1. INTRODUCTION TO THE TYPE OF CRIME
The protection of social order and the ability of individuals to live in safety are fundamental objectives of criminal law. In this context, behaviors that undermine individuals’ sense of peace and security, causing them fear and anxiety, are subject to criminal sanctions. The crime of threat is one such act that limits individuals’ freedom of will and prevents them from freely shaping their decisions and behaviors. The crime of threat, regulated in Article 106 of the Turkish Criminal Code, aims to protect the areas of peace, security, and freedom, which are among the most fundamental rights of individuals.
The crime of threat is informing a person that they will suffer harm or unjust damage. It is establishing control over a person’s will and freedom by frightening them.
For the crime of threat to be established, it is not necessary that the victim actually feel fear. When assessing the feeling of fear, subjective evaluation should be avoided because everyone’s threshold of fear will differ depending on the specific circumstances. When making this assessment, the threatening act must be objectively evaluated and found to be serious and sufficient to cause fear. Whether the victim was afraid or not is not investigated. It is sufficient that the act was sufficient and appropriate.
2. GENERAL SCOPE OF THE CRIME TYPE
The crime of threat violates individuals’ freedom to form their will and freedom of voluntary action. According to Article 106 of the Turkish Criminal Code, a threatening act that violates and damages trust, peace, and tranquility may take the form of intimidating another person by implying that they will attack their life, body, or sexual integrity, or threatening to cause significant damage to their property. The legislator has criminalized not only concrete harm but also the violation of a person’s psychological security.
While the basic form of the crime is punishable by personal penalties, more severe penalties are envisaged for aggravated forms, such as committing the crime with a weapon, with multiple persons, or against a public official. In doctrine, the crime of threat is considered a “mixed crime,” aiming to protect both the individual’s free will and social peace. In this respect, the crime of threat protects not only an individual but also a public interest.
The crime of threat, being a mixed crime, is a crime of danger. Its purpose is to intimidate the victim, and it is irrelevant whether the words and behavior constituting the threat have been translated into concrete action. The crime is completed when the threatening words and behavior are communicated to the person.
3. PROTECTED LEGAL VALUE
The fear that harm will be done to oneself or one’s loved ones eliminates one’s freedom to make decisions and act freely.
The primary legal value protected in the crime of threat is the person’s peace, tranquility, inner freedom, and freedom of will.
By protecting peace and tranquility, the aim is to prevent feelings of insecurity from arising. The rationale for the article states that the main value protected by the crime of threat is “the individual’s freedom to make decisions and act.”
Here, in addition to the legal value primarily protected, the peace and tranquility and internal freedom of the person are also protected.
4. BASIC ELEMENTS OF THE CRIME
A) MATERIAL ELEMENTS
I. THE PERPETRATOR AND VICTIM ELEMENTS OF THE CRIME
Anyone can be the perpetrator or victim of this crime. No specific characteristics are attributed to perpetrators or victims. The person whose peace, tranquility, freedom of will, and freedom of action are violated is the victim.
Only natural persons can commit the crime of threat. Legal entities cannot be perpetrators. A natural person acting on behalf of a legal entity will be the perpetrator of the crime; the crime cannot be attributed to the legal entity. Security measures cannot be applied to legal entities that cannot be direct perpetrators.
A public official may also be the perpetrator of the crime of threat, which can be committed by anyone. If a public official commits the crime of threat using the means provided to them in the course of their duties, the penalty will be increased. (TCK Article 266)
For the crime to be established, the person must be capable of understanding and perceiving the meaning of the attack that constitutes the subject matter of the crime. Words spoken by persons who are incapable of understanding the threat due to mental illness or young age, or words spoken by the perpetrator, shall not be considered a threat. However, the existence of the crime shall be accepted in cases where the victim is actually frightened.
If the addressee is not in a position to perceive and understand the threat but the threat is likely to cause fear and anxiety to their relatives, the crime will be committed. This is because, according to the letter of the law, it is sufficient for the crime to be committed against themselves or their relatives.
