TR
SUPREME COURT
CRIMINAL CHAMBER
E. 2019/3962
K. 2020/5421
T. 21.10.2020
CRIME OF VIOLATION OF PRIVACY (Decision to Postpone the Initiation of Public Prosecution during the Investigation Stage for a Crime Subject to a Basic Fine or Imprisonment Not Exceeding Five Years, and Subjecting Finalized Private Life-Related Judgments to Conviction during the Investigation Stage, It is Unjust not to Consider that the Decision to Postpone Prosecution for the Offense of Violation is Necessary)
PUBLISHING IMAGES OF VICTORY ON A FACEBOOK ACCOUNT It is Unlawful to Determine the Defendant’s Incomplete Sentence by Not Applying the Article)
THREAT OFFENSE (Covered by Reconciliation – Pursuant to Article 35 of Law No. 6763 and Article 254 of the Amended Criminal Procedure Code, Reconciliation Proceedings are conducted in accordance with the principles and procedures specified in Article 253 of the same Law, and as a result, pursuant to Article 106/1-1 of the Turkish Criminal Code, the Decision to Reassess the Defendant’s Legal Status Regarding the Crime of Threats Should Be Reversed/The Decision Should Be Reversed for the Reasons Stated)
5237/m. 106, 134
5271/m. 253, 254
SUMMARY:
The case concerns the crimes of insult, violation of privacy, and threat.
For a crime that primarily carries a fine or a prison sentence not exceeding five years; it is erroneous to consider that it is not necessary to decide to postpone the initiation of public prosecution during the investigation phase, to postpone the prosecution during the prosecution phase, to postpone the execution of the final conviction decision, and to postpone the prosecution for the crime of violating the privacy of private life in accordance with the decision.
In this case, the defendant, who shared the victim’s photos with an unspecified number of people via his Facebook account, was punished with the basic penalty under Article 134/2-2 of the Turkish Criminal Code (TCK), which was in force at the time of the crime. In accordance with the article, paragraph, and provision, it is unlawful to impose an inadequate penalty on the defendant by not applying the aforementioned article, even though it should not be increased by half.
Given that the crime of threat falls within the scope of reconciliation, reconciliation proceedings were conducted in accordance with the principles and procedures specified in Article 253 of the Code of Criminal Procedure, as amended by Article 35 of Law No. 6763, and as a result, Article 106/1-1 of the Turkish Penal Code was applied. The need to reassess the defendant’s legal situation with regard to the crime of threat contained in the article, paragraph, and sentence requires the reversal of the decision. For the reasons explained, the decision must be reversed.
SITUATION:
The defendant appealed the convictions for the crimes of insult, violation of privacy, and threat, and the case file was reviewed and the necessary action was taken:
DECISION: In accordance with our Chamber’s decision dated January 9, 2019; upon review, it has been determined that the decision dated November 7, 2013, issued in the absence of the participant, was duly served and that the aforementioned person did not appeal the decision:
A) In the appeal review against the conviction decisions established for the crime of insult;
Published in the Official Gazette dated 07.10.2009 and numbered 27369, entered into force on 07.10.2010, one year after the date of publication of the Constitutional Court’s decision dated 23.07.2009 and numbered 2006/65, 2009/114, until the date of publication of the annulment provision numbered 5237.
Sentences of judicial fines up to TL 2,000 (including TL 2,000) shall be imposed directly in accordance with Articles 50 and 52 and the provisions of the Turkish Penal Code No. 765 that do not involve any other deprivation of rights. Pursuant to Article 305, it has become final, and the right to appeal against the convictions is open without exception until April 14, 2011, when Law No. 6217 entered into force. It is understood that judicial fines of up to 3,000 TL (including 3,000 TL) are deemed to have become final pursuant to Transitional Article 2 of Law No. 5320; since there is no request for appeal regarding the criminal nature of the 2,240 TL sentence separately imposed on November 7, 2013, due to the defendants’ actions… In accordance with Article 317 of the Criminal Procedure Code No. 1412, which is currently in force, the request has been REJECTED.
