T.C.( Republic of Turkey)
SUPREME COURT
12. CRIMINAL DEPARTMENT
Base: 2019/3962
Decision: 2020/5421
T. 21.10.2020
* The crime of breach of privacy ( basic shape as the upper limit for more than five years or criminal fines for non-investigation phase of a criminal case for a crime that is punishable by imprisonment in prosecution proceedings were postponed to postpone the opening has been finalized and will be decided on the postponement of the execution of the judgment of conviction -the decision to postpone the proceedings for the offence breach of privacy should be made not the person is incorrect )

* FACEBOOK ACCOUNT POSTING OF IMAGES OF THE VICTIM (In the Event, the TCK 134/2-2, Which Is in Force as of the Date of the Crime, is the Basic Punishment Imposed on the Defendant Who Presented the Victim’s Images to an Indefinite Number of People Through the Facebook Account. Article According to the Paragraph and Sentence, an Increase of Half Should Be Made – It is Against the Law to Assign an Incomplete Penalty to the Defendant by Not Applying the Mentioned Article )

* THREAT CRIME ( Covered by Reconciliation – Article 35 of Law No. 6763. Article 254 of the Amended CMK. In accordance with Article 253 of the Same Law. According to the Principles and Procedures Specified in Article 106/1-1 of the Turkish Commercial Code, Settlement Procedures are Performed and the Result is According to the Result. Article The Fact That There Is an Obligation to Re-Evaluate the Legal Situation of the Accused in Terms of the Threat Offense in the Paragraph and Sentence Requires a Violation / The Decision Should Be Violated for the Reasons Described )

5237/m. 106, 134

5271/m. 253, 254

ABSTRACT : The case relates to offenses of defamation, violation of the confidentiality of private life and threats. The basic shape as the upper limit for more than five years or criminal fines for non-for a crime that is punishable by imprisonment; at the stage of the investigation to postpone the opening of a criminal case, the prosecution phase, for a stay of the proceedings, the final execution of the sentence of conviction and suspension of the provision of the decision in accordance with the decision to postpone the proceedings for the offence breach of privacy is not the person that should be made is incorrect.

In the event, the defendant, who submitted the victim’s images to the opinion of an indefinite number of people through his facebook account, was sentenced to the basic sentence according to TCK 134/2-2, which is in force as of the date of the crime. in accordance with the article, paragraph and sentence, it is contrary to the law to assign incomplete punishment to the accused by not applying the mentioned article, without taking into account that an increase of half should be made.

In the face of the understanding that the crime of threat is covered by reconciliation; 35 of Law No. 6763. article 254 of the amended CMK. in accordance with Article 253 of the same Law. 106/1-1 of the Turkish Commercial Code According to its conclusion, settlement procedures are carried out in accordance with the principles and procedures specified in the Article. the article requires the violation of the obligation to re-evaluate the legal status of the accused in terms of the threat offense in the paragraph and sentence. For the reasons described, the decision must be overturned.

THE CASE : The provisions on the conviction of the defendant for defamation, violation of the privacy of private life and threats were considered necessary by the defendant on appeal, examining the file:

DECISION: In accordance with the deposit decision of our department dated 09.01.2019, the participant … was notified in accordance with the method of the decision dated 07.11.2013, which was made in his absence, and the named person did not appeal the decision during the examination:

A) In the examination of the appeal request for the provisions of the conviction established for defamation,;

The article No. 50 and 52 of TCK No. 5237, which entered into force on 07.10.2009 days and 23.07.2009 days and 2006/65 days, entered into force on 07.10.2010 one year after the publication of the Constitutional Court in the Official Gazette No. 27369 and entered into force on 07.10.2010, until the date of the revocation of decision No. 209/114. the provisions of the Law No. 5320 on criminal fines up to TL 2000 (including TL 2000), which are directly imposed in accordance with the articles and provisions of the Turkish Commercial Code No. 765 and do not include any other deprivation of rights, are 8. article 305 of the Law No. 1412, which is still being implemented in accordance with its article. 07.10.2010 certain qualifications and in accordance to Act No. 6217 into force 14.04.2011 until the date of conviction, an appeal is expected, without exception if any of its provisions where possible, 14.04.2011, and after that, directly dominated 3000 TL (3000 TL), including criminal fines of the law of provisional 5320 2. in accordance with the article, it is understood that it is of a definite nature; since the defendant … did not have any request for an appeal against the criminal liability for the provisions of the conviction consisting of TL 2240, which was directly decided separately on 07.11.2013 for his actions against the victims … and Irfan, the defendant’s request for an appeal is 8 of Law No. 5320. article 317 of CMUK No. 1412, which is still being implemented in accordance with its article. refusal in accordance with the request in accordance with the article,