Conversely, the perpetrator’s attempt to exert pressure by stating that they will harm themselves is not considered a threat.
II. SUBJECT OF THE CRIME
The crime of threat is among the crimes of abstract danger. The subject matter of the crime of threat is the impact on the peace, tranquility, inner freedom, freedom of will, and sense of security of the person subject to the threat. It has been deemed sufficient for this threatening act to establish control over the subject’s freedom to make decisions and act through appropriate actions.
It is not necessary for the threat to have caused fear in the victim for the crime of threat to be established. When assessing the feeling of fear, subjective evaluation should be avoided because everyone’s fear threshold will differ depending on the specific circumstances. When making this assessment, the threatening act must be objectively evaluated and found to be serious and sufficient to cause fear. It is not investigated whether the victim was afraid. It is sufficient that the act was sufficient and appropriate.
III. ACTION ELEMENT
The crime of threat is regulated in Article 106 of the Turkish Penal Code. Accordingly, threatening a person that they or their relatives will be subjected to an attack on their life, physical or sexual integrity, that they will suffer significant damage to their property, or that they will be subjected to other harm constitutes a crime. Threats directed at other legal values should be evaluated within the scope of the phrase “subjects them to other harm” in the second sentence of the first paragraph of Article 106. For example, threats directed at honor and private life are evaluated within this scope if they do not constitute other crimes.
Defined literally as “intimidation, frightening,” a threat in the context of criminal law is the perpetrator directing harm at the victim in order to force them to comply. This direction must be such that it compels the victim to act in the manner desired by the perpetrator and exerts pressure on their will.
For the act of threat to be subject to criminal sanctions, the harm directed must be serious and feasible. The commission of the crime does not depend on whether the harm actually occurs; what matters is the objective belief of the victim that the threat could be carried out. When making this assessment, the basis should be the anxiety that an “average person” would feel under the same circumstances, not the victim’s subjective fear threshold. Therefore, the fact that the victim did not actually feel afraid does not negate the legal significance of the threat; similarly, the victim’s fear without seriousness and suitability is not sufficient for the crime to be established.
In cases where the threat is used as a means to complete another crime, the crime of threat is not applied independently. For example, words that are intended solely to intimidate and have no effect on the victim’s will will not be evaluated under Article 106 of the Turkish Criminal Code, but under other types of crimes (e.g., intentional injury) if the conditions are met. Furthermore, threats accompanying an act of assault are considered a single act and are ruled upon under the crime of assault.
The term “close” in the article covers not only persons related to the victim by blood, but also persons with whom the victim has a close relationship to the extent that they may be emotionally or socially affected if the victim suffers harm. This should be determined taking into account the specific circumstances of the case.
It is not necessary for the threatening act to be directed at the victim directly. It is sufficient for the perpetrator to express the threat in front of third parties in a manner that will be conveyed to the victim, or to announce that the threat will be carried out through another person, for the crime to be established.
B) MENTAL ELEMENTS
Threat is a crime that can be committed intentionally; the perpetrator must act knowingly and willingly. The existence of intent is sought and deemed sufficient for the act of intimidation to establish control over the victim’s peace of mind and freedom of will. Purpose and motive are not sought. It can be committed with direct intent or with possible intent.
C) ELEMENT OF ILLEGALITY
The grounds for legality in the crime of threat are evaluated within the framework of general provisions. There is no specifically regulated ground for legality.
EXERCISE OF A RIGHT (TCK 26): In some cases, the exercise of a right may be considered a reason for legality. A person may inform the other party that certain harm will occur when exercising a right granted to them by law. For example, a creditor saying to a debtor, “If you don’t pay, I will take you to court,” is considered lawful even though it may cause harm to the debtor’s property.
LEGITIMATE DEFENSE (TCK 25): If the perpetrator uses threatening words to repel an unjust attack, this may be considered legitimate defense. For example, a person who is attacked saying, “If you come closer, I will shoot you,” is not making a threat but is acting in legitimate defense.
