In our legal system, the offense of insulting the President, regulated under Article 299 of the Turkish Penal Code, is organized under the section concerning Crimes Against the Sovereign Emblems of the State and the Dignity of Its Organs. The legal value protected by this offense is the dignity and honor of the President, who represents the state. Therefore, the direct victim of the crime, in a broad sense, is the sitting President, not former Presidents or presidential candidates. There is no specific condition required for the perpetrator of the crime. Accordingly, anyone can be the perpetrator of the offense of insulting the President.
The offense of insulting the President is regulated separately in Article 299 of the Turkish Penal Code, distinct from the offense of Insult (regulated in Article 125 of the TCK), which results in a penalty enhancement when committed against public officials.
“Article 299 – (1) A person who insults the President shall be sentenced to imprisonment from one to four years.
(2) (Amended: 29/6/2005 – 5377/35) If the crime is committed publicly, the penalty shall be increased by one-sixth.
“(3) Prosecution for this offense is subject to the permission of the Minister of Justice.”
The offense of Insulting the President is a freely movable crime and is not regulated as an elective movable crime in Article 299 of the Turkish Penal Code. Elective movable crimes are types of offenses where the necessary actions for the crime to occur are listed in the law. This crime can be committed through harmful or offensive words, writings, drawings, pictures, songs, gestures indicating hatred, and similar behaviors.
This offense does not necessarily have to be directly spoken to the President’s face, and it is possible for it to be committed in absentia. Since there is no requirement for a specific number of people to be present for an insult in the President’s absence, if the offender insults the President in such a way that one person could hear it, the crime still occurs. Similarly, it is possible for this offense to be committed through phone calls, letters, press and media outlets, or other means of communication.
THE COMPLAINT REQUIREMENT FOR THE OFFENSE
When the offense of insult is committed against a public official due to their duties, the complaint is no longer a condition for filing a lawsuit. The reason for this is to protect the honor and dignity of public officials. Since the offense of Insulting the President is a more specific type of insult offense, the complaint is also no longer a condition for filing a lawsuit for this offense. Judicial authorities will initiate an investigation ex officio as soon as they receive information about the offense.
THE POSSIBILITY OF RECONCILIATION FOR THE OFFENSE
The Turkish Penal Code does not provide for the possibility of reconciliation for the offense of insulting the President. It is not a complaint-dependent offense, nor is it one of the crimes listed in Article 253 of the Criminal Procedure Code (CMK). Therefore, reconciliation is not possible for this offense.
THE OFFENSE OF INSULTING THE PRESIDENT IN TERMS OF THE WAY IT IS COMMITTED
The offense of insulting the President is a crime that can be committed intentionally. Since it is not one of the crimes explicitly specified in the Turkish Penal Code, it cannot be committed negligently. The intent of the perpetrator while committing the crime must be to fulfill the elements of the offense. It is not a requirement for the act of insult to be political. There is no necessity for the intent to be related to the title or duty of the Presidency.
For the offense of insulting the President to be established, “actions or attributes that undermine the President’s social value, or are attributed or ascribed to him, should be considered as offensive.” What kinds of actions are considered as violations of honor and dignity should be determined based on the general thinking and understanding prevailing in society. In this determination, the individual’s personal sensitivities are not the measure. Therefore, a simple disrespect cannot be regarded as an insult or defamation.
An act will only be punished by the legal system if there is no reason that eliminates its unlawfulness. If there are justifications for exercising a right such as freedom of expression, the individual will not be penalized by the legal system. However, the right to criticize should not be abused, and the expression should not contain degrading or damaging language. If any of these elements are present, the right to criticize cannot be invoked, and the act will be considered unlawful.
Aggravated Circumstances Requiring a Higher Penalty for the Offense of Insulting the President
Article 299/3 of the Turkish Penal Code regulates the aggravated form of the offense of insulting the President, which requires a higher penalty. According to this provision, if the offense is committed publicly, the penalty will be increased by one-sixth. In particular, if the offense is committed through social media accounts, publicness is achieved.
The Institution of Effective Remorse
The institution of effective remorse is not regulated for every type of offense under the law. The offense of insulting the president, regulated under Article 299 of the Turkish Penal Code, is a specific type of insult offense, and therefore, the provisions on sentence reduction through effective remorse do not apply to this crime.
ENFORCEMENT REGIME APPLICABLE TO THE OFFENSE
Although the competent court for the offense of insulting the President is the Criminal Court of First Instance, the authorized court is the court of the place where the offense was committed. The offense of insulting the President is not among the offenses that are subject to complaint for prosecution. Therefore, there is no statute of limitations for filing a complaint regarding this offense. The statute of limitations for prosecution of the offense of insulting the President is 8 years.
According to the Turkish Penal Code, a judicial fine is imposed in place of prison sentences of 1 year or less, effectively converting the imprisonment into a monetary penalty. A prison sentence imposed by the criminal court for the offense of insulting the President may be converted into a judicial fine under certain conditions.
The decision to defer the announcement of the verdict, as regulated under the Turkish Penal Code, may be issued for prison sentences of 2 years or less. Accordingly, a decision to defer the announcement of the verdict may be rendered in cases where a prison sentence is imposed for the offense of insulting the President.
