Any person who imputes to another person a concrete act or fact that may offend his/her honour, honour and dignity or who attacks the honour, honour and dignity of another person by swearing shall be punished with imprisonment from three months to two years or with a judicial fine. In order to be punished for insulting the victim in absentia, the act must be committed by contacting at least three people.
PROTECTED LEGAL INTEREST
When we look at the place where the offence of insult is regulated in the Criminal Code No. 5237, we see that it is included under the heading of offences against honour. According to this regulation, the legal benefit protected by this crime is the right to ‘honour, honour and dignity’.
MATERIAL ELEMENT OF THE OFFENCE OF INSULT
The offence of defamation is a free-moving offence, therefore it can be committed in any form. What is important is that the behaviours target the victim’s reputation. Words and behaviours that may damage the dignity of persons may be committed by attributing a certain concrete situation or fact, or by general and abstract words and behaviours. When analysing the material element of the offence of defamation, it is necessary to make a dual distinction. The first is the attribution of a concrete act or fact, and the second is swearing. What should be understood from a concrete act or fact is a material event. In other words, it is an actual situation that can be perceived from the outside world and can create some changes in the outside world.
MORAL ELEMENT OF INSULT OFFENCE
The moral element is a situation related to the inner world of the perpetrator. The moral element occurs in two ways: intent and negligence. The offence of insult is one of the offences that can be committed intentionally. Because the victim’s honour is attacked only if the perpetrator wants this result. The intention here is general intention and it is sufficient for the perpetrator to know that his behaviour may damage the honour, dignity and reputation of the victim and to want this. The perpetrator’s intention to commit the offence of insult is sufficient and his motive is not important.
PERPETRATOR OF THE OFFENCE
The perpetrator of the offence of defamation can be any natural person, but legal entities cannot be the perpetrators of this offence.7 Only the natural persons who commit these acts can be held liable for the acts of defamation committed by those authorised to represent and administer a legal entity. The liability of a natural person for the offence of defamation depends on the existence of criminal capacity (ability to impute). Persons who lack the ability to direct their behaviour due to the existence of a temporary reason such as mental illness, underage, etc. cannot be punished even if they are the perpetrators of the crime of defamation.
VICTIM OF THE CRIME
The victim of the offence of defamation can be any person. Persons who cannot understand and comprehend the act of insult due to a reason such as illness, age, mental illness, physical disability may also be the victim of the offence of insult.
Dead people cannot be victims of the offence of defamation. Because with death, the personality ends and the dead person ceases to be a subject of law. However, the words spoken about the dead and the behaviour towards the corpse may constitute an attack on the dignity of the relatives of the dead. In the act of insulting the memory of a deceased person, in order to protect the dignity of the relatives of the deceased, Article 130/f.1 of the TPC titled “Insulting the memory of a person” stipulates that “A person who insults the memory of a person after his/her death by involving at least three persons shall be sentenced to imprisonment from three months to two years or to a judicial fine. The penalty is increased by one-sixth if the insult is committed publicly.” In order to punish the act of insulting the memory of the deceased, the offence must have been committed by contacting at least three people.
Even if the name of the victim is not explicitly mentioned in the commission of the offence of insult, or if the allegation is vague, if there is no doubt about its nature and that it is directed against the person of the victim, both the name is mentioned and the insult is deemed to have been explained.
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