Offense of Insulting The President
- 1.1 WHAT IS THE OFFENSE OF INSULTING THE PRESIDENT?
- 1.2 What is the Offense of Insulting to the President Online?
- 1.3 DECISIONS OF THE COURT JURISDICTION FOR OFFENSING THE PRESIDENT
- 1.4 Decisions of the Constitutional Human Rights Court on the Offense of Insulting the President
Offense of Insulting The President
Offense of insulting the president and jurisdic acts which unsettle emotions and ideas of society about value of the position related to honour and respectability of presidency is asserted as a crime to be sentenced.
WHAT IS THE OFFENSE OF INSULTING THE PRESIDENT?
The offense of insulting the president is specifically arranged in 299th article of Turkish Criminal Law at the part of Offenses Against Sovereign Rights and Organs of the State. In other words, this regulation is apart from general regulation in 125th article of Turkish Criminal Law at the part of Offenses Against Honour. The 1st sub-article of 299th article adjudges that a person who insults to president of the republic is sentenced to prison from one to four years. On the other hand, the 2nd sub-article of 299th article regulates qualified conditions of crime. According to this sub-article, committing an offense in public makes punishment increased by one sixth; committing a crime by means of publication makes punishment increased by one third. Also the 3rd sub-article of 299th article adjudges that serve proceedings of this type of crime is depended on permission of Ministry of Justice. By Supreme Court’s own lights, jurisdic acts which unsettle emotions and ideas of society about value of the position related to honour and respectability of presidency is asserted as a crime to be sentenced is prerequisite for formation of the offense of insulting the president. What kind of insults are violative for honour and dignity should be specified by public opinion and perceptive not by specific sensitivity of an individual. In this respect, an ordinary disrespect cannot be described as an offense or profanity.
The Punishment of Offense of Insulting to the President
The punishment of offense of insulting to the president is regulated in the 299th article of Turkish Criminal Law from one to four years. The punishment shows an alteration from one to four years by whom authorized and competent court in the circumstances fastening a charge offender from one to four years upon discretion of judge. Committing offense of insulting to the president in public is regulated as an aggravation. Therefore, committing this crime makes punishment increased by one sixth.
-Authorized Court for offense of insulting to the president is the nearest court to the place of committing crime. -Competent Court for offense of insulting to the president is Criminal Court of General Jurisdiction.
Offense of insulting to the president is not within the context of offenses prosecuted on complaint.
Lapse of Time to Complaint for Offense of Insulting to the President
Since offense of insulting to the president is not within the context of offenses prosecuted on complaint, this offense is investigated sua sponte by prosecution. There is not any time of complaint for these type of crimes. Waiver of a complaint does not result in discontinuance of actions, even whether there is anybody who made an intervention to public prosecution or not. On conditions that conforming to lapse of time, this type of crimes can be investigated when it is stated to the prosecution office by submitting a denunciation or complaint petition.
Time Bar on Offense of Insulting to the President
Time bar on offense of insulting to the president is eight years. In the act of committing this crime by means of publication, the duration to sue out on which 26th article of 5187 number of Press Law should not be passed. Hereunder, file should be suited in 2 months if published work is delivered. If published work is not delivered at all, file should be suited in 2 months since the date when the crime is informed. These time bars show a change to 4 months, if this publishing has not a daily procedure.
What is the Offense of Insulting to the President Online?
Recently, offen of insulting to the president online became the main topic of conversation. Nowadays, increasing use of internet shows up accusal on offense of insulting to the president. There are sort of penal sanctions for offense of insulting to the president online or via social media, digital media channels and television or also in the streets.
Is Offense of Insulting to the President an Obstactle to Commission?
If a person has received imprisonment for one year or more upon intentional crime, this person cannot be a civil servant. If this person is already a civil servant, he/she is going to be removed from office.
How Can I Denounce to Offense of Insulting to the President?
You may denounce offense of insulting to the president to CİMER or Security General Directorate Crime Report Online.
Deferment of the Announcement of the Verdict, Judicial Fine and Suspension of Punishment
Deferment of the Announcement of the Verdict is a procedure or penal proceeding that is ended in verdict about alleged criminal resulting in nothing and discontinuance of actions after supervision with goodwill. Deferment of the Announcement of the verdict may be ruled about the imprisonment for offense of insulting to the president. Judicial fine is a type of sanction which may be able to applied with imprisonment or applied solitary. In some conditions, the imprisonment ruled by criminal court for offense of insulting to the president might be altered to judicial fine. Suspension of punishment is a desertion from conditional execution which is determinated by the court. Suspension of punishment is also possible for imprisonment ruled for offense of insulting to the president.
