Constitutional Court Ruling on the Crime of Insult

INCLUSION OF THE CRIME OF INSULT IN THE PREPAYMENT SCOPE AND

AN EVALUATION WITHIN THE SCOPE OF THE CONSTITUTIONAL COURT'S DECISION DATED 27.03.2025

AND NUMBERED 2024/197 E., 2025/86 K.

First of all, it is important to take a look at how the crime is regulated over the text of the article in order to understand the changes made in the law and the annulment decision of the Constitutional Court. The crime of insult is regulated in Article 125 of the Turkish Penal Code. In this article, the crime of insult is regulated as an alternative-action crime in such a way that it can be committed in more than one way. In the first paragraph, it occurs in the form of insulting in person, that is, verbally directing insulting expressions to the addressee in public in a way that at least three people other than the addressee can perceive. The second paragraph of the article regulates the case where the act of insult is committed through a written, audio, or visual message. Subsequently, the third paragraph includes the qualified forms of the crime in terms of the commission of the act of insult, such as the victim being a public official or the insulting discourse being committed by targeting religious or other values considered sacred.

Today, it is seen that the crime of insult is committed more commonly in the form of a written message rather than as an act of insult in the presence of the victim. Especially with the increase in the use of social media in recent years, there has been a serious increase in the commission of the crime of insult via written messages. It can be said that the lynch culture on social media also forms a basis for the increase in this crime. Since the serious increase in the crime of insult committed in this way also increased the workload of judicial authorities in investigating these crimes, essential changes were made in the procedural provisions to be applied to this crime with the amendment made in 2024.

Modification of the Statute of Limitations Prescribed for the Crime of Insult

With the law numbered 7531 and dated 14/11/2024, some essential changes were made in the prosecution of the crime of insult. First of all, as a result of the provision "However, the complaint period regarding the crime of insult, the investigation and prosecution of which is subject to complaint, cannot exceed two years from the date the act occurs, regardless of the manner in which it occurs," added to the TCK with Article 14 of the mentioned law, a relatively short statute of limitations of 2 years has been introduced instead of the 8-year statute of limitations prescribed for the crime of insult. With this change, it is aimed to alleviate the caseload of the judiciary regarding the crime of insult by prescribing a shorter statute of limitations for the crime of insult, the number of files for which is seriously increasing today.

Furthermore, by adding Provisional Article 7 to the Code of Criminal Procedure with Article 18 of the law numbered 7531, it is regulated that the change in the statute of limitations to be applied in the crime of insult will not be applied in terms of acts that are in the investigation or prosecution phase. In Provisional Article 7, by stating "The regulation made in the second paragraph of Article 73 of the Law No. 5237 by the Law enacting this article shall not be applied in terms of the files that have passed to the investigation or prosecution phase as of the date this article enters into force," the way for the files that were in the investigation or prosecution phase before the law change to benefit from this law change is closed. It can be said that this provision added to the Code of Criminal Procedure also constitutes a contradiction to the highly fundamental principle of the application of the favorable law. Contrary to the provision of TCK Art. 7/2 expressing that the law favorable to the perpetrator will be retroactive, the non-application of this enacted article for the suspects or defendants in the files whose trials are ongoing may not be accepted as an equitable approach.

Application of Prepayment Provisions in terms of Paragraphs TCK Art. 125/2 and 125/3-B,C for the Crime of Insult is Prescribed with the Law Numbered 7531. While the penalty prescribed for the crime of insult is imprisonment from 3 months to two years or a judicial fine, although this provision has not changed, the crime of insult has been included in the scope of prepayment with a paragraph added to TCK Art. 75. In other words, the perpetrator will be able to avoid the imputed crime by paying a certain amount of fine in order to prevent a public prosecution from being filed against them. With Article 15 of the law numbered 7531, the application of prepayment has been prescribed in terms of the case where the crime of insult is committed through a written, audio, or visual message, and in terms of the qualified forms stated in the 3rd Paragraph in the form of insulting values considered sacred according to religion or due to a person's religious, political, philosophical beliefs or expressions of thought. Within this scope, the case of the crime of insult being committed in person and the qualified case where the victim is a public official are kept out of the prepayment application.