According to the Turkish Penal Code, a decision to suspend the execution of a prison sentence means conditionally waiving the enforcement of the sentence in a correctional facility. It is also possible to suspend a prison sentence imposed for the offense of insulting the President.
Pursuant to the Law on the Execution of Sentences No. 5275, for crimes committed after March 30, 2020, in order for a convict to benefit from probation, they must either be in an open penal institution or be eligible for transfer to such an institution and must exhibit good conduct. The offense of insulting the President is a type of crime that is also suitable for the application of probation. It is regulated that probation will apply to those who have 1 year or less remaining until their conditional release. The legislator has also set out certain exceptions regarding this period. Female convicts with children between the ages of 0-6 are subject to a 2-year probation period for crimes committed after March 30, 2020. If the convict is over the age of 65 and is unable to live independently due to illness, disability, or old age, the required period for eligibility for probation is set at 3 years.
However, with the Constitutional Court’s decision dated August 1, 2023, the provision regulating the “Deferment of the Announcement of the Verdict” (HAGB) has been annulled. This annulment will take effect as of August 1, 2024. Until this effective date, HAGB provisions may still be applied if their legal conditions are met; however, starting from August 1, 2024, the application of HAGB will no longer be possible.
Sample Court of Cassation Decisions on the Crime of Insulting the President
- Sample Court of Cassation Decision Regarding the Inadmissibility of Statements Considered as Criticism Being Subject to Criminal Offense
The legal value protected by penalizing acts of insult is the honor, dignity, and respectability of individuals, and for this offense to be constituted, the conduct must be aimed at humiliating the person. Whether an act is considered offensive can, in some cases, be relative and may vary depending on time, place, and circumstance. Not all harsh criticism or disturbing statements directed at individuals should be evaluated within the scope of the crime of insult. For words to qualify as such, they must clearly involve the attribution of a concrete act or fact that can offend a person’s honor, dignity, or respectability, or constitute an act of swearing. In the concrete case, the defendant, in his article titled “Same Old Tune with Pots and Pans!” targeting the complainant in a newspaper, used expressions such as “Dictator Tayyip!”, “Your governor said Gezi Park wouldn’t be touched. But the top official of Istanbul lied. Therefore, you lied. ‘Liar Tayyip’ Dictator Tayyip! The protest you called pots and pans will make you into head and trotter soup! Just so you know!”, which were of a critical nature. Since these statements were not of a degree that would offend the complainant’s honor, dignity, and respectability, the elements of the offense of insult were not present. Therefore, the issuance of a ruling contrary to this is grounds for reversal. (Court of Cassation 18th Criminal Chamber – Decision: 2017/9587).
- The Offense of Insulting the President by Using Social Media as a Means
“… It has been understood that the defendant shared publicly accessible posts on the social media platform Facebook, through their personal account, about the President, stating: ‘…I’ve been stealing for eleven years and I’ll keep stealing’, ‘I take my bribe and live on it’, ‘I’ve stacked a few billion dollars at home, I have a son who can zero them out’, ‘My nation, don’t be afraid, I have voters who say the monster in Pennsylvania must have his reasons, even if he steals’. Considering these expressions, the defendant’s actions constitute the offense of insulting the President as defined in Articles 299/1-2 of the Turkish Penal Code.”
(Court of Cassation, 16th Criminal Chamber, 2016/6212 E. – 2017/953 K.)
- Decision Stating That Insulting a Retired President Does Not Fall Within the Scope of Article 299 of the Turkish Penal Code
The suspect stated that he had written a letter to the victim, Abdullah Gül, who was the 11th President of the Republic of Turkey at the time of the incident, regarding the procedure for granting leave to prisoners, but the response was negative. It is alleged that the suspect then suddenly insulted the victim by saying, “… I will curse your mother and your wife.” Based on this claim, an indictment was prepared for his prosecution. The crime regulated under Article 299 of the Turkish Penal Code (TCK) occurs when an insult is committed against the President of the Republic, and the act must be committed against the person holding the office of the President. Therefore, even if an insult is directed at a person who previously held the office of President after their term has ended, Article 299 of the TCK cannot be applied, and the insult will fall under the provisions of Articles 125 and 130 of the TCK. Article 125, paragraph 1 of the TCK defines the basic form of the crime, while paragraph 3 regulates its aggravated forms. According to Article 131/1 of the same Code, the prosecution of insult crimes, except for insults related to the performance of a public officer’s duties, is dependent on the filing of a complaint. In the case of insults directed at public officials due to their duties, the insult does not need to be directly related to how the duty is carried out. An insult may be directed at a public official’s duty or the manner in which it is performed. Insults based on hostility toward a specific public position may also be considered to have a causal connection if they are aimed at a person holding or who has held the position. Furthermore, unlike Article 299, if the insult occurs during or after the performance of a duty, the crime regulated in Article 125/3-a of the TCK may apply.
For these reasons, since the victim was not a public official at the time of the offense, the act may constitute the crime described in Article 125/1 of the TCK, which is subject to prosecution upon complaint. Therefore, the indictment must be returned, and the decision to dismiss the objection made against this decision by the reviewing authority is unlawful (Court of Cassation, 18th Criminal Chamber – Decision No. 2017/987).
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