WHAT IS THE CRIME OF THREAT?
WHAT IS THE CRIME OF THREATENING?
The crime of threatening is regulated in Article 106 of the Turkish Penal Code.
Threat
Article 106- (1) A person who threatens another by stating that they will carry out an attack against their life, bodily or sexual integrity, or that of their close relatives, shall be sentenced to imprisonment from six months to two years. In the event of a threat to cause significant damage to property or to commit another form of harm, a sentence of imprisonment up to six months or a judicial fine shall be imposed upon the complaint of the victim.
(2) If the threat is committed;
a) With a weapon,
b) By the person disguising themselves, by means of an anonymous letter or special signs,
c) By more than one person together,
d) By taking advantage of the intimidating power of existing or assumed criminal organizations,
The perpetrator shall be sentenced to imprisonment from two to five years.
(3) In the event that the crime of intentional killing, intentional injury, or damage to property is committed for the purpose of threatening, punishment for these crimes shall also be imposed.
For the crime of threatening to occur, the act must be capable of affecting the victim’s sense of security and inner peace, and of causing them anxiety and fear. The disturbance of the victim’s inner peace endangers their ability to make decisions freely or act upon the decisions they have made. In short, a threat is "an act that endangers the victim's freedom of decision or action."
The purpose of the crime of threatening is to prevent the victim from living without fear, anxiety, in peace, and with a sense of security. The interest protected by the crime of threatening is the person's mental world and inner peace. Because the act of threatening, which is considered a crime as it disturbs the victim's inner peace, endangers the victim's freedom of decision or action, it is regulated under the heading "Crimes Against Liberty" in the Turkish Penal Code. As explained in the preamble to Article 106 of the Turkish Penal Code, the legal value protected by the crime of threatening is "the peace and tranquility of individuals. Thus, the emergence of a sense of insecurity in individuals is prevented. For this reason, attacks committed against an individual's unique sense of peace and tranquility are punished by this article. However, the essential value that the threat intends to protect with this article is the person's freedom to decide and act."
The act sanctioned in the first paragraph of Article 106 of the Turkish Penal Code is the perpetrator's threatening of the victim by stating that they will carry out an attack on their life, bodily or sexual integrity, or cause significant damage to their property, or commit some other harm. In a threat, it is communicated that the harm will be committed or the injustice will be carried out, conditional on the fulfillment of a request made by the perpetrator.
Threats can be carried out verbally, in writing, or by any sign. The important thing is that the injustice stated to be carried out is conveyed to the victim’s knowledge. The means by which this occurs is unimportant. In a threat, it must be communicated that if the request constituting the subject of the threat is not fulfilled, the harm will occur within the perpetrator's volition. If the perpetrator's words and actions are in the nature of a warning, it does not constitute a threat, no matter how harsh. The difference between a warning and a threat is that in a threat, the harm to be inflicted on the victim is to be created by the person making the threat, whereas in a warning, the occurrence of this harm is independent of the perpetrator's will and influence. What matters is not the words the perpetrator uses, but the meaning conveyed by the manner in which these words are spoken and the way they are expressed. The threat made to the victim must be capable of disturbing their inner peace and creating fear and anxiety in them.
According to the case law of the Court of Cassation, a threat is the communication to the victim that they will be subjected to serious and unjust harm. It is the portrayal of a future harm that is dependent on the perpetrator's will as if it will definitely occur. A threat must restrict the victim’s freedom of decision and free action, disturb their inner peace, and cause them anxiety. If the perpetrator's words do not create serious fear in the victim, and are not capable of achieving a result or are not sufficient and appropriate, it cannot be claimed that the crime of threatening has occurred.
The crime of threatening is a crime of conduct.
The perpetrator of the crime can be anyone. The sentence is increased if the crime is committed by a public official by using the authority granted to them due to their position.
The victim of the crime can be anyone. However, the victim must be a specific person or persons. Threatening acts where the target is not certain do not constitute a crime. The threat does not necessarily have to be directed at the victim themselves. Threats directed at the victim's relatives (e.g., mother, father, children, friends) are also considered to have been made against the victim, provided they are capable of causing fear and anxiety in the victim. This point is also expressed in the law article as "themselves or their relatives." As a rule, the crime of threatening cannot be committed against persons who lack the capacity of perception due to their mental or physical condition.