PERFORMANCE OF DUTY (TCK 24): Warnings or actions taken by a public official against a person while performing their duties are not considered threats. For example, a police officer saying, “If you don’t surrender, I will use force,” is a notification made within the authority granted by law.
5. QUALIFYING ELEMENTS OF THE CRIME
I. CIRCUMSTANCES REQUIRING A HIGHER PENALTY
- Article 6 of Law No. 7406, added to Article 106 of the Turkish Criminal Code, raises the minimum penalty for the crime of threatening a woman.
The aggravating circumstance that “the lower limit shall not be less than nine months” has been added in cases where the crime of threat is committed against a woman. It is irrelevant whether the perpetrator of the threat is a woman or a man.
- COMMITTED AGAINST HEALTHCARE PERSONNEL
If the crime of threat is committed against personnel and assistants working in public or private health institutions in relation to their duties, the penalties will be increased by half as a qualified circumstance.
- TCK Art. 106/2 Threats made:
a) With a weapon,
b) By disguising oneself, through an unsigned letter, or using special symbols,
c) By multiple persons acting together,
d) By taking advantage of the intimidating power created by existing or presumed criminal organizations, the perpetrator shall be sentenced to imprisonment for a term of two to five years.
- COMMITMENT OF THE CRIME WITH A WEAPON
The use of a weapon in committing the crime of threat is regulated by the legislator as a qualified circumstance requiring a more severe penalty due to the increased seriousness and fear threshold.
The perpetrator’s intent to commit the crime of threat with a weapon means that the weapon was used while committing the crime of threat. It is not sufficient for the perpetrator to merely possess a weapon; it must have been used.
The doctrine criticizes the requirement that the weapon must be used. It is argued that merely displaying or carrying the weapon in a holster, to the extent that it could dominate the victim’s peace, tranquility, and freedom of will, is sufficient for this aggravated circumstance to occur. However, the Court of Cassation requires that the weapon be pointed at and used against the victim for this aggravated circumstance to occur.
Furthermore, threats made with a weapon in the absence of the victim are not considered aggravating circumstances. This is one of the consistent decisions of the Court of Cassation.
While the use of the weapon is sufficient, its suitability and appropriateness are not important. It does not matter if the weapon is empty or a toy (fake). It is sufficient that it is suitable for frightening an average person.
B) THE PERSON MAKING THEMSELVES UNRECOGNIZABLE
The perpetrator making himself unrecognizable, thereby making it difficult to determine his identity and increasing the threshold of fear, is a circumstance that increases the punishment.
The phrase “rendering themselves unrecognizable” is interpreted broadly by the law. It includes situations where the perpetrator imitates a frightening voice, pretends to be lame or blind, wears a mask, or wears a beard.
According to the prevailing view in doctrine, it is sufficient for the perpetrator to make themselves unrecognizable for the aggravated penalty to apply. It is irrelevant whether the victim recognizes the perpetrator or whether the change causes fear in the victim. It is sufficient for the perpetrator to begin the act with the intention of committing the threatening act in this manner.
Another view holds that it is not sufficient for the perpetrator to make themselves unrecognizable; the victim must also be unable to recognize them.
C) COMMITTING A CRIME BY ANONYMOUS LETTER
A malicious statement that influences the victim is considered within this scope. This is because it reduces the victim’s ability to defend themselves, making it impossible to predict who to take precautions against and what to take precautions against.
Any written communication that is addressed to the recipient and does not allow them to identify the sender should be considered an unsigned letter.
If the author of the unsigned letter can be identified, for example, if the style and expressions used point to the perpetrator, and if the perpetrator’s identity can be determined by reference to the relationship between the victim and the perpetrator in the letter, this qualified circumstance does not apply.
D) THREATS MADE WITH SPECIAL SIGNS
The signs used when making the threat are irrelevant. The sign must be of a nature that has a frightening effect on the victim. For example, this aggravated circumstance arises if a coffin image, symbols, or shapes convey a threatening meaning. The judge will evaluate these specific signs within the context of the concrete case.
