TR
SUPREME COURT
Criminal General Assembly
Case No.: 1997/4-386
Decision No.: 1998/52
Decision Date: 24.02.1998
CRIME THROUGH THE PRESS – TARGET
THE GENERAL INTENTION TO COMMIT A CRIME AGAINST A PERSON’S HONOR AND REPUTATION IS NOT SUFFICIENT
FOR VIOLATION OR GUARANTEE
SUMMARY OF THE NECESSITY OF LIMITING THE RIGHT OF THE PRESS TO INFORM AND CRITICIZE
SUMMARY
: The newspapers edited by the defendants published articles on May 10, 1994, September 13, 1994, and September 20, 1994,
in which they disparaged and insulted the complainant.
The cases brought against them for alleged crimes were consolidated by the local court, which determined that the articles had crossed the line of criticism.
The defendants were acquitted on the grounds that they were not guilty and that the elements of the crime were not present.
Upon the participant’s appeal, the Special Chamber concluded that the criticism and insults in the articles published in the newspapers dated May 10, 1994, and September 13, 1994,
were committed with general intent, regardless of whether the limits of information were exceeded and whether the participant was humiliated in the environment.
The ruling that “the expert opinion investigating whether there was specific intent was based on the acquittal for the offense of profanity”
has been overturned.
(765 SK Article 480, 482)
Case: Acquittal of defendants Ömer Mustafa and Enver for the offense of insult via the press
(Bulancak Criminal Court of First Instance).
The Fourth Criminal Chamber of the Court of Appeal reviewed the appeal file numbered 3930/5080 dated 4.6.1996;
“In the issue of G.. Newspaper dated 13.9.1994, for which defendant Enver was the editor-in-chief, the article titled ‘What does the governor want?’, written and published by the other defendant
Ömer Mustafa, titled “What does the governor want to do?” In the issue dated May 10, 1994, Enver wrote an article titled ”
Will the district governor O.., who is doing all his work with so many different forged documents, be able to fool his superiors?
If he is trying to deceive us, woe is us.”
The article states, “A school without teachers has been opened; District Governor O.. thinks he is the director of national education.”
Furthermore, it states, “We have seen before that he changed the documents to form the teachers’ council and appointed the governor.
He is the governor who lulls the geniuses… we are here,”
giving the impression that the district governor prepared the forged documents with general intent,
aiming to legitimize the action and humiliate the person in question in the community.
The aim is to obtain an acquittal by giving weight to the expert opinion that seeks specific intent in the crime of profanity.
It was ruined because of its inaccuracy,
Local Court, Case No. 337-146, 17.12.1996;
“General intent is not sufficient for the crime to be established; it is necessary to insult the honor and dignity of the targeted person or
to humiliate them for the purpose of provocation. Criticism, insult, and whether there was an intention to humiliate with information and news
are examined to determine this. It was concluded that the defendants had no intention to humiliate and that the elements of the crime
were not present. The purpose of the articles is to inform and raise public awareness.” This statement
is based on the objection in the previous ruling.
Upon the review of this ruling, which was requested by the plaintiff in a timely manner, by the High Court, the file was sent to the First Presidency together with the Prosecutor’s Office’s request for “annulment” dated 12/25/1997 and submitted to High Court C. The file was
examined by the Criminal General Assembly, the necessity was discussed and evaluated:
Decision: The defendants, as owners and chief editors of the newspaper, insulted and defamed the plaintiff in articles published in the newspaper’s issues dated May 10, 1994, September 13, 1994, and September 20, 1994.
The cases brought against them for committing a crime were consolidated by the local court and reached the limits of criticism.
It was accepted that the defendants should not be executed and that the elements of the crime were not present, and the defendants were acquitted.
Upon the participant’s application, the Special Committee found that the articles published in the newspapers dated May 10, 1994, and September 13, 1994, contained criticism and condemnation. These criticisms
were made with a general intent, regardless of whether they exceeded the limits of criticism, and led to the participant being humiliated in the community.
An acquittal was granted for the offense of profanity based on an expert opinion seeking specific intent, but
this decision was overturned.
Regarding the article titled “Let’s Not Make Our Future Cry” published in the newspaper dated September 20, 1994, it is clear that the Special
Court conducted an investigation and did not grant an acquittal, and the local court did not object to this.
Since it was not possible to reach a decision, it was decided that the investigations dated May 10, 1994, and September 13, 1994,
would be limited to the articles in the newspapers. Furthermore,
due to the fact that the headlines of the newspapers dated May 10, 1994, and September 13, 1994, were misspelled,
a lawsuit was filed only against the defendant OM, who was the owner and editor-in-chief of the newspaper,
because of the May 10, 1994, edition. Enver is not responsible for this issue.
Regardless of the absence of a lawsuit, it is stated that both defendants are responsible for the reversal decision.
Pursuant to Articles 150 and 257 of the Criminal Procedure Code, courts are responsible for the crimes and persons specified in the indictment.
Considering the court’s decision, it was ultimately deemed ineffective.
The issue to be resolved concerns articles, news reports, and press coverage published in newspapers dated May 10, 1994, and September 13, 1994.