The lawmaker's inclusion of a specific form of the commission of the act of insult within the scope of prepayment and leaving other cases within the scope of conciliation, which is the previous practice, can be seen as a conscious choice. As emphasized in our article, since the act of the crime of insult, which increases the caseload in the judiciary, is committed via a written, audio, or visual message by using social media channels, it can be said that especially this act has been included in the scope of prepayment and sanctioned with a fine. Regardless of what the lawmaker's intention is with this law change, if we look at the results of this change, prescribing only a fine as a sanction for the crime of insult may reduce deterrence.

Another issue that needs to be emphasized is that when we look at other crimes other than insult included in the scope of prepayment, it is generally seen that they are crimes that disrupt public order and can be characterized as danger crimes where the emergence of a concrete damage is not expected. The crimes considered within the scope of prepayment listed in TCK Art. 75/6 are as listed below: TCK Art. 75/6: The provisions of this article are also applied in terms of; a) Included in this Law; Failure to fulfill the obligation to help or notify (Added: 7/11/2024-7531/15 art.) Insult (second paragraph, subparagraphs (b) and (c) of the third paragraph, and the fourth paragraph of Article 125), Endangering general security by negligence Polluting the environment by negligence Unlawful use of special signs and uniforms Failure to report a crime (first and second paragraphs of Article 278) crimes, b) The crime taking place in the first paragraph of Article 108 of the Forest Law No. 6831 dated 31/8/1956, c) (Added: 17/10/2019-7188/16 art.) The crime taking place in the first sentence of the second paragraph of Article 74 of the Law on the Protection of Cultural and Natural Property No. 2863 dated 21/7/1983, d) (Added: 17/10/2019-7188/16 art.) The crime taking place in subparagraph (d) of the first paragraph of Article 32 of the Law on Associations No. 5253 dated 4/11/2004.

As can be seen, while it is not possible to speak of a direct victim in other crimes within the scope of prepayment, in the crime of insult, there is a person whose honor and dignity have been offended by the committed act of insult. For this reason, the application of the prepayment provisions for the crime of insult will not be accepted as very satisfying for the victim whose honor and dignity are attacked. It should also be noted that the prepayment provisions will not be applied in the qualified case where the crime of insult is committed against a public official. (TCK Art. 125/3-a)

THE DECISION OF THE CONSTITUTIONAL COURT DATED 27.03.2025 AND NUMBERED 2024/197 E., 2025/86 K.

Members of the Grand National Assembly of Turkey Murat EMİR, Gökhan GÜNAYDIN, Ali Mahir BAŞARIR, together with 129 other Deputies as the subject of the Annulment lawsuit, and a total of 15 courts, primarily the Istanbul 8th Criminal Court of First Instance together with the Ankara 27th Criminal Court of First Instance, as the subject of the Objection lawsuit, requested the annulment of Articles 15 and 18 of the law numbered 7531.

Examination of the Phrase "...second paragraph, subparagraphs (b) and (c) of the third paragraph, and fourth paragraph..." Taking Place in Subparagraph (2) Added to Clause (a) of Paragraph (6) of Article 75 of Law No. 5237 by Article 15 of the Law The Constitutional Court made Article 15 of the law numbered 7531 the subject of examination and decided on the unconstitutionality of this article with the session dated 27.03.2025. As a reason for annulment, it was evaluated that a discrepancy was created contrary to the principle of equality between TCK Art. 125/1, which is the simple form of the crime (insult in person), and TCK Art. 125/2 (Insult via written, audio, and visual message) in terms of the form of commission of the crime of insult. It was stated that although the act of commission of the crime is different, there is no difference in terms of the effects of the act on society and the penalty amounts prescribed for the acts, and for this reason, it was seen as contrary to Article 10 of the Constitution and was annulled. The effective date of the annulment provision was stated as 9 months after the publication of the decision.

“72. Although paragraph (1) of Article 125, where the simple form of the crime of insult is regulated, is not included in the scope of prepayment in the Rule, the application of prepayment provisions is permitted in the qualified cases taking place in subparagraphs (b) and (c) of paragraph (3) of the mentioned article and in the event the crime is committed with the tools specified in paragraph (2). Even though there is no difference between the acts constituting a crime in paragraphs (1) and (2) in terms of nature, content, and intensity, and the legal value protected by the crime, the effects of the act on society, and the penalty amounts prescribed for the acts in terms of the application of the prepayment institution, an objective and reasonable basis for the differential treatment created by not including the simple form of the crime into the scope of prepayment while the prepayment institution is applied in the event of the qualified forms of the crime and its commission in certain ways could not be determined. Therefore, it cannot be said that the rule creating a difference without being based on an objective and reasonable basis in terms of the application of prepayment provisions between the perpetrator who commits the crime of insult with an audio, written, or visual message addressing the victim and the perpetrator who commits the crime of insult directly in person or in absentia is compatible with the principle of equality before the law. For the explained reasons, the rule is contrary to Article 10 of the Constitution. Its annulment is required.”

