In our legal system, the crime of false accusation (defamation) regulated under Article 267 of the Turkish Penal Code within the scope of crimes committed against the judiciary is defined as an act of making false and baseless allegations against a person, despite knowing that the person did not commit the alleged crime, in order to cause an investigation and prosecution or to impose an administrative fine on that person. There are no special conditions or restrictions regarding the perpetrator or the victim of this crime; anyone can be the perpetrator or the victim.
Article 267/1 of the Turkish Penal Code provides: “A person who, by reporting or complaining to the authorized authorities or through the press and media, knowingly attributes an unlawful act to another person in order to cause the initiation of an investigation or prosecution or the imposition of an administrative sanction against that person, shall be punished with imprisonment from one to four years.”
Article 267/2 of the Turkish Penal Code states:
“If the false accusation is made by fabricating material evidence and proofs of the act, the penalty shall be increased by half.”
Article 267/3 states:
“If a decision of acquittal or non-prosecution has been given for the victim because they did not commit the alleged act, but a protective measure other than detention or arrest has been applied against the victim due to this act, the penalty to be imposed according to the above paragraphs shall be increased by half.”
Article 267/4 states:
“If a decision of acquittal or non-prosecution has been given for the victim because they did not commit the alleged act, and the victim is detained or arrested due to this act; the person making the false accusation shall also be held indirectly liable according to the provisions regarding the crime of deprivation of liberty.”
Article 267/5 of the Turkish Penal Code states:
“In the case where the victim has been sentenced to aggravated life imprisonment or life imprisonment, a prison sentence of twenty to thirty years shall be imposed.”
Article 267/6 states:
“If the execution of the victim’s prison sentence has commenced, the penalty to be imposed according to the fifth paragraph shall be increased by half.”
Article 267/7 has been annulled by a decision of the Constitutional Court.
Article 267/8 states:
“The statute of limitations for prosecution in the crime of false accusation starts from the date it is proven that the victim did not commit the act.”
Article 267/9 states:
“The conviction given for the crime of false accusation committed through the press and publication shall be announced by the same or an equivalent press and publication organ. The announcement expenses shall be collected from the convicted person.”
This crime protects both the violation of the interests of the person, i.e., the victim, and the functioning of the judicial mechanism. While the legislator explains the definition and operation of the crime in the first paragraph of the law, the other paragraphs regulate the aggravating circumstances that increase the penalty for the crime.
As can be understood from Article 267/1 of the Turkish Penal Code, the legal subject of the crime is “an objectively false unlawful act.” For the formation of the crime of false accusation, it is not necessary that a criminal accusation be made; it can also be an unlawful act.
The crime of false accusation is regulated in Article 267 of the Turkish Penal Code as a crime with alternative acts. However, while some of these alternative acts are regulated as the simple form of the crime, others are regulated as aggravated forms.
1- False Accusation Through Reporting and Complaints: According to Article 267 of the Turkish Penal Code, the unlawful accusation against the victim can occur through reporting or complaining to the authorized authorities responsible for imposing administrative sanctions or initiating investigation and prosecution.
2- False Accusation Through Press and Publication: Under Article 267 of the Turkish Penal Code, false accusation is regulated as an alternative act. In this act, the publication indirectly conveys the false accusation against the victim to the competent authority. Although it is not mandatory for the competent authority to initiate an investigation or prosecution based on the accusation, the accusation must be of such intensity and impact as to at least necessitate an investigation.
The Complaint Requirement Status of the Crime of False Accusation
Since the crime type is not otherwise specified in the law, its prosecution is not dependent on a complaint. Investigation and prosecution are conducted ex officio. The public prosecutor can initiate investigation and inquiry ex officio as soon as they become aware of the act.
The Applicability of Conciliation to the Crime of False Accusation
The Turkish Penal Code does not provide for a conciliation procedure for the crime of false accusation. However, since the investigation and prosecution of the false accusation crime are not dependent on a complaint, and it is not one of the listed offenses in Article 253 of the Criminal Procedure Code, conciliation is not possible for this crime.
The Crime of False Accusation in Terms of Its Mode of Commission
Although the crime of false accusation can be committed intentionally, general intent is not sufficient for its commission; a specific intent is required. The perpetrator must knowingly attribute a crime to a person who did not commit it, with the purpose and intent of causing an investigation, prosecution, or administrative sanction. Since it is required that the perpetrator knows the accusation is false, this crime can only be committed with direct intent.
The crime of false accusation is completed either by the competent authorities learning of the act that is the subject of the report or complaint, or by the publication of the defamatory statements. False accusation is a pure conduct crime and, therefore, as a general rule, is not susceptible to attempt. However, if the defamatory accusations of the perpetrator can be divided into separate acts, an attempt to commit the crime may become possible.
Aggravating Circumstances
- Committing False Accusation by Fabricating Material Evidence and Proofs: (Article 267/2 of the Turkish Penal Code)
The perpetrator does not make an abstract accusation as in the simple form of the crime of false accusation but concretizes the accusation by fabricating material evidence and (false) proof. However, for this concretization act to occur, it must be directed at a specific person and aimed at initiating a sanction against that person. The concept of material evidence mentioned here refers to evidence or indications. Additionally, there are opinions that concealing or destroying evidence proving the victim’s innocence also constitutes this crime.
