the complainant..., whom he held responsible for the deterioration of his business, the closing of his shop and the obstacle to his marriage. Even though it was understood that he said words such as "I will fuck your mother and woman!", this issue was recorded in the minutes by the court panel and the Local Court found the defendant's action to be proven and made separate convictions for the crimes of insult and threat;

The presence of hostility between the defendant and the complainant due to the public case being carried out in Denizli 2nd High Criminal Court, the defendant's statement in his defense that he may have said the incriminating words because he was angry, the words said by the defendant to the complainant, "I will fuck your mother and women!" "I'll kill you!" In the face of the fact that it was said immediately after the threatening words; "Considering the behavior exhibited at the time of the action, it should be accepted that the words spoken by the defendant, who has no doubt that he acted with the intention of threatening, constitute the crime of threatening life and sexual immunity for the future in the context of the entirety of the incident." YCGK 2021/38 K.

Again, in a decision of the 4th Criminal Chamber of the Supreme Court of Appeals dated 2019, "The words that the defendants allegedly said to the attendee, "We will put you downstairs, we will dig your mother, if you do not come, we will come up" and to the other attendee, "I will go down your mother, woman and daughter-in-law", were described as the crime of insult, without considering that they constituted the crime of threat regulated in the 106/1-1 sentence of the Turkish Penal Code, and the defendants and the other party were treated as a crime of insult. It was stated that "it was decided that there was no need to impose a penalty in accordance with Article 129/3 of the Law, considering that the insulting actions of the defendants were mutual."