CRIME OF THREAT - Av. Gökhan Akgül

What is the Crime of Threat?
The crime occurs when the person making the threat declares that they will harm the body or sexual integrity of the individual or individuals in the future.

Article 106- (1) A person who threatens another by stating that they will commit an attack on the life, body, or sexual integrity of that person or their relative shall be punished with imprisonment from six months to two years. If the threat is made by stating that significant harm will be caused to the property or other harm will be done, upon the victim’s complaint, the offender may be sentenced to imprisonment of up to six months or judicial fines.

Complaint in the Crime of Threats
The crime of threat, as a general rule, is not a crime that is subject to investigation and prosecution based on a complaint. The investigation and prosecution of this crime are carried out ex officio by public prosecutors. However, in cases where the threat involves property or other specific types of threats, as regulated in Article 106 of the Turkish Penal Code (TCK), the investigation of the threat crime is subject to the victim’s complaint. If there is no complaint, no investigation is initiated, and if the complaint is withdrawn, the investigation and prosecution will not continue.

Mediation in the crime of threat
Since the crime of threat is one of the offenses listed under mediation in Article 253 of the Turkish Penal Code, mediation attempts can be made in all forms of this crime.

The mental element in the crime of threat.
The commission of the crime of threat is subject to general intent. It is not possible for it to be committed negligently. In threats made as a joke, the person does not have the intent to commit a crime; therefore, it cannot be said to be committed negligently, and no crime is established.

The aggravated forms of the crime of threat.
(2) If the threat is committed; a) With a weapon,
b) By the person putting themselves in an unrecognizable state, with an unsigned letter or special symbols,
c) By more than one person together,
d) By utilizing the intimidating power of existing or assumed criminal organizations,
The perpetrator shall be sentenced to imprisonment for a term of two to five years.

(3) If the crime of intentional killing, intentional injury, or damage to property is committed with the purpose of threatening, additional punishment shall be imposed for these crimes.

As stated in the first paragraph of Article 106, the crime committed against a woman is also considered an aggravated form.

The crime committed against healthcare personnel is also specially regulated. (In cases of intentional injury (Article 86), threat (Article 106), insult (Article 125), and resistance to the performance of duty (Article 265) committed against healthcare personnel and auxiliary healthcare personnel working in public or private healthcare institutions due to their duties under the Turkish Penal Code No. 5237:

a) The penalties to be imposed according to the relevant articles are increased by half.
b) The provisions regarding the suspension of imprisonment under Article 51 of the Turkish Penal Code shall not be applied.

If the crime is committed against healthcare personnel, the penalty is increased and suspension of the prison sentence is not applicable.

Effective remorse in the crime of threat.
In the Turkish Penal Code, the crimes for which effective remorse is applicable are specifically listed, and the crime of threat is not one of them. Therefore, it is not possible to benefit from effective remorse for the crime of threat. Additionally, due to the fact that it is a crime closely related to the act, it is not a concept suitable for the nature of this offense.

The execution regime in the crime of threat.
Recidivism in crimes is regulated under Article 58 of the Turkish Penal Code No. 5237. According to Article 58 of the TPC, recidivism provisions apply if a new crime is committed after a judgment has become final for a previously committed crime. It is not necessary for the punishment to have been executed. In the case of recidivism, the sentence imposed is carried out according to the execution regime specific to recidivists. Additionally, after the execution of the sentence, the convicted recidivist will be subjected to probation measures. Recidivism provisions do not apply to individuals who committed crimes before reaching the age of eighteen. Furthermore, in cases of recidivism, if the relevant law on the subsequent crime provides an option of either imprisonment or judicial fine, the sentence of imprisonment will be imposed.

Relevant Court of Cassation rulings

COURT OF CASSATION 4th CRIMINAL CHAMBER Case No: 2017/20896 Decision No: 2018/262 Date: 09.01.2018

Turkish Penal Code, Article 106

Crime of Threat

Since there were no reasons for rejecting the appeal request, the case was examined on its merits.

Based on the examination of the minutes, documents, and reasoning content reflecting the trial process in which the moral conviction was formed:

A- In accordance with the provisions of Article 106/1-1 of the Turkish Penal Code (TCK), the intentional crime that caused the ruling to be pronounced was found to be the crime of threat, and in accordance with the amendments made by Article 34 of Law No. 6763 published in the Official Gazette dated 02/12/2016, which entered into force on the same date, and the amendments made to Article 253 of the Turkish Criminal Procedure Code (CMK), including the additional paragraph regarding the settlement provisions, it was necessary to investigate whether a settlement process was carried out in relation to the threat crime under Article 106/1 of TCK. If the settlement process had a positive result, it should be determined whether the defendant had been convicted of other intentional crimes committed during the probation period. Based on the result, the necessity to evaluate whether the deferred ruling should be pronounced would arise.