The general objective is to avoid exceeding the limits of the right to criticize and to prevent the commission of criminal offenses involving defamation.
Additionally,
the question arises as to whether specific intent is required.
The conditions for compliance with the law in crimes committed through the press are based on Article 28 and subsequent articles of the Constitution.
This is the consent of the victim who has the right to inform and criticize. For the right to criticism and reporting to be accepted,
the news that is the subject of the statement or criticism must be accurate and current,
be in line with the public interest and benefit, and there must be an intellectual connection between the form of the statement and its subject.
No derogatory words should be used about the persons mentioned in the news or article. No derogatory words should be used about the persons mentioned in the news or article. If even one of these
elements is missing, there can be no question of the right to inform and criticize, and the
action is unlawful.
“On the other hand, the rights to inform, criticize, and defend express the exercise of a right, but
no one who speaks or writes in a manner that damages the honor and reputation of a person without attributing a specific action to that person
can claim to be exercising a right.
Because no one has such a right. Even if a specific action is attributed to the perpetrator,
if they have committed both the offense of insult and the offense of profanity and there is a lawful reason, this reason
may prevent the insult from being a crime, but it does not negate the existence of the insult and does not prevent the perpetrator from being guilty of the offense of profanity.
A penalty is required” (Prof. Sahir Erman, Insult and Profanity Offenses, p. 130).
In court decisions and teachings, no specific intent is sought in the crimes of insult and profanity;
general intent is considered sufficient. Articles 480 and 482 of the Turkish Criminal Code do not specify a motive.
The defendant’s intention is not considered important. Your words and written texts contain insults.
It is sufficient to know that this is an insult and to say or write it knowingly. In these crimes, the moral
element is general intent.
In this case, the defendant Ö.M., who is the owner, editor-in-chief, and author, wrote in the May 10, 1994 issue of the newspaper “What does the governor want to do?” in an article titled “The document sent to the district governor… is subject to change,” “The district teacher dormitory management and supervisory boards
…Document sent to the District Governor… subject to change,“ stated, ”District teacher dormitory management and supervisory boards
are not being formed, documents are being circulated, and after the skateboard incident,
it was noted that he displayed a meaningless attitude,“ ”…a day passes. Another scandal is added. It was proposed by the District National Education Directorate and the governor’s office,“ ”…another day passes. Another scandal was added. It was proposed by the District National Education Directorate,“ ”… another day passed.
Another scandal was added.
The District Governor (YO) selects members from among the names and changes the names of two members by altering the documents.
District Governor O…, rewrites the letter from the District National Education Directorate, uses the title of District
Directorate of National Education, changes the names, and cancels the previous governor’s approval.
Without the signatures of the District and Provincial Director of National Education, he ensures that it is signed by the governor with his own signature. The governor
increases the number of signatures by lulling his own bureaucrats. All documents in the bureaucracy are altered in this way, and if everyone
can write without authority according to their own mind, then there should be no other authorities either.
If District Governor O… conducts all business with such different forged documents, he will try to deceive his superiors by lulling them into complacency.
“If it works, woe is us…”
The National Education Directorate recommends that the management board and auditors of the teachers’ dormitory be formed late.
Although reporting the district governor’s name change is in the public interest and benefit,
the intellectual connection between the manner in which the news is presented and the subject matter and behavior in the news must be preserved.
Derogatory value judgments about the criticized participating district governor should be avoided. However,
the article describes the actions of the participating district governor as a “scandal.” As the head of the unit,
it is the most natural right of the district governor, who is the signatory, to change the names on the list. Your name is conveyed as if it were a forged document,
and it is explained that it was done using a “document alteration method.” The participant’s
statement that “he tried to deceive even the mayor” is derogatory and a personal value
judgment.
In the defendant Enver’s complaint dated 13.9.1994, the following statements by the defendant Ömer Mustafa are included in the office of the director of administrative affairs:
“School Opened Without Teachers, District Governor O.. Thinks He is the Director of National Education.”
The article explains the reasons why a school remained without a teacher despite student registrations being completed and schools being opened. After stating that the matter
was investigated, it says, “We asked, we investigated, and we saw that before the teacher administration,
the district governor changed the documents and lulled the governor to sleep during the formation of the board of directors…”
Subsequently, the district governor’s stance on this matter is criticized. The participant,
while reporting and criticizing the teachers’ savings in the district regarding the change of duty station,
repeated the statements from the previous article; because the participant altered the documents and lulled the governor.
Mentioning, reporting, and criticizing constitute an abuse of rights, and the defendants are complying with the law.
They cannot take advantage of their circumstances.
In both articles in question, the limits of criticism and reporting have been exceeded, and the impression that the participant prepared false documents
does not require a specific intent for the crime to be committed, and the writings
were written knowingly and intentionally to be defamatory.
General intent is sufficient.
To object to what is stated in the previous ruling,
as in this case, is contrary to the law; therefore, the local court’s decision to object must be overturned.
Conclusion: For the reasons stated, the local court’s decision to object (OVERTURNED) was unanimously adopted on February 24, 1998,
in accordance with the opinion in the notification.