Petition For Reversal In The Interest Of Law
MINISTRY OF JUSTICE GENERAL DIRECTORATE OF CRIMINAL AFFAIRS
To Be Sent
TO ISTANBUL 23RD CRIMINAL COURT OF FIRST INSTANCE
FILE NO : …….. esas,…… kararı
REVERSAL IN FAVOUR OF THE LAW
THE DEFENDANT CLAIMING THAT THE DEFENDANT : A.T.
ATTORNEY :
SUBJECT:
It is the request to apply to the Chief Public Prosecutor’s Office of the Court of Cassation with the request to overturn the finalised conviction decision of Antalya 23rd Criminal Court of First Instance numbered …. main, ………. decision for the benefit of the law.
EXPLANATIONS :
With the decision number 2017/889 of the Antalya 23rd Criminal Court of First Instance, a final judicial fine of 2500 TL was ruled against the client defendant A.T.. Although the court decision was unlawful, the client did not have the opportunity to apply for any legal remedy due to the final nature of the judicial fine.
The defendant defendant, regarding the subject opened under the title “Doctor who made fun of his homosexual patient” on the website named “ekşisözlük”, said: “An immoral and immoral doctor who should not be surprised in a society that is out of control from a to z. This is the pulp of the society, what are you going to do”. The comment written by the client can be described as heavy criticism at most. Client has no intent to insult.
The established jurisprudence of the Court of Cassation stipulates that for an act to constitute an insult, the behaviour must be intended to humiliate the interlocutor. Client’s intention was not to humiliate a person he did not know, but to criticise a doctor who mocked his patient’s sexual orientation. The client’s comment is characterised as “severe criticism” by the Court of Cassation. As a matter of fact, the Court of Cassation has determined general criteria to be applied to all defamation offences:
“…The legal value protected by the punishment of insulting acts is the honour, dignity and prestige of persons, and in order for this crime to occur, the behaviour must be intended to humiliate the person. Whether an act is insulting or not is relative in some cases and may vary according to time, place and situation. All kinds of severe criticism or disturbing words directed at public officials or civilian citizens should not be considered within the context of the crime of insult, and the words should clearly constitute the imputation of a concrete act or fact that may offend the honour, dignity and respect, or the act of swearing…”
According to the practice of the Court of Cassation, words of criticism such as “ill-mannered” and “immoral” do not constitute an offence of insult:
In the concrete case, it should be observed that the words used by the defendant towards the participant in the form of “ill-mannered, disrespectful”, vulgar expression and heavy criticism will not constitute the crime of insult since they are not to the extent of offending the honour, honour and dignity of the participant (18th Criminal Chamber of the Court of Cassation – 2016/6745 decision).
The defendant, who came to deposit money to his wife who was in a penal institution, was not allowed to let his child enter the prison with him because it was not the day of the visit, because the surroundings of the prison was a desolate place where stray dogs roamed around and his 6-year-old child was scared, he told the complainant who was on duty at the guardhouse, The words in the form of “you are being rude”, which are accepted to have been spoken for the purpose of criticising the injustice he thought was done to him, were not to the extent of offending the honour, honour and dignity of the complainant, but were in the nature of heavy criticism, disturbing, rude and unkind behaviour and the elements of the crime of insult did not occur (Court of Cassation 4th. Criminal Chamber – Decision: 2014/32605).
CONCLUSION and REQUEST :
As we have presented and explained above, we request that the Antalya 23rd Criminal Court of First Instance, which is clearly contrary to the law, be applied to the Chief Public Prosecutor’s Office of the Court of Cassation with the request of reversal for the benefit of the law in order to overturn the finalised conviction sentence of the Antalya 23rd Criminal Court of First Instance numbered ……… main, ………… decision.08.08.2021
Defendant Defence Counsel
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