The Crime of Slander According to the TCK and the TBK

The Crime of Slander According to the TCK and the TBK. The legal order is built upon two fundamental pillars to preserve social peace and the legitimacy of state authority: the immunity of individual honor and dignity, and the integrity of the judicial mechanism. “Calumny” (İftira), located at the intersection of these two protected legal interests, constitutes one of the most complex and technical areas of analysis in the Turkish legal system, involving both criminal law (public sanctions) and private law (liability for damages). This report provides an in-depth analysis of the act of calumny, which constitutes a crime under Article 267 of the Turkish Penal Code (TCK) No. 5237 and a tort under Articles 49 and 58 of the Turkish Code of Obligations (TBK) No. 6098, in light of procedural law rules, statutes of limitations regimes, and established case law of the Court of Cassation (Yargıtay).

The primary objective of the report is to reveal how the act of calumny is evaluated with different parameters before criminal courts versus civil courts, the decisiveness of the “special intent” element, the issue of whether criminal court decisions are binding on the civil judge (TBK Art. 74), and the fine line between the “constitutional right to complain” and “attack on personal rights.” In this context, “grey areas” where a perpetrator may face civil liability for compensation even if acquitted of criminal liability are identified, and a theoretical and practical roadmap is drawn for practitioners.

Section 1: Dogmatics of the Crime of Calumny and the Protected Legal Value

Within the legal systematic, the crime of calumny is evaluated not only as a crime committed against the individual but also, and primarily, under the category of “Crimes Against the Judiciary.” This dual character plays a decisive role in the interpretation of the material and moral elements of the crime.

1.1. The Dual Nature of the Protected Legal Interest

The legal interest protected by the crime of calumny is defined in doctrine and judicial decisions as a mixed (eclectic) structure.

Public Interest (Reputation of the Judiciary): The primary and dominant interest is the protection of the state’s judicial authority and the judicial mechanism. Calumny sabotages the “truth-finding” function of the state’s investigation and prosecution organs by occupying them with fictitious events. The judicial organs spending unnecessary time investigating innocent persons leads to a waste of public resources and disruption in the pursuit of real criminals. More importantly, the use of the justice mechanism as a “tool of oppression” shakes the public’s confidence in the judiciary.
Individual Interest (Right Not to Be Stained): The second protected interest is the personal rights of the victim. The “right not to be stained,” guaranteed by the Constitution, includes not being humiliated before society with unjust accusations, protection of honor and dignity, and not having one’s personal liberty and security threatened. Calumny leaves the individual facing the threat of an unjust investigation, severely damaging their moral integrity and social status.

1.2. Material Elements of the Crime: Typicity Analysis

For an act to be qualified as “calumny” under TCK 267, the material elements foreseen in the law must be fully realized. Each of these elements determines the boundaries of the crime and distinguishes it from tort liability.

1.2.1. The Act Element: Imputation of an Unlawful Act

The movement element of the crime is “imputing an unlawful act” to the victim. The nature of this imputation is critical for the formation of the crime:

Subject of the Imputation: It is a condition that the imputed act requires a sanction under Turkish legislation. This sanction can be a “crime” in the sense of the TCK, an administrative sanction (misdemeanor), or a disciplinary penalty in the sense of disciplinary law. For example, saying a civil servant “took a bribe” (imputation of a crime) or “does not comply with working hours” (imputation of a disciplinary offense) can constitute the subject of the crime of calumny. However, the imputation of an act that is not legally prohibited but only morally condemned (e.g., “is not faithful to his debts” or “lies a lot”) does not constitute the crime of calumny, but may constitute the crime of insult (TCK 125) if conditions are met.
Definiteness of the Imputation: The imputation must be based on a concrete fact. Abstract statements like “This person is bad” are not evaluated within the scope of calumny. The imputation must be concrete enough in terms of “place, time, and manner of occurrence” to mobilize the competent authorities.
Addressee of the Imputation (Competent Authorities): For the crime of calumny to occur, the imputation must be delivered to authorities authorized to conduct investigations and prosecutions or to impose administrative sanctions. These authorities are Chief Public Prosecutor’s Offices, law enforcement agencies (police, gendarmerie), Governorships, District Governorships, administrative boards authorized to accept crime reports, and embassies/consulates for crimes committed abroad.
- Via Press and Publication: TCK 267 accepts making the imputation “via press and publication” as a sufficient method for the formation of the crime. Since prosecutors have a duty to act ex officio for imputations made via the press, unfounded accusations made in this way are considered indirectly reported to the competent authorities.

