The General Assembly of Punishment 2014/756 E., 2015/124 K.
“legal text”
Objection : 2012/166476
Court : BEYPAZARI Peace Criminal Court
Date : 30.04.2012
Number : 88-259
A..125/3-a, 125/4, 62, 50/1-a and 52 of the Turkish Commercial Code No. 5237 against the accused for allegedly insulting him. according to the provisions of the Administrative fine of 7.000 TL and the postponement of the announcement of the verdict by the decision of the Beypazari Criminal Court of Peace dated 18.04.2008 and numbered 221-182, the trial was opened on 30.04.2012 by the decision of the Beypazari Criminal Court of Peace numbered 88-259 due to the defendant committing a crime during the trial period and the application of the deliberate suspension sentence by the defendant, on appeal by the Supreme Court upon review of the file 4. By the Criminal Department on the day of 23.12.2013 and numbered 29305-33302;
“On the day of the incident, the defendant addressed the complainant from the police station, where he went with the guards, addressed rude words such as ‘Who are you, it’s no one’s business to fuck me from wherever you want to go’, which are not offensive to the complainant’s honor, honor and dignity, but are of a nature and nature that would constitute a violation of the conviction, regardless of whether the elements of the insult offense are formed,” it was decided that one of the conditions sought for irregularity exists.
Chief Prosecutor’s Office of the Court of Cassation with the date of 25.02.2014 and the number of 166476;
“…Defendant A.. A.. while driving around 15:45 … after the police officer assigned to protect the outside of the police station told the defendant that he could not park his car here, he returned to his car and shifted the car and drove quickly and uncontrollably to the street, parked his car in front of the adjacent agricultural credit cooperative to block traffic flow and got out of the car and headed for the police station, the complainant asked who he would meet,
‘What happened to you, fuck, who are you, if I go where I want, I get off where I want,’ the complainant asked ‘What happened to you, fuck, if I go where I want, I get off where I want, no one can interfere with me,’his words offend the honor and dignity of the police officer involved in the incident and constitute an insult offense,
a person should be more sensitive to the warnings of the police officer on duty and should not respond disrespectfully, otherwise it will become very difficult to establish public authority, so the defendant’s words against the officer will be honored with the opinion that they offend his honor and dignity and violate legal elements. in the event of an insult offense, an appeal was filed to the law with the request to cancel the decision on the disruption of the Private Office and to confirm the decision of the local court.
308 of CMK No. 5271. the Court of Cassation, which conducted an examination in accordance with Article 23.10.2014, the file sent by the High Criminal Court No. 10018-30227 to the First President of the Supreme Court on the grounds that the reasons for the appeal were not appropriate, was evaluated and decided on the grounds explained by the General Assembly of the Criminal Court.
DECISION OF THE CRIMINAL GENERAL ASSEMBLY
Between the Chief Public Prosecutor’s Office of the Supreme Court and the special chamber, the dispute that must be resolved by the General Assembly and the penalty; Dec Decription of whether the elements of the offense of insult have occurred or not is carried out.
Within the scope of the examined file;
Uniformed police officer Y, who keeps environmental protection watch at the police station, parked his vehicle at the entrance of the police station garage to submit documents on the day of the incident.. Y..when asked where and to whom the clients would go to the question of where and to whom the defendant wanted to park his vehicle in one place, the defendant’s vehicle was parked in another place and was quickly taken to another place by traction; “fuck you, who are you, where I want to go, where I want to go is no one’s business,” he said,
according to the duty book, the customer was on the police station environmental protection watch on the day and time of the incident, the police station
according to the environmental protection watch order, guards should check those entering and leaving the building, prevent civilian vehicles and unidentified people’s vehicles from parking in the police station parking lot located in front and behind the building
it is understood.
Client Y.. Y..; History of the Environmental Protection incident The defendant’s vehicle came on the side of the police station’s police vehicle while performing its duty and quickly entered the entrance of our house and parked the vehicle, the defendant said that civilian vehicles could not be parked here, you should park your car elsewhere, the defendant parked his vehicle to block the flow of traffic by quickly gaining traction, leaving the parking lot and parking on the street without saying anything, and then headed towards the entrance of the police station, asking “Where are you going, who are you going to meet” to help the defendant, She said he replied“ “What the fuck do you do, who are you, I go where I want, I get off where I want, no one can interfere with me.”,
Police officers witnesses D, S, A. they declared that the client’s statements and the minutes they kept were correct,
The accused, on the other hand, uses the right to silence during the investigation phase, during the interrogation; You say “why are you trespassing” to the officer on duty who entered the police station parking lot to deliver a letter to the police station by car due to another incident on the date of the incident, you give a written paper that it will take 5 minutes inside,
but when they left the car safe from the parking lot to remove the car at the insistence of the officers and went to the police station along the street, they were sitting in front of the police station’s guard officer without saying a word inside, telling the complaining officer again “why are you trespassing, you’re a bully,” did not respond, did not insult the accompanying police officers, he claims that he apologized for entering the parking lot without permission, contrary to his defense, which came with instructions during the prosecution, the police officer said to him, “who are you, who are you”, and he replied to him, “who are you”.