- Application of a Protective Measure Other Than Detention or Arrest Against the Victim, Who Has Been Acquitted or Declared Not Prosecutable Due to Not Committing the Alleged Act: (Article 267/3 of the Turkish Penal Code)
If a decision of non-prosecution or acquittal has been made regarding the victim for the alleged act, but a protective measure other than detention or arrest has been applied to the victim due to the investigation and prosecution, the penalty should still be increased.
- Conviction of the Victim (Article 267/5 of the Turkish Penal Code) – Commencement of the Execution of the Victim’s Prison Sentence (Article 267/6 of the Turkish Penal Code)
If the victim receives a sentence that restricts their liberty, the perpetrator’s penalty is increased.
The Institution of Effective Remorse
The institution of effective remorse is not regulated in the law for every type of crime. It can only be applied to crimes for which there is a specific provision. Such a regulation exists for the crime of false accusation. According to Article 269 of the Turkish Penal Code, the applicability of effective remorse through “withdrawal from false accusation” is regulated.
According to the article, if the person who made the false accusation withdraws their accusation before a judicial or administrative investigation is initiated against the victim, the penalty to be imposed is reduced by four-fifths.
If the person withdraws the accusation before the prosecution begins, the penalty is reduced by three-fourths.
If the person withdraws the accusation before the verdict is given, the penalty can be reduced by two-thirds; if withdrawal occurs after the conviction of the falsely accused, the penalty can be reduced by half; and if withdrawal occurs after the execution of the sentence has begun, the penalty can be reduced by one-third.
The Enforcement Regime Applicable to the Crime
The investigation and prosecution of the crime of false accusation are not subject to any conditions, and the prosecution shall be conducted ex officio. Regarding the simple form of the crime of false accusation (Article 267/1) and some of its aggravated forms (Articles 267/2, 3, 4, 6), the competent court is the Criminal Court of First Instance. For the other aggravated form specified in Article 267/5, the competent court is the Heavy Penal Court.
If the simple form of the crime of false accusation regulated in Article 267 of the Turkish Penal Code is committed, the perpetrator shall be punished with imprisonment from one to four years.
According to the Turkish Penal Code, judicial fines are imposed in place of prison sentences of one year or less and represent a conversion of imprisonment to a monetary penalty. In the case of false accusation, if the sentence is given at the lower limit, it is possible to impose a judicial fine on the perpetrator.
If a person sentenced to imprisonment is deemed to have good behavior during their time in prison and is considered capable of adapting to social life, the remaining sentence may be served outside the prison under conditional release. Another term for this is parole. Conditional release is applicable for the crime of false accusation; however, the convict must have served at least half of their sentence in a correctional facility.
According to Enforcement Law No. 5275, for crimes committed after March 30, 2020, a convict must be in an open penal institution or eligible for transfer to such an institution and must have good behavior to benefit from supervised release. The crime of false accusation is also suitable for supervised release. It is stipulated that supervised release will be applied for those with one year or less remaining in their conditional release period. The legislator has also set certain exceptions regarding this period. Female convicts with children aged between 0 and 6 years who committed crimes after March 30, 2020, are subject to a two-year supervised release period. If the convict is over 65 years old and unable to live independently due to illness, disability, or old age, the required period for supervised release is set at three years.
According to the Turkish Penal Code, the decision to postpone the execution of a prison sentence means conditionally waiving the enforcement of the sentence that the convict has received. It is possible to issue a decision for the postponement of the sentence regarding the crime of false accusation.
The decision to defer the announcement of the verdict, as regulated in the Turkish Penal Code, is given for prison sentences of two years or less. Due to the penalty limits for the crime of false accusation, it is possible to issue a decision to defer the announcement of the verdict. If such a decision is made, the offender must comply with certain conditions specified by law for a certain period. If the offender fulfills these conditions, the decision will be lifted without any consequences at the end of the supervision period.
Sample Supreme Court Decisions on the Crime of False Accusation
1- Fraud and False Accusation Crime by Using Someone Else’s Identity
The defendant’s application to the bank to obtain a credit card on behalf of the complainant and signing certain documents on behalf of the complainant does not constitute the crime of false accusation. Instead, the act constitutes fraud or, in the case of obtaining the credit card, the crime of misuse of bank or credit cards as per Article 245/2 of the Turkish Penal Code. Therefore, the application of Article 267/4 of the Turkish Penal Code is not possible.
(Supreme Court, 8th Criminal Chamber – Decision: 2014/30708)
2- False Accusation in Terms of Fabricating a Crime
“For the crime of false accusation to occur, it is necessary that a person, knowing that the accused did not commit the act, attributes an unlawful act to them by reporting or filing a complaint with the competent authorities to initiate an investigation or prosecution or to impose an administrative sanction. In the concrete case where the defendant called law enforcement on 16.03.2011 and reported that a person came to the workplace of [name], attempting to force the signing of a promissory note, it was determined that there was no intention to open an investigation against the complainant and the perpetrator of the alleged act was not identified, hence the elements of the crime of false accusation were not established. However, the defendant’s act of reporting to the authorities, knowing that it did not occur, the crime of forcing the signing of a promissory note (extortion) constituted the crime of ‘fabricating a crime’ as regulated in Article 271 of the Turkish Penal Code. The court erred in the qualification of the crime and thus the written judgment was issued incorrectly.”
(Supreme Court, 16th Criminal Chamber – Decision: 2016/4583)
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