A significant proportion of digital platform users, presumably in the belief that their identity will never come to light, do not shrink from directing insults and threats at third parties from their accounts. Yet the legislator has not required the parties to come face to face for this offence to arise; statements containing threats voiced in the online environment therefore likewise constitute the offence. Under Art. 106 of the Turkish Penal Code No. 5237, the act may be committed by stating that an attack will be carried out against life, bodily integrity or sexual inviolability, and equally by asserting that loss will be caused in respect of the victim’s assets. Whether a threat relating to assets may be made the subject of proceedings depends on the victim’s complaint. By contrast, a threat carried out by stating that an attack will be made on the life, bodily or sexual inviolability of the person themselves or of a relative is not subject to complaint and is investigated ex officio by the competent authorities.
The widening of the space technology occupies in daily life has increased mobile telephone and internet use while also bringing certain problems with it. Foremost among these are offences committed in the online environment. Just as offences such as insult, sexual harassment or incitement of the public to hatred and enmity may be committed over social networks, threat too is among the offence types frequently encountered by means of information technology. Most perpetrators believe that when they direct threats over social media and the internet at persons towards whom they harbour animosity, or whose views they do not share although they have never met them, they will leave no trace and their identity will not be capable of being established. With the spread of channels such as Facebook, Instagram, WhatsApp and Twitter, the number of offences committed by exploiting the convenience these platforms afford has also risen. Our law, however, prescribes severe sanctions for such acts, and a great many perpetrators face imprisonment or a judicial fine.
What Is the Offence of Threat?
Threat is laid down in Article 106 of the Turkish Penal Code No. 5237, which appears under the heading “Offences Against Liberty”.
Turkish Penal Code No. 5237, Art. 106(1)
“A person who threatens another by stating that they will carry out an attack against the life, bodily or sexual inviolability of that person or of a relative of that person shall be sentenced to imprisonment from six months to two years. Where the threat consists in stating that the person will be caused great loss in respect of their assets or that some other harm will be done, a sentence of imprisonment of up to six months or a judicial fine shall be imposed upon the complaint of the victim.”
The offence may be committed by asserting that an attack will be made on the life, bodily integrity or sexual inviolability of the person themselves or of one of their relatives. Persons may in addition be threatened through the assets they own. In the form directed at assets, the law speaks not of an attack but of great loss or of some similar harm. A threat may accordingly also be made by telling someone that great loss will be inflicted on their assets or that some other harm will be done to those assets. Threats of this kind may be directed only at the victim themselves. For example, while it is possible to threaten a person by saying that their father will be killed, words to the effect that their father’s car will be burned do not give rise to the offence of threat within the meaning of the Turkish Penal Code No. 5237; by contrast, informing the addressee that their own car will be burned constitutes a threat relating to assets.
The offence is complete once it is communicated to a person that they will be subjected to unjust loss or harm; it is sufficient that the infliction of serious and unjust loss has been notified to the victim. In this respect it is among the offences for which no result is required. Nor is there any condition that the act must necessarily be committed face to face. In other words, in the case of threat, as with insult, the law does not require the perpetrator and the victim actually to confront one another in the same setting. A threat may be carried out by words, in writing, by conduct, through symbols, or by any act objectively suitable for that purpose. Accordingly, messages transmitted over social media likewise suffice to satisfy the conduct element of the offence where they are of such a nature as to disturb the victim’s inner peace, restrict their freedom and drive them into anxiety.
Our study entitled The Offence of Threat and Its Penalty may be consulted for the general framework on the subject.
Commission of the Offence Through Social Media and the Internet
The number of users of channels such as Facebook, Twitter, Instagram and WhatsApp increases worldwide every day, and the purposes for which they are used are likewise diversifying. Platforms once preferred solely for socialising and for sharing photographs and video today also serve purposes such as advertising, rapid viral communication and the generation of income. As their use has spread, the number and variety of offences committed over these channels has unfortunately widened as well. That said, even where an offence has been committed from an account, the company concerned may persist in refusing to disclose the IP address belonging to its user. Emboldened by the withholding of IP information, some persons resort to opening fake accounts on the platforms in order to put their malicious purposes into effect. Threat is one of the most widespread information technology offences committed through fake profiles in the belief that identities cannot be established.
Because the perpetrator’s opening of a fake account amounts to rendering themselves unrecognisable, it is assessed as falling within the aggravated form that increases the penalty.
Direct Threats
In this manifestation the act containing the threat is carried out with the victim addressed directly. The offence arises, for example, where a message containing a threat is sent to the victim over any platform, or where a video of that character is transmitted directly to the victim.
Threats in Absentia (With Intent to Convey)
Here the act is not directed at the victim directly; rather, the statement is made to a person known to be capable of conveying it to the victim, with the intent that it be passed on. Conduct of this kind, carried out in the awareness that it will come to the victim’s knowledge, likewise constitutes the offence. A threatening message targeting the victim and sent to the victim’s mother over social media, for instance, constitutes the offence of threat, since it is made with the knowledge and intent that it will be relayed to the victim.
Aggravated Forms Arising in the Online Environment
Commission of the act by way of “the person rendering themselves unrecognisable” gives rise to an aggravated form for which a higher penalty is prescribed. The most typical example of this situation is the commission of the offence through fake accounts created on the internet. The reason this form is treated as aggravating is that it increases the perpetrator’s capacity to intimidate and all but removes the victim’s opportunity to defend themselves.