B) As for the examination of the appeal request for the provisions of the established conviction for violations of the privacy of private life and threats;

In accordance with the conducted trial, the evidence collected and shown at the place of decision, the court’s opinion and discretion, the scope of the file examined, the defendant’s refusal to apply the subsidy, discretion clause, non-release of the disclosure of provisions, rejection of other appeals for the fact that the sentenced prison sentences have not been converted to a judicial fine or other alternative measures and postponed, but;

1- By publishing images of the defendant’s, victim’s … private life illegally through his account on the social networking site facebook, which is not specific and can be perceived by more than one person, until 05.12.2011, TCK 134/2. article and paragraph that are defined in the disclosure of the crime of violation of privacy by images or sounds, although it is accepted to have committed the crime and after the date of the decision published in the Official Gazette prior to the date on 05.07.2012 No. 6352 amendment of certain laws and judicial services for the purpose of enabling crimes committed through the press and punishment of the law concerning the temporary postponement of 1. according to the article, “Until 31/12/2011, it was processed by the press and publication or by other methods of expression of thoughts and opinions; the basic shape as the upper limit for more than five years or criminal fines for non-for a crime that is punishable by imprisonment; a) in the investigation phase, 04/12/2004, dated the conditions of Article 171 of the Criminal Procedure Code No. 5271 without taking postponed the opening of a criminal case, B) the prosecution, the deferral of prosecution, c), it can be decided to postpone the execution of the sentence of the final conviction.” in accordance with the provision, it is not taken into account that the decision should be made to postpone the prosecution for the crime of violating the privacy of private life,

Also according to the acceptance and application:

Article 6 § 1 of the Penal Code-g article, paragraph, subparagraph, and the criminal law in the implementation of the press and publication statement, any kind of written, visual, aural and electronic publications will be specified by mass media in the face of apparently the victim …’s images, facebook account through an indefinite number of the person offering the manners, the defendant about the dominated, the basic sentence of the Penal Code in effect as of the date of the crime 134/2-2. in accordance with the article, paragraph and sentence, an incomplete penalty is assigned to the accused by not applying the mentioned article, without taking into account that an increase of half should be made,

2-Law No. 6763 on Criminal Procedure, which entered into force on the same date and Law No. 34 on Amending Certain Laws, was published in the Official Gazette dated 02.12.2016 and numbered 29906 after the date of the decision. article 253 of the amended CMK. Article 1. 106/1-1 of the TCK, which is located between the sub-dec that are added to paragraph (b) of paragraph (b). in the face of the understanding that the threat crime defined in the article and paragraph is covered by the compromise; TCK 7/2. in accordance with article and paragraph; “If the provisions of the law in force at the time of the commission of the crime and the laws that come into force later are different, the law in favor of the perpetrator is applied and executed.” taking into account the provision of Law No. 6763, 35. article 254 of the amended CMK. in accordance with Article 253 of the same Law. 106/1-1 of the Turkish Commercial Code According to its conclusion, settlement procedures are carried out in accordance with the principles and procedures specified in the Article. in terms of the threat crime in the article, paragraph and sentence, the defendant’s legal status should be reassessed,

3-T.C. Article 53 of the Constitutional Court, TCK. the 2014/140 principle related to the article is that the cancellation decision numbered 2015/85 was published in the Official Gazette dated 24.11.2015 and numbered 29542 in accordance with the decision of the TCK 53. there is an obligation to re-evaluate the deprivation of rights in the Article,

CONCLUSION : Since the appeals of the accused are considered to be valid as of this date, the provisions of Law No. 5320 for these reasons are 8. article 321 of the CMUK No. 1412, which is still being implemented in accordance with its article. it was unanimously decided on 21.10.2020 that the defendant’s acquired right in terms of the amount of punishment for the crime of violating the privacy of private life in accordance with Article 326 / last of the same Law should be violated against his will in accordance with Article 326 / last of the article.