General Criminal Assembly 2014/756 E., 2015/124 K.
“Court Law Text”
Objection: 2012/166476
Court: BEYPAZARI Criminal Court of Peace
Date: 30.04.2012
Number: 88-259
Following the Beypazarı Criminal Court of Peace’s decision dated April 18, 2008, numbered 221-182, sentencing the defendant A.. A.. to a 7,000 lira fine for insulting the defendant, pursuant to Articles 125/3-a, 125/4, 62, 50/1-a, and 52 of the Turkish Penal Code No. 5237, and the suspension of the announcement of the verdict, a hearing was held and the verdict was handed down due to the defendant’s intentional crime committed during the probation period. Upon the defendant’s appeal, the 4th Criminal Chamber of the Court of Cassation, reviewing the case file, overturned the judgment numbered 88-259, dated April 30, 2012, regarding the disclosure of the defendant’s name. The Court of Cassation, upon reviewing the case, ruled in its decision numbered 29305-33302, dated December 23, 2013, that:
“On the day of the incident, the defendant arrived at the police station and addressed the complainant, a perimeter guard, who asked him where he was going. ‘Who the hell are you? I can go where I want and leave where I want. No one can interfere with me.’ The vulgar remarks were not offensive to the complainant’s honor, dignity, and reputation, but rather were of a disturbing nature, and the conviction was rendered without considering that the elements of the crime of insult were not met.”
The Office of the Chief Public Prosecutor of the Court of Cassation, in its decision numbered 166476, dated February 25, 2014, that:
“…The defendant A.. A.. parked his car with the registration number … in the parking lot of the police station building at around 15.45 and got out of his car. When the complainant police officer on duty who was on guard duty at the police station told the defendant that he could not park his car there, he got back into his car and skidded the car and drove onto the street in a fast and uncontrolled manner. He parked his car in front of the adjacent agricultural credit cooperative in a way that would obstruct the flow of traffic and got out of the car and headed towards the police station. When the complainant asked where he was going and who he was going to meet, he said ‘What do you care, who are you? I can go where I want and leave where I want, no one can interfere with me.’ His words were of a nature that offended the reputation of the complainant police officer and hurt their honor and dignity and constituted the crime of insult. The person should have been more sensitive to the warnings of the police officer on duty and should not have responded disrespectfully. Otherwise, it would have been very difficult to establish public authority. In this respect, the defendant’s words against the officer were The court appealed, arguing that “the words spoken were offensive to his honor, dignity, and reputation, and that the legal elements of the crime of insult were present.” The court requested the annulment of the Special Chamber’s reversal decision and the upholding of the local court’s judgment.
The 4th Criminal Chamber of the Court of Cassation, conducting an examination pursuant to Article 308 of the Code of Criminal Procedure No. 5271, forwarded the file to the First Presidency of the Court of Cassation with the file number 10018-30227 dated October 23, 2014, stating that the grounds for objection were deemed unfounded. The file was evaluated by the General Assembly of Criminal Prosecutors and ruled on the stated reasons.
DECISION OF THE GENERAL ASSEMBLY OF CRIMINAL PROCEEDINGS
The dispute between the Special Chamber and the Office of the Chief Public Prosecutor of the Court of Cassation, which must be resolved by the General Assembly of Criminal Prosecutors, concerns the determination of whether the elements of the crime of insult have been met.
From the scope of the file reviewed:
On the day of the incident, the defendant parked his car at the entrance to the station garage to submit documents. Complainant Y.., a uniformed police officer on guard duty at the station’s perimeter, asked the defendant to park his car elsewhere. The defendant skidded his car and quickly parked elsewhere, then headed back toward the station entrance. When the complainant asked where he was going and who he was meeting, he replied, “What do you care? Who are you? I can go and leave wherever I want, no one can interfere with me.”
According to the duty log, the complainant was on guard duty at the station’s perimeter on the day and time of the incident.
In accordance with the station’s perimeter watch instructions, guards are required to monitor entry and exit of civilian vehicles and vehicles belonging to unknown individuals in the police station parking area in front of and behind the building.
It appears that the defendant’s duty is to monitor entry and exit of civilian vehicles and prevent the parking of unknown individuals in the police station parking area in front of and behind the building.
Complainant Y.. Y.. stated that on the date of the incident, while performing perimeter protection duty, the defendant drove up in his vehicle, quickly entered the entrance to the police car garage next to the police station, and parked. He told the defendant that civilian cars could not be parked there and that he should park his vehicle elsewhere. The defendant skidded his vehicle, quickly exited the parking lot, and parked it on the street, obstructing traffic flow. He then headed toward the police station entrance without saying anything. When the defendant asked, “Where are you going? Who are you going to meet?” in an attempt to help him, he replied, “What’s it to you? Who are you? I can go where I want and leave where I want. No one can interfere with me.”
