Non-Pecuniary Compensation Lawsuit Due to Insult

Offense of Insult

The offense of insult is regulated under Article 125 of the Turkish Penal Code, under the section titled “Crimes Against Honor.”

Article 125 –

A person who attributes a concrete act or fact to another in a manner that may offend that person’s honor, dignity, or reputation, or who attacks someone’s honor, dignity, or reputation by way of swearing, shall be punished with imprisonment from three months to two years or a judicial fine.
In cases where the insult is committed in the absence of the victim, the act must be committed in the presence of at least three other persons for it to be punishable.
If the act is committed through an audio, written, or visual message addressing the victim, the penalty specified in the above paragraph shall be imposed.
If the offense of insult is committed:
a) Against a public official due to their duty,
b) Due to the victim expressing, changing, trying to disseminate, or acting in accordance with the requirements of their religious, political, social, or philosophical beliefs or opinions,
c) By referring to values deemed sacred according to the person’s religion,
the minimum penalty shall not be less than one year of imprisonment.
(Amended: 29/6/2005 – Law No. 5377/Article 15) If the insult is committed publicly, the penalty shall be increased by one-sixth.
(Amended: 29/6/2005 – Law No. 5377/Article 15) If the insult is directed at public officials acting as a committee, the offense shall be deemed to have been committed against all members of the committee. However, in this case, the provisions regarding repeated offenses (chain offenses) shall apply.

The offense of insult is subject to complaint. If the victim does not file a complaint within six months, the right to file a complaint expires. However, if the offense is committed against a public official, the public prosecutor may initiate an investigation ex officio (TCC Article 125/3).

Compensation Lawsuit Due to the Crime of Insult

Everyone has the right to demand respect from others. A person has the right to request that their personal values not be harmed. Individuals seek to have their honor and dignity protected within society. This is one of the fundamental rights and values a person possesses. An unjust act that damages a person’s honor or dignity may harm their moral integrity. Therefore, the act of insult constitutes a criminal offense under criminal law. In this regard, a person who is insulted is protected by the legal system. This regulation, which ensures the protection of personal rights, derives its basis from the Civil Code (Law No. 4721).

Article 24 – A person whose personal rights are violated unlawfully may request protection from the court against those who carried out the violation.

Any violation of personal rights is deemed unlawful unless it is justified by the consent of the affected person, a higher private or public interest, or the exercise of a legal right granted by law.

Regarding lawsuits, according to Article 25 of the Civil Code,

The plaintiff may request the judge to prevent the danger of an attack, to put an end to an ongoing attack, or to determine the unlawfulness of an attack whose effects continue even if it has ended.
In addition to these, the plaintiff may also request that a correction or the court’s decision be communicated to third parties or made public.

Can Non-Pecuniary (Moral) Compensation Be Claimed for the Crime of Insult?

The plaintiff retains the right to claim material and moral (non-pecuniary) compensation, as well as to request that any profits gained as a result of the unlawful interference be returned to them under the provisions of agency without authority.

Furthermore, since the act of insult constitutes a violation of personal rights, the relevant provisions under the heading “Obligations Arising from Torts” in the Turkish Code of Obligations must also be taken into account.

ARTICLE 49 – A person who causes harm to another through a culpable and unlawful act is obliged to compensate for that harm.

Even in the absence of a legal rule expressly prohibiting the harmful act, a person who intentionally causes harm to another through an act contrary to moral values is also obliged to compensate for that harm.

ARTICLE 58 – A person who suffers harm due to the infringement of their personal rights may claim a certain amount of money as moral compensation.

Instead of ordering the payment of this compensation, the judge may determine another form of remedy or add it in addition to the compensation; in particular, the judge may issue a decision condemning the attack and order its publication.

Defamation through Social Media

Here is the English translation of your text:

The crime of insult can also be committed through verbal, written, or visual communication. If voice, text, or visual messages sent via social media platforms (such as Instagram, Twitter, etc.) or various applications (such as WhatsApp, Telegram, etc.) contain insults, the relevant crime occurs. Indeed, this is addressed in Article 125/2 of the Turkish Penal Code (TCK):

“(2) If the act is committed by means of a verbal, written, or visual communication directed at the victim, the punishment specified in the above paragraph shall be imposed.”

The same provisions apply if the act is committed through social media, and a claim for moral compensation can be made.

“From the file, it is understood that the defendant sent numerous tweets on social media directed at the plaintiff containing harsh, disturbing, and humiliating expressions. Since the act was committed persistently and to a level amounting to harassment, it is accepted that the limits of criticism were exceeded and there was an infringement of personal rights. Therefore, a suitable moral compensation should have been awarded in favor of the plaintiff. However, without considering these facts, the decision of the first instance court to dismiss the case in writing, and the Regional Court of Appeal’s decision to reject the plaintiff’s appeal on the merits, are not in accordance with procedure and law. Consequently, the decision of the Regional Court of Appeal was overturned, and the first instance court’s decision was annulled.” (Turkish Supreme Court 4th Civil Chamber, 2018/3667 E., 2020/1822 K.)

Can Heirs File a Lawsuit for the Crime of Insult?

Issues related to personal rights and the protection of personality are detailed in the Turkish Civil Code. According to the fourth paragraph of Article 25 of the Code:

“A claim for moral compensation cannot be transferred unless accepted by the opposing party; it does not pass to the heirs unless it was asserted by the decedent.”

