Blackmail crime

According to the TDK, blackmail, which means "intimidating a person with the threat of spreading or revealing a tainting, discrediting news about him/her in order to gain any benefit", is an optional type of crime regulated in Article 107 of the TCK. Accordingly, the crime of blackmail is committed by threatening to disclose or impute matters that will harm a person's honor or reputation in order to force a person to do or not do something that is illegal or not obligatory, or to obtain unfair advantage, by betting that he will do or not do something that he is entitled to or obliged to do, or to benefit himself or someone else.

The crime of blackmail has been described as a special form of the crime of threat. Moreover, the literal meaning of blackmail is stated as threat. As a matter of fact, the 2nd paragraph of the article contains the expressions "the threat that matters that will harm the honor or reputation of the person will be disclosed or attributed".

The crime of blackmail aims to protect the person's freedom of will and action. The second paragraph aims to protect the honor and dignity of individuals. It can also be said that property values are protected by the crime of blackmail, since one of the optional acts of the crime is "forcing them to obtain unfair advantage".

PERPECTANT AND VICTIM IN BLACKMAIL CRIME

Anyone can be the perpetrator of blackmail. However, in order for the crime defined in the first paragraph to occur, the perpetrator was required to have any legally protected rights or to have an obligation. Therefore, the perpetrator must meet these conditions.

There are no specific characteristics required for the victim of blackmail. Anyone can be a victim of this crime.

ELEMENTS OF BLACKMAIL CRIME

As we mentioned above, the crime is regulated as an optional mobile crime type. The crime can be committed with 3 different actions. In the first paragraph of Article 107, the first two optional acts of the crime are regulated. In order for these actions to be considered a crime, as we mentioned in the title of perpetrator, the perpetrator must force the victim by betting that he will do or not do something that he has the right or obligation to do. As a matter of fact, in the justification of Article 107, "With the article, acts of blackmail have become a crime. Blackmail also involves forcing a person to do or not do something. However, in this case, there is no coercion on the grounds that a harm will be done to the person or a value that the person has will be attacked. On the contrary, the person forces someone else by betting that he will do or not do something that he has the right or obligation to do. For example, he will gain a benefit by betting that the person will report a person who has committed a crime." "It is both a right and an obligation for individuals to report a crime that has been committed. Similarly, if a journalist forces a political figure to provide benefits on the grounds that he will not report on the corruption allegations made against him if he gives him a certain amount of money, the crime of blackmail occurs." Expressions were used.

In the second paragraph of the article, the third optional act of the crime, the act of threatening to disclose or impute matters that will harm the honor and reputation of the victim, is regulated. In terms of this action, it is not necessary for the perpetrator to force the victim by betting that he or she will do or not do something that he or she has a right to do or is obliged to do. The following example for this situation is included in the justification of the article: "For example, the crime of blackmail occurs when a businessman is forced to provide benefits or donate to an organization in exchange for not mentioning his name in a newspaper report about corruption cases that are on the public agenda."

Accordingly, in order for the crime of blackmail to occur, one of the following optional actions must be performed.

1- Forcing the victim to do or not do something that is illegal or for which he is not obliged, (TCK 107/1)

2-Forcing the victim to obtain unfair advantage, (TCK 107/1)

3- Threatening that matters that will harm the honor and reputation of the victim will be disclosed or attributed. (TCK 107/2)

These movements will be discussed in detail under separate headings below. The 1st and 2nd articles will be examined under the title 107/1 and the 3rd article will be examined under the title TCK 107/2.

BLACKMAIL CRIME RELATING TO SOMETHING TO WHICH THE PERSON IS ENTITLED OR LIABLE (TCK 107/1)

In this optional action, the victim is forced to do or not do something. However, as stated in the justification of the article, in this case, there is no coercion on the grounds that a harm will be done to the person or a value that the person has will be attacked. On the contrary, a person forces someone else by betting that he will do or not do something that he has the right or obligation to do.

For a crime to occur, the perpetrator must threaten the victim regarding an issue that is his or her right and obligation. If the perpetrator has no rights or obligations, no crime will occur. There is a right that is legal to use here. For example, reporting a person committing a crime is a legitimate action. However, when the perpetrator aims to gain benefit from the victim by abusing this right, he will commit a crime. To give another example; It is not against the law for a person working in a company that issues fake invoices to report this action. In fact, if the person simply informs the relevant people that he will make this report, he will not be considered to have committed a crime. However, if he declares that he will not use his right to notify in order to gain a benefit, he will be committing the crime of blackmail. Statements such as "I will report you if I am fired" are considered a crime. If a benefit is sought without any right or obligation, or if the victim is forced to do or not do something, there is no crime of blackmail.

