There are reasons for compliance with the law that eliminate the element of unlawfulness for the offense of defamation. These are, in particular, the right to inform and criticism, which is very often encountered in the practice of law, as well as the TCK art. the right to immunity from claims and defense, which is also examined in Article 128, as well as the Article of the Turkish Penal Code, which arises specifically only for the offense of defamation. 127 are the reasons for compliance with the law in the form of proof of the accusation regulated.
1. Immunity of Claim and Defense
Immunity of claim and defense Article 36 of the Constitution. Within the scope of the ”freedom to seek rights” guaranteed by the Article of the TCK Dec. article 128 of the ”Written or oral application, claims and defenses made before judicial authorities or administrative authorities, concrete accusations or negative assessments in relation to persons are not punished in the event of. However, for this purpose, attributions and evaluations must be based on real and concrete facts and be linked to the dispute.” is arranged in the form. Accordingly, written and oral applications made to judicial authorities or administrative authorities, as well as notifications and complaints, are included in the scope of the reason for compliance with this law.
We can consider the conditions for the application of the provision of the article as follows. A written or oral application must be made, a claim and defense must be made before the judicial authorities or administrative authorities. The application can be in writing, with an oral notification or complaint. In other words, there is no obligation to be written.
In order for the attribution and negative evaluations carried out in relation to individuals to be in accordance with the law, they must be “based on real and concrete cases” and “related to the dispute”. For example, in a divorce case, ”the defendant woman sleeps with men.”while his words can be evaluated within the scope of the claim and defense, calling a woman a ” bitch” because of the same incident in the same case will not be included in this scope.
However, even if the allegations that are not related to the concrete dispute are real, the existence of immunity from prosecution and defense cannot be mentioned.
Immunity of claim and defense is specific to the offense of defamation. Because, for example, if the perpetrator is in the nature of actual misconduct or in the nature of giving body to the threat crime, he cannot benefit from this immunity.
2. The Right to News and Criticism
There is no doubt that the right of reporting and criticism, which his father assumed within the scope of the right of the public to receive news, is of a public nature. In order to benefit from the reason of lawfulness in the form of the right to report on an event during the transmission of public opinion, it is necessary not to harm other peoples who are constitutionally guaranteed, especially their personal rights. In this context, it belongs to the judge to determine whether an accusation is within the framework of political, scientific, literary criticism or is capable of offending honor, honor and dignity.
Allegations of defamation committed through the press are a matter that must be treated very carefully, otherwise the freedom of the press and expression will suffer. Certain measures have been adopted that define the limits of the right to report and criticize, these are reality, timeliness, public interest and public interest, intellectual Decency between the subject and the expression. Failure to realize even one of these elements eliminates the right to report and criticism and makes the actual illegal. If it is necessary to briefly examine these characteristics;
In order for a news story or criticism to be considered within the scope of freedom of the press and expression, first of all, this news must be real. News or comments that do not have the nature of reality and are completely fake cannot be included in the scope of criticism. The reality sought here is apparently reality, the person who makes the news does not have to investigate all the details and reach one hundred percent truth. It is enough that he has done all the research that he can do himself and has come to the conclusion that this issue is correct. At the same time, the news must be up-to-date, and there will be no mention of the use of this right in outdated issues that are out of date.
It is necessary to find public interest and benefit in the provision of news. it cannot be said that the right to inform is used in the event that the private information of persons is included, other than the information required by the public interest. In addition, there should be intellectual Decisiveness between the news given and the value judgments used. If the news and the way it is given lead to different connotations, this right will not be mentioned again in case of going beyond the provision of news.
Care should be taken not to include defamatory statements in the news or comments. In particular, in the news or comments, words that are abusive in any way should not be included. Another issue that needs to be considered here is the careful Deciphering of the boundary between humor and insult. According to the Supreme Court, humor is defined as ”subtle ridicule aimed at entertaining, making people laugh and hanging out with someone’s behavior without hurting them”. Accordingly, analogies and hang-ups made through humor can be heavy and jarring. But in order for humor to be considered a reason for compliance with the law, it is necessary to use a measured expression that does not contain hurtful, diminutive value judgments in terms of its essence.
PROOF OF THE ACCUSATION
The proof of the accusation is only a reason for compliance with the law specific to the offense of defamation. If the proof of the accusation is in question in cases where a concrete act is attributed, the right of proof has not been granted to those concerned. This accusation may have been made against a public official because of his duty, as well as a criminal accusation may have been made against anyone. Only if an accusation is made against those who perform public duties and services in relation to the performance of this duty and service, the person who makes the accusation has the right to prove the accuracy of the accusation. In order to prove the accuracy of an accusation made to someone other than a public official, one of the following two conditions must occur.
The first is that there is public interest in proving the accuracy of the accusation. The second is that the complainant, that is, the one who has been insulted, agrees to the proof. Accordingly; TCK 127, which regulates the proof of the accusation. it is possible to examine the conditions of application of the article in three headings.
The Necessity of Finding Public Interest in Understanding Whether the Attributed Act Is True or Not
First of all, it should be evaluated whether the alleged act is a crime or not, and then the public interest should be examined. Whether there is a public interest in an act that is a crime will not be evaluated separately. The court will assess whether there is a public interest in understanding the truthfulness of the act upon the request of the perpetrator of the offense of defamation. If the accusation is about a matter that concerns the general society, if the social status of the victim and the duty he undertakes in society require that such an allegation should not remain unclear, there is a public interest in the proof. For this reason, it is always accepted that there is a public interest in the accusations made to a public official due to his duty.
In this Case, the Subject is the Crime of the Act and the Conviction of the Victim
If there is a finalized conviction decision for the alleged crime against the person who has been insulted through the accusation of a crime, in this case, the perpetrator of the insult crime will not be punished. However, it should be noted here that the conviction decision must have been finalized before the act of defamation.
In this case, the issue of revealing whether the crime has actually been committed will only be discussed in the criminal case that has been opened or will be opened in the relevant court for this reason. No evidentiary trial will be held in the file where the defamation case is heard and it will be decided to wait for the outcome of the case. In other words, the proof of the accusation will appear as a pending matter.
Consent of the Complainant
In the presence of the complainant’s consent, it is accepted that the perpetrator has the right to prove without the need to investigate whether there is a public interest. The complainant’s consent to the proof of the accusation means that the victim, against whom a crime of defamation has been committed, agrees to the court’s discussion of whether the act attributed to him is true or false.
After the complainant consents to the proof, he can no longer refuse it. In order that my examination may be proved, it must be determined with certainty and exactness, so as to leave no room for the uneasy doubt that the act imputed is real. If there is doubt, it will not be considered attributed.
Regarding the proof of the accusation, the Court of Cassation has recently made a decision explaining the entire procedure. Decision-the defendant in the courtroom, the judge in the case mentioned the victim of his own “fuck you” said the claims, the judge found as a witness to prove what you said in this way in the courtroom as a witness and the victim wants to take a rest in one of the judge complained about the outcome of the complaint indicate should be expected, but in spite of this, the court of insulting a public officer to be punished for a crime without doing any research, he pursued you. The Court of Cassation did not find it appropriate to decide on the conviction without granting the accused the right to evidence about this incident, and without evaluating and discussing the contradictions in the witness statements, and decided to overturn it.
The perpetrator’s action should be unlawful, especially in the act of removing the corpse or bones, if the perpetrator is performing his duty, for example, the court judge feth-i kabirle removes the body and sends it to the Forensic Medicine Institution, if the duties and powers arising from the laws No. 2238 and 1593 are used, the act will not constitute a crime, since the act is in accordance with the law.
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