WHAT IS THE INSULT CRIME UNDER TURKISH LAW?

HOW IS THE CRIME OF INSULT COMMITTED IN TURKEY?

The insult of crime in Turkey is a significant legal issue, as it is addressed under the Turkish Penal Code, which aims to protect personal rights. The crime insult in Turkey can be committed through various actions such as words, behavior, or expressions that damage a person’s honor, dignity, or respect. For these acts to be considered a crime, they must meet specific criteria, including being personally directed at the victim.

While crime insult in Turkey often involves verbal expressions, it can also extend to written or visual content, hand gestures, or even facial expressions.The Turkish Penal Code does not provide an exhaustive list of insulting acts, but case law has established that degrading or humiliating language directed at someone can constitute this crime. For example, calling someone “dishonest” or referring to them with animal names like “dog” or “donkey” can be considered part of the crime insult in Turkey.

To constitute the insult of crime in Turkey, the act or statement must harm the victim’s reputation, dignity, or honor. Insults targeting someone’s physical features or personal characteristics, like calling someone “deaf” or “crooked,” would fall under this crime. However, simply disclosing a fact or making a true accusation, like calling someone a “thief” when they have indeed committed theft, does not qualify as an insult in Turkey.

Certain expressions do not fall under the scope of crime insult in Turkey. For instance, rude words or impolite behavior such as calling someone “ill-mannered” or “disrespectful” are not considered insults. Similarly, curses or imprecations, such as saying “May God punish you,” are not classified as insults by the Court of Cassation.

Public figures in Turkey, including politicians, artists, and athletes, may face harsher criticism than ordinary citizens. However, the line between criticism and insult can be blurry. Criticizing a politician by saying “you sold the entire country” might not be considered an insult, as it could be viewed as a political statement. But, if the criticism turns into an excessive attack on a person’s honor, it would still constitute the crime insult in Turkey.

In conclusion, the insult of crime in Turkey involves actions or behaviors that damage a person’s honor, dignity, or reputation.While public figures may be subject to more intense criticism, any conduct that crosses the line into a direct attack on personal honor can still be punishable under the law.

DEFINITION OF THE INSULT CRIME IN TURKEY

The crime of insult in Turkey is regulated between Articles 125 and 131 under the section titled “Crimes Against Honor” of the Turkish Penal Code No. 5237 and constitutes one of the fundamental criminal law norms aimed at protecting an individual’s honor, dignity, and reputation. In this context, the insult crime in Turkey can arise in various forms. Attributing a concrete act or fact to a person that may damage their honor, dignity, or reputation is considered sufficient for the crime of insult in Turkey to be constituted. If such an attribution is serious enough to damage the individual’s reputation in the eyes of society, it is legally evaluated within the scope of the insult crime in Turkey.

Additionally, direct verbal attacks also constitute the insult crime in Turkey. In such acts, to the extent that the expressions used by the perpetrator are detrimental to the victim’s moral integrity and are degrading, criminal liability arises. Consequently, the crime of insult in Turkey can occur either through concrete attributions or through direct verbal abuse, necessitating the intervention of criminal law in order to protect individual personality rights.

• Committing the Crime of Insult in the Presence (Face-to-Face)

Committing the crime of insult in Turkey in the presence (face-to-face) occurs when the perpetrator directly attacks the honor, dignity, and reputation of the victim while being face-to-face with them.In such cases, the victim has the opportunity to immediately perceive the insulting expression or behavior. However, mere physical presence in the same environment is not a sufficient condition for insult crime in Turkey in the presence. If the perpetrator uses communication tools such as phone calls, video calls, or instant messaging to directly address the victim, the act is still considered to have been committed in the presence. The determining factor here is whether the perpetrator directed the insulting expressions in a way that the victim could immediately perceive.

• Committing the Crime of Insult in the Absence of the Victim

Committing the crime of insult in the absence of the victim occurs when an insult is made behind the victim’s back. The act constitutes a crime only under a specific condition. In this regard, the perpetrator must utter the insulting words in an environment where at least three people can directly hear or perceive them. In criminal law terminology, this situation is referred to as “public disclosure”. Public disclosure means that the insult is made intentionally by the perpetrator in a manner that allows third parties to hear and understand it. If third parties happen to witness the insult by coincidence or accident, it does not fulfill the requirement of public disclosure. Therefore, unless the insulting act is consciously directed toward at least three people, the act of insulting committed in the victim’s absence is not considered a crime of insult.

• The Crime of Insult via Internet and Social Media

The crime of insult via internet and social media has been addressed in the Turkish Penal Code, with the scope of the insult crime in Turkey expanded by taking into account the diversity of communication tools. According to the justification of Article 125, “insults made through letters, telegrams, telephones, and similar means addressing the person are also considered to be committed in the presence.” With the development of information technologies, the internet has become one of the platforms where the crime of insult can be committed.

Today, the crime of insult in Turkey can be committed through individual communication tools such as e-mail, instant messaging applications, and video call platforms, as well as through social media platforms in a manner that addresses broad audiences. Accordingly, insulting posts made by individuals on social media platforms such as Facebook, Twitter, YouTube, and similar platforms lead to the publicization of the crime, as they are directed not only at a specific person but also openly to the public.

According to the fourth paragraph of Article 125 of the Turkish Penal Code, if the crime of insult is committed publicly, the penalty is increased by one-sixth. This regulation lays the groundwork for considering insults committed via the internet and social media as an aggravated form of the crime. Since social media aims to enable users to deliver their ideas and opinions to wide audiences, the sharing of criminal expressions is deemed to be knowingly and willingly offered to the public domain. Therefore, acts of insult committed in digital environments are subjected to harsher criminal sanctions due to both the widespread reach of the act and its impact on public opinion.

1- Proving the Crime of Insult via Internet

The widespread use of the internet and social media platforms today has facilitated the commission of the crime of insult in Turkey through digital means. Especially insulting posts or comments made through social media networks such as Twitter, Instagram, and Facebook require certain technical procedures for proof. Posts made through these platforms can be traced via digital traces such as IP addresses to identify the perpetrator.

However, companies affiliated with social media platforms strictly adhere to international regulations on the protection of personal data and their internal policies. Therefore, they act very restrictively regarding the sharing of IP addresses or user information with the authorities. This makes it difficult to identify the perpetrator(s) of the insult crime in Turkey.

