The crime of insult, by definition, represents a written or verbal attack that harms a person’s honor and dignity. The offense regulated under Article 125 of the Turkish Penal Code (TPC) can be committed in various forms and against anyone. Before discussing the different cases of the offense, it is necessary to examine the simple form of the crime as stated in the law.
TPC Article 125/1 states: “A person who accuses someone of a concrete act or fact that can degrade their honor, dignity, and respectability, or who assaults a person’s honor, dignity, and respectability by insulting, 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 persons.”
Article 125/2 continues: “If the act is committed through voice, writing, or visual communication directed at the victim, the punishment specified in the above paragraph shall apply.”
One form of the crime is insult committed in the absence of the victim. In such cases, the act can only be established if at least three people learn about the insulting words or behavior of the perpetrator. When the victim is not present in the setting where the insult occurs, the law requires that the insulting act must be committed in the presence of at least three people. The person committing the insult is not included in the count of these three people. It is not necessary for these three persons to be in the same place; what matters is that three people become aware of the insult.
The Investigation and Prosecution of the Crime
The basic form of the crime is subject to a complaint, and no investigation is initiated ex officio. However, the Public Prosecutor can begin proceedings upon the victim’s complaint. If the crime is committed against a public official in connection with their duties, the investigation and prosecution are no longer subject to a complaint and are carried out ex officio. Insulting the President also falls under this scope. In cases outside of this, investigation and prosecution depend on the filing of a complaint.
Mediation Institution
Since the investigation and prosecution of the offense are basically subject to a complaint, it falls within the scope of mediation according to Article 253 of the Criminal Procedure Code No. 5271. However, if the offense is committed against a public official due to their duty or as an insult to the President, the investigation and prosecution are not subject to a complaint, and therefore, it does not fall within the scope of mediation.
The Possibility of Committing the Crime Intentionally or Negligently
It is not one of the crimes that can be committed negligently as specified in the Turkish Penal Code (TCK). By its nature, it is a crime that is committed intentionally. In the ordinary course of life, when a person insults another, there is no option other than the intent to damage the honor and dignity of the other party.
Aggravated forms of the crime that require harsher penalties
Article 125/3 of the Turkish Penal Code (TCK) refers to the aggravated forms of the crime. The cases listed under 125/3 are as follows:
a) Against a public official due to their official duty:
Although the defendant uttered similar insulting words separately to the victim (a lawyer during enforcement proceedings) and to the intervening enforcement officer and clerk, since these words were spoken within the scope of the same incident, for the same reason, without any time interval, with the intention and decision to commit a crime, the penalty determined under Article 125/3-a of the TCK should have been increased pursuant to Article 43/2 of the same law. Issuing two separate convictions is unlawful. (Court of Cassation 18th Criminal Chamber – Decision: 2016/19451)
b) Due to the victim’s religious, political, social, philosophical beliefs, thoughts, opinions, their expression, change, dissemination, or adherence to the commands and prohibitions of their religion,
c) On account of values considered sacred according to the religion the person belongs to,
In such cases, the minimum penalty cannot be less than one year.
Article 125/4 of the Turkish Penal Code reflects an aggravated form of the offense. The article is regulated as follows:
(Amended: 29/6/2005 – Law No. 5377/Article 15) If the insult is committed publicly, the penalty is increased by one-sixth.
The term “publicly” in the article means that the offense is committed in a manner that anyone can witness, such as on television, the internet, or in public places among the crowd.
Article 125/5 of the Turkish Penal Code also refers to an aggravated form:
“If an insult is committed against public officials working as a board due to their duty, the crime is considered to have been committed against each member of the board. However, in this case, the provisions relating to cumulative offenses shall apply.”
According to the provisions on cumulative offenses, although it is considered committed individually against each member, the penalty is increased once, from one-quarter up to three-quarters.
Since the victim of the insult crime must be a specific or identifiable person, words spoken against an unspecified and unlimited group of people cannot be evaluated within the scope of this crime. In this context, the defendant’s statement on the website of Ankara Police Department (www.ankara.gov.tr), saying, “How dishonorable your police officers are, how much bribe they take, shame on you; then you say you are spotless; if the state does not take the citizen’s rights, there would be no terrorism or such; have a good day,” was directed at an unspecified and unlimited group of people, thus it cannot constitute the crime of insult. Therefore, issuing a conviction without considering this and for unlawful reasons constitutes grounds for reversal. (Court of Cassation 4th Criminal Chamber – Decision: 2014/1432)
Lesser Punishable Forms of the Offense
Committing the Offense in Response to Another Offense (e.g., intentional injury) Requires a Lesser Punishment.
If the crime of insult is committed as a reaction to an unlawful act, the perpetrator may not be punished or the penalty may be reduced up to one-third (Turkish Penal Code Article 129/1).
Article 129, paragraph 1 of the Turkish Penal Code, which contains special provocation provisions regarding insult crimes, states:
“If the offense of insult is committed as a reaction to an unlawful act, the penalty to be imposed may be reduced by up to one-third, or the punishment may be waived altogether.”
The general provocation provision in Article 29 of the Turkish Penal Code is as follows:
“A person who commits a crime under the influence of anger or severe distress caused by an unlawful act shall be sentenced to imprisonment from eighteen to twenty-four years instead of aggravated life imprisonment, and from twelve to eighteen years instead of life imprisonment. In other cases, the penalty to be imposed may be reduced from one-quarter to three-quarters.”