DECISIONS OF THE COURT JURISDICTION FOR OFFENSING THE PRESIDENT
Is it a crime to call the president a “thief, murderer, Yazid”? In such a way that it can be clearly understood that the accused referred to the President of the Republic of Turkey more than once, with the same criminal intent, on his Facebook page on the above-mentioned dates; Murderer, Yezit, persecuting because he is afraid of prison, nurturing terrorists, directly humiliating the President in the eyes of the public, harming his honor and dignity, not falling within the scope of freedom of thought protected by the ECHR and our legal order by making accusations, deprived of meaning and content, insulting and insulting in a slogan Considering that the act of the accused, which consists of sharing, will constitute the crime of insulting the President, it is not appropriate to give a verdict of acquittal, while a conviction should be given for the accused in accordance with Articles 299/1-2, 43/1 of Law No. 5237 (Court of Appeals 16th Penal Chamber – Decision: 2017/4807) . It is unlawful for the defendants to be acquitted in written form on a legal and insufficient justification, without considering that the words “thief, murderer …”, which are fixed, are offensive, humiliating and injurious to the prestige of the President in the society, without considering them as insulting. 2016/3618).
The Element of Publicity in the Offense of Insulting the President The presence of others at the crime scene is not sufficient for publicity to take place, and the insult is likely to be seen, heard and perceived by an undetermined number of people, and it has to be committed in places open to everyone without any restrictions, the TPC, which regulates the crime of insulting the president because of his words in the bar association where the element of publicity will not occur. of 299/2. It is unlawful to assign an excess penalty by applying the Article (9th Criminal Chamber of the Supreme Court of Appeals – Decision: 2014/8388).
Offense of Insulting the President in a Chain Way According to the incident report, CD review report, defense of the accused and the scope of the entire file; When the law enforcement officers who came to the place where he was due to an unfounded report wanted to take action against the accused, the accused uttered insulting words first at the crime scene, then in the police vehicle while being taken to the doctor’s control, and finally when he was brought to the police station. 43/1 of the TCK, due to the fact that the same crime is committed more than once at times. According to the article, it is unlawful to assign a penalty by reaching the lower limit with a legal and insufficient reason without considering the application of the chain crime provisions (Chief Court of Appeals 16th Penal Chamber – Decision: 2017/4463). The application of Article 43 of the TPC is unlawful, considering that the act of the accused, who made insulting words to the President with his tweets on the same subject at short intervals on the same day, constitutes the only crime, and that it is a chain crime to move away from the lower limit and the penalty should be determined. Decision: 2016/3475).
Insulting the President on Facebook on the Internet On the defendant’s own account on the social networking site called Facebook, about the President, “…I have always stolen for eleven years, I will steal again”, “I take my bribe and live”, “I have a son like I stacked a few billion dollars at home will reset them ..”, “my nation, do not be afraid, the monster in Pennsylvania”. As it is understood that he shared articles openly saying, “Even if he steals, there is a voter who says he knows something”, the act of the accused constitutes the crime of insulting the President as specified in Article 299/1-2 of the TCK (Court of Cassation 16th Penal Chamber – Decision: 2017/953).
It is Not a Crime to Say the President Allows Smuggling. In the examination of the appeals against the conviction for insulting the President of the Republic; Since there is an obligation to accept that the words of the accused, who was caught while carrying smuggled fuel, angering the law enforcement officers and implying that the President also gave permission to those who are involved in smuggling, referring to the public officials who are in charge of combating smuggling, remain in the nature of severe criticism that can be considered within the scope of tolerance, one of the basic principles of democratic society, instead of acquittal of the legal offense, which does not occur in terms of its elements. It is unlawful for him to be sentenced in writing with an insufficient and insufficient justification (16th Penal Chamber of the Supreme Court – Decision: 2017/3518).
Decisions of the Constitutional Human Rights Court on the Offense of Insulting the President
Eon v. France Decision The ECtHR accepted the placard with the inscription ‘Go away, you idiot’ opened by a French citizen named Herve Eon for President Sarkozy of the time, as a criticism within the scope of freedom of expression. He decided that France had violated Article 10 of the convention on freedom of expression by convicting him for these remarks. “The Court reiterates that the second paragraph of Article 10 absolutely does not allow restrictions on freedom of expression in areas where freedom of expression is of paramount importance in the field of political discourse and debate, and on issues of general interest to the public. The limits of criticism of a politician for being a politician are wider than that of an ordinary person: unlike the latter, the former necessarily and consciously leaves their actions and behavior open to the careful scrutiny of citizens and journalists; therefore [the politician] needs to be more tolerant”
Lingens v. Austrian Decision The Vienna District Court found Lingens guilty of defamation on the grounds that he used the terms “immorality” and “dishonor”. The ECtHR decided that it violated Article 10 of the convention on freedom of expression. “More generally, freedom of political discussion is at the heart of the concept of a democratic society that dominates every aspect of the Covenant. Therefore, the acceptable limits of criticism against a politician are broader than the limits of criticism against a private person. A politician, unlike a private person, knowingly and inevitably opens his every word and action to the close scrutiny of journalists and the public; therefore it has to show a wider tolerance. There is no doubt that Article 10/2 of the Convention. clause allows the dignity of others, namely all individuals, to be protected; This protection also includes politicians when they act outside of their personal capacity. In such cases, however, the requirements of such protection must be weighed against the usefulness of openly discussing political issues. “…it is understood that the interference with the applicant’s exercise of freedom of expression was not “necessary in a democratic society for the protection of the reputation of others” and was not proportionate to the legitimate aim pursued. Accordingly, Article 10 of the contract has been violated…”