Police officers D, S, and A., who are the signatories of the incident report, testified that the complainant’s statements and the report they filed were accurate.
The defendant exercised his right to remain silent during the investigation. During his interrogation, he stated: He stated that on the date of the incident, he entered the police station parking lot with his vehicle to deliver a document regarding his statement regarding another incident. The officer on duty asked, “Why are you entering without permission?” He replied that he had 5 minutes to do and would hand him some papers and leave. However, when the officers insisted he take his car outside, he removed his car from the police station parking lot and left it on the street above. When he returned to the station, the officers on duty were sitting in front of the station. He headed inside without speaking. The complainant officer asked him again, “Why are you entering without permission? Are you a bully?” He did not respond. He did not insult the complainant police officers, and apologized for entering the parking lot without permission. He argued, contrary to his defense obtained under instructions during the prosecution, that the police officer asked him, “Who are you showing off to? Who are you?” and that he responded, “Who are you?”
The first three paragraphs of Article 125 of the Turkish Penal Code No. 5237, titled “Insult”, read as follows: “1- Anyone who attributes a concrete act or fact to another person that could offend their honor, dignity, or reputation, or who attacks their honor, dignity, or reputation by insulting them, shall be punished with imprisonment of three months to two years or a judicial fine. For insult in the absence of the victim to be punishable, the act must be committed in collaboration with at least three other people.
2- If the act is committed through a voice, written, or visual message addressed to the victim, the penalty specified in the preceding paragraph shall be imposed.
3- If the offense of insult is committed:
a) Against a public official because of their duty,
b) Because of expressing, changing, or attempting to spread religious, political, social, or philosophical beliefs, thoughts, and opinions, or because of their compliance with the commands and prohibitions of their religion,
c) By mentioning values considered sacred by the person’s religion,
The minimum penalty shall not be less than one year…” With this regulation, unlike Turkish Penal Code No. 765, the distinction between insult and swearing has been abolished, and swearing or attributing a concrete act or fact that could offend honor, dignity, or reputation are designated as optional acts constituting the crime of insult. (Mahmut Koca-İlhan Üzülmez, Turkish Penal Law Special Provisions, Adalet Publishing House, Ankara, 2013, p. 430)
The first paragraph of Article 131 of Turkish Penal Code No. 5237, titled “Condition for Investigation and Prosecution,” states: “Except for those committed against public officials due to their duty, the investigation and prosecution of insult crimes are subject to the complaint of the victim.”
Accordingly, the first paragraph of Article 125 of the Turkish Penal Code stipulates the basic form of the crime of insult, and the third paragraph stipulates its aggravated forms. Article 131/1 of the same law. The article clearly states that insults, excluding insults against public officials due to their duties, are subject to complaint.
The legal value protected by the punishment for insulting acts is the honor, dignity, and respect of individuals. For this crime to occur, the behavior must be intended to humiliate the individual. Whether an act is insulting is relative in some cases and can vary depending on time, place, and situation. Not all harsh criticism or offensive words directed at individuals are considered insults; the words must clearly constitute a concrete act or fact likely to offend honor, dignity, or respect, or constitute an act of swearing.
The crime of insulting can be committed through writing, a picture, or an obscene hand gesture. For example, showing someone a piece of grass and telling them to “eat it,” making an obscene gesture with one’s hand, or spitting in the victim’s face constitutes swearing (Sulhi Dönmezer, Criminal Law Special Section, 1974, pp. 186-187).
When the dispute is evaluated in light of this information ;
On the day of the incident, the defendant argued with the police officer on environmental protection duty because he wanted to park his car in the designated parking lot for police station vehicles. He reacted by causing his car to skid, quickly moved from its location, parked it elsewhere, and then returned. When the defendant attempted to enter the police station, he addressed the complainant, who asked where he was going, saying, “What do you care? Who are you? I go where I want, I leave where I want, no one can interfere with me.” The defendant verbally reinforced the defendant’s negative attitude. His actions, combined with his verbal insults, were intended to insult the complainant police officer while he was performing his duty and were likely to offend the complainant’s honor, dignity, and reputation. Therefore, the legal elements of insult must be accepted. Therefore, the Special Chamber’s decision to overturn the local court’s verdict on the grounds that the defendant’s actions did not constitute insult was incorrect. In this regard, it should be decided to accept the objection of the Supreme Court of Appeals Chief Public Prosecutor’s Office, overturn the Special Chamber’s reversal decision, and refer the case to the Special Chamber for review of the verdict.