The subject of the crime of threatening is the inner peace and liberty of the victim targeted by the threat. For the crime to occur, it is not required that the threat necessarily disturbs the victim's inner peace or creates fear or anxiety in them. In other words, for the act of threatening to be considered a crime, it does not depend on the victim's inner peace actually being disturbed.
Qualified forms of the crime requiring heavier penalties are as follows;
If committed with a weapon,
By the person disguising themselves, by means of an anonymous letter or special signs,
By more than one person together,
By taking advantage of the intimidating power of criminal organizations,
The perpetrator shall be sentenced to imprisonment from two to five years.
In the event that the crime of intentional killing, intentional injury, or damage to property is committed for the purpose of threatening, punishment for these crimes shall also be imposed.
The mental element of the crime of threatening; the crime of threatening can be committed intentionally and knowingly.
The crime of threatening is not a crime subject to a complaint, and an investigation is initiated by the Public Prosecutor's Office ex officio. In the presence of a qualified element requiring a lesser penalty, the pursuit of the crime is subject to a complaint.
WHAT IS THE CRIME OF BLACKMAIL?
The crime of blackmail is regulated in Article 107 of the Turkish Penal Code.
Blackmail
Article 107- (1) A person who forces another person to do or not to do something that they are not obligated to do or that is against the law, or to provide an unjust benefit, by stating that they will do or not do something they have a right to or are obligated to do, shall be sentenced to imprisonment from one to three years and a judicial fine up to five thousand days.
(2) In the event of a threat to disclose or attribute matters of a nature that would harm a person's honor or reputation for the purpose of providing a benefit to oneself or another, a sentence shall be imposed according to the first paragraph.
Blackmail is a special form of the crime of threatening. In the crime of blackmail, a person forces the victim to act in a certain way by stating that they will or will not do something they have a right to or are obligated to do. Although there is mention of forcing in Article 107/1 of the Turkish Penal Code, there is no intervention into the physical integrity of the victim in blackmail. In this respect, it resembles the crime of threatening. However, while in the crime of threatening there is intimidation by an unjust attack that will be carried out in the future, in the crime of blackmail, the victim's difficult situation is made the subject of a threat to gain an advantage from them or to force the victim into a certain behavior.
The legal interest protected in this crime is the person's freedom to decide and to act in accordance with the decision they have made. Behavior involving blackmail must be objectively capable of affecting the freedom of individuals.
The persons who can be the perpetrator of the crime are anyone. However, as regulated in Article 107 of the Turkish Penal Code, blackmail can be committed by a person who has rights and obligations regarding a matter.
No specific status is sought regarding the persons who can be the victim of the crime. As in the crime of threatening, here too, the victim must be in a condition to understand and perceive the harm directed at them. Although there is no statement in Article 107 of the Turkish Penal Code that the victim’s relatives may also be among the people who may be harmed, it is not required that the person forced to provide an unjust benefit and the person who will be affected or harmed by what the perpetrator will do or not do be the same.
For the crime of blackmail to occur, it is sufficient that the victim is forced. The victim performing the requested act in the face of this pressure is not necessary for the crime to occur. The pressure here is not considered material pressure.
The material element of the crime of blackmail is "forcing a person to do or not to do something that is against the law or that they are not obligated to do, or to provide an unjust benefit." The crime of blackmail differs from the crime of threatening in terms of the behavior that constitutes the material element. In blackmail, there is the abuse of exercising a right or fulfilling an obligation for the purpose of forcing someone else to engage in a certain behavior or to provide an unjust benefit. The victim yields to the perpetrator's will to avoid the negative consequences that the exercise of a right or acting in accordance with an obligation would cause for them, and they are forced to engage in behavior they would not perform of their own free will.
The mental element of the crime of blackmail is that the perpetrator acts with the specific intent of gaining a benefit. If a threat of harm to the victim's honor and reputation is made without such an objective, the crime committed is not blackmail but threatening. The perpetrator acting for the purpose of gaining a benefit is sufficient for this crime to occur. Furthermore, whether or not the benefit has been obtained is not important for the occurrence of the crime.
WHAT IS THE CRIME OF INSULT?
The crime of insult is regulated in Article 125 of the Turkish Penal Code.
Insult
Article 125- (1) A person who attacks the honor, dignity, or reputation of another by attributing a concrete act or fact to them that may offend their honor, dignity, or reputation, or by swearing at them, shall be sentenced to imprisonment from three months to two years or a judicial fine. In order for an insult in the absence of the victim to be punishable, the act must be committed in the presence of at least three people.
