Perpetrator
In the text of the law, the phrase “a person who attacks someone’s honor, dignity and dignity” is included. According to this, the perpetrator of this crime can be anyone. The same is the case with TCM. it is also for insulting the memory of 130 people. In addition, since the phrase no one is used, it is understood that the perpetrator can only be real people. It is not the case that legal entities can be perpetrators in terms of this crime. The perpetrator of this crime may be a living person. As for the publication of insulting articles by a deceased person, those who publish them will be responsible for this crime. The responsibility of the deceased is not in question. In case of insult through a will, the deceased person will not be the perpetrator, nor will the public official who opened and processed the will be responsible for fulfilling the provision of the law.
In the presence of an exemption, such as legislative immunity or diplomatic immunity, the persons who perform the act may be the perpetrators of the crime, but they cannot be prosecuted because of the exemption. MOON md. pursuant to Article 83, ”The members of the Grand National Assembly of Turkey shall not be held responsible for their votes and words in the work of the Assembly, for the thoughts they put forward in the Assembly, …, for repeating and revealing them outside the Assembly.” Deputies will never be held responsible for their insulting words and behaviors that they perform during parliamentary work within the scope of legislative irresponsibility.
In the event that defamation crimes are committed through the press, Article 5187 of the Press Law no.it will find 11 application areas. Accordingly, a distinction is made according to whether the publication in which the crime is committed is a periodical or an indefinite publication.
In periodicals, the perpetrator is the owner of the work in accordance with this law. The owner of the work is not known, or where the penalty does not have a driver’s license during the release are located in Turkey or abroad can not be tried because the penalty for a crime or punishment of the owner of the sentence that do not affect the other was convicted in cases where the responsible manager and Editorial Director, Broadcast Director, Editor, media consultant is authorized to be connected to the responsible manager. But if this work is published despite the opposition of the responsible director and the official to whom the responsible director is attached, the responsibility arising from this belongs to the publisher.
Unlimited publications, the owner of the work is not known, or where the penalty does not have a driver’s license during the release are located in Turkey or abroad can not be tried because the penalty for a crime or punishment of the owner of the sentence that do not affect the other was convicted in cases where the responsible manager and Editorial Director, Broadcast Director, Editor, media consultant responsible as his publisher.
Turkish Radio and Television Law No. 2954 art. in accordance with Article 28; Regardless of whether there is a live or tape recording in the broadcasts made by detection, if a crime is committed through these broadcasts, the perpetrator of this crime is the TRT officers who write the text or detect the sound, actually control it, actually manage and control the broadcast. In accordance with the relevant articles of the same law, the responsibility of the announcer who reads only the given text is not in question. In other words, the announcer who reads the given text, statements and speeches, political party propaganda in the elections, published answers and corrections cannot be a perpetrator. The same is the case with TCM. it is also for insulting the memory of 130 people. For example, the announcer who reads a statement made to a deceased person on a live broadcast, as in the case of an insult, will not be responsible.
Victim
TCK md. in 125/1 it is regulated that the crime can be committed against “someone”. Accordingly; any person can be a victim of this crime. The victim of the offense of insult is the one who is insulted.
The identity of the deceased does not have to be clearly stated either. For example, if it is possible to understand who is meant by the nickname used by a dead person when he was alive, the name attached to him or the initial letter of his name, a crime will occur when the conflict reaches a sufficient number.
In cases where it is not determined who the victim is, the offense of defamation does not occur. In order for a crime of defamation to occur, it is necessary that the victim is certain or possible to be identified. In this case, since it is not clear whose honor, honor and dignity are harmed by public curses, the offense of insult will not occur. T.C.M. 126 although it carries the title of proof of accusation, it is an illuminating judgment at the point of identifiability of the victim. In accordance with the aforementioned provision; “Even if the victim’s name is not explicitly mentioned in the commission of the insult crime or the accusation is covered up, if there is a situation that will not stop when it is found in its nature and directed at the victim’s person, both the name is mentioned and the insult is considered explained.” In this case, for example, saying someone’s nickname, initials, or just his first or last name, or using a certain personal expression in a way that everyone understands, will be sufficient for the formation of this crime.
