A person who imputes a concrete act or fact that may offend the honor, honor and dignity of a person or attacks the honor, honor and dignity of a person by swearing shall be sentenced to imprisonment from three months to two years or to a judicial fine. In order for insulting the victim in absentia to be punishable, the act must be committed in the presence of at least three people.
PROTECTED LEGAL INTEREST
When we look at the place where the crime of insult is regulated in the Criminal Code No. 5237, we see that it is included under the heading of crimes against honor. According to this regulation, the legal benefit protected by this crime is the right to ‘honor, honor and dignity’ of the person.
MATERIAL ELEMENT OF THE OFFENSE OF INSULT
The crime of defamation is a free-moving crime, therefore it can be committed in any form. What is important is that the behaviors targeted the victim’s dignity. Words and behaviors that may damage the dignity of persons can be committed by attributing a certain concrete situation or fact, as well as by general and abstract words and behaviors. When examining the material element in the crime of defamation, it is necessary to make a dual distinction. The first is the attribution of a concrete act or fact, and the second is swearing. What should be understood from a concrete act or fact is a material event. In other words, it is an actual situation that can be perceived from the outside world and can create some changes in the outside world.
MORAL ELEMENT OF THE OFFENSE OF INSULT
The moral element is related to the inner world of the perpetrator. The moral element occurs in two ways: intent and negligence. The crime of insult is one of the crimes that can be committed intentionally. Because the victim’s honor is attacked only if the perpetrator wants this result. The intent here is general intent, and it is sufficient for the perpetrator to know that his behavior may damage the honor, honor and dignity of the victim and to want this. It is sufficient for the perpetrator to want to commit the offense of insult, the motive is not important.
PERPETRATOR OF THE CRIME
The perpetrator of the crime of defamation can be any natural person, but legal entities cannot be the perpetrators of this crime.7 Only the natural persons who commit these acts can be liable for the acts of defamation committed by those authorized to represent and administer a legal entity. The ability of a natural person to be held responsible for the crime of defamation depends on the existence of criminal capacity (ability to impute). Persons who are incapable of directing their behavior due to the presence of a temporary reason such as mental illness or minority cannot be punished even if they are the perpetrators of the crime of insult.
VICTIM OF THE CRIME
The victim of the crime of defamation can be any person. Persons who cannot understand and comprehend the act of insult due to a reason such as illness, age, mental illness, physical disability may also be victims of the crime of insult.
Dead people cannot be victims of the crime of defamation. Because with death, the personality ends and the dead ceases to be a subject of law. However, the words spoken about the dead and the behavior towards the corpse may be an attack on the dignity of the relatives of the dead. In the act of insulting the memory of a deceased person, in order to protect the dignity of the relatives of the deceased, Article 130/f.1 of the TPC titled “Insulting the memory of a person” stipulates that “A person who insults the memory of a person after his/her death by associating with at least three persons shall be punished with imprisonment from three months to two years or with a judicial fine. The penalty shall be increased by one-sixth if the insult is committed publicly.” In order for the act of insulting the memory of the deceased to be punishable, the crime must be committed by contacting at least three people.
Even if the name of the victim is not explicitly stated in the commission of the crime of insult, or even if the allegation is vague, if there is no doubt about its nature and that it is directed against the person of the victim, both the name is stated and the insult is considered to be explained.