Nevertheless, investigation authorities attempt to reach the suspect not only by determining the IP address but also by employing alternative investigative methods. In practice, victims often share the identity information of individuals they suspect to be the perpetrator with law enforcement or the prosecutor’s office, and this information is used as a primary source for directing the investigation.

Additionally, through technical surveillance conducted by judicial authorities, digital data analysis, witness statements, and similar methods of collecting evidence, the identity of the perpetrator can be determined, and the act of insult can be proven. Consequently, if the crime of insult in Turkey is committed via the internet, proving the act becomes possible through a comprehensive evaluation of technical capabilities, evidence collection processes, and the information and documents provided by the victim.

2- Committing the Crime of Insult via Communication Tools

In the Turkish Penal Code (TPC), the manner of committing the crime of insult in Turkey is not limited to the victim directly learning of the insult; committing the crime using certain communication tools is also considered equivalent to committing it in the presence. This regulation is expressed in TPC Article 125/2 as “audio, written, or visual communication” being sufficient for the crime to be considered committed in the presence. In this context, the tools used in committing the crime must directly target the victim. That is, the content of the insult must be first and directly learned by the victim. In this case, the communication tool must directly reach the victim for the act to be considered committed in the presence.

For example, insults committed via mobile phones or e-mails are also considered to be committed in the presence under the same conditions. In the case of a phone call insult, the perpetrator must directly speak to the victim. In the case of an e-mail, the mail must be sent directly to the victim’s e-mail address or to a mailing list to which the victim is subscribed. If these conditions are met, it is accepted that the insult is committed in the presence.

On the other hand, if the insult is committed through the press, it is not considered to be committed in the presence. Since insults made via the press do not directly address the victim, they are not considered crimes committed in the presence under the provisions of the TPC. This view highlights the necessity of a legal limitation due to the public accessibility of content published through the press.

3- Crime of Insult via Messages (Letters, E-mails, WhatsApp Messages, SMS, Phone Calls)

Article 125/2 of the Turkish Penal Code accepts insult via communication as a crime. Although insult crimes committed via communication are subject to the same amount of penalty, some are considered “insult in presence,” while others are considered “insult in absence.”

• Insult in Presence: The crime of insult in presence occurs if the perpetrator targets the victim while sending the communication or wishes the victim to learn of the act. For instance, if a WhatsApp message was sent to someone else but was accidentally learned by the victim, then the act does not constitute insult in presence; it is evaluated as insult in absence. The crime of insult in absence occurs if the message is sent to at least three people or a group consisting of three or more people.
• Penalty for Insult via Communication: The penalty for committing the crime of insult via communication is imprisonment from three months to two years or a judicial fine.

Communication Means Considered as Messages under TPC Article 125/2:

• Letter,
• E-mail,
• WhatsApp messages and messages sent to WhatsApp groups,
• SMS via mobile phone,
• Phone conversations,
• Direct messages (DM) sent via social media such as Instagram, Twitter, Facebook.

The crime of insult in Turkey committed in presence occurs when the perpetrator directly targets the victim. However, if the perpetrator knows and intends that the victim can perceive the insult while committing the act, this is also accepted as insult in presence.

To explain with an example, insult via communication is legally considered insult in presence if the perpetrator targets the victim by sending the communication and intends for the victim to learn of it. For example, if a message or phone call directly targets the victim, the perpetrator can be punished for insult committed in presence.

If the perpetrator accidentally sends the message to someone else and the victim learns about it by coincidence, insult in presence does not occur because the perpetrator neither targeted the victim nor intended the victim to learn about the act. In one example, it is emphasized that if the perpetrator sends the message to his sibling and the sibling conveys the insulting message to the victim, it would be considered insult in absence.

4- Solution Process for Defamation Offense via the Internet

Today, defamation offenses committed through social media platforms, the internet, and communication tools require a special solution process due to their reliance on digital evidence.

• Evidence Collection and Documentation: In this process, it is crucial for the victim to record the defamatory post or comment as soon as possible. This documentation should be done by taking a screenshot or saving the link to the post. In case the content is deleted later, it is necessary to preserve this data, which holds evidentiary value, without delay.
• Complaint on Social Media Platform: Next, the relevant user account on the social media platform where the defamatory content was posted can be reported through the system, requesting the platform administrators to remove the content or close the account. If the account is fake, the platform providers may send a warning to the user or temporarily suspend the account if deemed necessary.
• Official Complaint Filing: Furthermore, since the post in question constitutes an open attack on personal rights, an official complaint process should be initiated by applying to the Public Prosecutor’s Office or the nearest law enforcement agency. In practice, this process usually begins with the victim submitting a written complaint containing the link to the defamatory content, a screenshot, and the details of the incident.
• IP Address Detection and Reaching the Suspect: Since most social media platforms (e.g., Twitter, Instagram, Facebook) are based abroad and do not have direct representations in Turkey, reaching the suspect can be challenging. Therefore, public prosecutors request the Telecommunications Communication Presidency (TİB) to identify the IP address where the post was made. After the technical tracking and evidence collection process, if the suspect is identified, their statement is taken, and the file is evaluated and concluded within the scope of the investigation.
• Investigation Duration: The completion time of the investigation varies depending on the workload of the relevant prosecutor’s office, the nature of the crime, and the quality of the evidence. In practice, this process often takes at least six months and, in many cases, longer.
• Indictment and Public Prosecution: If the collected evidence meets the legal elements of the defamation offense, the prosecutor prepares an indictment and submits it to the competent court. Once the indictment is accepted by the court, a public prosecution is initiated. Conversely, if the collected evidence is not sufficient to prove that the offense was committed, the prosecutor issues a “decision not to prosecute.” In practice, this decision is commonly referred to as a “non-prosecution decision.”
• Fake Accounts and Identity Detection: In cases where posts are made through fake accounts, it is difficult to identify the suspect. Therefore, it is important for the victim to provide detailed information in the complaint letter that will assist in identifying the perpetrator. The perpetrator’s name, username, address, or potential identity details, and other obtainable evidence should be included in the letter. A copy of the defamatory post must also be attached to the file for the process to proceed effectively.

WHAT ARE THE ELEMENTS OF THE DEFAMATION OFFENSE IN TURKEY?

The defamation offense in Turkey consists of two main elements: material and mental elements, according to the general principles of criminal law. For the offense to occur, both elements must be present simultaneously.