In the concrete case under review, it is seen that the court accepted that the defendant convicted of insult committed the act under unjust provocation, applied a one-quarter reduction to the sentence under Article 29/1 of the Turkish Penal Code, and the defendant was ultimately sentenced to a judicial fine of 1340 Turkish Lira.
However, the application of the general provocation rule (Article 29) instead of Article 129 of the same Code, which is a special provision related to insult crimes and contains more favorable regulations, was deemed unlawful. (Supreme Court 18th Criminal Chamber Decision: 2016/15975)
According to Article 129/3 of the Turkish Penal Code, when the offense of insult is committed mutually by two people, a “mutual insult offense” occurs. It is not necessary for the mutual insults to happen within the same time frame. The offenses committed mutually can also occur a few days after the first offense. In such cases, the court may decide to leave the offense unpunished or apply a reduction (up to one-third).
The offense of insult cannot be committed against legal entities, as it is not possible to speak of the honor and dignity of an institution with legal personality. Honor and dignity are attributes that can only belong to natural persons.
In the reviewed case file, the defendant stated in the objection petition against the enforcement proceedings that they uttered the words mentioned in the indictment. It was not considered that according to Article 125 of the Turkish Penal Code, words capable of offending honor and dignity constitute the crime of insult only when directed at natural persons, and words spoken to a legal entity without establishing a relationship of belonging to any natural person cannot be evaluated within this scope. Therefore, the conviction of the defendant was found unlawful. (Supreme Court 18th Criminal Chamber – Decision No: 2017/1193).
Institution of Effective Remorse
Effective remorse cannot be applied to the crime of theft. It is not possible for the judge to apply a reduction based on effective remorse during the trial. However, the judge may apply a reduction due to good conduct or remorse felt as a result of the crime.
Execution Regime
The institution of sentence suspension allows the court to postpone the execution of a prison sentence if the sentence is two years or less and the offender has no prior intentional criminal record. In such cases, the court may grant a probation period ranging from 1 to 3 years.
If the prison sentence to be imposed is less than two years and the offender has not previously committed an intentional crime, the execution of the sentence is prevented by the decision to postpone the ruling. After this decision, the individual remains under supervision for 5 years, and if they do not commit any intentional crime during this period, the offense is considered never to have been committed.
Recidivism and especially dangerous offenders are regulated under Article 58 of the Turkish Penal Code No. 5237. If a new crime is committed after the previous conviction has become final, the provisions on recidivism apply. It is not necessary for the sentence of the previous crime to have been executed.
If the suspect has a criminal record that has not yet been expunged, according to Article 58 of the Turkish Penal Code No. 5237, and if the prior record qualifies as a basis for recidivism, the sentence imposed in case of recidivism is served under the execution regime specific to repeat offenders. Additionally, after serving the sentence, supervised release measures are applied to the repeat offender.
Moral Compensation
Since the victim of the crime experiences an attack on their honor and dignity, they suffer moral damage as a result of the wrongful act. Consequently, the victim has the right to claim moral compensation from the perpetrator of the crime and can seek compensation for this damage through the court.
Court of Cassation, 4th Civil Chamber, Case No: 2019/2776 E., Decision No: 2020/1159 K.
Due to the material and moral compensation lawsuit based on insult and threat between the parties, the decision given by the local court on the date and number stated above was annulled by the decision of our Chamber dated 30/04/2019, numbered 2019/559-2019/2513. The defendants’ attorney requested correction of the decision within the time limit. The documents in the file were examined and the matter was discussed.
According to Article 4 added to the Code of Civil Procedure by Law No. 5236, if the amount subject to correction of the decision is less than 19,680.00 TL, no correction of the decision can be made. In the present case, since the amount subject to correction did not reach this level, the petition was rejected, and the advance fee collected was decided to be refunded upon request, unanimously on 09/03/2020.
Sample Supreme Court Decisions
Although the plaintiffs stated that the defendant … committed the crime of insult by saying to them, “Who the hell are you?”, these words were not of such a nature as to offend the plaintiffs’ honor, dignity, and respect, but rather were merely disturbing and discourteous expressions. Since this act alone does not constitute the crime of insult, without clarifying from the plaintiffs how exactly the defendant insulted them and what the criminal acts consisted of in a way that would allow judicial review, and without discussing this in the judgment, establishing the verdict against the defendant with incomplete examination and insufficient reasoning is grounds for reversal. (Supreme Court, 18th Criminal Chamber – Decision No: 2020/1765).
According to the complainant’s statement dated 05.03.2019, the messages subject to the crime were sent to the complainant’s mobile phone while the complainant was in Istanbul. Considering that the jurisdiction to try the offenses of insult and threat committed via communication belongs to the court where the offenses became known, it is understood that the decision of Bakırköy 17th High Criminal Court dated 24/05/2019 and numbered 2019/1008 was not appropriate because the authority to conduct the investigation lies with the Istanbul Chief Public Prosecutor’s Office. (Supreme Court, 4th Criminal Chamber – Decision No: 2020/2695).
Regarding the defendant’s act of liking insulting messages sent to the complainant on a social media site under the profiles “C. oto yıkama” and the non-appealing defendant “A.. K..”, it was not taken into account that such an act would not constitute the elements of the crime of insult if these messages were neither shared by the defendant on the internet nor transmitted to others, but would rather remain within the scope of personal evaluation. Without investigating this matter and with insufficient reasoning, the conviction is a ground for reversal. (Supreme Court, 4th Criminal Chamber – Decision No: 2014/33171).
