TO THE GENERAL DIRECTORATE OF CRIMINAL AFFAIRS, MINISTRY OF JUSTICE, AND THE 23RD CRIMINAL COURT OF ISTANBUL
FOR FORWARDING
CASE NO.: …….. (Case No.), …… (Decision No.)
DEFENDANT ACTING IN THE INTEREST OF JUSTICE
: PETITIONER:
ATTORNEY: Avcılık
SUBJECT: Antalya 23rd Criminal Court of First Instance …. (Case No.), ………. (Decision No.)
EXPLANATIONS:
My client, the defendant AT, was fined 2,500 TL by Decision No. 2017/889 of the Antalya 23rd Criminal Court of First Instance. Although the court’s decision is contrary to the law, my client has been unable to pursue any legal remedies because the fine has become final.
The defendant is portrayed as an immoral and indecent doctor in an incident that drew public outrage, specifically in a post titled “Doctor Mocking His Gay Patient” on the website “Ekşisözlük.” This comment, which sparked public outrage, can at most be characterized as severe criticism. The defendant had no intent to insult. According to the
established case law of the Court of Cassation, for an act to be considered defamatory, it must be intended to humiliate the recipient. The client’s intention was not to humiliate a complete stranger, but to criticize a doctor who mocked his patient’s sexual orientation. The comment made by the client has been characterized by the Supreme Court as “severe criticism.”
In fact, the Supreme Court has established general criteria applicable to all defamation offenses:
“…The legal value protected by the criminalization of defamatory acts is the dignity, honor, and integrity of individuals, and for this offense to be established, the conduct must be carried out with the intent to humiliate the person. Whether an act constitutes defamation is relative in some cases and may vary depending on time, place, and circumstances. Any harsh criticism or defamatory remarks directed at public officials or private citizens should not be evaluated in the context of defamation; rather, the remarks must constitute a concrete act or fact—or an act of profanity—that could undermine dignity, honor, and reputation.”
.
According to the Supreme Court’s jurisprudence, critical expressions such as “immoral” or “contrary to morality” do not constitute the crime of insult:
In the case in question, it should be noted that the crude expressions and harsh criticisms used by the defendant against the participant—such as “shameful” and “disrespectful”—did not constitute the crime of insult because they did not harm the participant’s honor, dignity, or reputation (18th Criminal Chamber of the Court of Appeals – Decision No. 2016/6745).
When the defendant arrived to visit his wife in prison, he was denied entry on the grounds that it was not a visiting day; the complainant, who was on duty at the police station, was also unable to accompany him into the prison because the prison was a desolate place where stray dogs roamed and her 6-year-old child was frightened. The statement “you are being rude,” which is deemed to have been used for the purpose of criticism, does not infringe upon the complainant’s honor, dignity, or reputation; however, it constitutes severe criticism, offensive, rude, and discourteous behavior and does not meet the elements of the offense of insult (Labor Court, 4th Criminal Chamber – Decision: 2014/32605).
CONCLUSION AND REQUEST: As we have presented and explained above, we filed an appeal with the Prosecutor’s Office regarding the final decision No. ………. of the Antalya 23rd Criminal Court of First Instance on August 8, 2021.
Defense Counsel