1. Material Elements of the Defamation Offense in Turkey:

The material element refers to the observable aspects of the offense in the external world, and it involves the offender, the victim, and the act.

• Offender: In the case of defamation in Turkey, the offender can be any real person without any specific qualifications. Any individual with legal capacity – whether male or female – can be the offender of this crime. However, within the framework of a systematic interpretation of the Turkish Penal Code, it can be understood that the legislator did not intend for legal entities (such as companies, associations, foundations) to be the offenders of this crime. Therefore, legal entities are not held criminally responsible for defamation.
• Victim: The phrase “to a person” is found in Article 125 of the Turkish Penal Code, and under this provision, there is no requirement for a special status or qualification for the victim. Every individual, as long as they are a real person, can be the victim of a defamation offense.
• Act: For defamation to occur, the offender must engage in an act or make an accusation or directly insult the victim in a manner that tarnishes the victim’s honor, dignity, and reputation. The accusation or statements made do not necessarily need to be concrete, but the key point is whether the accusation or words objectively violate the victim’s personal rights.

For the defamation offense in Turkey to occur, it is not enough for the victim to claim that their honor and dignity have been harmed based solely on their personal perception. In each case, the accusation or words will be objectively assessed to determine whether they are humiliating according to the general value judgments of society, beyond personal perception. Therefore, excessive sensitivity regarding one’s own honor alone does not necessitate the classification of the act as defamation.

Additionally, according to Article 125 of the Turkish Penal Code, if the defamation offense in Turkey is committed in the absence of the victim, it must be performed in the presence of at least three people, who must knowingly and willingly witness the defamation for it to be considered as an offense. Otherwise, the crime will not be deemed to have occurred.

2. Mental Element of the Defamation Offense in Turkey:

The defamation offense in Turkey can only be committed intentionally. Since it is not separately regulated in the Turkish Penal Code, it is not possible to commit this offense through negligence. Thus, the offender must act with intent, meaning they must consciously and willingly engage in the behavior. The offender’s purpose must be to harm or violate the legally protected values of the individual’s honor, dignity, and reputation.

As a result, for the defamation offense in Turkey to occur, the offender must act with the intention of humiliating the victim in public, and this behavior must objectively have the characteristics of being dishonorable.

WHAT ARE THE QUALIFIED FORMS OF THE DEFAMATION OFFENSE IN TURKEY?

In criminal law, a qualified form of a crime refers to situations in which the crime, when committed under certain conditions, leads to a heavier penalty or more severe sanctions for the offender. These situations are explicitly regulated by the legislator and are found either in the continuation of the relevant article of the criminal code or within the related provisions. Various qualified forms are foreseen for the defamation offense in Turkey under Article 125 of the Turkish Penal Code, which are explained below.

• Defamation Against a Public Official Due to Their Duty

Defamation committed against a public official due to the official duties they are performing is considered a qualified form of the crime. In this case, the offender may be sentenced to imprisonment for one to two years. However, for the qualified form to apply, it is not enough for the victim to be a public official; the defamation must be related to the performance of their public duty.

For example, if a police officer, who is a public official, is insulted about a matter unrelated to their duty – such as during a neighborhood dispute – the qualified form will not apply, and the crime will be punished under the basic provisions of the offense. Moreover, it is not a requirement that the public official be on duty when the defamation occurs.

• Defamation Due to the Expression of a Person’s Religious, Political, Social, or Philosophical Views and Beliefs

One of the fundamental rights and freedoms protected constitutionally is the freedom of thought, belief, and opinion. In this context, a defamation offense committed against a person due to the expression, change, or promotion of their religious, political, social, or philosophical views, or due to their behavior in line with these views, is considered a qualified form of the crime under the Turkish Penal Code. Thus, the legislator aims to protect constitutional values by imposing harsher penalties on attacks directed at an individual’s fundamental rights and freedoms.

• Defamation Directed at the Sacred Values of a Person’s Religion

Defamation committed through the sacred values of the religion to which the victim belongs is also considered a qualified form of the crime. In this case, the attack is not only against the victim but also against their belief system. Since the act harms both personal rights and the freedom of belief, it is punished more severely.

• Defamation Committed Publicly

Defamation committed publicly, i.e., in environments where any segment of society can hear or see the offense, is considered a qualified form of the crime. For public defamation to occur, the environment must allow an indefinite number of people to learn about the offense. In this regard, media outlets such as television, radio, public speeches, or social media platforms, which have wide accessibility, are examples of environments where public defamation can occur. According to the fourth paragraph of Article 125 of the Turkish Penal Code, the penalty for this form of defamation is increased by one-sixth.

WHAT ARE THE FACTORS THAT MITIGATE OR ELIMINATE THE PUNISHMENT IN THE CRIME OF DEFAMATION IN TURKEY?

Article 129 of the Turkish Penal Code regulates personal reasons that reduce or eliminate the punishment for the crime of defamation in Turkey, taking into account certain special conditions under which the perpetrator finds themselves. In this context, defamation committed in response to an unlawful act or intentional injury, as well as cases where defamation occurs mutually, are circumstances that may result in a more favorable outcome for the perpetrator.

• Defamation Committed as a Response to an Unlawful Act

If a person commits an unlawful act, and defamation in Turkey is made in response to this act, the judge may reduce the punishment by up to one-third or may completely refrain from imposing any punishment. It is important to note that the unlawful act must be committed by the person directly targeted by the defamation. For example, insulting a person who violates traffic rules could be evaluated under this provision.

• Defamation Committed as a Response to Intentional Injury

According to Article 129/2 of the Turkish Penal Code, if the crime of defamation in Turkey is committed in response to an intentional injury crime committed against the perpetrator, no punishment is imposed on the perpetrator. This provision indicates that a verbal response to a physical attack suffered by the victim may be excused in terms of criminal law. For example, if someone who was injured later insults the person who injured them, and this act is considered a response to the intentional injury, no punishment will be imposed.

• Defamation Committed Mutually (Mutual Insult)

It is common in practice for the crime of defamation in Turkey to be committed mutually. In such cases, both parties are considered to have committed the act of defamation, and it is possible to punish each separately. However, Article 129/3 of the Turkish Penal Code grants the judge the authority to reduce the punishment for one or both parties or to completely refrain from imposing any punishment. This evaluation is made at the discretion of the judge, considering all the circumstances of the case.

