Constitutionality Review

A. As regards the phrase “…paragraph two, subparagraphs (b) and (c) of paragraph three, and paragraph four…” in subparagraph 2, added to Article 75 § 6 (a) (2) of the Turkish Criminal Code no. 5237 by Article 15 of Law no. 7531 on the Amendments to Certain Laws

Contested Provision

The contested provision provides for that the offence of defamation committed through an audio, written, or visual communication directed at the victim, as regulated under Article 125 § 2 of the Turkish Criminal Code no. 5237 (Law no. 5237), is subject to the pre-payment procedure (payment of a statutory sum in lieu of prosecution). Accordingly, pre-payment procedure shall also apply where the offence of defamation constitutes one of the aggravated forms, provided for in Article 125 § 3 (b) and (c), and/or where it is committed publicly within the meaning of Article 125 § 4. However, paragraph (1), which governs the simple form of the offence of defamation, and paragraph 3 (a), which classifies defamation committed against a public official on account of his or her duties as an aggravated form, are excluded from the scope of the pre-payment procedure.

Grounds for the Request for Annulment

It was maintained in brief that the contested provision is unconstitutional for infringing the principle of equality, as it limits the application of the pre-payment procedure to offences of defamation committed through audio, written, or visual communications directed at the victim, and to certain aggravated forms, while excluding the basic form of the offence and the aggravated form committed against public officials.

The Court’s Assessment

It is apparent that the contested provision draws a distinction, for the purposes of applying the pre-payment procedure, between the perpetrator committing defamation by way of an audio, written, or visual communication directed at the victim and the perpetrator defaming the victim directly, either in person or in absentia, although both are in a comparable legal position.  

Within the context of criminal law, the principle of equality before the law does not necessarily require the application of the same rules to a perpetrator who has committed any simple form of an offence and those who have committed another simple form, or an aggravated form of the same offence. However, any difference in treatment towards persons in a comparable legal position must have an objective and reasonable justification. 

The pre-payment procedure, as regulated in Article 75 of Law no. 5237, constitutes one of the exceptions to the principle of mandatory prosecution. This procedure enables the direct application of a monetary sanction to a perpetrator against whom there is sufficient suspicion to initiate criminal proceedings for an offence of a certain gravity, without proceeding to a trial. Thereby, offences of a certain gravity are excluded from the scope of ordinary criminal procedure.

In cases where the pre-payment procedure is applied, the perpetrator waives certain procedural safeguards of ordinary criminal procedure. On the other hand, this procedure allows the perpetrator to avoid the social stigma of a criminal conviction and the adverse consequences of serving a sentence. As indicated in its legislative intent, the contested provision aims to alleviate the burden on the State in enforcing sentences, to reduce the courts’ workload, and to provide an alternative means of achieving the general and specific preventive objectives pursued through ordinary criminal sanctions. In this regard, given the legislator’s discretion in determining the method to eliminate the adverse consequences, it is evident that extending the application of the pre-payment procedure to the offence of defamation also serves this purpose.   

However, despite there being no difference for the purposes of applying the pre-payment procedure among the acts defined as an offence in Article 125 §§ 1 and 2 of Law no. 5237 in terms of their nature, scope and gravity, the legal interest protected, their societal impact, and the penalties prescribed, the pre-payment procedure is applied to certain aggravated forms of the offence and to the simple form in specific circumstances. This gives rise to a difference in treatment without objective and reasonable justification.

Accordingly, the contested provision, which causes a difference in treatment without any objective and reasonable justification, in terms of the application of the pre-payment procedure, between a perpetrator who commits the offence of defamation by way of an audio, written, or visual communication directed at the victim and a perpetrator who defames the victim directly, either in person or in absentia, cannot be regarded as compatible with the principle of equality before the law.

Consequently, the contested provision has been found unconstitutional and therefore annulled.

B. As regards Provisional Article 7 § 2, Added to the Code of Criminal Procedure no. 5271 by Article 18 of Law no. 7531 on the Amendments to Certain Laws

Contested Provision

The contested provision provides for that the pre-payment procedure shall not apply to the cases involving the offence of defamation committed through an audio, written, or visual communication directed at the victim, which were already at the investigation or prosecution stage on the date of entry into force of Provisional Article 7 of the Code of Criminal Procedure (Law no. 5271), and that such cases shall be settled through the conciliation procedure. 

Grounds for the Request for Annulment

It was maintained in brief that the contested provision is unconstitutional, as it precludes the application of provisions more favourable to the perpetrator, which is incompatible with the requirement that proceedings be concluded within a reasonable time, the right to a fair trial, as well as the principles of the rule of law and nullum crimen, nulla poena sine lege. It was also argued that it also infringes the principle of equality before the law by giving rise to different practices in respect of the perpetrators who committed offences on the same date.

The Court’s Assessment

In criminal proceedings, the application of the law more favourable to the perpetrator is a constitutional requirement under the principle of nullum crimen, nulla poena sine lege, as enshrined in Article 38 of the Constitution. The contested provision is a criminal norm of both a substantive and provisional nature within the meaning of criminal law. It seeks, on the one hand, to ensure harmonisation between the amended law and the newly adopted law, and, on the other, to resolve any disputes that may arise.

Undoubtedly, in a state governed by the rule of law, it is within the legislator’s discretion to determine which criminal offences may be subject to alternative dispute resolution methods, namely conciliation or pre-payment, and to decide which of these methods should take precedence. The expediency of the legislator’s preference and discretion in this respect lies beyond the scope of constitutional review. However, a statutory rule of a provisional nature, introduced through a legislative amendment enacted after the commission of a criminal act, must comply with constitutional safeguards. 

The Court has noted that the conciliation and pre-payment procedures fall under the principle of nullum crimen, nulla poena sine lege, and that in light of the provisions regulating these procedures, the pre-payment procedure is more favourable to the perpetrator, in respect of an offence, than the conciliation procedure.

It is apparent that the pre-payment procedure is not applicable to case-files which were at the investigation or prosecution stage on the date of entry into force of the contested provision. Accordingly, the exclusion of the application of the provisions providing for the pre-payment procedure, instead of conciliation, to the offence of defamation committed through audio, written or visual communication directed at the victim, in respect of case-files pending at the investigation or prosecution stage on the date of entry into force of Provisional Article 7 of Law no. 5271, cannot be regarded as compatible with the principle of nullum crimen, nulla poena sine lege.

Consequently, the contested provision has been found unconstitutional and therefore annulled.