B- According to the acceptance:

It was understood that the threat crime under Article 106/1 of the TCK, which was attributed to the defendant, falls within the scope of settlement, with the amendments made to Article 253 of the CMK and the additional paragraph introduced by Article 34 of Law No. 6763, published in the Official Gazette dated 02/12/2016 and entering into force on the same date. Considering Articles 2 and 7 of the Turkish Penal Code No. 5237, it is necessary to apply the settlement process and, depending on the result, to re-evaluate and determine the defendant’s legal status accordingly.

This necessitated the reversal of the judgment. Since the defendant’s appeal objections were deemed valid, without reviewing other aspects, the JUDGMENT was REVERSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which must be applied pursuant to Article 8/1 of Law No. 5320, and the case file was sent to the court of first instance for further proceedings from the stage prior to the reversal. The decision was made unanimously on 09/01/2018.

COURT OF CASSATION 4th CRIMINAL CHAMBER
File No: 2016/13648
Decision No: 2018/275
Date: 09.01.2018

Article 106 of the Turkish Penal Code (TCK)

Crime of Threat

The judgments made by the local court were appealed, and after reviewing the timeliness of the application, the nature of the decision, and the date of the crime, it was determined that the public prosecutor’s request for the appeal regarding the acquittal decision for the defendant on the charge of damaging property was not within the time frame. Therefore, the appeal request was rejected, and this judgment was not appealed. After reviewing the case, the following was decided:

1- Regarding the crimes of forming and being a member of a criminal organization, to which none of the victims directly suffered harm, the participation of the victim … in these crimes is not allowed. Since the participation decision lacks legal value, it was decided to reject the victim’s request to appeal the judgment in accordance with Article 317 of the Criminal Procedure Code (CMUK).

2- Regarding the appeal of the conviction for the crime of threat against the defendant Saadettin oğlu …,

As there were no reasons to reject the appeal, the merits of the case were examined.

It was determined that the statutory limitation period of 8 years as set out in Article 66/1-e of the Turkish Penal Code (TCK) for the crime of threat under Article 106/2-a of TCK had elapsed by the date of the judgment (26/10/2009) until the date of examination.

This necessitated the overturning of the judgment. As the reasons for the appeal were found to be valid, the decision was overturned. Since the grounds for overturning the judgment did not require a retrial, in accordance with Article 223/8 of the Criminal Procedure Code No. 5271, the public case is dismissed due to the statute of limitations.

2- Regarding the appeals for the acquittal decisions related to the crimes of robbery, threat, property damage, and causing danger to public safety for the defendants Saadettin oğlu …, …, Şükrü oğlu …, and others on the dates of 13/04/2006 and 23/04/2006:

Based on the records, documents, and the reasoning reflecting the proceedings where the moral conviction was formed:

The appeals made by the victim … regarding the actions and alleged crimes were not found to be valid. Therefore, in accordance with the notification, the appeal was rejected, and the decisions were upheld.

The decision was made unanimously on 09/01/2018.

Criminal Chamber 2016/6 E., 2016/6172 K.

“Jurisprudence Text”
COURT: Heavy Penal Court
CRIME: Deprivation of liberty, robbery (defendants …), insult (defendant …), threat (defendants …), violation of Law No. 6136 (defendant …)
JUDGMENT: Defendants … were acquitted of deprivation of liberty charges, and defendants … were acquitted of threat charges; defendant …’s sentence regarding threat and intentional injury charges, and defendant …’s sentence regarding threat and violation of Law No. 6136 were deferred; defendant … was convicted of threat.

The judgments rendered by the first-instance court were appealed, and the file was reviewed.
Regarding the public case filed against defendant … for insult, the court has found it possible to make a decision within the statute of limitations.
The decisions to defer the sentences for the charges of threat against defendants …, intentional injury against defendant …, and violation of Law No. 6136 against defendant … are appealable decisions according to Article 231/12 of the Criminal Procedure Code No. 5271, and it was understood that the defendants’ and their lawyers’ appeals regarding those judgments should be considered as objections under Article 264 of the same law and sent to the appropriate court for resolution.

After considering the necessary actions, it was decided that the appeal review should be limited to the acquittal decisions for the charge of deprivation of liberty against defendants … and threat charges against defendants …, and the conviction for the threat charge against defendant ….

Regarding Article 53 of the Turkish Penal Code No. 5237, following the Constitutional Court’s decision dated 24.11.2015, published in the Official Gazette No. 29542, it was noted that the cancellation decision regarding defendant … should be taken into account in the execution stage concerning the conviction for threat.

The allegations and defenses, as well as the hearings, were considered and analyzed, and the judgment was made in line with the legal elements of the actions that led to acquittals and convictions. As the appeals filed by the defense lawyers of defendants … and the victim’s lawyer were found to be without merit, it was decided to uphold the acquittal decisions for deprivation of liberty and threat charges against defendants … and the conviction for threat against defendant ….

The decision was made unanimously on 21.06.2016.