COMPLAINT AND WITHDRAWAL OF COMPLAINT IN THE DEFAMATION CRIME IN TURKEY

The defamation crime in Turkey is classified under special crimes in the Turkish Penal Code and is a complaint-based offense, meaning that investigation and prosecution can only occur upon the victim’s complaint. However, defamation offenses committed against public officials in connection with their public duties are not subject to complaint and are investigated and prosecuted ex officio (automatically).

• Complaint in the Crime of Defamation in Turkey

The investigation and prosecution of the defamation crime in Turkey begin with a complaint made by the person harmed by the offense or the victim. The complaint must be made within six months from the date the victim learns of the defamation. This period begins from the date the victim or harmed person becomes aware of the offense. If the time limit for filing the complaint is exceeded, the prosecution of the offense will no longer be possible.

If the victim dies without using their right to complain, their relatives can exercise the complaint right. The complaint can be made by the deceased person’s second-degree relatives (parents), descendants (children), and spouse or siblings.

• Withdrawal of Complaint

The withdrawal of the complaint in defamation crime in Turkey cases depends on the victim’s decision to either file the complaint or refrain from doing so. The victim, after filing the complaint, has the right to withdraw the complaint at any stage of the process. Withdrawal can occur both during the investigation phase and during the prosecution phase.

However, in the prosecution phase, the withdrawal is subject to the defendant’s acceptance. The defendant may not accept the withdrawal of the complaint and may request the completion of the trial, believing that they might be acquitted and requesting a definitive determination of innocence by the court.

If the complaint is withdrawn during the prosecution phase, the case is dismissed. However, once the victim has withdrawn their complaint, they cannot file a complaint again concerning the same offense. Therefore, withdrawal of the complaint is an irreversible decision, and once the victim exercises this right, they cannot later exercise the right to complain again.

STATUTE OF LIMITATIONS IN THE CRIME OF DEFAMATION IN TURKEY

The crime of defamation in Turkey is subject to a statute of limitations under the Turkish Penal Code. In the case of defamation, the victim must file a complaint within six months after learning of the act and the perpetrator. If no complaint is made within this period, no investigation or prosecution can be initiated regarding the defamation crime in Turkey.

With the amendment to Article 14 of Law No. 7531 on Changes to Certain Laws, a provision was added to Article 73, second paragraph of the Turkish Penal Code, stating that the statute of limitations for filing a complaint for defamation in Turkey cannot exceed two years from the date the act occurred. As a result, a new provision has created an exception to the general rule, stipulating a definitive two-year period within which the complaint must be made, regardless of when the victim learns of the defamation. If the victim cannot file the complaint within the statutory time frame due to not learning of the offense, the right to complain will expire after two years. Therefore, a lack of complaint will result in the inability to conduct a criminal investigation or prosecution due to the absence of the necessary procedural condition.

Offenses of defamation committed against public officials due to their duties, as well as certain other defamation crimes in Turkey listed in paragraphs (b), (c), and (d) of Article 125, do not require a complaint. These offenses are not subject to any statute of limitations for complaint filing. In cases of defamation against a public official due to their duties, the public prosecutor is required to initiate an investigation ex officio. However, the investigation and prosecution must be initiated and concluded within the eight-year limitation period prescribed by the Turkish Penal Code.

WHAT IS THE PENALTY FOR THE CRIME OF DEFAMATION IN TURKEY?

The crime of defamation in Turkey, regulated under Article 125 of the Turkish Penal Code, involves verbal or physical attacks that harm a person’s honor, dignity, and reputation. Defamation is considered a crime aimed at protecting both social order and individual rights and is punishable as such. The penalties for defamation in Turkey vary depending on how the crime is committed and the victim’s circumstances.

1- Simple Defamation and Its Penalty (TCK 125/1)

Simple defamation in Turkey occurs when someone engages in an act or speech that insults another person’s honor, dignity, or reputation. According to the first paragraph of Article 125 of the Turkish Penal Code, the penalty for simple defamation can range from 3 months to 2 years in prison or a judicial fine. A key consideration is that, if the crime is committed in the absence of the victim, the insult must have been directed at no less than three individuals for it to qualify as simple defamation. Moreover, the judge may choose between imprisonment or a judicial fine; both cannot be imposed simultaneously. The judge must provide justification for the sentence.

2- Qualified Defamation and Its Penalty (TCK 125/3)

Qualified forms of defamation in Turkey are punished more severely under certain circumstances. When defamation is committed against public officials or involves insults related to religious, political, social, or philosophical beliefs, the penalties are more severe. Under Article 125/3 of the Turkish Penal Code, penalties for qualified defamation range from 1 to 2 years of imprisonment, with the minimum sentence being no less than one year. This type of crime can occur, particularly in the following situations:

• • Defamation of a public official due to their duties,
  • Insulting a person’s religious, political, social, or philosophical beliefs,
  • Insulting the sacred values of a person’s religion.

Defamation against public officials is particularly punished more harshly, as it can disturb public order.

3- Defamation Committed in Public and Its Penalty

When defamation in Turkey is committed in public, the penalty is increased by 1/6. Public defamation requires that the act or speech is made in a way that can be seen, heard, and perceived by multiple individuals in a specific location or setting. For example, insulting someone on a television program or in a crowded street qualifies as public defamation. The public nature of the defamation necessitates that it occurs in a setting accessible to the public. However, insults made in private spaces, such as in a home, do not constitute public defamation, and the penalty increase does not apply.

4- Defamation of Public Officials Working as a Board

Defamation of public officials working as part of a board, such as expert committees or court panels, can result in more severe penalties under the provisions of repeat offenses. Article 125/5 of the Turkish Penal Code stipulates that defamation directed at public officials working as part of a panel is subject to repeat offense provisions. Such crimes may result in a sentence increased by 1/4 to 3/4.

For instance, insulting several police officers may be evaluated separately and lead to an increased penalty for each. However, it is important to note that insulting several police officers may not always qualify as defamation of public officials working as a board.

