The Legal Definition of the Offense
“The Offense of Threatening with the Intent to Create Fear and Panic Among the Public is regulated under Article 213 of the Turkish Penal Code, within the section titled ‘Crimes Against Public Peace.’ The relevant provision states:
Article 213 of the Turkish Penal Code –
(1) Any person who openly threatens life, health, bodily integrity or sexual inviolability, or property, with the intent of creating anxiety, fear, and panic among the public shall be punished with imprisonment from two to four years.
(2) If the offense is committed with a weapon, the sentence to be imposed may be increased by up to one-half, depending on the nature of the weapon used.
These statements are included in the said provision.”
Elements of the Offense
When evaluated together with its objective and subjective elements, the Offense of Threatening with the Intent to Create Fear and Panic Among the Public has the following fundamental components:
1. Offender:
The relevant legal provision does not require any special status for the offender; therefore, anyone may be the perpetrator of this offense.
2. Victim:
In terms of this offense, the victim is the public.
3. Act (Conduct) Element:
Under Article 213 of the Turkish Penal Code, the conduct element consists of any act involving threats directed at life, health, bodily integrity, sexual inviolability, or property, committed with the intent to create anxiety, fear, and panic among the public.
For the offense to be constituted, the perpetrator must engage in threatening acts directed at the aforementioned values and must carry out such acts with the intent to create anxiety, fear, and panic among the public. Likewise, the acts must be directed not at specific individual(s) but at the public or a community living in a particular region of the country. If the acts are directed at specific individual(s), they cannot be assessed within the scope of Article 213 of the Turkish Penal Code. In such a case, the general offense of threat regulated under Article 106 of the Turkish Penal Code will come into consideration.
4. Legal Interest Protected by the Offense:
The Offense of Threatening with the Intent to Create Fear and Panic Among the Public is regulated under the heading “Crimes Against Public Peace” in the Turkish Penal Code, and the legal interest protected by this offense is public security and public order.
5. Mental Element:
The offense may be committed only intentionally; commission by negligence is not legally possible. For the offense to be constituted, the perpetrator must act with the intent to create anxiety, fear, and panic among the public.
The Offense of Threatening with the Intent to Create Fear and Panic Among the Public is classified as an abstract endangerment offense. Accordingly, it is sufficient for the threatening act to be of a nature capable of causing anxiety, fear, and panic among the public for the offense to be constituted; it is not necessary for these effects to have actually occurred.
6. Subject Matter of the Offense:
The subject matter of the offense consists of the values of life, health, bodily integrity, sexual inviolability, and property that are threatened with the intent to create anxiety, fear, and panic among the public.
Aggravated Form of the Offense
The Offense of Threatening with the Intent to Create Fear and Panic Among the Public, regulated under Article 213 of the Turkish Penal Code, is also provided for with aggravated forms that require a more severe penalty in certain circumstances. The aggravated circumstances specified in the law are as follows:
Article 213/2 of the Turkish Penal Code:
“If the offense is committed with a weapon, the sentence to be imposed may be increased by up to one-half, depending on the nature of the weapon used.”
Article 218 of the Turkish Penal Code:
“If the offenses defined in the above articles are committed through the press and media, the sentence to be imposed shall be increased by up to one-half. However, expressions of opinion that do not exceed the limits of news reporting and that are made for the purpose of criticism do not constitute an offense.”
Complaint Period, Statute of Limitations, and Competent Court
The offense regulated under Article 213 of the Turkish Penal Code is not subject to a complaint, and investigative proceedings are conducted ex officio by the public prosecutor. Although there is no complaint period required for the initiation of an investigation, the statute of limitations for prosecution is eight years. The competent court is the Criminal Court of First Instance.
Judicial Fine, Suspension of the Sentence, and Decision to Defer the Pronouncement of the Verdict
Pursuant to Article 213 of the Turkish Penal Code, any person who openly threatens life, health, bodily integrity or sexual inviolability, or property, with the intent to create anxiety, fear, and panic among the public shall be punished with imprisonment from two to four years. Considering the lower and upper limits of the penalty, it is possible for the court to render a decision to defer the pronouncement of the verdict (HAGB) or a decision to suspend the sentence. However, it is not possible to convert the term of imprisonment into a judicial fine.
Court of Cassation Decisions
“…In the offense of threatening with the intent to create fear and panic among the public, regulated under Article 213 of the Turkish Penal Code No. 5237, the legal interest protected is the protection of the public’s life, health, bodily integrity or sexual inviolability, or property, and consequently the protection of the sense held by individuals that they live in a legal society based on peace. The victim of this offense is everyone who constitutes society. The term ‘public’ as used in the article refers to an indeterminate number of persons who do not live in a specific place or environment.
According to the occurrence of the event and the entire case file, on the date of the incident, during an open-air public concert, the defendant … drew a functioning unlicensed handgun from his waistband, which, according to the expert report, was determined to fall within the scope of Law No. 6136, and after pulling and releasing the slide of the handgun, went onto the stage saying ‘you dishonorable person, this will not remain with you.’ During the trial, the defendant admitted that the handgun belonged to him and that he committed the act.
In this incident, although the defendant’s act was materially directed at the complainant Haluk Levent, considering that the place where the offense was committed was a concert area where an indeterminate number of people were present, no error has been found in the court’s acceptance and application that the act constituted the offense of threatening with the intent to create fear and panic among the public…”
(Court of Cassation, 8th Criminal Chamber, File No. 2020/14536, Decision No. 2023/6589, dated 26.09.2023)
“…With regard to the examination of the judgment rendered against the defendant for the offense of threatening with the intent to create fear and panic among the public by using a weapon, the following considerations apply:
1. As to the appeal claim alleging that the defendant was mentally ill and committed the charged offenses under the influence of the medications he was using;
Considering together that the defendant did not, at any stage, put forward a defense asserting the existence of a mental illness, did not submit any report in this regard in the petition of appeal, and that an examination of the criminal record reveals no security measure imposed due to mental illness, this ground of appeal has not been deemed justified.