(2) If the act is committed by means of an audio, written, or visual message directed at the victim, the penalty specified in the paragraph above shall be imposed.
(3) If the crime of insult is committed;
a) Against a public official due to their duty,
b) Due to the disclosure, change, or attempts to spread the victim's religious, political, social, or philosophical beliefs, thoughts, or convictions, or due to their acting in accordance with the commands and prohibitions of their religion,
c) By referring to values considered sacred according to the religion the person belongs to,
The lower limit of the penalty cannot be less than one year.
(4) If the insult is committed in public, the penalty is increased by one-sixth.
(5) If a public official working in a board is insulted due to their duty, the crime is considered committed against the members of the board. However, in this case, the provisions regarding consecutive crimes shall apply.
The legal value protected by the crime of insult is honor, dignity, and reputation. As explained in the preamble to Article 125 of the Turkish Penal Code, by sanctioning the act, it is aimed to protect the honor, dignity, and chastity of individuals, their reputation in society, and their standing in the eyes of other members of society.
Material elements of the crime;
Attributing a concrete act or fact,
Attacking honor, dignity, and reputation by swearing,
The attribution being of a nature to offend honor and reputation,
The attribution being directed at the victim,
Being committed by the perpetrator through an audio, written, or visual message directed at the victim.
The perpetrator of the crime can be anyone. The perpetrator must be a real person. It is not possible for legal entities to be considered perpetrators of a crime.
The victim of the crime can be anyone, but the status of the victim is special in some cases. For example, if the victim is the President, Article 299 of the Turkish Penal Code applies.
Insulting the President
Article 299- (1) A person who insults the President shall be sentenced to imprisonment from one to four years.
(2) If the crime is committed in public, the penalty to be imposed is increased by one-sixth.
(3) Prosecution for this crime is subject to the permission of the Minister of Justice.
Minors and the mentally ill who lack capacity for culpability also have a reputation worthy of protection. Therefore, words said regarding these persons that may offend their honor, dignity, and reputation should be evaluated within the scope of the crime of insult, even if they are not perceived and felt by the persons themselves.
It is not possible for the deceased to be the victim of this crime. Conversely, insults made to a person's memory after their death are regulated separately in Article 130 of the Turkish Penal Code.
Insulting a person's memory
Article 130- (1) A person who insults a person's memory after their death by interacting with at least three people shall be sentenced to imprisonment from three months to two years or a judicial fine. The penalty is increased by one-sixth if the insult is committed in public.
(2) A person who partially or completely takes a deceased person's corpse or bones, or performs insulting acts regarding the corpse or bones, shall be sentenced to imprisonment from three months to two years.
Degrading acts against Atatürk's memory are regulated in Article 1 of Law No. 5816 on Crimes Committed Against Atatürk.
Article 1 – A person who publicly insults or swears at Atatürk's memory shall be sentenced to imprisonment from one to three years.
A person who destroys, breaks, spoils, or defiles statues, busts, and monuments representing Atatürk or Atatürk's tomb shall be sentenced to aggravated imprisonment from one to five years.
A person who encourages others to commit the crimes written in the paragraphs above shall be punished as the principal perpetrator.
In the crime of insult, the victim must be specific or identifiable. There is no explicit need for the victim's name to be clearly stated. It is sufficient that who the victim is can be understood from the perpetrator's statements.
Qualified forms of the crime requiring heavier penalties are as follows;
Against a public official due to their duty,
Due to the disclosure, change, or attempts to spread the victim's religious, political, social, or philosophical beliefs, thoughts, or convictions, or due to their acting in accordance with the commands and prohibitions of their religion,
By referring to values considered sacred according to the religion the person belongs to,
The lower limit of the penalty cannot be less than one year.
If the insult is committed in public, the penalty is increased by one-sixth.
The mental elements of the crime; the crime of insult is one of the crimes that can be committed intentionally. It is not required that the perpetrator acts with a specific motive. It is sufficient that they know and desire that their action is of a nature that could offend the victim's honor, dignity, and reputation.
The crime of insult is a crime subject to a complaint. However, if the crime is committed against a public official due to their duty, the investigation and prosecution are conducted ex officio.
Condition of investigation and prosecution
Article 131- (1) Except for those committed against a public official due to their duty; the investigation and prosecution of the crime of insult are subject to the victim's complaint.