5- Mutual Defamation and Its Penalty (TCK 129/3)

According to Article 129/3 of the Turkish Penal Code, if defamation in Turkey occurs mutually between two individuals, this constitutes a “mutual defamation offense.” It is not necessary for the insults to occur simultaneously. For example, if one person insults another through media (e.g., calling them “stupid”) and the second person responds a few days later by calling the first person “idiot,” both individuals can be charged with mutual defamation. Mutual defamation is commonly seen in divorce cases in Turkey. When mutual defamation occurs, the court may choose not to penalize either party or may reduce the penalty by up to 1/3. This decision depends on how the mutual insults were made and the nature of the parties’ behavior.

The crime of defamation in Turkey aims to protect individuals’ honor, dignity, and reputation. The penalty for defamation in Turkey depends on the nature of the crime and the victim’s circumstances. Simple defamation in Turkey is punished with lighter penalties, while qualified defamation and public defamation are subject to harsher punishments. Defamation of public officials, in particular, is heavily penalized to protect public order.

6- Penalty for Insulting on Social Media

Insulting someone via social media platforms is considered defamation committed in the presence of others. Since social media is accepted as a communication tool (written, verbal, or visual), according to Article 125/2 of the Turkish Penal Code, the person who insults someone on social media may face 3 months to 2 years in prison or a judicial fine. These penalties are in line with those applied to defamation committed via other communication tools.

HOW TO FILE A DEFAMATION LAWSUIT IN TURKEY?

A defamation lawsuit in Turkey can be filed in two different ways: as a criminal case or a civil (compensation) case. Both types of cases involve different legal procedures and purposes.

1. Criminal Case for Defamation in Turkey

A criminal case for defamation in Turkey can be initiated either upon complaint or, in some cases, ex officio (by the public prosecutor on their own initiative).

1. • Complaint-based Criminal Case: If the victim believes they have been defamed, they can file a complaint with the public prosecutor by submitting a petition. Following the complaint, the public prosecutor will begin an investigation, and based on the findings, a case can be filed in court.
   • Public Case: Defamation in Turkey is considered a public offense, meaning that the case is filed on behalf of the public, and the public prosecutor must follow the case through to its conclusion. Even if a complaint is filed, the public prosecutor independently manages the case, and during the trial, criminal actions may be taken against the defendant, even if the victim is not actively involved in the proceedings.

2. Compensation Lawsuit Due to Defamation

A victim may file a compensation lawsuit to seek damages caused by the defamation in Turkey. This lawsuit is separate from the criminal case and is filed in civil court.

• • Filing a Compensation Lawsuit: If the victim believes their personal rights have been violated due to defamation, they can approach the Civil Court of First Instance to seek compensation for the damages caused by the violation. The victim may file the lawsuit personally or through a legal representative.
  • Types of Compensation: In this type of case, the victim can request non-pecuniary compensation for the emotional harm caused by the defamation, or pecuniary compensation for any financial damage.

In summary, a defamation lawsuit in Turkey can be filed either as a criminal case or a compensation lawsuit. The criminal case can be initiated through a complaint or by the prosecutor’s initiative, and it has the nature of a public lawsuit. A compensation lawsuit, on the other hand, is filed in a civil court to address personal damages and is independent of the criminal process. Both types of cases serve different purposes and follow separate legal procedures.

LEGAL PROCESS FOR DEFAMATION OFFENSE IN TURKEY

The legal process for a defamation offense in Turkey includes various elements in terms of criminal sanctions and the protected values. Below are the main features of the legal process for defamation offenses:

1- Investigation Stage in Defamation Case in Turkey

Defamation offense in Turkey is primarily an offense that can be prosecuted upon complaint, meaning that the victim can initiate an investigation by filing a complaint with the public prosecutor. In cases of defamation against public officials committed due to their duties, the complaint requirement has been removed. This change aims to protect the reputation of public administration. These types of defamation offenses can be investigated and prosecuted ex officio (by the prosecutor). For example, in cases of defamation against the President, no complaint is required. In other instances, the investigation and prosecution of the defamation offense in Turkey are subject to the complaint of the victim or any affected third party.

The prosecutor may begin the investigation either upon complaint or ex officio, conducting necessary procedures such as taking statements and collecting evidence. These actions are aimed at determining whether there is sufficient suspicion that the crime has been committed. If the evidence gathered shows that the offense has been committed, the prosecutor will file a public case. Otherwise, they will decide that there is no grounds for prosecution.

An arrest related to insult crime in Turkey might be unlawful. Due to the nature of the offense, defamation alone does not constitute a valid reason to restrict the offender’s freedom. Therefore, an arrest solely for defamation is not considered legally appropriate. The arrest measure must be supported by strong suspicion of a crime and concrete evidence as per Article 100 of the Criminal Procedure Code. Defamation is not among the crimes that justify arrest, unless the suspect is attempting to tamper with evidence or pressure witnesses. Even then, arrest should not be applied solely for the defamation offense in Turkey due to the principle of proportionality.

2- Prepayment and Settlement in Defamation Case in Turkey

Article 125, paragraph 1 of the Turkish Penal Code provides that, as a basic form of the defamation offense, mediation procedures can be applied in such cases. Mediation is applied as a first step for the parties to reach an agreement during both the investigation and prosecution stages.

During the defamation offense mediation process, a mediator appointed by the Ministry of Justice is responsible for contacting the parties during the investigation stage and presenting the settlement offer. The settlement process in defamation cases is subject to the complainant’s will and may include requests for either material or non-material compensation. The complainant may request compensation for financial damages or may demand an apology, a donation to a charity, or another act of social benefit. If the parties reach an agreement, the suspect must fulfill the agreed act within the given time frame. If the suspect performs the agreed act completely and on time, no public case will be filed, and the investigation file will be closed. This way, the legal system facilitates a quicker and more effective resolution of the dispute, encouraging the parties to reach a solution by their own will.

With the regulation made under Article 15 of Law No. 7531 on Amendments to Certain Laws, certain forms of defamation case in Turkey have been excluded from the mediation process and included in the prepayment scheme. In cases where defamation is committed through written, verbal, or visual communication, involving the victim’s religious, political, social, or philosophical beliefs or opinions, or regarding sacred values of the person’s religion, or if the offense is committed publicly, the prepayment procedure may be applied.

In such cases, even if a defamation lawsuit in Turkey is initiated, the prepayment procedure may be applied, allowing the process to be concluded without continuing with criminal prosecution, provided that legal conditions are met. Under the prepayment procedure, the public prosecutor will notify the suspect of the amount specified in the law, and if the suspect accepts and makes the payment within ten days of the offer, no public case will be filed, and the prosecutor will decide not to prosecute.

