The Crime of Inciting the Public to Hatred and Hostility or Degrading the Public

What is the Crime of Inciting the Public to Hatred and Hostility or Degrading the Public?

The crime of inciting the public to hatred and hostility or degrading the public is considered a concrete danger crime by the legislator. The necessity of punishing the perpetrators of this crime is fundamentally aimed at protecting public peace, ensuring social harmony, and limiting hate speech.

This crime is regulated under Article 216 of the Turkish Penal Code, within the 3rd section titled “Crimes Against Society” and the 5th chapter titled “Crimes Against Public Peace.”

(1) Any person who publicly incites a segment of society with different characteristics in terms of social class, race, religion, sect, or region against another segment in a manner that creates a clear and imminent danger to public security shall be sentenced to imprisonment from one to three years.

(2) Any person who publicly degrades a segment of society based on differences in social class, race, religion, sect, gender, or region shall be sentenced to imprisonment from six months to one year.

(3) Any person who publicly degrades religious values adopted by a segment of society, in a manner that is capable of disturbing public peace, shall be sentenced to imprisonment from six months to one year.

As understood from the quoted legal provision, this crime consists of three distinct types. Each of these types has been explicitly defined in the law, and their respective penalties have been regulated accordingly.

1. What is the Crime of Inciting the Public to Hatred and Hostility?

Inciting the public to hatred and hostility refers to provoking a segment of society with distinct characteristics based on factors such as social class, race, religion, sect, or region against another segment through various statements or actions.

Regarding this type of crime, the 8th Criminal Chamber of the Court of Cassation, in its decision dated April 10, 2014 (Case No: 2013/16829, Decision No: 2014/9196), listed the necessary conditions for the occurrence of this offense:

“The crime of inciting the public to hatred and hostility, as regulated in Article 216/1 of the Turkish Penal Code, is classified as a concrete endangerment crime. The act must influence an indeterminate segment of society in terms of number and individuals, leading to the formation or reinforcement of feelings of hatred and hostility.”

2. What is the Crime of Publicly Insulting a Segment of Society?

Publicly insulting a segment of society refers to the act of a perpetrator degrading individuals based on their social class, race, religion, sect, gender, or regional differences, as stated by the legislator.

Unlike the crime of inciting the public to hatred and hostility under Article 216/1 of the Turkish Penal Code (TCK), this offense does not require the formation or reinforcement of hatred and hostility, nor does it necessitate an actual disturbance of public peace. Instead, the mere act of publicly insulting a specific segment of society is deemed sufficient for the crime to exist.

3. What is the Crime of Insulting the Religious Values Adopted by a Segment of Society?

This type of offense, regulated under Article 216/3 of the Turkish Penal Code (TCK), occurs when the perpetrator mocks or insults the religious values believed in by a segment of society.

It should be noted that, similar to Article 216/1, this crime is punishable only if the act is deemed capable of disturbing public peace by the court.

In a ruling by the 8th Criminal Chamber of the Court of Cassation, dated 30.06.2021 (Case No: 2020/9093, Decision No: 2021/17158), the court stated:

“The defendant’s social media post targeting individuals who follow Islam, stating, ‘I hate those who defend Islam even more. You are all murderers, filth, now get lost,’ constitutes the crime of publicly insulting a segment of society based on social class, race, religion, sect, gender, or regional differences under Article 216/2 of the TCK…”

As a result, the court overturned the previous ruling against the defendant.

What is the Penalty for the Crime of Inciting Hatred and Hostility Among the Public?

As stated in Article 216 of the Turkish Penal Code (TCK):

• The crime of inciting hatred and hostility among the public is punishable by 1 to 3 years of imprisonment.
• The crime of publicly insulting a segment of society is punishable by 6 months to 1 year of imprisonment.
• The crime of insulting a segment of society based on their religious values is also punishable by 6 months to 1 year of imprisonment.

