Threat and Insult Crimes in Turkish Criminal Law
This text deals with the basic information about the crimes of threat and insult, which are regulated in the Turkish Penal Code and often committed together, and the legal situations that arise when these crimes are committed together. The content covers the definition, elements, qualified forms, justification reasons, circumstances affecting culpability, attempt and participation situations, concurrence provisions, and investigation and prosecution procedures for both crimes.
What is the legal value protected by the crime of threat?
The legal value protected by the crime of threat is the freedom of decision-making and action of individuals. The act of threat restricts a person’s freedom to form their will as they wish and act according to their formed will by disturbing the victim’s inner peace and damaging their sense of security. For this reason, the Turkish Penal Code No. 5237 has sanctioned the act of threat in the section of “Crimes Against Liberty” and has protected people’s freedom to make decisions and act voluntarily.
What is the material element of the crime of threat?
The material element of the crime of threat is to threaten another person by mentioning that they will carry out an attack on their or their relative’s life, bodily or sexual inviolability, or by mentioning that they will inflict great damage to their property or do some other evil.
Whether the attack, damage, or evil that is the subject of the threat is realized or not, whether the perpetrator really wants it or not, is of no importance. What matters is that the victim forms an opinion that the perpetrator will commit the evil they have stated.
What is the moral element of the crime of threat?
The moral element of the crime of threat is intent. The crime of threat is a crime that can only be committed knowingly and willingly by the perpetrator. It is sufficient for the perpetrator to act intentionally for the crime of threat to occur. The perpetrator does not need to act with any motive or premeditation.
Although the Supreme Court made decisions in some of its old dated rulings that there should be an element of premeditation to speak of the crime of threat, in its new dated rulings, it has made decisions that even words spoken in anger can constitute the crime of threat, and that no premeditation will be sought.
What are the qualified forms of the crime of threat?
The qualified forms of the crime of threat are regulated in the 2nd paragraph of Article 106 of the Turkish Penal Code. According to this, the qualified forms of the crime of threat are:
a) Committing the threat with a weapon,
b) Committing the threat by putting oneself in an unrecognizable state,
c) Committing the threat with an unsigned letter,
d) Committing the threat with special signs,
e) Committing the threat jointly by more than one person,
f) Committing the threat by taking advantage of the intimidating power created by existing or presumed criminal organizations.
Is attempt possible in the crime of threat?
Since the crime of threat is an abstract danger crime, it is formed by the completion of the execution movements as a rule. However, if the threat notification is made by various means such as a letter sent by mail and the notification has not reached the knowledge of the addressee, attempt may be in question since the execution movements could not be completed.
In verbal and behavioral threat actions, the crime of threat will occur as soon as the word is spoken and the behavior is formally understood. Because the crime of threat is also a pure action crime. Therefore, in many cases, it will not be possible to attempt the crime of threat.
Is participation possible in the crime of threat?
The crime of threat does not show any peculiarity in terms of participation provisions. Every form of participation is possible in the crime of threat. The important point here is that the commission of the crime of threat jointly by more than one person will constitute a qualified form of the crime. In case the crime of threat is committed by a third person conveying the threatening statements to the victim, the responsibility of the conveyor will be determined according to the concrete characteristics of each event.
How are the concurrence provisions applied in the crime of threat?
The concurrence provisions in the crime of threat are applied as follows:
Successive offense provisions are applied when the perpetrator threatens the same person multiple times at different times with the same criminal intent.
Ideal concurrence of the same type is applied when the perpetrator threatens various victims at the same time.
Ideal concurrence of different types is applied when both the crime of threat and another crime are committed with a single act.
Additionally, a special concurrence rule is regulated in Article 106/3 of the Turkish Penal Code. According to this, if the crimes of intentional killing, intentional injury, or damaging property are committed for the purpose of threat, the perpetrator will also be sentenced for these crimes.
What are the justification reasons in the crime of threat?
The justification reasons in the crime of threat are the general justification reasons regulated in the Turkish Penal Code.
These are; fulfillment of duty (Art. 24/1), self-defense (Art. 25/1), use of right (Art. 26/1), and consent of the interested party (Art. 26/2).
If the threatening act of the perpetrator falls under one of these cases, the threat made is not illegal and therefore does not constitute a crime and is not punished. For example, if someone points a gun from the window at someone who wants to forcefully enter their house and attack them, saying “Go away or I’ll shoot you!”, it can be evaluated within the scope of self-defense if other conditions are also met.
What are the circumstances affecting culpability in the crime of threat?
