Elements of The Offence of Insulting The President?

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The offence is committed directly against the incumbent President. Insulting any former president or presidential candidate cannot be evaluated under the scope of this article. The presidential term commences with the taking of the oath.

Anyone can be the perpetrator of the offence of insulting the President.

The *mens rea* (mental element) of the offence is intent. The perpetrator's intent is a prerequisite for the commission of the offence. The offence is one of free action (i.e., not restricted to specific modes of conduct). The offence can be committed through any written or verbal expression, via any medium (e.g., social media, television, newspaper). For the act to constitute an offence, there is no requirement for a political motive, but the perpetrator must be aware of the victim's official capacity. There is no distinction whether the act is committed in the President's presence or absence.

Penalty for the Offence of Insulting the President and Competent Court

A person who insults the President shall be punished with imprisonment for a term of one to four years. If the insulting act is committed publicly, the penalty to be imposed shall be increased by one-sixth. Examples of public commission include insulting on a TV program, on websites, or by shouting in public. Prosecution for this offence is subject to the permission of the Minister of Justice. The competent court for trials concerning this offence is the Criminal Court of First Instance.

Conciliation, Complaint, and Statute of Limitations in the Offence of Insulting the President

The offence in question is not subject to conciliation procedures. There is no requirement for a complaint to initiate an investigation into the offence. An investigation can be initiated *ex officio* by the public prosecutor or upon a complaint. The statute of limitations for a lawsuit to be filed due to this offence is eight years.

Suspension of Sentence, Deferment of the Announcement of the Verdict, and Judicial Fine in the Offence of Insulting the President

In trials concerning this offence, if the conditions are met, a decision may be rendered for the suspension of the prison sentence, the deferment of the announcement of the verdict, or a judicial fine.

Unfortunately, in some trials conducted in our country, acts that should be evaluated within the scope of freedom of expression are considered as the offence of insulting the President. It would be beneficial for you to be represented by a specialized lawyer in trials concerning this offence.

Supreme Court Decisions Regarding the Offence of Insulting the President

“Given the provision in Article 299, paragraph 3 of the Turkish Penal Code No. 5237, which states that 'prosecution for this offence is subject to the permission of the Minister of Justice,' the continuation of the trial and the conviction of the defendant without considering that prosecution against the defendant is subject to the permission of the Minister of Justice is contrary to law. Therefore, the defendant's appeal is deemed appropriate, and the verdict is hereby OVERTURNED for these reasons, unanimously decided on 20.12.2018.” Supreme Court 16th Criminal Chamber 2018/1216 E., 2018/5297 K.

“Since the offence regulated in Article 299 of the TPC is constituted by an act of insult against the President, the act must have been committed against the person holding the office of President. Therefore, even if an insult is made concerning the presidential office after the term has ended, Article 299 of the TPC cannot be applied; instead, it would constitute the offences of insult under Articles 125 and 130 of the TPC.” Supreme Court 18th Criminal Chamber 2016/16471 E., 2017/987 K.

"According to the facts and the scope of the file, given that the defendant's act of sharing posts on his Facebook account stating, 'Since all arrested police officers have been released, it means that those who suck this state like leeches are not the 'parallelists' you mentioned, but paid hands. BY ALLAH'S WILL, THEY ARE COMING, DO NOT FEAR, TREMBLE...' was not directed at the President, it does not constitute the offence of insult. However, to determine whether it constitutes the offence of propaganda for the FETÖ/PDY terrorist organization, it is necessary to investigate whether there is an ongoing case against the defendant related to the said organization. If there is a pending file, the cases should be consolidated; if there is no open case, an attempt should be made to file a lawsuit, and the defendant's legal status should be determined and assessed accordingly, rather than rendering a decision in writing based on insufficient investigation,

2- The indication of the crime date as '26.04.2015' instead of '26.04.2015 and 03.05.2015' and the victim as 'TC ...' instead of 'Recep Tayyip Erdoğan' in the heading of the reasoned decision necessitated reversal. Therefore, the appeals of the intervening party's counsel and the public prosecutor are deemed appropriate, and the verdict is hereby OVERTURNED for this reason, unanimously decided on 26.09.2017.” Supreme Court 16th Criminal Chamber 2016/3871 E., 2017/4964 K.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy