Criminal General Assembly 2014/756 E. , 2015/124 K.
“text of jurisprudence”
itirazname : 2012/166476
Court : BEYPAZARI Magistrate’s Court
Date : 30.04.2012
Number : 88-259
Accused of insulting A.. A..according to Article 5237 of the Turkish Commercial Code, the TCC has 125/3-a, 125/4, 62, 50/1-a and 52. in accordance with the articles to be punished with an administrative fine of TL 7.000 and Beypazarı be turned back to the announcement of the award relating to magistrates ‘court 18.04.2008 221-182 numbered by the day after the verdict, the defendant commits an offence within the trial period and the provision for disclosure of intentional because the hearing was opened Beypazarı Magistrates’ Court verdict No. 88-259 30.04.2012 day and by the defendant, upon appeal by the Supreme Court of viewing the file 4. By the Criminal Department on 23.12.2013 day and number 29305-33302;
“On the day of the event from the police station asking the defendant to the complainant addressed the Environmental Protection outpost where he was going himself with guards, ‘who are you where I want you fuck me from where I wanna go ain’t nobody’s business’ shaped rude words, the dignity of the complainant, the size is not insulting the honor and dignity, but are of a disturbing nature and conviction without considering whether the granting of the elements of the crime of insult”, it was decided to misses from corruption.
The Prosecutor General’s Office of the Supreme Court of Cassation with 25.02.2014 days and 166476 issues;
“…Defendant A.. A..’s driving around 15:45 …. after the police officer in charge of guarding the outside of the station told the defendant that he could not park his car here, he got back in his car and skidded the car and went out onto the street quickly and uncontrollably, parked his car in front of the adjacent agricultural credit cooperative to block traffic flow and got out of the car and headed to the police station, asked by the complainant who he was going to meet with, ‘What happened to you fuck, who are you, if I go where I want, I get out where I want, no one can interfere with me,’ his words are offensive to the dignity and dignity of the police officer involved and constitute a crime of defamation, the person should be more sensitive to the warnings of the police officer on duty and not respond disrespectfully, otherwise it will become very difficult to establish public authority, so the defendant’s words against the officer will be honored, with the opinion that it is offensive to his honor and dignity and that the legal elements of the offense of defamation are formed,”the appeal appealed to the law, requesting that the decision to overturn the Private Apartment be lifted and the decision of the local court be upheld.
308 of CMK No. 5271. the Supreme Court, which conducts an examination in accordance with Article 4. 23.10.2014 day and number 10018-30227 by the Criminal Court, as the reasons for the appeal are not considered to be in place, the file sent to the First President of the Supreme Court of Cassation with a bet was evaluated by the General Assembly of the Criminal Court and decided on the grounds described.
THE DECISION OF THE CRIMINAL GENERAL ASSEMBLY
Private apartment with the Chief Public Prosecutor of the Supreme Court is formed between the dispute and punishment that need to be resolved by the General Assembly; determining whether the elements of the offence of insult occurred is related to.
From the scope of the examined file;
The accused parked his vehicle at the entrance of the police station garage to provide documents on the day of the incident, the police officer who is in uniform holding an environmental protection watch at the police station is Y.. Y..’s the vehicle will want to park somewhere that the defendant, the defendant’s vehicle was parked and quickly by traction elsewhere, and then heading back to the entrance to the police station, the complainants have gone by where and who to see on that question; “fuck you, who you are, where I want to go where I want from me ain’t nobody’s business” in the form of words said,
According to the duty book, the customer was on duty at the police station environmental protection on the day and time of the incident,
According to the precinct environmental protection watch order, the guards should check those entering and exiting the building, prevent civilian vehicles and vehicles of unknown persons from parking in the parking area of the precinct located in front of and behind the building,
It is understood.