The circumstances affecting culpability in the crime of threat are: Fulfillment of an unlawful but binding order, state of necessity, affecting the person’s ability to will due to coercion or threat, and unjust provocation. For example, if a person commits the crime of threat to protect a right belonging to themselves or someone else in the face of a severe and certain danger that they did not knowingly cause, they will not be punished. Because the threatening person is not culpable due to being in a state of necessity.
What is the legal value protected by the crime of insult?
The legal value protected by the crime of insult is the moral values of people related to honor, dignity, and reputation. With this type of crime, the honor, respectability, and value of individuals living in society are taken under legal protection. The reputation of people in society, their respectability, and value in the eyes of other people are protected.
What is the material element of the crime of insult?
The material element of the crime of insult is to attack a person’s honor, dignity, and respectability by attributing a concrete act or fact that could offend their honor, dignity, and respectability, or by swearing.
For the crime to occur, the victim must be aware of this attack. The act of insult can be carried out in the presence of the victim, or in the absence of the victim but by communicating with at least three people. Also, the content of the insulting act must be in the form of attribution of a concrete act or fact or swearing.
What is the moral element of the crime of insult?
The moral element of the crime of insult is intent.
The perpetrator must know and want that they are attributing a concrete act or fact that could offend the victim’s honor, dignity, and respectability, or that they are performing the act of swearing. General intent is sufficient in the crime of insult, and special intent is not sought. It is not necessary for the perpetrator to act with the aim of offending the victim’s honor, dignity, and respectability. However, the perpetrator must foresee that the words they say or the actions they perform could offend the addressee’s honor, dignity, and respectability.
What are the qualified forms of the crime of insult?
The qualified forms of the crime of insult are regulated in the 3rd and 4th paragraphs of Article 125 of the Turkish Penal Code. According to this, the qualified forms of the crime of insult are:
a) Committing against a public official due to their duty,
b) Committing due to expressing, changing, trying to spread religious, political, social, philosophical beliefs, thoughts and opinions, or behaving in accordance with the orders and prohibitions of the religion they belong to,
c) Committing by mentioning values considered sacred according to the religion the person belongs to,
d) Committing insult in absentia publicly.
e) Additionally, committing insult through an audio, written, or visual message is also regulated as a qualified form.
What are the justification reasons in the crime of insult?
The justification reasons in the crime of insult are: fulfillment of duty, use of right, and consent of the interested party. Also, the right of proof regulated in Article 127 of the Turkish Penal Code is a justification reason. According to this, if the attributed act constituting a crime is proven, the person is not punished. If this act is committed against a public official due to their duty, the acceptance of the request for proof is subject to the condition that it relates to a matter for which the judicial way is open to understand whether the attributed act is true or not. If a person is insulted by mentioning their proven act, a penalty is imposed.
To express it more clearly;
- If you tell someone they did something that is considered a crime and this is true, you won’t be punished for the crime of insult. For example, if you say to someone ‘You committed theft‘ and you can prove that this person actually committed theft, you won’t be punished for the crime of insult. However, if insult is made based on the crime even if the person’s crime is proven, punishment will be given. For example, an expression like “Here comes the thief!” made to humiliate someone whose theft crime has been finalized will be punished.
- If you make an accusation related to their duty against a public official, this accusation must be examinable in court whether it’s true or not. For example, if you say to a police officer ‘You took a bribe‘, this claim must be a concrete claim that can be examined in court.
Is attempt possible in the crime of insult?
Attempt is possible in the crime of insult. In case the insult is committed in the absence of the victim but by communicating with at least three people, attempt may be in question if this communication does not occur due to reasons beyond the perpetrator’s control. For example, if the perpetrator writes a letter containing insults to the victim and sends this letter by mail, but the letter gets lost in the mail or is sent to the wrong address, attempt will be in question. However, attempt is not possible if the insult is committed directly in the presence of the victim.
Is participation possible in the crime of insult?
Participation is possible in the crime of insult. The crime of insult is one of the crimes that do not have a peculiarity in terms of participation. Therefore, every form of participation in the crime is possible. For example, participation in the form of incitement or assistance for one person to insult another person is possible. Also, in case more than one person insults together, joint perpetration will be in question. For example, if two people together say insulting words to another person, both perpetrators will be held responsible as joint perpetrators.
How are the concurrence provisions applied in the crime of insult?
The concurrence provisions in the crime of insult are applied as follows: Successive offense provisions are applied when the perpetrator insults the same person multiple times at different times.
Ideal concurrence of the same type is applied when the perpetrator insults more than one person with a single act.
Ideal concurrence of different types is applied when both insult and another crime are committed with a single act.