If the suspect refuses the prepayment offer or fails to fulfill the obligation, a public case will be filed, and the judicial process will proceed. The fine paid under the prepayment scheme is not recorded in the criminal record. However, decisions made under the prepayment scheme and dismissals made by the courts are recorded in a special system. Additionally, if the suspect reoffends within five years under the same crime, the prepayment procedure will not be applied again for the same offense.

This legal reform aims to exclude specific forms of defamation lawsuit in Turkey from the mediation process and include them in the prepayment regime. It is intended to prevent defamation cases, especially those occurring on social media, from turning into areas where financial benefits are obtained through mediation, while also reducing the judicial workload on prosecutors’ offices, mediation bureaus, and courts.

3- Prosecution Stage in the Offense of Libel in Turkey

The prosecution stage of an offense of libel in Turkey begins with the acceptance of the indictment by the court. Upon the acceptance of the indictment, the criminal trial formally enters the prosecution phase, and the hearing process begins. At this stage, the statements of the parties— the defendant and the victim— are taken. Witnesses who may contribute to clarifying the facts of the case are heard, and other available evidence is examined in court. If necessary, expert reports and technical examinations may also be used.

The court freely evaluates all the evidence collected during the trial and forms its legal opinion. After the collection of evidence, the prosecutor presents their opinion on the merits of the case. In the opinion, the prosecutor evaluates the defendant’s legal status, expresses their view on whether the elements of the offense of libel in Turkey are present, and ultimately requests either the defendant’s conviction or acquittal. After allowing the parties to present their statements in response to the opinion, the court evaluates all the statements and evidence together, strives to reach the material truth, and concludes the trial with a judgment.

• Suspension of the Announcement of the Judgment (HAGB) in Libel Cases

According to the Turkish Penal Code, if the sentence determined by the court in a libel case in Turkey is 2 years or less, the suspension of the announcement of the judgment (HAGB) may be applied. HAGB means the postponement of the announcement of the judgment for a specific period. This postponement results in the defendant being subject to legal consequences related to the conviction, but the sentence’s announcement and execution are delayed. If the defendant does not commit any crime within a specified period, the judgment is not announced, and the sentence is not executed. Thus, HAGB provides a more favorable situation for the defendant compared to a conviction.

• Active Remorse Provisions in Libel Case in Turkey

Active remorse allows for a reduction or complete elimination of the sentence if the defendant shows remorse and takes actions to mitigate the effects of the crime after it has been committed. However, active remorse provisions do not apply to the offense of libel in Turkey. In other words, even if a defendant expresses remorse after committing a libel offense in Turkey, no reduction in the sentence or any favorable outcome will result.

• Can the Insult Crime Sentence Be Converted into a Judicial Fine?

In both simple and aggravated forms of the insult crime in Turkey, there is the possibility of converting the insult crime sentence into a judicial fine. According to Article 52, paragraph 2 of the Turkish Penal Code, the amount of the judicial fine is determined by considering the defendant’s economic and other personal circumstances. In this context, the judicial fine for one day must be between 100 Turkish Lira and 500 Turkish Lira. The court determines the amount of the fine considering the defendant’s income, assets, and other personal conditions, and makes a decision in accordance with the defendant’s financial capacity.

• How Much Is the Fine for the Libel Offense in Turkey?

The judicial fine for the insult crime in Turkey is determined based on the defendant’s economic situation. When the sentence for libel crime in Turkey is determined as a judicial fine, it can range from a minimum of 5 days to a maximum of 730 days. For example, if the judicial fine is set to 200 days and 500 Turkish Lira for each day, the total fine would be 100,000 Turkish Lira.

• What Should I Do If I Am Faced with a Defamation Lawsuit in Turkey?

Anyone facing a defamation case in Turkey should seek expert legal support during both the investigation (prosecutor’s office) and prosecution (trial) stages. According to Article 125 and the following provisions of the Turkish Penal Code, individuals who commit the offense of defamation may be prosecuted with either imprisonment or judicial fines. If a person is being prosecuted for defamation in Turkey, the possibility of acquittal or a reduction in the sentence should be evaluated during the court process. At this point, it is crucial to ensure the protection of personal defense rights and to conduct necessary legal research with the support of an expert lawyer.

• Does a Defamation Case in Turkey Affect My Criminal Record?

If a conviction is handed down in a defamation case in Turkey, this sentence will be recorded in the criminal record according to the Criminal Record Law. Criminal record entries are official records that show an individual’s past criminal status, which may be checked in situations like job applications or visa procedures. Therefore, receiving a conviction for a defamation lawsuit in Turkey can affect a person’s social and professional life in the long term.

4- Legal Value Protected in Defamation Case in Turkey

The legal value protected by the offense of defamation (libel) concerns fundamental personal values such as an individual’s honor, dignity, reputation, and social standing. These values directly affect a person’s position in social relationships, their reputation within the community, and their individual prestige. As explicitly stated in the justification of Article 125 of the Turkish Penal Code, the purpose of punishing defamation is to protect individuals’ respect and reputation within society. The protection of these values is viewed not only as safeguarding the individual but also as a measure to maintain social peace and order.

The primary legal value targeted in a defamation case in Turkey is to provide social protection against actions that harm an individual’s social status or attack their personal dignity. A person’s honor encourages respect for human dignity in their relationships with others in society. Honor and respect are factors that ensure an individual is regarded with esteem not only in social life but also in personal spaces such as work and family, supporting their existential and psychological security. Therefore, punishing defamation helps individuals feel valued and respected within society.

The obligation of individuals in society to show respect for one another is crucial for maintaining social order. The criminal sanctions for defamation serve a deterrent function against such acts and are regarded as an important regulation aimed at preserving social peace. Additionally, the impact of defamation on public life can threaten not only individuals but also the general peace and order of society. In this context, the Turkish Penal Code aims to contribute to the protection of societal values by punishing defamation.

Furthermore, the legal value protected by a libel case in Turkey does not only concern individual rights but also societal security. Defamation against public officials, in particular, can undermine public trust and weaken the reputation of the state. For this reason, defamation offenses committed against public officials are punished more severely and can be prosecuted ex officio. This reflects the understanding that public officials should be respected while performing their public duties. Therefore, punishing defamation not only ensures the protection of individuals but also guarantees the maintenance of public order and societal security.