B) Regarding the appeal against the conviction for violating and threatening the privacy of private life;
The judgment rendered, the evidence gathered and presented at the trial, the court’s opinion and discretion based on the results of the prosecution, the
Based on the scope of the file, the defendant’s other objections to the decision are rejected, the discretionary reduction provision is not applied, the pronouncement of the sentences is not deferred, and the prison sentences imposed have not been converted into fines or other alternative measures and have not been suspended;
1-
The defendant’s publication of images relating to the private life of the victim … on his account on the social networking site Facebook, where his identity was not disclosed and where there was a possibility that they could be seen by more than one person, until December 5, 2011, in violation of Article 134/2 of the Turkish Criminal Code, It is accepted that he committed the crime of violating the privacy of private life by disclosing the images or sounds defined in the article and paragraph. However, according to the Provisional Article 1 of the Law on Amendments to Certain Laws and the Postponement of Trials and Penalties for Crimes Committed through the Press and Publication, “If committed through the press and media or other methods of expressing thoughts and opinions by December 31, 2011; for a crime that requires a basic fine or imprisonment not exceeding five years;
a) During the investigation phase, the public prosecution may be postponed without requiring the conditions set forth in Article 171 of the Criminal Procedure Code dated 4/12/2004 and numbered 5271, b) During the prosecution phase, the prosecution may be postponed, c) Postponement of the enforcement of a final conviction decision.” It is evident that, according to the ruling, there is no need to postpone the prosecution for the crime of violating the privacy of private life.
According to acceptance and application:
Article 6/1-g of the Turkish Criminal Code, in the wording of the paragraph and clause, states that in the application of criminal laws, in the context of publications made through the press and media; it is understood that the defendant, who presented the victim’s images on his Facebook account in front of an unknown number of people, cannot be credited with the punishment determined in Article 134/2 of the Turkish Criminal Code, which was in force on the date of the crime, as the basic punishment. -According to the provisions of Article 2, paragraphs and clauses, without the need for a 50% increase, it is understood that the defendant’s determination is incomplete due to the non-application of the aforementioned article.
2-
Following the decision date, Law No. 6763 on Amendments to Certain Laws, published in the Official Gazette dated 02.12.2016 and numbered 29906, which entered into force on the same date, and the first paragraph of Article 34 of the Law on Amendments to Article 253 of the Criminal Procedure Code, Among the subparagraphs added to Article 106/1-1(b) of the Turkish Penal Code (TCK), the first paragraph of Article 1(b), and the subparagraphs added to Article 1(b), it is understood that the crime of threat defined in the article and paragraph falls within the scope of reconciliation.
Pursuant to Article 7/2 of the Turkish Penal Code and its paragraph; “If the provisions of the law in force at the time the crime was committed and the provisions of the law that came into force later are different, the law that is more favorable to the offender shall be applied and enforced.” Pursuant to Article 35 of Law No. 6763 and Article 254 of the amended Criminal Procedure Code, mediation proceedings shall be conducted in accordance with the principles and procedures set forth in Article 253 of the same Law, pursuant to the outcome of Article 106/1-1 of the Turkish Penal Code. It is mandatory to reassess the legal status of the defendant with regard to the crime of threat as set forth in the article, paragraph, and sentence.
3-TR In light of the Constitutional Court’s decision to annul case no. 2014/140 and the unnecessary decision, the rights forfeiture provisions in Article 53 of the Turkish Penal Code must be reevaluated in accordance with the annulment decision.
CONCLUSION:
This necessitates reversal, and since the defendant’s appeals are deemed valid, the provisions of Article 321 of the Criminal Procedure Code No. 1412 have been violated. This article is still in force, and the provisions have been violated in accordance with Article 8 of Law No. 1412. Regarding the amount of punishment for the crime of breach of confidentiality, it was unanimously decided on October 21, 2020, that the defendant’s acquired rights be reserved, taking into account the execution.