(2) If the victim dies before filing a complaint, or if the crime has been committed against the memory of a deceased person; a complaint may be filed by the deceased's lineal ascendants and descendants up to the second degree, spouse, or siblings.
If the perpetrator has insulted more than one person with a single act, each of the victims has an independent right to file a complaint. The person who has the right to file a complaint must do so within 6 months from the day they learn who the act and the perpetrator are.
This crime is a crime subject to settlement.
WHAT IS THE CRIME OF DEPRIVATION OF LIBERTY?
The crime of deprivation of liberty is regulated in Article 109 of the Turkish Penal Code.
Deprivation of liberty
Article 109- (1) A person who unlawfully deprives another of their liberty to go somewhere or to stay in a place shall be sentenced to imprisonment from one to five years.
(2) If the person uses force, threats, or deception to commit the act or while committing it, a sentence of imprisonment from two to seven years shall be imposed.
(3) If this crime is committed;
a) With a weapon,
b) By more than one person together,
c) Due to the public duty the person performs,
d) By abusing the influence provided by a public duty,
e) Against a lineal ascendant, descendant, or spouse,
f) Against a child or a person who is unable to defend themselves in terms of body or soul,
The penalty to be imposed according to the paragraphs above is increased by one fold.
(4) In the event that this crime causes a significant economic loss to the victim, a judicial fine up to one thousand days shall also be imposed.
(5) If the crime is committed for sexual purposes, the penalties to be imposed according to the paragraphs above are increased by half.
(6) In the event that the aggravated circumstances of the crime of intentional injury occur during or for the purpose of committing this crime, the provisions regarding the crime of intentional injury shall also apply.
With this crime regulated in Article 109 of the Turkish Penal Code, the liberty of individuals to act as they wish is unlawfully eliminated or restricted in various ways for a long or short period of time.
The legal value protected by this crime is the restriction of the person's freedom of action in accordance with their will. In other words, by regulating the act of depriving a person of their liberty as a crime, it is aimed to punish those who unlawfully restrict people's freedom of movement and physical freedom. As explained in the preamble to this crime regulated in Article 109 of the Turkish Penal Code, the legal value protected by this crime is the person's freedom to act within the framework of their own desire and will. Therefore, whether the victim wants to move at the time the act is committed or whether they are aware of the act is not important. If this crime is committed by a public official by abusing their position, the interest belonging to the public administration is also harmed. However, since the primary legal interest is the protection of the person's liberty, even if the crime is committed by a public official, it is handled under the heading "Crimes Against Liberty."
Qualified forms of the crime requiring heavier penalties are as follows;
If committed with a weapon,
By more than one person together,
Due to the public duty the person performs,
By abusing the influence provided by a public duty,
Against a lineal ascendant, descendant, or spouse,
Against a child or a person who is unable to defend themselves in terms of body or soul,
The penalty to be imposed according to the paragraphs above is increased by one fold.
The perpetrator of the crime can be anyone. However, committing the crime by abusing the influence provided by a public office constitutes an aggravating circumstance.
The victim of the crime can be any natural person. The age of the victim is significant in this crime. This is because, according to Article 109/3-f of the Turkish Penal Code, committing the crime against a child, that is, a person who has not yet reached the age of 18, is an aggravating circumstance.
The material element of this crime is one person restricting the freedom of movement of another person.
For the crime to occur, it is not necessary for it to be absolutely impossible for the victim to regain their freedom on their own. It is sufficient that the victim is unable to overcome the obstacles placed to prevent them from moving as they wish. For example, placing a guard or a dog at a door to prevent the victim from leaving the premises even if the door is open. A person who prevents the victim from using the necessary means for displacement also commits this crime. For example, taking away a paralyzed person's wheelchair or the clothes of someone who is naked in a bathroom.
The person may be deprived of their freedom wholly or partially. For example, forcing the victim into a minibus and taking them to a desolate place.
It does not matter whether the deprivation of liberty is long or short. For the crime to occur, the restriction must last for a certain period of time.
If the victim's freedom is restricted again after the crime has ended (for example, a person who manages to escape is recaptured and locked up again), two separate crimes occur in this case, and the existence of a continuous crime relationship between the crimes is sought.
The moral element of the crime is general intent. However, if this crime is committed for certain purposes, it turns into an aggravating circumstance. This crime can also be committed with eventual intent. In such a case, a reduction is applied to the sentence.