TCK Article 125 punishes "anyone who attributes a concrete act or fact that may offend a person's honor, dignity and prestige, or attacks a person's honor, dignity and prestige by swearing" for insult.
Penalties
- Art.125/1 (basic case): 3 months-2 years imprisonment or judicial fine.
- Art.125/2 qualified situations:
- For his duty towards a public official.
- For explaining, changing and trying to spread religious, political, social, philosophical beliefs, thoughts and opinions, and for acting in accordance with the orders and prohibitions of the religion he belongs to.
- Talking about the values that are considered sacred according to the religion the person belongs to. → The lower limit of the penalty cannot be less than 1 year.
- Art.125/3 publicity: If it is committed publicly, the penalty is increased by 1/6.
- Art.125/4 through press and publication: It is deemed to have been committed publicly.
In Face / In Absence / Public
- Face to face: Do not say it directly in the presence of the victim.
- In his/her absence: Do not say it in the presence of the victim; The requirement to have a conflict with at least three people (Art.125/1 sentence 2).
- Public: Possibility to reach an undetermined number of people (social media, public platform).
Social Media Insult
- Open posts on Twitter, Instagram and Facebook accounts are public
- Sharing made in open groups is considered public.
- If there are 3+ followers in closed/private accounts, there may be "processing with reservations".
- IP and username detection of anonymous accounts.
"Right to Criticize" (AY Art. 26, ECHR Art. 10)
Within the scope of freedom of expression, public right to information and freedom of criticism are available. The Supreme Court and the Constitutional Court draw the line of insult-criticism with the following criteria:
- Does the discourse contain a concrete fact or opinion?
- Is there a public interest purpose?
- Are excessive/derogatory language used?
- Is the victim a public figure?
Supreme Court 18th CD and the Constitutional Court — Established Approach
18. CD and the Constitutional Court accept that the line between "severe criticism" and "insult" must be carefully drawn, that public figures (politicians, journalists, artists) have an increased obligation to endure, but a personal attack on their private life is not within this scope.
Commitment to Complaint
- As a rule, the crime of insult depends on the complaint (6 months).
- Insulting a public official due to his/her duty is prosecuted ex officio
Compromise
The crime of insult (Art. 125/1, Art. 125/3) is among the crimes falling within the scope of reconciliation. If a compromise is reached between the defendant and the victim, the case is dismissed.
What the Victim Should Do
Insult files spread with the speed of social media; IT and criminal law lawyer can take quick action.