As a matter of fact, according to a Supreme Court decision that precedes the crime of blackmail; "In the concrete case, in the face of the acceptance that the defendant said to the participant "I will kill him, I will kidnap his child", and that he also said to the witness "the bride should divorce her son, otherwise I will kill and kidnap her child" in a way that the participant could hear, the defendant's threat to the physical immunity of the participant and his child, who is the relative of the participant, did not qualify as "an act that he has the right to do", accordingly, the element of the crime of blackmail did not occur and the action was violated under Article 106/1 of the TCK. Establishing a conviction for the crime of blackmail on illegal grounds without evaluating whether it constitutes a threat crime that complies with the article...”

THE CRIME OF BLACKMAIL WITH THE THREAT THAT MATTERS THAT WILL HARM HONOR AND REPRESENTATION WILL BE DISCLOSED OR IMPOSED (TCK MD.107/2)

This optional action constitutes the most common form of blackmail crime in practice. In the Turkish Language Association Turkish dictionary; Honor, defined as "the personal value on which the respect shown to someone else is based" and which can also be called "personality value", consists of the whole of a person's social and moral values ​​and includes the inner value that a person feels towards himself and his prestige in the eyes of others. Respect means "the state of being respected, valuable, reliable, reputation, prestige". The matters that are stated to be disclosed or accused in the crime in question must be of a nature that will harm the honor and dignity of the person.

If the perpetrator does not intend to benefit, the crime of blackmail does not occur. According to the example given regarding this optional action in the justification of the article, "the crime of blackmail occurs when a businessman is forced to provide benefits or donate to an organization in return for not mentioning his name in a newspaper report prepared about corruption cases that are on the agenda of the public."

The matters claimed to be explained or attributed do not have to be true. If the perpetrator says that he will harm the honor and reputation of the perpetrator by slandering or spreading rumors, he will again commit the crime of blackmail. For the crime of blackmail to occur, it is sufficient to force the victim. In the face of this coercion, the victim does not have to do what is requested. However, for a crime to occur, there must be an intention to benefit. The desired benefit to be obtained; It may be a material value such as providing money, goods or a service, or it may be a benefit other than material value, such as ensuring sexual intercourse.

Since communicating that publicly known facts will be disclosed will not cause fear in the victim, the crime of blackmail does not occur in such cases.

MORAL ELEMENT OF BLACKMAIL CRIME

The crime of blackmail is a type of crime that can only be committed intentionally. In order for the crime in the first paragraph to be committed, the perpetrator must have a special intention to force someone to do or not do something that is against the law or for which he is not obliged, or to obtain an unfair advantage.

In terms of the second paragraph, special intent is sought in the perpetrator. This special intention is the intention to benefit oneself or others. As we explained above, if there is no beneficial intent, there will be no crime.

ATTEMPT BLACKMAIL CRIME

The crime of blackmail is a type of crime adjacent to the resulting action. The perpetrator does not have to achieve his goal for the crime to be completed. It is sufficient for the crime to occur if the perpetrator performs actions that truly affect the will of the victim.

As a matter of fact, the Supreme Court of Appeals Criminal General Assembly 19.12. In a decision dated 2017, it was stated that "As a rule, blackmail is not a crime suitable for attempt. However, in cases where enforcement actions can be divided, it must be accepted that the crime is suitable for attempt. Accordingly, for example, if the threat of mentioning that he will do or not do something that he is entitled to or obliged to do, or of explaining or imputing an issue that may harm honor or reputation is made by letter, the attempt will be possible if the letter is intercepted before it reaches the addressee." He ruled as follows.

PUNISHMENT FOR BLACKMAIL CRIME

According to Article 107 of the Turkish Penal Code, if the crime of blackmail is committed through optional actions set out in the 1st and 2nd paragraphs, the perpetrator is punished with imprisonment from one to three years and a judicial fine of up to five thousand days. Imprisonment and judicial fine are applied together.

BLACKMAIL CRIME COURT IN CHARGE AND AUTHORITY

In the case of blackmail, the competent court is the court where the act was committed.

The court responsible for the trial of the crime is the criminal court of first instance.

The crime of blackmail is not a crime subject to complaint. Investigation and prosecution are carried out ex officio.

The crime of blackmail is not a crime within the scope of reconciliation.

The statute of limitations for blackmail cases is 8 years.

DIFFERENCES FROM THREAT AND BLACKMAIL CRIME

Threat crime It is regulated in Article 106 of the Turkish Penal Code. Threat and blackmail crimes differ from each other in the following aspects:

1- In the crime of blackmail, the perpetrator threatens the victim that he will do something that he has the right or is obliged to do, whereas in the crime of threat, there is no right or obligation.

2- In the crime of blackmail, the perpetrator forces a person to do or not do something that is against the law or for which he is not obliged, or to obtain unfair advantage. However, in the crime of threat, the purpose of the perpetrator is not limited. Threatening crimes can be committed on many other issues.

3- While the crime of threat can be committed in a qualified manner, the crime of blackmail does not have a qualified form.