For example, if the perpetrator says words that both insult and threaten the victim, the ideal concurrence of different types provisions are applied and the perpetrator is punished for the crime that requires the heaviest penalty.
What is the investigation and prosecution procedure for the crime of insult?
The investigation and prosecution of the crime of insult are subject to complaint. In other words, if the victim does not file a complaint within 6 months from the date they learned about the crime, investigation and prosecution cannot be carried out. However, the investigation and prosecution of the crime of insult committed against a public official due to their duty are not subject to complaint, they are carried out ex officio. The crime of insulting the President is also investigated and prosecuted ex officio without seeking a complaint.
What are the differences between the crimes of insult and threat?
The main differences between the crimes of insult and threat are:
- Protected legal value: While the crime of insult protects people’s honor and dignity, the crime of threat protects people’s freedom of will and action.
- Act: In the crime of insult, words or behaviors that can offend a person’s honor, dignity, and respectability are used, while in the crime of threat, a person is notified that they will be harmed in the future.
- Moral element: Both crimes can be committed intentionally, but in the crime of threat, the perpetrator’s aim is to frighten or worry the victim, while in the crime of insult, such an aim is not sought.
- Complaint: While the crime of insult is generally subject to complaint, the basic form of the crime of threat is prosecuted ex officio.
- Punishment: The punishments for the two crimes are different, and the punishment for the crime of threat is generally heavier.
What legal situation arises when the crimes of threat and insult are committed with the same act?
When the crimes of threat and insult are committed with the same act, the provisions of ideal concurrence of different types regulated in Article 44 of the Turkish Penal Code are applied. In this case, the perpetrator causes more than one different crime to occur with the act they committed. The legislator has envisaged that in such cases, the perpetrator should be punished for the crime that requires the heaviest penalty. Therefore, by comparing the penalties for the crimes of threat and insult, a judgment is made against the perpetrator for the crime that requires a heavier penalty.
However, it is accepted that both crimes have occurred, but the punishment is given only for the more serious crime.
How is a trial conducted when threatening words also constitute insult?
In case threatening words also constitute insult, first it is evaluated separately whether the elements of both crimes have occurred. If the elements of both threat and insult crimes have occurred, the provisions of ideal concurrence of different types are applied. During the trial, evidence is collected and evaluated for both crimes. However, at the judgment stage, punishment is given for the crime that requires a heavier penalty. For example, an expression like “I’ll kill you, you dishonorable!” contains both threat and insult. In this case, the judge determines that both crimes have occurred but gives the punishment for the more serious crime.
How are the qualified forms of crimes evaluated when threat and insult crimes are committed together?
When threat and insult crimes are committed together and with the same act, it is evaluated separately whether the qualified forms of both crimes have occurred. If the qualified form of both crimes is in question, the punishment is determined by considering these qualified forms. For example, if both threat and insult are made against a public official due to their duty, the qualified form of both crimes occurs. In this case, by comparing the penalties for the qualified forms, judgment is made for the crime that requires the heaviest penalty.
How is the victim’s complaint evaluated when threat and insult crimes are committed together?
When threat and insult crimes are committed together, the investigation and prosecution conditions of both crimes are evaluated separately. While the basic form of the crime of threat is prosecuted ex officio, the crime of insult is generally subject to complaint. In this case, investigation and prosecution can be carried out for the crime of threat even if there is no complaint from the victim. However, the victim’s complaint is necessary to take action for the crime of insult.
If the victim has complained only about the crime of threat, prosecution cannot be carried out for the crime of insult. However, since the provisions of ideal concurrence of different types will be applied, judgment is still made for the crime that requires the heaviest penalty against the perpetrator.
How is the statute of limitations calculated when threat and insult crimes are committed together?
When threat and insult crimes are committed together and with the same act, since the provisions of ideal concurrence of different types will be applied, the statute of limitations is determined according to the crime that requires the heaviest penalty. According to Article 66 of the Turkish Penal Code, the statute of limitations for prosecution is determined according to the upper limit of the penalty for the crime in the law. Therefore, by comparing the penalties for threat and insult crimes, the statute of limitations for the crime that requires a heavier penalty is taken as basis.
What is the penalty for the basic form of the crime of insult?
The penalty envisaged for the basic form of the crime of insult is, according to the 1st paragraph of Article 125 of the Turkish Penal Code, imprisonment from three months to two years or a judicial fine. This penalty is given to a person who attributes a concrete act or fact that can offend a person’s honor, dignity and respectability, or who attacks a person’s honor, dignity and respectability by swearing. The judge can choose between imprisonment or judicial fine options according to the characteristics of the concrete case.
