Insulting A Public Official Court Of Cassation Decision
4th Criminal Chamber 2020/1991 E. , 2020/10523 K.
“Case Law Text”
Ordu 2nd Criminal Court of First Instance sentenced the defendant … to 6 months and 7 days imprisonment in accordance with Articles 106/1, 43/2 and 62/1 of the Turkish Penal Code No. 5237. Criminal Court of First Instance’s decision dated 12/12/2019 and numbered 2018/909 main, 2019/804 was sent to the Chamber with the request of the Supreme Ministry of Justice, General Directorate of Criminal Affairs, dated 25/03/2020 and numbered 94660652-105-52-3394-2020-Kyb, with the notification of the Supreme Court of Appeals Chief Public Prosecutor’s Office dated 06/05/2020 and numbered 2020/41982 containing the idea of reversal, and the file was examined:
In the request letter; “According to the scope of the file;
As explained in the decision of the Criminal General Assembly of the Court of Cassation dated 02/03/2010 and numbered 2009/9-259 main, 2010/47 decision, 265. Article 265 of the Turkish Criminal Code No. 5237 is an elective offence and the offence occurs with the use of force and/or threats in order to prevent a public officer from performing his duty, in the concrete case, the defendant was intoxicated and disturbed the people around him, and it was understood that he insulted and threatened the guards during the identity check by the guards on duty who came to him, and the defendant’s action as a whole constitutes the crimes of resisting to prevent the performance of duty by threat and insult, and the 42nd article of the Law No. 5237. Article 42 of Law No. 5237 states,
“A crime that is considered as a single act because one constitutes the element or aggravating cause of the other is called a compound crime. The provisions of compounding do not apply to such offences.”, it was not deemed inappropriate to establish a written conviction without considering that the defendant could not be sentenced separately for the offence of threatening, which is an element of the offence of active resistance.”
Legal Evaluation:
Article 265/1 of the Turkish Penal Code titled “Resisting to prevent the performance of duty” reads as follows: “The person who uses force or threat against a public official in order to prevent him from performing his duty shall be sentenced to imprisonment from six months to three years.”
Article 42 of the Turkish Penal Code No. 5237 defines a compound offence. According to the article; “a crime that is considered as a single act because one of them constitutes the element or aggravating reason of the other is called a compound crime. The provisions of compounding do not apply to such offences.”
When the scope of the file, the request for reversal in favour of the law and all these explanations are evaluated together;
Considering the regulation in Article 265/1 of the Turkish Penal Code No. 5237, which reads as follows: “A person who uses force or threat against a public official in order to prevent him from performing his duty shall be sentenced to imprisonment from six months to three years.”, it is clear that a separate conviction cannot be established for the offence of threatening in accordance with Article 42 of the Law No. 5237, since the act of threatening is an element of the offence of resisting to prevent the execution of duty.
For the reasons explained; there is no justification in the decision of Ordu 2nd Criminal Court of First Instance dated 12/12/2019 and numbered 2018/909 main, 2019/804 on the conviction of the defendant … for the offence of threatening with 6 months and 7 days imprisonment in accordance with Articles 106/1, 43/2 and 62/1 of the Turkish Penal Code No. 5237.
Conclusion and Decision:
For the reasons explained above;
1- Since the reason for reversal in the notification issued by the Chief Public Prosecutor of the Court of Cassation regarding the request for reversal for the benefit of the law is deemed appropriate, the finalised decision of the Ordu 2nd Criminal Court of First Instance dated 12/12/2019 and numbered 2018/909 main, 2019/804, established for threat crimes, shall be REJECTED in accordance with Article 309 of the Criminal Procedure Law No. 5271,
2- Prohibition of repetition of the trial and according to paragraph 4-d of the same article of the Law;
Considering the regulation in Article 265/1 of the Turkish Penal Code No. 5237 as “The person who uses force or threat against a public official in order to prevent him from performing his duty shall be sentenced to imprisonment from six months to three years.”, since the act of threatening is an element of the crime of resisting to prevent him from performing his duty, it was unanimously decided on 05/10/2020 that the imprisonment sentence of 6 months and 7 days imposed on the defendant … for the crime of threatening shall be abolished.
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