What is the Aggravated Form of the Crime of Inciting Hatred and Hostility Among the Public or Insulting a Segment of Society?

As regulated in Article 218 of the Turkish Penal Code (TCK), if the crime of inciting hatred and hostility among the public or insulting a segment of society is committed through the press or media, the penalty imposed on the offender is increased by half.

For example, if the offender is sentenced to 1 year of imprisonment under normal circumstances, this sentence will be increased to 1.5 years if the crime is committed through press or media.

Trial Procedure in Cases of Inciting Hatred and Hostility Among the Public or Insulting a Segment of Society

Criminal cases concerning this offense proceed through the investigation and prosecution stages conducted by the public prosecutor’s office. Once the prosecutor becomes aware of the alleged crime, an investigation is initiated, during which all evidence, whether in favor of or against the suspect, is collected.

At the conclusion of the investigation phase, if sufficient evidence is found, the prosecutor files an indictment. However, if the evidence is insufficient, a decision of non-prosecution (dismissal of charges) is issued.

The prosecution phase begins with the indictment prepared by the prosecutor, officially initiating the public trial. At the end of this stage, the court will deliver a judgment regarding the accused.

It is important to note that cases related to inciting hatred and hostility or insulting a segment of society fall under the jurisdiction of the Criminal Court of First Instance (Asliye Ceza Mahkemesi). In such cases, the parties involved may require the assistance of a criminal lawyer, such as an Antalya criminal lawyer, to initiate and follow the legal proceedings.

Frequently Asked Questions

1. Is the Crime of Inciting or Insulting the Public to Hatred and Hostility a Complaint-Dependent Offense?

None of the three types of offenses included in the crime of inciting or insulting the public to hatred and hostility are complaint-dependent offenses. Since this crime is prosecuted ex officio by the prosecutor, there is no complaint period.

2. What is the Execution Procedure for the Crime of Inciting the Public to Hatred and Hostility?

As stated above, there are 3 different types of the crime of inciting the public to hatred and hostility, two of which—publicly humiliating a segment of the population and humiliating the religious values adopted by a segment of the population—carry a punishment of 6 months to 1 year in prison. These crimes do not involve imprisonment based on the lower or upper limits of the sentence or the Turkish Penal Execution calculation. However, the crime of inciting the public to hatred and hostility as mentioned in Article 216/1 of the Turkish Penal Code, with a sentence ranging from 1 to 3 years, may involve imprisonment if the upper limit sentence is applied or if an aggravated circumstance is present. Additionally, if the offender has no prior criminal record, and the sentence is under 2 years, the court may decide to postpone the announcement of the judgment.

3. Can an Attempt Be Made to Commit the Crime of Inciting the Public to Hatred and Hostility or Humiliation?

Article 35 of the Turkish Penal Code defines an attempt as: “If a person begins to directly commit a crime with actions that are appropriate for its execution, but is unable to complete it due to reasons beyond their control, they will be held responsible for an attempt.”

However, the crimes mentioned in paragraphs 2 and 3 of Article 216 of the Turkish Penal Code, being crimes of mere speech, generally cannot be attempted. However, in cases where these crimes are committed through media and publication, and the publication is blocked, for example, if the actions can be divided into parts, an attempt may be considered to exist.

4. Can One Participate in the Crime of Inciting or Insulting the Public to Hatred and Hostility?

Theoretically, participation occurs in the forms of direct participation, incitement, and assistance. The legislator (Article 37 of the Turkish Penal Code) has made a statement regarding participation, specifying that multiple individuals can come together with the common intention of committing a crime and commit the crime together. It is also possible for more than one person to participate in the crime of inciting or insulting the public to hatred and hostility.