Examination of Paragraph (1) of Provisional Article 7 Added to Law No. 5271 by Article 18 of the Law

The Constitutional Court evaluated the issue of the unconstitutionality within the scope of Art. 2 of the Constitution regarding the provision added to the CMK by Article 18 of the law numbered 7531 stating that the law change of applying the statute of limitations for the crime of insult as 2 years will not be applied to acts that have passed to the investigation or prosecution phase, and ultimately decided to reject the annulment request with the acceptance that this article was not seen as unconstitutional. As the reason for the decision to reject the objection, the Constitutional Court stated that the provision whose annulment was requested is a procedural rule and that the principle of immediate application is valid in procedural law, expressing that there is no favorable law application in procedural provisions. It was stated that in terms of the acts that have passed to the investigation or prosecution phase by exercising the right of complaint before the mentioned law change, the exercise of this right of complaint is also legally sufficiently predictable for the perpetrators in these files.

“75. In paragraph (1) subject to objection of provisional Article 7 of the Law No. 5271, it is prescribed that the regulation made by the Law No. 7531 in paragraph (2) of Article 73 of the Law No. 5237 shall not be applied in terms of the files that have passed to the investigation or prosecution phase as of the date provisional Article 7 of the Law No. 5271 enters into force. 82. Criminal procedure law rules, on the other hand, determine the methods to be applied to uncover the allegedly committed act. For this reason, as a principle, changes made in the provisions regarding the trial procedure are subject to the principle of immediate application without an evaluation being made for or against. Within the scope of the rule subject to objection, it is understood that the non-application of the regulation added to paragraph (2) of Article 73 of the mentioned Law by Article 14 of the Law No. 7531 in the files that have passed to the investigation and prosecution phase on the date the said change was made does not have an aspect that affects the results of the completed procedural actions. In other words, in accordance with the principle of immediate application in procedural law, the rule does not eliminate the legal consequences born by complaints that are procedurally proper as of the date it was made in terms of ongoing investigations and prosecutions. In this context, the rights arising from this procedural action of the persons who exercised their right of complaint before the change made by the mentioned Law are protected. On the other hand, it is also obvious that the probable effect and consequences of the complaint made in accordance with the procedure are sufficiently predictable for the persons subjected to criminal investigation or prosecution based on the said complaint. In this respect, there is no aspect in the rule that is contrary to legal security and therefore to the principle of the rule of law. 87. For the explained reasons, the rule is not contrary to Article 2 of the Constitution. The objection must be rejected.”

This decision given by the Constitutional Court on 27/03/2025 regarding the annulment of Article 15 of the law numbered 7531 was published in the Official Gazette on 29/05/2025, and it was stated that the annulled provisions would enter into force 9 months after their publication. With Article 16 of the law numbered 7571 dated 24/12/2025, a legal amendment was made in line with the Constitutional Court decision, and the crime of insult was added to TCK Art. 75 as "2. Insult (Article 125, excluding subparagraph a of the third paragraph of the Article)".

IN CONCLUSION

The crime of insult has been accepted as a crime sanctioned with a fine within the scope of prepayment, regardless of which act the crime is committed with. Within the scope of the investigation initiated in this context, with the suspect fulfilling the requirement of the prepayment warning, it will be decided that there is no ground for prosecution without filing a criminal lawsuit against them. As an exception, the qualified case of the crime of insult committed against a public official due to their duty continues to remain outside the scope of prepayment. In addition, we find it useful to remind that if the defendant sanctioned within the scope of prepayment repeats the same action within 5 years, the prepayment provisions will not be applied again. (TCK Art. 75/6-d-last sentence)

BIBLIOGRAPHY

DECISION OF THE CONSTITUTIONAL COURT DATED 27.03.2025 AND NUMBERED 2024/197 E., 2025/86 K.

LAW NUMBERED 7531 AND DATED 07/11/2024 LAW NUMBERED 7571 AND DATED 24/12/2025

TURKISH PENAL CODE NUMBERED 5237