General Assembly Member Dr. M. Kaya, who disagreed with the majority opinion, stated: Freedom of expression is guaranteed by Article 26/1 of the Constitution, and the second paragraph of the same article stipulates that it may be restricted by law for the purpose of ‘protecting the reputation and rights of others.’
According to the final article 90 of the Constitution, it is stipulated that international agreements duly put into effect have the force of law, that no claim of unconstitutionality can be made regarding them, and that if they contain provisions on fundamental rights and freedoms that differ from those of the law, the provisions of international agreements shall prevail.
Since Article 19 of the United Nations Convention on Civil and Political Rights and Article 10 of the European Convention on Human Rights, to which we are parties in the field of freedom of expression, have become part of domestic law with the final article 90 of the Constitution, the practices of the United Nations Commission on Human Rights and the European Court of Human Rights, which interpret these agreements, are also binding.
The European Court of Human Rights considers it necessary, among other measures, to restrict freedom of expression by ‘limitation by law.’
When restricting freedom of expression, the restriction of freedom and the exercise of this right is not intended to be a restriction of freedom or the exercise of this right. It must be interpreted without assigning any particular qualification.
The essential thing is freedom. Restriction is an exception. The criterion for freedom is whether there is a fear of criminal prosecution for the words spoken. If a person fears that if they say something, they will be subject to criminal prosecution, freedom is considered restricted. Furthermore, when a suspicious situation arises, the suspicion must be interpreted in favor of freedom.
The European Court of Human Rights has accepted that the power wielded by those within the state apparatus should be limited, that statements and political criticism directed at those who use this apparatus should remain within the realm of freedom, regardless of the origin. Public officials should be afforded stronger protection than politicians against attacks on personal rights. Due to the independence of the judiciary and the guarantee of tenure, this protection should be applied to judges and prosecutors at the highest level. Expressions of hate and discrimination cannot be included within the concept of freedom.
Following a brief and general assessment of freedom of expression, let’s examine the specific case:
The defendant arrived at the police station in his vehicle at approximately 3:45 PM on May 2, 2007. As he parked his car in the parking lot and was leaving, the police officer told the complainant, “That’s forbidden; you can’t park your car there.” He said, “He had five minutes to do, he’d hand in some paperwork and leave, and there was nowhere else to park.” When the complainant asked for the car to be towed, the defendant got into his car, quickly exited, skidded on the ground, and drove away. When he returned to the police station, the complainant asked, “Who are you showing off to? Who are you? Who are you going to meet?” He then addressed the police officer with the following remark: “What do you care? Who are you? I can go and leave wherever I want. No one can interfere with me.” The court ruled that the defendant’s sentence of 1 year and 2 months in prison should be commuted to a fine of 7,000 TL, in accordance with Articles 125/1-4, 62, 50, and 52/2 of the Turkish Penal Code.
The 4th Criminal Chamber of the Court of Cassation, by its decision dated December 23, 2013, and numbered 2013/33302, ruled that the defendant’s sentence should be commuted to a fine of 7,000 TL. The court overturned the verdict on the grounds that “the conviction was given instead of acquittal for a crime whose elements were not met.”
For the crime of insult, as regulated in Article 125 of the Turkish Penal Code, to occur, the following must be true;
– “of a nature that could offend a person’s honor, dignity, or reputation.”
– “attributing a concrete act or fact.”
– “there must be an attack by insulting.”
It is not possible to speak of the defendant imputing a concrete act or fact.
The defendant’s words, “What do you care? Who are you? I can go where I want and leave where I want. No one can interfere with me,” cannot be considered “swearing.” The most severe word used by the defendant, “man,” is also not considered “swearing,” according to the Turkish Language Association. The defendant cannot be sentenced because he does not comply with the principles of the Constitution, the Covenant on Civil and Political Rights, the European Convention on Human Rights, the decisions of the United Nations Commission on Human Rights and the European Court of Human Rights, as well as the legal definition of insult in Article 125 of the Turkish Penal Code.
Twenty General Assembly Members voted against rejecting the objection, holding that “the defendant’s action does not constitute the crime of insult.”
RESULT:
1- THE objection of the Office of the Chief Public Prosecutor of the Court of Cassation IS ACCEPTED.
2- THE reversal decision of the 4th Criminal Chamber of the Court of Cassation, dated December 23, 2013, numbered 29305-33302, IS REVERSED.
3- THE file is REGISTERED to the Office of the Chief Public Prosecutor of the Court of Cassation for referral to the 4th Criminal Chamber of the Court of Cassation for review. Since the quorum was not reached in the first debate held on April 14, 2015, The decision was taken by majority vote in the second discussion held on 21.04.2015.