METHODS FOR PROVING VERBAL ABUSE IN A DEFAMATION CASE IN TURKEY

The proof of verbal abuse can be established through various evidentiary tools. Since verbal abuse is defined as an act that harms an individual’s honor, dignity, and reputation, the proof of this offense is typically possible through verbal expressions, digital content, and witness testimonies. Below are the primary methods used to prove verbal abuse:

• Witness Testimony in Defamation Cases: Witnesses are an important source of evidence in criminal proceedings. Witness testimony is frequently used in proving verbal abuse cases. For example, if a person has made verbally abusive remarks during a phone call, another person who overheard the conversation may be called as a witness. If call records (caller-recipient information) are obtained and the witness testimonies align, verbal abuse can be proven.
• Phone Communication Records: Since verbal abuse is not considered a catalog crime, phone tapping is not permissible. However, phone records (HTS – Service Detection) can serve as vital evidence in proving verbal abuse. These records, which include information on phone calls and the times of calls, can be assessed alongside other evidence.
• Physical Examination of the Phone and SMS Messages: According to Article 134 of the Criminal Procedure Code (CMK), it is possible to examine the suspect’s phone. Physical examination of the phone, including SMS messages, videos, and photos, can be used to prove verbal abuse. However, to access the phone’s contents, a court order or written permission from the prosecutor is required. Otherwise, evidence obtained through unlawful means is not accepted.
• Recording Secret Audio, Visual, or Video Evidence: Secret recordings of audio or video can be valid evidence in proving verbal abuse, especially if abusive or threatening words exchanged between two individuals need to be documented and proving the case otherwise is impossible. However, systematically and intentionally recording such interactions is illegal and would be considered unlawful, making it inadmissible as evidence and constituting a crime.
• Messaging Apps (WhatsApp, Telegram, etc.): Content such as voice messages, written messages, or images shared via messaging apps like WhatsApp and Telegram can be used to prove verbal abuse. Conversations made through these apps can be documented, including details such as date, time, and content, in line with Article 134 of the CMK, and presented to the court. Including these messages in the case file allows for the examination of evidence and the initiation of the defense process.
• Social Media Platforms (Instagram, Twitter, Facebook): Posts and communications on social media platforms are also significant sources of evidence in proving verbal abuse. Platforms such as Facebook, Twitter, and Instagram can reveal the identity of the perpetrator. However, due to privacy concerns, judicial authorities in many countries, including the United States, may not respond to requests regarding such information, necessitating police forces to conduct investigations into social media communications. These posts, when documented, can be used in court proceedings.
• E-Detection for Proof: E-detection is a service provided by the Turkish Union of Notaries. Any webpage or social media content on the internet can be identified via URL-based scanning. This method ensures the accurate detection of crimes committed online. The person applying for e-detection sends the relevant URL to the Notaries Union and receives an application number. With this number, the individual can apply to a specific notary, where the findings are transcribed onto paper and notarized. These findings are considered definitive evidence in criminal proceedings.

Since verbal abuse can be committed through both spoken and written means, various evidentiary tools can be used to prove the offense. Witness statements, phone records, social media posts, and digital detection methods are all effective tools for proving verbal abuse. Additionally, e-detection and digital examination techniques play a significant role in identifying verbal abuse offenses committed via the internet. These evidences can be utilized in the criminal procedure to prove the offense of verbal abuse.

BEHAVIORS THAT DO NOT CONSTITUTE VERBAL ABUSE IN TURKEY

While verbal abuse is defined as an attack on a person’s honor and dignity, certain situations and expressions do not constitute verbal abuse in a legal context. The right of individuals to express their thoughts and opinions is protected within certain limits, provided it does not harm personal rights. In this context, factors such as the language used, the context of the statements, and their intent are crucial when determining whether verbal abuse has occurred. Sometimes, criticism, humor, debates, or discussions may not aim to harm an individual’s honor but rather to engage in public discourse without violating personal rights.

• Liking Verbal Abuse Messages Does Not Constitute Verbal Abuse

Liking a message containing verbal abuse on social media does not automatically result in verbal abuse in Turkey. According to the Supreme Court, if a person only likes a message containing verbal abuse and does not share or forward it to others, this does not constitute the crime of verbal abuse. Therefore, if a person merely likes a message containing verbal abuse without spreading it, this action can be considered a personal evaluation, and the elements of verbal abuse are not met. (Supreme Court, 4th Criminal Chamber, Decision: 2014/33171)

• Cursing Is Not Verbal Abuse

Cursing does not constitute verbal abuse in Turkey. According to the Supreme Court, expressions such as curses, although impolite and offensive, do not meet the criteria for verbal abuse unless they contain specific actions or facts that tarnish a person’s honor, dignity, or reputation. For example, a phrase like “May God curse you” may be a curse but does not constitute verbal abuse. (General Assembly of the Court of Cassation, Decision: 2014/386, Supreme Court 9th Criminal Chamber, Decision: 2014/5495)

• Words Like “Rude” or “Disrespectful” Are Not Verbal Abuse

Harsh criticisms or offensive words do not always constitute verbal abuse in Turkey. The Supreme Court has stated that words such as “rude” or “disrespectful” do not reach the level of offending a person’s honor and dignity. These expressions may be considered as harsh criticism, bothersome, or rude behavior but do not meet the elements required for verbal abuse. (Supreme Court 18th Criminal Chamber, Decision: 2016/6745)

• Harsh Criticism of a Doctor Does Not Constitute Verbal Abuse

Severe criticism of a doctor’s treatment does not constitute verbal abuse in Turkey. The Supreme Court has expressed that harsh criticism of a doctor who provides public health services does not amount to verbal abuse due to the nature of their duties. For example, if a patient criticizes a doctor’s treatment by saying, “I do not consider your Hippocratic oath,” this criticism does not constitute verbal abuse. (Supreme Court 2nd Criminal Chamber, Decision: 2013/3805)

• Conditional Statements Are Not Considered Verbal Abuse

Statements made conditionally or probabilistically do not constitute verbal abuse in Turkey. The Supreme Court has stated that a conditional statement does not carry the intent of verbal abuse, and therefore, such statements do not meet the elements of verbal abuse. For example, saying “If you don’t pay your debt, you are dishonorable” is a conditional expression and does not constitute verbal abuse. (Supreme Court 18th Criminal Chamber, Decision: 2016/14515)

When determining whether verbal abuse has occurred on social media, factors like freedom of expression and personal evaluation should be taken into account. Furthermore, for verbal abuse to occur, the statements made must be damaging to a person’s honor, dignity, and reputation. The Supreme Court emphasizes that harsh criticism, cursing, and conditional statements do not always constitute verbal abuse in Turkey.