Due to the mandatory provision of the law, if the decedent did not make such a claim before death, the heirs cannot file a claim for moral compensation. If a person is insulted posthumously, this constitutes the crime of “insulting the memory of the deceased.”

Furthermore, according to the relevant paragraph, this right cannot be transferred unless accepted by the opposing party.

Can a Claim for Moral Compensation Be Made in Cases Where Insult Is Not Considered a Crime?

Even if a criminal conviction is not issued as a result of an insult through a criminal case, the victim can still file a civil lawsuit seeking moral compensation. Because such an act, although it may not constitute a crime under the Penal Code, can still be considered an immoral act that harms personal rights. Indeed, Article 49 of the Turkish Code of Obligations states:

“Even if there is no legal rule prohibiting the harmful act, a person who intentionally causes harm to another through an immoral act is obliged to compensate for that harm.”

Accordingly, the same article also provides that:

“A person who causes damage to another through a faulty and unlawful act is obliged to compensate for that damage.”

Where Are Moral Compensation Lawsuits Due to Insult Filed?

The plaintiff may file a lawsuit to protect personal rights either at their place of residence or at the defendant’s place of residence. (Turkish Civil Code, Article 25/5)
The competent court is the Civil Court of First Instance.
In cases arising from torts, the competent courts are those where the tortious act was committed, where the damage occurred or might occur, or the court of the place of residence of the injured party. (Code of Civil Procedure, Article 16)

How Is the Amount of Moral Compensation Determined?

There is no explicit provision in the legislation regarding the amount of moral compensation. The judge will decide based on the severity of the insult, its impact on the person and their surroundings, and the parties’ socioeconomic status.

“A person whose personality rights have been violated may request the payment of a certain amount of money as moral compensation for the non-material damage suffered.

The judge may decide on another form of compensation instead of payment, or may add it to this compensation; in particular, the judge may issue a decision condemning the attack and order its publication.” (Turkish Code of Obligations, Article 58)

This amount should not be such that it enriches the victim or impoverishes the offender, according to the principle of good faith.

The judge must determine a moral compensation amount that is fair and equitable. When determining the amount, the judge should consider the specifics of the case, the economic and social status of the injured party, the purchasing power of money, the degree of disability, and the pain and suffering currently experienced and likely to be experienced in the future due to loss of physical capacity (General Assembly of Civil Chambers decision no. 2003/355).

Statute of Limitations in Moral Compensation Lawsuits Due to Insult

According to Article 125 of the Turkish Penal Code:

“Anyone who attributes a concrete act or fact capable of offending a person’s honor, dignity, and reputation (…) [46], or insults a person by cursing in a manner that attacks their honor, dignity, and reputation, shall be punished with imprisonment from three months to two years or a judicial fine. For the insult to be punishable in the absence of the victim, the act must be committed in the presence of at least three people.”

Furthermore, Article 66 of the same law, titled “Statute of Limitations,” sets forth time limits. For crimes punishable by imprisonment or judicial fines not exceeding five years, the statute of limitations is eight years. However, if a criminal case is still ongoing after this period, a compensation claim can be filed.

Relevant Supreme Court Decisions

Moral compensation regulated under Article 174/2 of the Turkish Civil Code is awarded when the event causing the divorce constitutes an infringement of personal rights (Turkish Legal Dictionary, Ankara-2021 Edition, Vol. I, p. 763). Moral damage is expressed as the pain, suffering, and distress occurring in a person’s mind beyond their will. Moral compensation is a form of redress accepted to restore the disturbed moral balance. The fundamental principle of law is to remedy the damage and compensate the interests of the person whose rights have been violated due to unlawful and culpable conduct. However, Article 174/2 of the Turkish Civil Code departs from general compensation principles and constitutes a unique tort regulation introduced in family law. Due to the nature of the relationship between spouses, it is difficult to determine the moral damage precisely here. The amount of moral compensation is not a fixed material amount. It is a sum that will relieve the spouse claiming moral compensation from the psychological distress and suffering they have experienced mentally. For this reason, the law states that “appropriate compensation” shall be awarded to the spouse whose interests are impaired and personal rights violated. Therefore, the judge must exercise discretion when determining the amount of moral compensation by considering the nature of the infringement on personal rights and the economic and social circumstances of the parties. (General Assembly of Civil Law 2019/524 E., 2022/1272 K.)

Upon the petition filed on 06/05/2015 by the plaintiff against the defendant seeking moral damages due to insult and slander, following the trial conducted by the court, the decision dated 25/05/2016 rejecting the case was appealed to the Supreme Court. The appeal petition was accepted as it was requested by the plaintiff within the legal time limit. After the file was sent back to the local court for the submission of investigation documents and the deficiency was remedied, the report prepared by the reviewing judge and the documents within the file were examined and the matter was deliberated. Considering the writings in the file, the evidence on which the decision is based, the legally valid grounds, and especially that no error was found in the evaluation of the evidence, all appeals deemed unfounded were rejected, and the judgment, which is in accordance with procedural and legal requirements, was AFFIRMED. The appeal fee specified below was charged to the appellant. This decision was made unanimously on 20/01/2020. (Supreme Court 4th Civil Chamber, Case No: 2019/2963, Decision No: 2020/141)