E) THREAT COMMITTED BY MORE THAN ONE PERSON
This is regulated as a qualified circumstance and considered a reason for increasing the penalty because it increases the perpetrator’s control over the victim’s peace of mind and freedom of will, leaves the victim in a serious and frightening situation, and reduces the victim’s ability to defend themselves when faced with a united force.
Each person who participates in the commission of the crime is considered a perpetrator. Any contribution that could establish control over the commission of the crime is sufficient to qualify as perpetration.
F) COMMITTED BY TAKING ADVANTAGE OF THE INTIMIDATING POWER OF EXISTING OR PRESUMED CRIMINAL ORGANIZATIONS
It is stipulated as a qualified circumstance that a crime is committed by exploiting the intimidating nature of an organization involving one or more persons, using the power of a criminal organization that has this nature.
An organization formed by at least three persons and established for the purpose of committing numerous crimes is referred to as a criminal organization.
It is not necessary for the perpetrator to be a member of this organization or even for such an organization to exist. It is sufficient that the organization influences the person’s will and increases intimidation.
II. QUALIFIED CIRCUMSTANCES REQUIRING LESSER PENALTIES
The second sentence of the first paragraph of Article 106 of the Turkish Criminal Code states: “If the threat is made on the grounds that it will cause significant damage to property or other harm, upon the complaint of the victim, a sentence of up to six months’ imprisonment or a judicial fine shall be imposed.”
If the threat is made only on the basis of the possibility of causing damage to property or other harm, rather than to life, physical integrity, or sexual inviolability, the penalty is lighter. In this case:
The investigation and prosecution are complaint-based. The penalty is imprisonment for up to six months or a fine.
6. FAULT
Culpability in the crime of threat is assessed within the framework of general provisions. There is no specifically regulated cause of culpability.
UNJUST PROVOCATION: The anger and resentment aroused in a person by an unjust attack and the commission of the crime of threat will constitute a cause affecting and reducing culpability.
7. SPECIAL FORMS OF THE CRIME
A) ATTEMPT
Attempt is defined in Article 35 of the Turkish Criminal Code. The result must not occur due to reasons beyond the perpetrator’s control.
Threat, which is not a result-oriented crime but a mere act crime, is completed by the execution of an act capable of frightening an average person. No result is sought. Due to its sudden nature, attempt is not very possible in the crime of threat.
However, attempt may be possible if the acts of execution are divided. While attempt is not possible in absentia, a threat made by letter or sign may remain at the attempt stage. For example, painting a coffin on the wall of a person’s house without the addressee seeing it.
B) PARTICIPATION
The crime of threat, which is regulated as a single-perpetrator crime, can also be committed by more than one person. Likewise, in Article 106, Paragraph 2, subparagraph c, it is regulated as a qualifying circumstance that will lead to an increase in punishment if the crime is committed by more than one person.
The commission of this crime by more than one person and their responsibility for the aggravated circumstance will constitute joint perpetration. To be considered a joint perpetrator, each perpetrator must personally carry out the threatening act and have control over the act.
Apart from this, participation in the crime is possible as an accomplice (helper or instigator). It is also possible for the instigator to exceed the limits. If the instigator commits another crime besides the instigated crime, for example, stabbing the person who should be threatened, in this case, the instigator will not be liable.
On the other hand, the instigator may do more than the instigator intended in terms of quantity or quality. For example, while the instigator intended a simple threat, the instigator may have committed a qualified threat.
A person who contributes to facilitating the act of the person committing the threat is considered an accomplice.
C) CONFLICT
If the crime of threat becomes an element of another crime or constitutes its aggravated form, a “compound crime” will be considered. Since the crime of threat becomes an element, it will be absorbed into the main crime and the perpetrator will not be punished separately for the threat.
Threats made against the same person at different times are considered a chain of crimes. In this case, the perpetrator will receive a single sentence, but the penalty will be increased.
If more than one person is victimized by a single act, the rules of the same type of mental concurrence apply. In this case, a single crime will be formed, and the penalty will be increased.