5. Is it possible to aggregate the crime of inciting hatred and hostility or insulting the public?

Aggregation is expressed as the commission of multiple crimes by a single act or the commission of the same crime against multiple individuals. Article 44 of the Turkish Penal Code defines aggregation as follows: “A person who causes the formation of more than one distinct crime with a single act shall be punished for the crime that requires the heaviest penalty.” If the crime of inciting hatred and hostility or insulting the public is committed along with a different crime/crimes in a single act, the defendant is punished by considering the crime that carries the heaviest penalty. Additionally, if the crime is committed against multiple individuals, it is known that the defendant’s sentence may be increased.

6. Is the Crime of Inciting Hatred and Hostility or Insulting the Public Subject to Mediation?

Crimes subject to mediation are regulated under Article 253 of the Turkish Penal Code, and these include offenses such as theft, fraud, insult, and threat, which are considered less serious. However, the crime of inciting hatred and hostility or insulting the public is not subject to mediation.

7. What is the detention status in the crime of inciting hatred and hostility or insulting the public?

In this type of offense, although there may be exceptional circumstances in the evaluation, detention is generally considered inappropriate and disproportionate. Instead, it is believed that there should be an increased focus on judicial control measures. In this regard, the Constitutional Court ruled to overturn the detention decision given to the defendant in its individual application decision dated 12.01.2021, application number 2020/13412, based on the following principles: “The applicant argued that the detention decision did not present strong evidence of probable cause through concrete facts, that the reasons relied upon for detention were not valid, as the evidence consisted of social media posts, which had already been identified by the investigative authorities, and there was no possibility of evidence tampering. Furthermore, the applicant stated that the crime of inciting hatred and hostility, for which they were accused, carried a maximum penalty of 3 years in prison, making it a relatively light crime that was slightly above the detention restriction threshold. Considering the upper limit of the sentence, the suspicion of flight was found to be unjustified. Additionally, the evaluations made in the detention decision regarding the inadequacy of judicial control measures were completely arbitrary and unfounded, and the principle of proportionality had been ignored, leading the applicant to claim that their right to personal freedom and security had been violated.”

8. What is the Statute of Limitations for the Crime of Inciting Hatred and Hostility or Insulting the Public?

In the crime of inciting hatred and hostility or insulting the public, the statute of limitations for filing a lawsuit is known to be 8 years. This statute of limitations begins from the date the crime is committed. The criminal statute of limitations for this offense is set at 10 years.

Some Court of Cassation Rulings on the Crime of Inciting Hatred and Hostility or Insulting the Public