2. In the appellate review, the occurrence of the incident, the report of notice, the incident report, the defendant’s confession, and the entire case file were evaluated together. In this respect, as it is understood that on the day of the incident the defendant committed the charged offense by waving the knife in his hand in a crowded place while uttering obscene insults, continuing his actions despite the warnings of police officers called by panic-stricken citizens, no unlawfulness has been found in the court’s acceptance and application…
(Court of Cassation, 8th Criminal Chamber, File No. 2021/16905, Decision No. 2024/6645, dated 16.09.2024)
“…The incident subject to the case concerns the allegation that, at an alcohol-serving entertainment festival, the defendants committed the charged offense by taking a hunting rifle and knives and shouting, ‘we have nothing to do with rakı; rakı is not drunk between two mosques; this is not Germany; oh God, in the name of God, God is the Greatest,’ kicking and overturning tables, and causing people to become frightened and panic.
2. In their defenses, the defendants admitted the charged offense; the instruments used in the commission of the offense were taken into judicial custody.
IV. REASONING
1. It has been established, based on the defendants’ confessions, law enforcement records, and the image review and determination reports contained in the case file, together with the entire case file, that on the date of the incident the defendants went to the scene in order to prevent an entertainment festival known publicly as the ‘kebab and rakı festival’; that they shouted, while holding a hunting rifle and knives, ‘we have nothing to do with rakı; rakı is not drunk between two mosques; this is not Germany; oh God, in the name of God, God is the Greatest’; that they kicked and overturned the tables in the area; and that they frightened people, causing panic and leading them to leave the festival area. Accordingly, no unlawfulness has been found in the judgments.
2. As it is understood that the procedural steps during the trial were carried out in accordance with procedure and law; that the claims and defenses raised at the various stages were set out and discussed in the reasoned decision together with all the evidence collected; that it was established that the acts were committed by the defendants; that the formation of the inner conviction was based on definitive evidence consistent with the documents and information contained in the file; and that the legal characterization of the acts and the sanctions imposed were correctly determined, the other grounds of appeal raised by the defendants and their counsel, which were found to be unjustified, have also been rejected…
(Court of Cassation, 8th Criminal Chamber, File No. 2021/5694, Decision No. 2023/10592, dated 26.12.2023)
“…In the examination of the appeal against the judgment rendered against the defendant for the offense of threatening with the intent to create fear and panic among the public: According to the contents of the report dated 22.01.2015, on the evening of the date of the offense, the defendant … came to the gate of the … Police Station Directorate; when the complainant police officer …, who was on environmental protection duty, asked the defendant what he wanted, the defendant addressed the complainant by stating, ‘I have a bomb on me; the state has harmed me; I will punish both you and the state,’ and thereafter headed toward the entrance of the police station and attempted to enter.
In this incident, since for the charged offense to be constituted the threat must be directed not at specific individuals but at indeterminate masses, the establishment of a written judgment convicting the defendant as rendered—after granting an additional right of defense to the defendant for the offense of threat solely due to his act being directed at police officers—rather than acquitting him, has necessitated reversal…”
(Court of Cassation, 8th Criminal Chamber, File No. 2019/10387, Decision No. 2021/19071, dated 14.10.2021)
“…As established in the precedent set forth in our Chamber’s decision dated 03.05.2023 and numbered 2022/112 (Merits), 2023/2756 (Decision), for the offense of threatening with the intent to create fear and panic among the public, regulated under Article 213 of Law No. 5237, to be constituted, the threat must be directed not at specific individuals but at an indeterminate number of persons.
Accordingly, in the concrete case where the defendant shouted at those present in a coffeehouse while holding a weapon, saying ‘Who the hell wronged my friend?’, instead of punishing the defendant pursuant to Article 106(2)(a) of Law No. 5237, in conjunction with Article 43(2) of the same Law due to the act being committed against more than one person, the court fell into an error in the legal characterization of the offense and rendered the judgment as written.
B. In light of the changed legal characterization of the offense, it has been determined that, pursuant to Article 66(1)(e) of Law No. 5237, an ordinary statute of limitations period of eight years is prescribed based on the type and upper limit of the penalty applicable to the offense, and pursuant to Article 67(4) of the same Law, an extraordinary statute of limitations period of twelve years is prescribed. The statute of limitations period was suspended for six months and five days from 31.12.2014, the date on which the decision to defer the pronouncement of the verdict became final, until 04.07.2015, the date of the offense committed during the probation period. It has been understood that the twelve-year extraordinary statute of limitations period was completed from the date of the offense to the date of appellate review, after adding the suspension period during which the pronouncement of the verdict was deferred to the said extraordinary limitation period.
DECISION
For the reasons explained in the reasoning section, as the appeal request of the defendant’s counsel against the decision of the Istanbul Regional Court of Justice, 3rd Criminal Chamber, dated 12.03.2020 and numbered 2019/789 (Merits), 2020/404 (Decision) has been found to be justified, the judgment has been REVERSED pursuant to Article 321(1) of Law No. 1412…
(Court of Cassation, 8th Criminal Chamber, File No. 2021/17102, Decision No. 2024/7842, dated 21.10.2024)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