There may be cases where consecutive offenses and the same type of mental concurrence are applied together. If committed against the same persons at different times, both the same type of mental concurrence and the provisions of consecutive offenses ( ) may apply. In this case, the perpetrator will receive a single sentence, and the penalty will be increased separately for both the same type of mental concurrence and the consecutive offense. For example, if the perpetrator threatens the victim every time they see them.
If the threatening words constitute the crime of insult, the rules of different types of mental concurrence will be applied, and the offender will be punished for the crime with the heavier penalty.
If the perpetrator acts on their threatening words, for example, if the perpetrator who threatens to stab the victim actually stabs them, the rules of actual concurrence apply. The perpetrator will be punished separately for both the crime of threatening and the act of intentional assault.
8. COMPETENT AND AUTHORIZED COURT
| COMPETENT COURT : CRIMINAL COURT |
| COMPETENT COURT : THE COURT WHERE THE CRIME WAS COMMITTED. THREATENING BY PHONE OR INTERNET , THE COURT WHERE THE PERPETRATOR IS LOCATED IS ALSO COMPETENT. |
9. PENALTY
A) BASIC CIRCUMSTANCES
Pursuant to Article 106/1 of the Turkish Criminal Code, a person who threatens another person by stating that they will attack their life, physical integrity, or sexual integrity shall be punished with imprisonment for a term of six months to two years.
B) QUALIFIED CIRCUMSTANCES WARRANTING A HIGHER PENALTY
TCK 106/2
If the threat is made:
a) Involves the use of a weapon,
b) By disguising themselves, through an unsigned letter, or using special symbols,
c) By multiple persons acting together,
d) By taking advantage of the intimidating power created by existing or presumed criminal organizations, shall be punished by imprisonment for a term of two to five years.
- If the threat is made against a woman, the minimum sentence shall not be less than nine months. In this case, the perpetrator shall be punished with imprisonment for a term of nine months to two years.
If the crime of threat is committed against personnel and assistants working in public or private health institutions in relation to their duties, the penalties shall be increased by half and shall be considered as aggravated circumstances. In this case, the offender shall be punished with imprisonment from nine months to three years.
C) QUALIFIED CIRCUMSTANCES REQUIRING A LESSER PENALTY
Pursuant to the second sentence of Article 106/1 of the Turkish Criminal Code, if the threat is made on the grounds that it will cause significant damage to property or other harm, upon the victim’s complaint, the offender shall be sentenced to up to six months’ imprisonment or a fine.
FREQUENTLY ASKED QUESTIONS ABOUT THE CRIME OF THREAT
1- IS THE CRIME OF THREAT SUBJECT TO MEDIATION?
The basic form of the crime is subject to settlement (TCK 106/1). The settlement procedure is implemented during the investigation stage. If settlement cannot be reached, the trial continues.
2-CAN A DECISION TO DEFER THE ANNOUNCEMENT OF THE VERDICT (HAGB) BE ISSUED FOR THE CRIME OF THREAT?
A decision to postpone the pronouncement of the sentence may be made for prison sentences of 2 years or less.
TCK 106/1: “A person who threatens another person by stating that they will attack their life, body, or sexual integrity shall be punished with imprisonment from six months to two years. If the threat is made on the grounds that the victim will suffer significant financial loss or other harm, upon the victim’s complaint, the offender shall be sentenced to up to six months’ imprisonment or a fine.”
Since the minimum sentence for the basic form of the crime and the aggravated form committed against a woman is 6 to 9 months and the maximum sentence is 2 years, it is possible to benefit from the suspension of the sentence.
Pursuant to TCK106/2, a reduction in the sentence is required in order to benefit from the suspension of the sentence in aggravated cases. If the sentence is 2 years or less as a result of the trial for the aggravated case, it will be possible to benefit from HAGB.
To benefit from HAGB, the following conditions must be met:
The defendant must not have been previously convicted of an intentional crime.
The court must be satisfied that the defendant will not commit another crime
Compensation for any public damage, if applicable
The defendant’s personality traits, attitude and behavior during the trial, and the manner in which the crime was committed, leading to the belief that they will not commit another crime
If a HAGB decision is made, the defendant is subject to a 5-year probation period. If no intentional crime is committed during this period, the case is dismissed.