OFFENSE OF INSULTING THE PRESIDENT AND ITS PUNISHMENT (ARTICLE 299 OF THE TURKISH PENAL CODE)

The offense of insulting the President is specifically regulated under Article 299 of the Turkish Penal Code (TPC). This crime aims to punish acts and statements that insult the President in a manner that could undermine the societal values and public sentiments. However, this regulation primarily focuses on protecting the respect and dignity of the office of the Presidency rather than personal insults directed at the individual holding the office.

1. Legal Framework of Insulting the President: Article 299 of the TPC governs the crime of insulting the President. The provision seeks to protect the “honor” of the President as a legal concept, rather than focusing on the President’s functions, duties, or the role of the office itself. This regulation can sometimes lead to statements that are intended as criticism or protest being considered as insults. This has been criticized as contrary to fundamental principles of criminal law, particularly the principle of freedom of expression. While insult laws in general are regulated equally for all individuals under Article 125 of the TPC, the introduction of a specific offense for insulting the President has been criticized as violating the constitutional principle of equality. Article 10 of the Turkish Constitution prohibits personal regulations, making the existence of this specific crime debatable in terms of constitutional conformity.
2. Prosecution and the Authority of the Ministry of Justice: Unlike other insult offenses in Turkey, the prosecution of the crime of insulting the President requires permission from the Ministry of Justice. This regulation indicates that there is a state oversight component in the punishment of insults to the President, with the Ministry of Justice playing a role in monitoring such cases. Without the Ministry’s permission, cases cannot be initiated, which provides a more systematic and state-centric intervention mechanism against personal insults directed at the President.
3. Criminal Sanctions: According to Article 299 of the TPC, the penalty for insulting the President ranges from 1 to 4 years of imprisonment. However, if the insult is made publicly, meaning it is expressed in a way that can be heard by a large portion of the public, the penalty is increased by one-sixth. Publicity, particularly in the case of insults made on social media platforms or other means that reach a wide audience, leads to a more severe penalty. These actions may lead to a heavier punishment as they can be disseminated to large segments of the population.

The prison sentence for the offense of insulting the President can be converted into a judicial fine, postponed, or a decision for the postponement of the announcement of the judgment can be issued, depending on the court’s discretion. This flexibility is aimed at ensuring a more appropriate application of the penalty and the reintegration of the defendant into society. The postponement of the announcement of the judgment may allow the removal of the penalty if the defendant shows good conduct over a certain period.

The offense of insulting the President, through its special regulation in the Turkish Penal Code, has raised concerns regarding its conformity with the general principles of criminal law and the constitutional principle of equality. Nevertheless, the criminal dimensions of this offense, along with the flexibility in its application—particularly the increase in penalties due to publicity—are intended to protect the President’s honor and the dignity of the office within society. Such offenses create an important area of discussion in democratic societies, balancing freedom of expression with public order.

THE RIGHT TO CRITICISM AND THE DISTINCTION FROM THE OFFENSE OF INSULT

The Turkish Constitution guarantees the freedom of thought and expression for individuals. Article 25 of the Constitution ensures the freedom of thought and opinion, while Article 26 regulates the freedom to express and disseminate thoughts. Additionally, it ensures the freedom to receive and impart information without interference from public authorities. However, the second paragraph of Article 62 allows for limitations on this freedom in order to protect the reputation and rights of others.

1- The Right to Criticism in Turkey

Criticism does not always involve praise or approval. Criticism seeks to highlight shortcomings or mistakes by presenting a person or situation negatively. However, the use of harsh language in criticism does not necessarily mean it qualifies as an insult. While criticism may be uncomfortable, it does not directly attack an individual’s personality rights. In other words, there is a significant distinction between criticism and insult.

2- The Difference Between Criticism and Insult

Criticism is typically an evaluation of a work, author, or subject and is a common cultural practice. Such criticism often serves a social or artistic purpose. On the other hand, an insult involves a personal attack with harsh expressions aimed at damaging an individual’s honor, dignity, or reputation. Therefore, the legal distinction between criticism and insult is crucial. Criticism aims to evaluate a person’s thoughts or actions, while an insult is a direct attack on an individual.

3- Freedom of Expression and the Inapplicability of Criticism as Insult

Freedom of expression is a fundamental right guaranteed by Article 26 of the Turkish Constitution and Article 10 of the European Convention on Human Rights, to which Turkey is a party. This right encompasses the freedom to express thoughts freely. However, this freedom is limited when it involves situations that constitute an insult. In other words, freedom of expression is protected as long as it does not harm the honor and dignity of others, while expressions that constitute insults go beyond this boundary and can be penalized. At this point, balancing freedom of expression and the act of insult is crucial.

4- The Court’s View on the Right to Criticism in Turkey

Freedom of criticism is one of the cornerstones of democratic societies. The ability of individuals to make various criticisms, considering the general interests of society, fosters a free environment for thought. Criticisms can sometimes be harsh or severe, but this does not mean they constitute an attack on the person being criticized. The Court has emphasized in its decisions that criticism does not constitute the offense of insult.

In the decision of the 18th Criminal Chamber of the Court of Cassation (Case No. 2015/40226, Decision No. 2017/8977, dated 14.9.2017), the court ruled that a defendant’s statement questioning the victim’s professional competence with the words, “What kind of doctor is this? Who put this person here? He doesn’t look like a doctor,” did not constitute the offense of insult. The court found that these words were not damaging to the victim’s honor, dignity, or reputation but were merely a disturbing and rude criticism. In this case, the right to criticize was upheld, and the offense of insult was not established.

Criticisms made within the scope of freedom of expression, as long as they do not damage an individual’s honor and dignity, cannot be considered insults. Criticism is a fundamental right in democratic societies and should be protected as it contributes to societal development. Even if criticism is expressed in harsh language, it does not automatically turn into the offense of insult. Therefore, distinguishing between criticism and insult is crucial for the proper application of freedom of expression.