125 of the Turkish Criminal Code No. 5237 entitled “Insult”. its substance. The first three paragraphs of the article;
“1- A person who attributes or insults a concrete act or fact that may offend the honor, honor and dignity of a person shall be punished with a prison sentence of three months to two years or a judicial fine. In order for the victim to be punished for the insult in absentia, the act must be committed in case of a dispute with at least three people.
2- If the act is committed by sending an audio, written or video message addressed to the victim, the penalty specified in the above paragraph shall be imposed.
3- Offense of insult;
a) Due to his duty to a public official,
b) To explain, change, try to spread his religious, political, social, philosophical beliefs, thoughts and convictions, to act in accordance with the orders and prohibitions of the religion to which he belongs,
c) Betting on values that are considered sacred according to the religion to which the person belongs,
If committed, the lower limit of the sentence cannot be less than one year …”.
According to this regulation, unlike the Turkish Commercial Code No. 765, the distinction between insult and insult has been abolished, and attributing or Decrying a concrete act or phenomenon that may offend honor, honor and dignity has been determined as electoral actions constituting the crime of insult. (Mahmut Koca- Ilhan Üzülmez, Special Provisions of Turkish Criminal Law, Adalet Publishing House, Ankara, 2013, p.430)
Article 131 of the TCC No. 5237 entitled “Conditions for investigation and prosecution”. in the first paragraph of the article, the provision “The investigation and prosecution of an insult crime, except for those committed against a public official because of his duty, depends on the complaint of the victim” is included in the provision.
According to this, 125 of the Turkish Commercial Code. the basic form of the offense of insult is regulated in the first paragraph of the article, and qualified cases are regulated in the third paragraph, 131/1 of the same law. in its article, it is clearly stated that defamation crimes that fall outside the offense of defamation against a public official because of his duty are subject to complaint.
The legal value protected by the punishment of insulting actions is the honor, dignity and dignity of persons, and for this crime to occur, the behavior must occur for the purpose of humiliating the person. In some cases, whether a move is refereed or not is relative and may vary depending on time, location and situation. Any severe criticism or offensive remarks directed at persons should not be evaluated in the context of an insult offense, the words clearly constitute a concrete verb or phenomenon that may offend honor, honor and dignity, or an insult verb.
The crime of blasphemy can be committed by writing, painting, an obscene gesture by hand. For example, it is blasphemy to say “eat” by showing a piece of weed to someone, to make a cruel and obscene sign by hand, to spit in the victim’s face (Hakim Dönmezer, Special Section of Criminal Law, 1974, p.186-187)
In the light of this information, the subject of the dispute is evaluated;
On the day of the incident, the vehicles belonging to the police station reserved for Environmental Protection were parked in the parking lot, arguing with guards and police officers, and quickly shifting the vehicle from where the complainants were in a reactive manner, telling the defendant where to go and where to go if he wants to return to the police station, and telling the complainant: “fuck you, who are you, go where I want, I’ll go where I want, it’s no one’s business,” reinforcing the defendant’s negative attitude with the promise of, it should be accepted that the behavior committed for the purpose of insulting the police officer who fully performs the client’s duty is of a nature that may offend the honor, honor and dignity of the client, and that the legal elements of the offense of defamation are formed.
Therefore, there is no hit in the decision on the violation of the judgment of the local court by the Special Chamber on the grounds that the defendant’s action does not constitute a crime of defamation.
For this reason, it should be decided to accept the appeal of the Chief Prosecutor’s Office of the Supreme Court, to annul the decision on the corruption of the Private Office and to send the file to the Private Office for examination of the judgment.
The person who does not agree with the majority opinion of the General Assembly Members is Dr. M. It is Kaya; “26/1 of the Constitution. the freedom of expression contained in article 2 of the same article. it is secured in its substance. in the paragraph, it is stipulated that it can be limited by law in order to ’protect the fame and rights of others’.