If the words aimed at a certain region but not directed at a certain person are not of a nature to damage the honor, honor and dignity of a person, the offense of insult does not occur. But in this case, the possibility of committing one of the crimes against peace can be assessed. For example; “All those who live in this region are bird-brained.”if an expression such as TCK md is used.it will find 216 application areas.
Children and the mentally ill can also become victims of this crime. Because these people also have an external honor that is worth protecting. Those who are considered to have no field of honor in society due to their judicial background, social status and profession may also become victims of this crime. For example, calling a thief a thief, a fraudster a fraudster, a prostitute a prostitute will constitute an insult crime.
TCK md. According to Article 125/3, public officials may be victims of this crime due to their duties. But if the crime was committed not because of his duties, but because of his adjective; TCK md.According to 125/1, it will give body to the crime of common insult. For example, if someone who is annoyed with a police officer shouts that they are bastards, the crime was committed against the police officer’s person, not because of his duty. Therefore, the crime of common insult will be formed.
To public officials working in the form of a council (Parliament, Council of Ministers, election and polling councils, judicial councils, etc.) if this crime is committed against each member of the board, this crime will be committed against each member of the board.
If a community group or professional directly from targeting social community insulted; the counterpart of the crime of insult directly as a form of realization in the presence of one or more real people, every one of the people of this community, are the victims of this crime crime and chained provisions shall apply. For example, this crime occurs by saying “those from this profession are point by point” by being directed to one or more people from that profession concretely. But only in cases where the victim cannot be identified, such as ”those who are in this profession are crooks,” this crime does not occur.
T.C.M. if the memory of the person held in 130 is insulted; the victim is the relatives of the deceased person. In addition, it does not matter whether the sex of a deceased person, whether he had the ability to perceive when he was alive or not. What is important in terms of this crime is that it is committed in the memory of a deceased person by discussing it with at least three people.
THE SUBJECT OF THE CRIME
The subject of this crime is the honor, dignity and dignity of persons. This crime is a danger crime. In this sense, the fact that the subject of the crime has suffered a loss is not sought in terms of this crime. In fact, the danger to the subject of the crime does not have to be concretely revealed. Therefore, it is sufficient that the accusation or value judgment is of a nature that may offend the honor, honor and dignity of the person. As a result, the crime is an abstract danger crime.
TCK’s 130/1. According to the Article, the legal subject of the crime is the memory of a deceased person, naturally, the respect of his relatives for this memory. TCK’s 130/2. If the body and bones arranged in the Article are taken, if the body or bones are found in insulting acts about the body or bones, the subject of the crime is the body and bones of the deceased.
The body can be defined as the body of a person who was stillborn or later died. However, a fetus that has not yet taken human form is not considered a corpse. The organs are undisturbed and the cadaver, whose identification is possible, is within the scope of the corpse. If the integrity is impaired and scattered, it will now be considered as part of the cadaver body parts.
If a person is brain dead after entering the vegetative life, the act of insult against him is now 125 et seq. of the TCK. it is not a crime of insult in accordance with articles 130. it will constitute the crime regulated in the article. Because TCK m.the victim of the insult act in 125 can only be a living person. The mummy will also benefit from this protection again.
Removable parts such as dentures, pacemakers, dentures added to the person before death cannot be the subject of this crime.
verb
In this regulation, the distinction between insult and abuse crime adopted in the Turkish Criminal Code No. 765 has been abolished. According to this; The verb element of the offense of insult consists of two elective movements and they are realized in the form of attributing or cursing a concrete verb or fact. If one of the elective acts that may offend your honor, honor and dignity is committed, the offense of insult will take place. This crime is just a crime of action. For this reason; the honor, honor and dignity of the victim are not sought as a result of the offense, it is sufficient that the act has that quality.
1. Attribution of a Concrete Verb or Fact
The first of the elective actions that constitute the material element of the offense of defamation is that the perpetrator has attributed to the victim a concrete act or fact that can be proven to be true or false.
In order to be able to talk about a concrete verb or fact attribution, the attribution directed to the victim must also contain complementary elements related to the place, subject, time and manner of realization of the verb or phenomenon. For example, about a lawyer, “he is a thief with a bag. saying “it is an abstract attribution (swearing); on the contrary, saying about the same lawyer that ”the wheel of corruption is pulling his head in the courthouse” indicates that he carries a concrete fact attribution. To give another example; to say to someone, “You took money from this person on this date” is again a concrete attribution.