The Complainants Y.. Y..; the history of Environmental Protection in the event of the defendant’s vehicle while the task is executed on the side of the police car belonging to the police station came and quickly enter into our driveway and parked the vehicle, the defendant civilian vehicles that you can’t park here, park your car elsewhere told to do so by the defendant’s vehicle and quickly getting traction to block the flow of traffic out of the parking lot and parked on the street without saying anything and then headed towards the entrance to the outpost, in order to assist the defendant “Where Are you going, with whom you’re meeting,” he asks, “What do you do lan, who are you, I go where I want, I get out where I want, no one can interfere with me,”he said that he replied,
Police officers witnesses D, S, A. they stated that the statements of the client and the minutes they kept were correct,
The accused, on the other hand, uses his right to remain silent during the investigation stage, during his interrogation; due to another event in the history of the event giving expression to the police station with a tool to deliver an article about into the parking lot of the police station, the officer in charge, “why you are entering without permission,” you say, giving of paper inside that said it would be 5 minutes, but with the insistence of the officers asked to take the car out the car when he left the safe out of the parking lot and up the street to the police station when they returned, they were sitting in front of the duty officer of the police station without a word directed inside, the complainant, the officer again, “why you’re going in without permission, you’re a bully,” said, he said that he did not give an answer, did not insult the accompanying police officers, apologized for entering the parking lot without permission, in contrast to his defense, which was received with instructions during the prosecution, he argued that the police officer told him “who are you, who are you”, and he answered him “who are you”.
125 of the Turkish Criminal Code No. 5237 entitled “Insult”. the first three paragraphs of the article;
“1- A person who attributes or insults a concrete act or fact that can offend the honor, honor and dignity of a person, attacks the honor, honor and dignity of a person, is punished with imprisonment for three months to two years or a judicial fine. In order for the victim to be punished for the insult in absentia, the act must be committed in conflict with at least three people.
2- If the act is committed by a voice, written or video message addressed to the victim, the punishment specified in the above paragraph is imposed.
3- The offense of defamation;
a) Because of his duty to a public official,
b) For explaining, changing, trying to spread religious, political, social, philosophical beliefs, thoughts and convictions, acting in accordance with the commandments and prohibitions of the religion to which he belongs,
c) Bet on values considered sacred according to the religion to which the person belongs,
If committed, the lower limit of the penalty may not be less than one year …”.
According to this regulation, in contrast to the Turkish Commercial Code No. 765, the distinction between insult and insult has been abolished, attributing or cursing a concrete act or phenomenon that can offend honor, honor and dignity has been determined as electoral actions that constitute the offense of insult. (Mahmut Koca- Ilhan Üzülmez, Special Provisions of Turkish Criminal Law, Justice Publishing House, Ankara, 2013, p.430)
article 131 of the TCC No. 5237 entitled “The condition for investigation and prosecution”. in the first paragraph of the article, the provision “Investigation and prosecution of a crime of defamation, except for the one committed against a public official for his duty, depends on the complaint of the victim” is included.
Accordingly, Article 125 of the Turkish Commercial Code. in the first paragraph of the article, the basic form of the offense of defamation, and in the third paragraph, qualified cases are regulated, 131/1 of the same law. in its article, it is clearly stated that defamation crimes that fall outside of defamation due to their duty to a public official are subject to a complaint.
The legal value protected by the punishment of insulting acts is the honor, dignity and dignity of persons, and in order for this crime to occur, the behavior must occur in order to humiliate the person. In some cases, whether a movement is arbitration or not is relative and may vary depending on the time, place and situation. Any severe criticism or offensive words directed at people should not be considered in the context of a crime of insult, the words clearly constitute a concrete verb or fact that can offend honor, honor and dignity, or a verb to insult.
The offense of swearing can be committed by writing, painting, an obscene gesture of the hand. For example, to say “eat” by showing a piece of grass to someone, to make a cruel and obscene sign by hand, to spit in the victim’s face is a curse (Magistrate Dönmezer, Special Section of Criminal Law, 1974, p.186-187)
In the light of this information, the subject of the dispute is evaluated;
Vehicles belonging to the police station on the day of the event earmarked for Environmental Protection due to the parking of vehicles in the parking lot arguing with the guards and police officers and complainants from where the tool was quickly found elsewhere in a manner responsive skid by having the defendant from taking Park and where to go if you want to go back to the police station and told the complainant that asks you: “fuck you, who you are, go where I want and I go where I want me, ain’t nobody’s business” told in the form of words, the defendant’s negative attitude has been strengthened with the promise of, it should be recognized that the legal elements of the offense of defamation are formed, the behavior of which is committed for the purpose of insulting the police officer of the client who is performing his duties as a whole, and by cursing him that he is capable of offending the honor, honor and dignity of the client.
Therefore, there is no hit on the decision of the Special Department to overturn the provision of the local court on the grounds that the defendant’s action does not constitute a crime of defamation.
Therefore, it should be decided to accept the appeal of the Prosecutor General’s Office of the Supreme Court of Cassation, to abolish the decision to overturn the Special Chamber, and to send the file to the Special Chamber for the inspection of the provision.