1. “The defendant’s statement, ‘a… k…. …’ directed at the victim during the fight, does not target a specific segment of the public, and therefore, without considering that the act should be classified as an insult, the court mistakenly classified the offense and sentenced the defendant under Article 216/2 of the Turkish Penal Code.” (Court of Cassation, 8th Criminal Chamber, Decision No. 2020/17273, 20.10.2020, Case No. 2019/569)
2. “The incident in question involves the defendant, who is the host of a program aired on a television channel, making statements during the broadcast while commenting on the ‘Olive Branch Operation’ such as: ‘…if we were going to kill civilians… we would start with… Nişantaşı… There are many traitors… The Grand National Assembly of Turkey… There’s no such thing… I mean, this…’ and committing the alleged offense with these remarks.” (Court of Cassation, 8th Criminal Chamber, Decision No. 2024/2179, 06.03.2024, Case No. 2021/17054)
3. “The defendant’s post stating ’10 Kurdish children were massacred by the police… This threat is a declaration of war against the Kurds…’ is an attempt to present the security forces of the Republic of Turkey as an institution carrying out a massacre against the Kurds. Rather than accepting that the elements of the crime under Article 301/2 of the Turkish Penal Code were established, a misjudgment was made regarding the classification of the offense, and the defendant was convicted of the crime of inciting the public to hatred and hostility.” (Court of Cassation, 16th Criminal Chamber, Decision No. 2018/639, 02.03.2018, Case No. 2017/2825)
4. “The defendant’s posts intended to insult the Prophet Muhammad, peace be upon him, in Islam, within the scope of Article 216, Paragraph 3 of the Turkish Penal Code, considering the majority of the population in our country is Muslim, and the report made in response to the post, demonstrate that it is likely to disturb public peace. Therefore, it is understood that the objective condition for criminal liability is fulfilled. However, based on the reports issued by Antalya Education and Research Hospital on 23.05.2022 and 02.10.2023, there was no legal violation in the decision, and the defendant’s lawyer’s appeal for cassation was rejected.” (Court of Cassation, 8th Criminal Chamber, Decision No. 2024/9647, 12.12.2024, Case No. 2024/21515)
5. “In the present case, the defendant’s statements detailed in the ‘events and facts’ section were directed towards a specific individual, political party, and its supporters. Since the political party and its supporters do not constitute a social class, nor do they fall under any of the other groups specified in the article, the elements of the crime were not met, and therefore, there was no legal contradiction in the acquittal of the defendant.” (Court of Cassation, 8th Criminal Chamber, Decision No. 2024/9084, 27.11.2024, Case No. 2024/21541)
6. “In the decision dated 21.03.2023 of the Ankara 27th Criminal Court of First Instance, it was determined that the defendant’s statements during a seminar did not meet the element of ‘publicity.’ Furthermore, contrary to the defendant’s defense that they were aware of the recording of the statements and their posting on the ‘YouTube’ website, no evidence was found to support this claim. Therefore, there was no legal contradiction in the decision to acquit the defendant.” (Court of Cassation, 8th Criminal Chamber, Decision No. 2024/533, 22.01.2024, Case No. 2023/5159)
7. “In the present case, it is understood that the defendant clearly insulted important values of the Islamic religion, such as Allah, Prophet Muhammad, and the Quran, in the posts detailed in the ‘events and facts’ section. The defendant’s social media account was open to the public, the posts received many comments and reactions, and the investigation process was initiated following a report from a citizen who was disturbed by the posts. The crime regulated under Article 216, paragraph 3 of the Turkish Penal Code (Law No. 5237) is a crime of danger. Therefore, the potential disruption of public peace is sufficient for the commission of the crime. There is no need for a clear and specific danger or harm for this element to be considered realized.” (Court of Cassation, 8th Criminal Chamber, Decision No. 2024/7635, 14.10.2024, Case No. 2023/5065)
8. “… Statements that are objective and unbiased, hurtful, damaging to dignity, and disturbing but do not contain violence or incite violence are also within the scope of freedom of thought. Considering the place and time in which the statements were made, and since they did not cause imminent danger, the court, after evaluating the existing evidence and providing reasons, found that the legal elements of the crime were not established. Therefore, the acquittal decision was found to be in accordance with procedure and law, and the prosecutor’s appeal, which was deemed inappropriate, was rejected, and the judgment was (UPHELD).” (Court of Cassation, 8th Criminal Chamber, Decision No. 2012/6024, 28.02.2012, Case No. 2009/19091)

ANTALYA CRIMINAL LAWYER – ANTALYA LAWYER

The crime of inciting hatred and hostility among the public, as outlined in the Turkish Penal Code, refers to actions that aim to create hatred, hostility, or discrimination against a specific group or community in a manner that jeopardizes social peace. This crime can be committed through speech or actions intended to foster hostility among the public and stir social unrest. The punishment for this crime is regulated under Article 216 of the Turkish Penal Code (No. 5237), and the offender may be sentenced to imprisonment.

Individuals facing such crimes can consult a professional criminal lawyer to navigate their legal processes correctly. In cases where the crime of inciting hatred and hostility is committed, a criminal lawyer can carefully examine the elements of the offense and either defend the accused or file a criminal complaint. The criminal lawyer ensures that the rights of the defendant or the victim are protected and that the legal process is properly carried out. If you are involved in a legal process regarding the crime of inciting hatred and hostility, it is important to seek professional support from an experienced criminal lawyer.

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