1.2.2. Perpetrator and Victim

Perpetrator: Anyone can be the perpetrator of the crime. It is not a specific crime. However, if a public official commits calumny through minutes prepared pursuant to their duty, a concurrence relationship with “Forgery of Official Documents” (TCK 204) and “Abuse of Office” (TCK 257) crimes may arise.
Victim: The victim of the crime of calumny is the innocent person who has not committed the imputed act. It is not a condition that the victim’s identity be specified by name; it is sufficient if it is “determinable” to whom the imputation is directed from the statement made (Matufiyet principle). Imputations made about deceased persons do not constitute the crime of calumny under TCK 267, as deceased persons cannot be investigated; this act can only constitute the crime of “Insulting the Memory of a Person” (TCK 130).

1.2.3. Presumption of Innocence and “Knowledge of Innocence”

The most distinctive material element of the crime of calumny is that the victim did not commit the imputed act. If the victim actually committed the imputed crime, the notification made is in the nature of a “crime report” and is lawful. The innocence of the victim is an objective condition. However, this objective condition must be combined with the subjective knowledge of the perpetrator. That is, the perpetrator must know that the victim is innocent.

Section 2: Moral Element of the Crime and “Special Intent” Theory

The most fundamental parameter separating the crime of calumny from similar crime types (Fabrication of a Crime, Insult) and especially from tort liability is the moral element (mens rea). In the Turkish Penal Code systematic, the crime of calumny is one of the typical crimes where general intent is not sufficient, and special intent (motive) is sought.

2.1. Elements of Intent: Knowledge and Will

In terms of general intent, the perpetrator must know and will that they are imputing an unlawful act to the victim and that this imputation reaches the competent authorities. However, the wording of TCK 267 and established case law of the Court of Cassation require a deeper analysis of the perpetrator’s mental state.

2.1.1. The “Knowing They Did Not Commit It” Criterion

The phrase “knowing that they did not commit it” is explicitly included in the text of the law. This phrase points to direct intent and indicates that the crime of calumny cannot be committed with probable intent (dolus eventualis).

Condition of Certain Knowledge: The perpetrator must be absolutely sure that the person they are accusing did not commit that crime. Notifications made on suspicion, hesitation, or guessing do not constitute the moral element of the crime of calumny.
Error and Mistake: If the perpetrator reported the victim “assuming” they committed the crime, but it turns out as a result of the investigation that the victim is innocent, the perpetrator cannot be held responsible for the crime of calumny. Because here, the perpetrator’s will is not “to punish an innocent person,” but “to report a criminal.” This situation can also be evaluated within the framework of “error” provisions under TCK Article 30.

2.2. Special Intent (Motive): The Purpose Element

For the crime of calumny to occur, it is not enough for the perpetrator to merely know that the victim is innocent; they must also act with a specific purpose.

To Ensure Initiation of Investigation and Prosecution: The ultimate goal of the perpetrator is to ensure the victim enters the gears of the judicial mechanism.
To Ensure Imposition of Administrative Sanction: The TCK has determined not only judicial penalties but also administrative sanctions (e.g., traffic fines, disciplinary penalties, disqualification from profession) as targets of the crime of calumny.

The existence of this special intent functions as a litmus test in determining the boundary between the “Constitutional Right to Complain” and “Calumny.” The perpetrator’s purpose is not the revelation of the material truth, but that the person whose innocence they know is unjustly sanctioned.