The concept of attribution does not include events that will take place in the future. For example, “if this woman leaves her husband, her boss takes A home and they commit adultery.”if it is said, the concrete fact does not constitute an attribution, but rather a cursing verb. Although, as a rule, it is not necessary that the attributed act or fact is in accordance with the truth in terms of the occurrence of the offense of defamation; in certain cases, TCK art.the institution of proof of accusation organized in Article 127 will be able to find an application area. In addition, at the point of compliance with the truth, it may also be the case to apply a reason for compliance with the law within the scope of exercising the right to news and criticism.
As a matter of insult crime, it is an abstract danger crime and in its legal definition, it is not included that the act causes a concrete change in the external world. As can be understood from the text of the article, the result intended by the perpetrator does not have to take place in order for the act to be considered completed. This crime has the characteristics of a sudden crime, that is, it occurs as soon as it is said.
The accuracy of the attributed act is not effective in the formation of the crime. In addition, the person who reports other known events will have committed the crime of insult, as he has once again tarnished the honor of the victim and caused the incident to spread more.
2. Swearing
Another elective act of the offense of defamation is the use of words that do not contain a concrete act or fact, express an abstract value judgment, but may offend the honor, dignity and dignity of a person. In the case of making abstract references to a person without associating him with any event, the offense of insult also occurs. Words that express a bad quality or habit, although they are not associated with a concrete act or phenomenon, nevertheless constitute the offense of insult. The crime of blasphemy can be committed by writing, painting, sign, an obscene hand gesture. For example, handing a bone to someone and saying “catch”, calling a dog the name of the victim, spitting in the victim’s face will constitute swearing. Supreme Court 4.In the decisions of the Criminal Chamber, swearing is defined in the form of a “diminutive value judgment”. As stated in the justification of the article, if a person is called a “bum”, “scoundrel”, “animal”, there is no concrete verb attribution. In the same way, if a person is referred to abstractly as “thief”, “bribe taker”, “fraudster”, “prostitute”, etc., the offense of insult also occurs. It is also a crime of insult to express a malfunction of a person’s body or to attribute a disease to a person. For example, the person is called “blind”, “squint”, “lame”, “hunchback”, “bald”, etc. by saying; By calling a person a “psychopath”, “syphilis” or “AIDS”, an insult crime is committed.
It should be noted that; the behavior should be carried out in order to humiliate the person. If a certain political opinion is attributed to a person for the purpose of humiliating him in the eyes of society, a crime of insult also occurs. For example, by calling a person a “fascist”, “communist” or “apostate”, a crime of insult is committed. When determining whether the word or behavior said relative to a person is of a humiliating nature for that person, it is necessary to take into account the concepts, customs and traditions prevailing in society.
THE SPIRITUAL ELEMENT
In order for the offense of insult to occur, a special caste is not required, the general caste is sufficient. If the acts intended for joking, ridicule contain objective elements of the insult, then in this case, the offense will again occur. In the event that a situation with truth value, a legal institution or a historical reality is revealed, the act of defamation will not occur, and for example, when filling out a form for a married man, “what is the name of your wife? While the expression “wife” in the question asked in the form of “does not carry the nature of an insult; during a discussion, statements such as “throw this wife out” towards the woman opposite will give body to the offense of insult, as it is aimed at humiliating and humiliating the interlocutor.
If the perpetrator knows that the words he uses or the actions he makes are capable of offending honor, honor and dignity, the fact that he has assigned another meaning to the word or action he uses does not eliminate the criminal caste. But if the perpetrator does not know that the word he uses in a local place or the act he performs is capable of offending his honor, honor and dignity locally; 30/4 of the TCK. according to the article, he benefits from his mistake.
The offense of insult can also be committed with possible caste. For example, when a person talks about his neighbor in the garden, he says insulting words “no matter if he hears”, if the victim also heard these words, the crime was committed here with possible caste. The opinion of the Supreme Court is also in this direction.The crime of insulting the memory of a person regulated in Article 130 of the Turkish Penal Code is a crime committed with general caste. Knowing that a person has died and quarreled with 3 people, insulting his memory, taking the body or bones of the dead person, or committing defamatory acts is enough to complete the crime. This crime can also be committed with possible caste. However, since the state of installment is not regulated by law, it cannot be processed by installment.
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