According to Article 90 / last of the Constitution, It is stipulated that international treaties concluded in accordance with the procedure are legal, there can be no claim of unconstitutionality about them, and if they contain different provisions with the laws on fundamental rights and freedoms, the provisions of the international treaty will be taken as a basis.
19 of the United Nations Convention on Civil and Political Rights. its substance. 10 Of the European Convention on Human Rights. its substance. the articles state that we are a party in the field of freedom of expression and the 90th of the Constitution. due to the interpretation of these conventions by the United Nations Human Rights Commission, which has become part of domestic law with its article/last article, and the European Court of Human Rights has made the applications binding.
The European Court of Human Rights considers that, among other measures, it is necessary to impose ‘legal restrictions’ on the restriction of freedom of expression.
While the law is limited, comments should be made in such a way that they do not have a restrictive nature to freedom and the exercise of this right.
The main thing is freedom. Limitation is an exception. The criterion of freedom is whether there is a concern about being prosecuted for the words spoken. If a person is worried that if I say this word, I will be prosecuted, freedom is considered restricted. In addition, when a suspicious situation occurs, doubt should be interpreted in favor of freedom.
Limiting the use of space power within the state apparatus, promises of this apparatus and political criticism of its users wherever they come from, we should still remain within the sphere of freedom, stronger than a protection due to attacks on the rights of people, public officials, politicians, ensuring the independence of the judiciary and judges, prosecutors and judges under the highest level of protection, freedom of expression,
which should be applied to this due to the guarantee of tenure of judges, prosecutors and judges under the guarantee of the highest level of protection of the term of office of judges, prosecutors and judges, freedom of expression, freedom of expression, freedom of expression, freedom of expression, freedom of expression, freedom of expression, freedom of expression, freedom of expression, freedom of expression, freedom of expression, freedom of expression, freedom of expression, the concept of hatred and discrimination has been accepted by the European Court of Human Rights that it cannot be included in this.
After a brief and general assessment of the freedom of expression, let’s look at the concrete case;
On 2.5.2007 at 15:45 the defendant came to the police station in his car, the police officer said to him, ‘you can’t park your car there, it’s forbidden there’, ‘you have a five-minute job, you will give the entry and exit documents, there is no other parking space’,
when the client asked for the withdrawal of his vehicle, the defendant got into his vehicle and got off quickly, slid away, left his vehicle outside the parking lot and wanted to go back and enter the police station, after the client said ‘who are you showing off, who are you,’the police i told the officer, ‘what the fuck are you, I’ll go wherever I want, I’ll get off wherever I want, no one can interfere with me,’ he said, the court said TCK 125/1-4, 62, 50, 52/2 about the accused. In accordance with the article, it was decided to convert the 1 year and 2 month prison sentence to a judicial fine of 7.000 TL.
Supreme Court 4.The Criminal Department, with its decision dated 23.12.2013 and numbered 2013/33302, decided to overturn the sentence on the grounds that ‘a conviction decision should be made instead of an acquittal for an unrealized crime’.
125 of the TCK. in order for the offense of defamation regulated in the article to occur;
-‘qualified to offend the honor, dignity and dignity of a person’
-‘attributing a concrete fact or phenomenon’
-‘The attack should be detected by swearing’.
It is not possible to talk about the defendant’s attribution of a concrete verb or phenomenon.
The defendant’s words such as ’What the hell are you, who are you, I go where I want, I get out where I want, no one can interfere with me‘ cannot be considered as ’blasphemy’. According to the Turkish Language Institute, the word ‘lan’, which is the most severe word used by the defendant, cannot be considered as ‘blasphemy’ either.
The understanding contained in the provisions of the Constitution, the Civil and Political Rights Convention, the European Convention on Human Rights, as well as the decisions of the United Nations Human Rights Commission and the European Court of Human Rights is also included in the 125th amendment of the Turkish Penal Code. according to the article, the defendant, “with the opinion,
In the General Assembly, 20 members decided to reject the request for appeal on the grounds that “the defendant’s action does not constitute a crime of defamation”.
result:
1- ACCEPTANCE of the appeal of the Chief Public Prosecutor’s Office of the Court of Cassation,
2- Supreme Court 4. CANCELLATION of the decision of the Criminal Chamber on the violation of the decision dated 23.12.2013 and numbered 29305-33302,
3- 4 of the provision of the Court of Cassation for the examination of the file. C to be sent to the Criminal Chamber of the Supreme Court of Appeals. since a sufficient majority could not be obtained in the first negotiation held on 14.04.2015, it was decided to send the file to the Chief Public Prosecutor’s Office with a majority of votes in the second negotiation held on 21.04.2015.