What is the penalty for the basic form of the crime of threat?
The penalty envisaged for the basic form of the crime of threat is, according to the 1st paragraph of Article 106 of the Turkish Penal Code, imprisonment from six months to two years. This penalty is given to a person who threatens another person by mentioning that they will carry out an attack on their or their relative’s life, bodily or sexual inviolability. However, according to the provision added with the amendment dated 12/5/2022, if this crime is committed against a woman, the lower limit of the penalty cannot be less than nine months. In other words, in threat crimes committed against women, the judge will take nine months as the lower limit when determining the penalty.
How are penalties determined in the qualified forms of insult and threat crimes?
The qualified forms of the crime of insult are regulated in the 3rd paragraph of Article 125 of the Turkish Penal Code. In these cases, the lower limit of the penalty cannot be less than one year. For example, if the crime of insult is committed against a public official due to their duty, the lower limit of the penalty to be given will be one year.
The qualified forms of the crime of threat are regulated in the 2nd paragraph of Article 106 of the Turkish Penal Code. In these cases, imprisonment from two to five years is imposed on the perpetrator. For example, if the threat is committed with a weapon, the penalty to be given will be imprisonment from two to five years.
How is the penalty determined if the crime of insult is committed publicly?
The public commission of the crime of insult is regulated in the 4th paragraph of Article 125 of the Turkish Penal Code. According to this, if the insult is committed publicly, the penalty is increased by one sixth. For example, the imprisonment from three months to two years envisaged for the basic form will turn into imprisonment from approximately three and a half months to two years and four months in case of public commission.
What is the difference in terms of penalty between threats against property and other threats in the crime of threat?
According to the 1st paragraph of Article 106 of the Turkish Penal Code, in case of threat by mentioning that they will cause great damage to property or do some other evil, upon the complaint of the victim, imprisonment up to six months or a judicial fine is imposed. In this case, the penalty is lighter than the basic form and is subject to complaint. However, in threats against life, bodily or sexual inviolability, the penalty is imprisonment from six months to two years and is prosecuted ex officio. This distinction shows that threats against property are considered lighter than other threats.
Example Supreme Court Decision Analysis
In the decision of the General Assembly of Criminal Chambers of the Supreme Court dated 16.2.2021 and numbered E. 2018/46, K. 2021/38, the issue of how to determine criminal responsibility in case of using expressions containing both threat and insult was discussed.
In the incident subject to the decision, the defendant uttered words to the victim while entering the courtroom of a public case opened against him, saying “I will kill you, I will f**k your mother and wife“.
The court of first instance decided that the defendant’s act was not legally a single act, and that the crime of threat was constituted for the expression “I will kill you“, and the crime of insult was constituted for the expression “I will f**k your mother and wife“.
The 4th Criminal Chamber of the Supreme Court, on the other hand, decided to overturn the decision of the court of first instance by saying “(… ) Considering that the words ‘I will kill you, I will f**k your …’ constitute the crime of threat against life and sexual inviolability regulated in Article 106/1-1st sentence of the Turkish Penal Code, which is directed towards the future, an additional conviction for the crime of insult was established against the defendant, resulting in excessive punishment (… )”.
The General Assembly of Criminal Chambers of the Supreme Court, while evaluating the issue, used the following expressions: “(… ) Considering that the words ‘I will f**k your mother and wife!’ were said immediately after the threatening words ‘I will kill you!’; taking into account the behaviors exhibited at the time the act was carried out, it should be accepted that the words spoken by the defendant, who has no doubt that he acted with the intent to threaten, constitute the crime of threat against life and sexual inviolability directed towards the future as a whole within the integrity of the event.”
With this decision, the General Assembly of Criminal Chambers of the Supreme Court accepted that in case of using expressions containing both threat and insult, it should be evaluated within the integrity of the event, and in this case, a single crime (the crime of threat) occurs. This approach is consistent with the view of “natural unity of action” in criminal law and aims to prevent disproportionate punishment against the perpetrator.
However, it should be noted that some members of the General Assembly of Criminal Chambers dissented in the decision. According to the dissenting opinion, it was argued that the defendant’s act did not constitute a single act in the legal sense, that both the crime of threat and insult occurred in accordance with the provisions of real concurrence, and that the defendant should be convicted separately for both crimes.
This decision sets an important precedent regarding the determination of criminal responsibility in case of committing threat and insult crimes together. However, the controversial nature of the issue and the existence of dissenting opinions also reveal the need for legal regulation in this area.
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