A Member of the General Assembly who disagrees with the majority opinion is Dr. M. Kaya; “Freedom of expression, 26/1 of the Constitution. secured by article 2 of the same article. in its paragraph, it is stipulated that it may be limited by law in order to ’protect the fame and rights of others’.
In accordance with Article 90 / last of the Constitution; It is stipulated that duly entered into international agreements are legal, no Unconstitutionality claims can be made about them, and if they contain different provisions with laws on fundamental rights and freedoms, the provisions of international agreements will be based on.
Article 19 of the United Nations Convention on Civil and Political Rights. article 10 of the European Convention on Human Rights. ingredients, we are a party in the area of freedom of expression and Article 90 of the Constitution/the last item becomes part of domestic law with the United Nations Human Rights Commission and interprets these contracts because of the European Court of human rights are binding on the applications.
The European Court of Human Rights considers it necessary to make a ‘limitation by law’, among other measures, in limiting freedom of expression.
When limiting the law, comments should be made without taking on a restrictive nature of freedom and the exercise of this right.
The main thing is freedom. Its restriction is the exception. The criterion for freedom is whether there is any concern of being subjected to criminal prosecution because of the words said. If a person becomes concerned that if I say this word, I will be subject to criminal prosecution, freedom will be considered restricted. In addition, when a suspicious situation occurs, the suspicion should be interpreted in favor of freedom.
The limitation of the use of space power within the state apparatus, this device promises and political criticism aimed at the users come from, we still must stay within the area of freedom, due to attacks on the rights of persons, public officials, politicians stronger than a protection, to ensure the independence of the judiciary and due to the guarantee of tenure of judges, prosecutors and judges at the highest level of protection that should be applied to this, the concept of freedom of expression, hate and discriminatory by the European Court of human rights accepted that cannot be included in it.
After a brief and general assessment of freedom of expression, we look at the concrete case;
On 2.5.2007, the defendant arrived at the station with his vehicle at about 15:45, the police officer said, ‘you can’t park your car there, it’s forbidden there’, ‘you have a five-minute job, you will give documents in and out, there is no other place to park’, when the complainant asked the car to be towed, the defendant got into his vehicle and quickly got out and skidded on the ground and drove away and left the car outside the parking lot when he took it out and wanted to come back and enter the police station, the complainant said, ‘who are you giving air to, who are you, after he said ’who are you going to see’, he addressed the police officer ‘what the fuck are you who I go where I want, I get out where I want, no one can interfere with me’ due to the fact that the court said about the defendant of the TCK 125/1-4, 62, 50, 52/2. in accordance with the articles, it was decided to convert a prison sentence of 1 year and 2 months into a judicial fine of 7,000 TL.
Supreme Court 4.The Criminal Department decided to overturn the verdict on the grounds that ‘a conviction should be decided instead of an acquittal for a crime that has not occurred’ with its decision dated 23.12.2013 and numbered 2013/33302.
125 of the TCK.in order for the offense of defamation regulated in the article to occur;
-‘capable of offending the honor, dignity and dignity of a person’
-‘attributing a concrete verb or fact’
-’an attack must be found by swearing’.
It is not possible to mention the defendant’s attribution of a concrete act or fact.
The words that the defendant said, ‘what the fuck is wrong with you, who are you, I go where I want, I get out where I want, no one can interfere with me’ cannot also be considered as ‘swearing’. According to the Turkish Language Institution, the word ‘lan’, which is the most severe word used by the accused, is also not considered to be ‘swearing’.
The Constitution, the Civil and Political Rights Convention, the regulations of the European Convention on Human Rights and the understanding contained in the decisions of the United Nations Human Rights Commission and the European Court of Human Rights, as well as the 125 of the TCC. the defendant cannot be punished for non-compliance with the legal definition in the article “with the opinion,
Twenty Members of the General Assembly also voted against rejecting the appeal, considering that “the defendant’s action does not constitute a crime of defamation”.
result:
1- ACCEPTANCE of the appeal of the Prosecutor General’s Office of the Supreme Court,
2- Supreme Court 4. TO CANCEL the decision of the Criminal Department to overturn the decision dated 23.12.2013 and numbered 29305-33302,
3- The Supreme Court of Cassation for the inspection of the file, the provision 4. To be sent to the Criminal Chamber of the Supreme Court C.Since the first negotiation held on 14.04.2015 failed to achieve a sufficient majority, the transfer to the Prosecutor General’s Office was decided by a majority vote at the second negotiation held on 21.04.2015.