3-CAN A COMPENSATION LAWSUIT BE FILED FOR A THREAT CRIME?
The victim who has suffered harm from the threat crime may claim material and moral damages.
Moral damages may be claimed for the fear, anxiety, and inner turmoil experienced, while economic losses resulting from threats that cause damage to property may be claimed as material damages.
4-WHAT IS THE PENALTY FOR COMMITTING A THREAT CRIME VIA MESSAGE?
Threatening messages sent via SMS, WhatsApp, email, or other social media platforms constitute the basic form of the crime.
5-IS THE CRIME OF THREAT SUBJECT TO COMPLAINT?
Threats to life, physical integrity, or sexual inviolability are not subject to complaint. The prosecutor’s office will initiate an investigation ex officio even if there is no complaint. The right to complain can be exercised within 8 years. The case is investigated within the statute of limitations.
Threats to cause significant damage to property or other harm are subject to complaint. In such cases, the victim must file a complaint within 6 months. The complaint period begins when the victim learns of the act and the perpetrator. (TCK m.73).
Cases warranting more severe punishment are not subject to complaint. They are investigated ex officio. The right to file a complaint can be exercised within 8 years. The case is investigated within the statute of limitations period.
6-IS IT POSSIBLE TO DEFER THE SENTENCE IN THE CASE OF A THREAT CRIME?
It is the postponement of the execution of a prison sentence under certain conditions. The provisions on postponement of prison sentences do not apply to threats committed against healthcare personnel working in public and private healthcare institutions.
7-CAN A FINE BE IMPOSED FOR A THREAT CRIME?
Article 106/1 of the Turkish Criminal Code provides for a prison sentence of 6 months to 2 years for the basic form of the crime.
This prison sentence cannot be directly converted into a fine, as the law only provides for imprisonment.
However, if the prison sentence is one year or less, the judge may convert it into a fine pursuant to Article 50 of the Turkish Criminal Code.
Pursuant to the second sentence of Article 106/1 of the Turkish Criminal Code, threats against property are punishable by up to 6 months’ imprisonment or a fine. In this case, a fine may be imposed directly.
TCK m.106/2 (aggravated threats) carries a prison sentence of 2 to 5 years.
In this case, the prison sentence cannot be converted into a fine, because the minimum sentence is 2 years and, due to the seriousness of the crime, alternative penalties are not provided for by law.
8- DO WORDS UTTERED IN ANGER DURING A FIGHT OR ARGUMENT CONSTITUTE THE CRIME OF THREAT?
According to the established case law of the Court of Cassation, words spoken during a fight, argument, or in anger that do not pose a concrete danger are often considered expressions of anger/rage rather than threats. If the words do not suggest the possibility of an imminent and serious attack, the crime of threat does not occur. However, it is considered a threat, not ordinary anger. Furthermore, factors such as the perpetrator’s previous behavior, brandishing a weapon, or a history of violence can increase the seriousness of the words. (Supreme Court Decision – 4th Criminal Chamber, E. 2020/27682 K. 2023/748 T. 26.1.2023)
9- If the parties accuse each other of threatening and insulting each other, who is liable?
If the parties have exchanged insults or threats, as a rule, both parties are held liable regardless of the act they committed. In other words, the fact that one person insulted the other does not negate the other person’s act of insulting. Even when the insult or threat is “mutual,” each act is evaluated separately.
If one party resorts to using abusive and threatening language in response to the other party’s abusive and threatening language, the UNJUST PROVOCATION (TCK 29) reduction may be applied.(Supreme Court Decision – 4th Criminal Chamber, E. 2021/27172 K. 2024/4884 T. 17.4.2024)
10- Can a case be brought if the complainant did not file a complaint at the time of the incident but later filed a complaint by presenting evidence?
According to Article 106 of the Turkish Criminal Code, the crime of threat is investigated ex officio (without complaint) if the threat is directed at life, physical integrity, or sexual inviolability. However, threats of “damage to property” or “other harm” are complaint-based.