Assessment of the Crime of Insult Under Turkish Criminal Law

The crime of insult is regulated in Articles 125 et seq. of the Turkish Criminal Code No. 5237, in the eighth chapter of the second part of the second book titled "Offences Against Persons," under the heading of Offences Against Honour. The subject matter of the offence is the honour, dignity and reputation of individuals, and these concepts also represent the legal value sought to be protected by the offence. The basic penalty for the crime of insult is prescribed as an alternative penalty of imprisonment and judicial fine. For this reason, if the basic penalty is prescribed as imprisonment, this penalty can no longer be converted into a judicial fine. In the case of the crime of insult being committed in its basic form, the minimum imprisonment is three months and the maximum is two years.

Perpetrator

The law accepts that anyone can be a perpetrator by referring to a person who attributes a concrete act or fact or who attacks someone's honour, dignity and reputation. Any natural person may be a perpetrator of the offence. However, legal entities cannot be considered perpetrators of a crime.

Persons who lack the ability to direct their behaviour due to mental illness, minority, or the existence of a temporary cause cannot be punished even if they are perpetrators of the crime of insult. Persons benefiting from diplomatic immunity or legislative immunity may also be perpetrators of this offence but cannot be prosecuted due to their immunity.

Victim

The crime of insult can only be committed against living persons. Deceased persons cannot be victims of this offence, as they are not legally considered "persons." However, negative words and behaviours directed at a deceased person may constitute an attack on the dignity of the deceased's relatives. Article 130/1 of the TCC provides that a person who insults the memory of someone after their death by communicating with at least three persons shall be sentenced to imprisonment from three months to two years or a judicial fine. The penalty is increased by one-sixth if the insult is committed publicly.

On the other hand, any person may be a victim of the crime of insult. Every individual has the right to be treated within a framework of respect, as the legal order protects everyone's personality rights and dignity as an individual. Even if an individual has lost their self-respect or considers themselves worthless, insults directed at that person still constitute a crime; however, if the victim does not file a complaint, no investigation or prosecution can be conducted.

In cases where a person's memory is insulted after their death, it is not Article 125 of the TCC that applies, but rather the offence of "Insulting the Memory of a Person" regulated under Article 130 of the Turkish Criminal Code.

The Act

In many cases, the act of insult is committed face to face and in the presence of the victim, without any intermediary. In such cases, the victim will have personally seen, heard and immediately perceived that their dignity was targeted. For the offence to be constituted, the alternative acts must be of a nature capable of offending a person's honour and dignity.

Insult in Presence

Insult in presence is defined as insult directed face to face at the victim. Although the term "insult in presence" is not explicitly used in the article, the word "insult in absence" in the second sentence of the first paragraph leads to the conclusion that the first sentence applies to insult in presence. For the offence to be considered committed in presence, the perpetrator's insult must be heard by the victim without the need for any intermediary. However, this does not mean that the victim and perpetrator must come face to face. The important point here is whether the perpetrator's insult can reach the victim without an intermediary. Insult directed at a person who cannot hear the insulting words or see the insulting behaviour due to a physical disability should also be considered committed in presence, not in absence.

Insult in Absence

Insult in absence is regulated in the second sentence of Article 125, paragraph 1 of the TCC. For insult in absence to be established, the condition of being witnessed by three persons has been stipulated. If a person is insulted in an environment where they are not present or in a manner where they cannot directly learn of it, insult in absence is at issue. It is not required that the perpetrator know the persons who will witness this offence.

Insult via the Internet

If insults made via the internet directly target the victim — for example, if the victim is insulted during an email or a telephone conversation conducted via internet connection (such as messenger or Skype) — this constitutes insult in presence. If an email containing insults against the victim is sent to more than three persons separately or by way of forwarding, then insult in absence is at issue.

Joinder of Offences

The application of consecutive offence provisions is possible in the crime of insult. The crime of insult may be committed against the same person at different times, and consecutive offence provisions may also be applied in cases of insults directed at multiple persons or a group. In such cases, the perpetrator will be sentenced once for the crime of insult, but the penalty will be increased.

Qualified Forms of the Offence

Under Law No. 5237, insulting a public official is regulated as a qualified form of the offence; however, no distinction is made among public officials. Any person may be a victim of the crime of insult, but the fact that a public official was insulted on account of their duties is an aggravating factor for the penalty. For this purpose, it is not sufficient that the crime of insult be directed at a public official; it must have been committed on account of the public duty performed by the public official. The act of insult does not necessarily need to have been committed during the public official's duty; what matters is that it was committed because of their duty.

Furthermore, the commission of the offence in connection with the exercise of religious freedom, the commission of the offence on account of the sacred values of one's religion, and the public commission of the offence also constitute qualified forms of the crime of insult.

Mutual Commission of the Offence

Article 129/3 of the TCC provides that in cases where the crime of insult is committed mutually, depending on the nature of the incident, the penalty to be imposed on both or one of the parties may be reduced by up to one-third, or the imposition of a penalty may be waived entirely.

Evidence and Process Management in the Digital Environment

Particularly in acts involving insult carried out through social media, messaging applications and digital platforms, the proper documentation of screenshots, the timely preservation of evidence, the observance of complaint deadlines, and the correct legal characterisation are of great importance. Similarly, in cases where individuals face accusations of insult, the careful and technical construction of the defence is extremely important in terms of distinguishing statements within the scope of freedom of expression from acts that constitute a crime.

In this regard, it would be advisable for persons considering pursuing legal remedies as victims of the crime of insult, or for those against whom an allegation of insult has been made, to conduct the process with expert support in order to avoid loss of rights. For legal assessment, evidence analysis, and meticulous follow-up of complaint and defence processes relating to your specific case, you may contact MCG Law Office for professional legal support.