As is known, a marked increase is observed in offences committed through fake and anonymous accounts. The perpetrator’s concealment of their IP address by using a VPN means that the victim cannot know by whom they are being threatened, and results in the loss of any opportunity to mount a defence.
Another aggravated form encountered on these channels is the commission of the offence jointly by more than one person. Threatening a victim by forming a group on social media, for example, is treated as an aggravated form, since it raises the level of intimidation.
Where a threat is committed by means of the internet and social media with such an aggravated form realised, the perpetrator is sentenced to imprisonment from two to five years.
Complaint, Limitation and Conciliation
A threat committed over the internet is not subject to complaint where it constitutes the basic form of the offence. An act committed by stating that an attack will be carried out against the life, bodily or sexual inviolability of the person themselves or of a relative constitutes the basic form of the offence and is investigated and prosecuted ex officio.
By contrast, where the act has been committed by asserting that great loss will be inflicted in respect of assets or that some other harm will be done, it is subject to complaint.
For detailed information on the scope of the right of complaint, our study entitled The Right of Complaint and the Consequences of Withdrawing a Complaint may be consulted.
If no investigation is initiated within 8 years of the perpetrator and the act becoming known, the offence becomes time-barred under the statute of limitations for prosecution.
In the form regulated in Art. 106(1) of the Turkish Penal Code No. 5237, threat is among the offences requiring the application of the conciliation procedure. In offences falling within the scope of conciliation, this procedure is operated first at both the investigation and the prosecution stage; where conciliation cannot be achieved, the process continues from where it left off. Recourse to conciliation is not available, however, in respect of the aggravated forms of the offence.
Prescribed Penalties
The sanction is determined in Article 106 of the Turkish Penal Code No. 5237. Under the first paragraph of that article, a perpetrator who threatens by stating that harm will be done to the life, bodily or sexual inviolability of a person themselves or of a relative is punished with imprisonment from 6 months to 2 years. Where this basic form of the offence is committed against a woman, the lower limit of the penalty is set at 9 months.
Where the perpetrator acts by stating that they will cause the victim great loss in respect of assets or do some other harm, imprisonment of up to 6 months or a judicial fine comes into play. In this manifestation, investigation is subject to complaint.
The sanction for the aggravated forms is regulated in the second paragraph of the article, and perpetrators who commit these forms are sentenced to imprisonment from two to five years.
Investigation and Prosecution Stages
In a threat committed by stating that great loss will be inflicted in respect of assets or that some other harm will be done, the victim’s complaint is essential for criminal proceedings to begin. So long as there is no complaint, neither the public prosecutor’s office nor the court may conduct an investigation or prosecution with a view to punishing the perpetrator, even if it establishes that the person has been threatened in respect of their assets.
By contrast, where the act has been committed by saying that an attack will be carried out against the life, bodily or sexual inviolability of the person themselves or of a relative, no requirement of complaint applies. Once law enforcement, the public prosecutor’s office or the court learns that this form has been committed, an investigation and prosecution are conducted ex officio with a view to punishing the perpetrator.
It is of course not possible for every act of threat carried out by message or by means of the internet and social media to be noticed by the relevant authorities and made the subject of an investigation. For that reason, even where there is no requirement of complaint, a person subjected to a threat should apply to the police or the public prosecutor’s office and lodge a criminal complaint. In this offence, which is extremely difficult to prove, it is important that the victim share the content of the correspondence relating to the offence with the public prosecutor’s office so that the perpetrator can be identified. In addition, where circumstances so require and the conditions in the legislation are met, it may be decided that access to the content concerned be blocked or that the content be removed from publication. As regards fake accounts, the refusal of platforms such as Facebook, Instagram and Twitter to share IP addresses makes both locating the perpetrator and the task of proof more difficult. Data and source research is therefore conducted by law enforcement, and efforts are made to establish the perpetrator’s identity by special methods.
For details on access blocking and the removal of content, our study entitled Blocking of and Removal of Access to Internet Publication Content may be consulted.
Independent Legal’s Assessment
Two elements stand out as determinative of the outcome in online threat files: which paragraph the act falls within, and whether the perpetrator’s identity can be established technically. Whether the statement is directed at life, bodily integrity or sexual inviolability, or instead at assets, directly affects the requirement of complaint, the availability of conciliation and the range of penalty prescribed. Where this characterisation is not made correctly from the outset, an act that ought to be investigated ex officio may be treated as though it were subject to a complaint period, or the process may be delayed through the converse error.
Anonymising methods such as the use of fake accounts and VPNs make the burden of proof heavier. In files of this kind, presenting message contents, account information and time stamps with their integrity unimpaired determines the direction of the law enforcement inquiry. In a concrete dispute, the matters to be given priority are as follows:
- Determination of the legal interest at which the threatening statement is directed and, accordingly, of the requirement of complaint
- Recording of messages, profile information and date information in unimpaired form
- Express assertion in the application of any claim of an aggravated form such as a fake account, anonymisation or joint commission
- Determination of the date on which the perpetrator and the act became known, and monitoring of the 8-year statute of limitations for prosecution
- Raising without delay of requests for access to the content to be blocked and for it to be removed from publication
- Advance assessment of the possible consequences of the conciliation procedure in respect of the basic form
Independent Legal provides legal support throughout the entire process in offences committed by means of information technology, from the preparation of the criminal complaint to the follow-up of the investigation and representation at the trial stage.