Section 3: Qualified Forms of Calumny and Penal Sanction System

Article 267 of the TCK foresees a graduated punishment system (aggravating causes) beyond the basic form of the crime, depending on the extent of the harm suffered by the victim and the intensity of the perpetrator’s act. This system also includes forms of the crime “aggravated by result.”

The following table summarizes the penal sanction systematic in the basic and qualified forms of the crime of calumny:

Form of the Crime	Legal Basis	Nature of the Act	Penal Sanction
Basic Form	TCK 267/1	Imputation of unlawful act to competent authorities.	Imprisonment from 1 year to 4 years.
Fabricating Material Evidence	TCK 267/2	Producing fake evidence to make the calumny credible (e.g., planting drugs).	Penalty is increased by half.
Application of Protective Measure	TCK 267/3	Application of a measure other than detention or arrest (e.g., travel ban) on the victim.	Additionally punished for deprivation of liberty (as indirect perpetrator).
Issuance of Arrest Decision	TCK 267/4	Arrest of the victim due to calumny.	Additionally punished for the qualified form of deprivation of liberty.
Fixed-Term Imprisonment Conviction	TCK 267/5	Victim being tried and sentenced to imprisonment.	Imprisonment term of 2/3 of the penalty received by the victim.
Life Imprisonment Conviction	TCK 267/5	Victim receiving life or aggravated life imprisonment.	Imprisonment from 20 years to 30 years.
Commencement of Execution	TCK 267/6	Commencement of execution of the victim’s unjust conviction.	The penalty given is increased by half.
Application of Other Sanctions	TCK 267/7	Application of a judicial or administrative sanction other than imprisonment on the victim.	Imprisonment from 3 years to 7 years.

This table shows that the crime of calumny is not just a simple declaration crime, but a very serious crime type where the penalty can go up to 30 years depending on the effect created on the victim.

3.1. Effective Remorse (TCK 269)

The legislator has regulated the institution of “Effective Remorse” (Active Repentance) to encourage the perpetrator to turn back from their mistake in the crime of calumny. For effective remorse to be applied, the perpetrator must personally and voluntarily retract their calumny. Reduction rates vary according to the stage at which remorse is shown:

If retracted before the investigation starts: Up to 4/5 of the penalty can be reduced.
If retracted after investigation starts but before prosecution (indictment): Up to 3/4 of the penalty can be reduced.
Before the verdict is given: Up to 2/3 of the penalty can be reduced.
After the verdict but before execution: Up to 1/2 of the penalty can be reduced.

Section 4: Private Law (Liability for Compensation) Arising from the Act of Calumny

While criminal liability aims to punish the perpetrator and protect public order, civil liability focuses on compensating the damage suffered by the victim. The act of calumny is characterized in private law doctrine as a typical “Tort” (TBK Art. 49) and “Attack on Personal Rights” (TBK Art. 58).

4.1. Constitutive Elements of Tort Liability

For compensation liability to arise due to an act of calumny, the existence of four basic elements foreseen in TBK Art. 49 is sought:

Unlawful Act: Imputing a crime to an innocent person is per se unlawful as it violates personal values protected by the legal order (honor, dignity, right not to be stained). Justification reasons (e.g., immunity of claim and defense, freedom of the press) must not exist.
Damage: The victim must have suffered damage due to this act.
- Pecuniary Damage: Losses in assets such as job loss due to calumny, loss of commercial profit, attorney fees paid during the investigation process, travel expenses.
- Non-Pecuniary Damage: The pain, suffering, decrease in joy of life, and shaking of reputation in society felt by the person.
Causal Link: There must be an appropriate cause-and-effect relationship between the resulting damage and the perpetrator’s act of calumny. For example, if the person slandered has a heart attack due to this distress, the existence of the causal link should be discussed.
Fault: The concept of “fault” in civil court covers a much wider spectrum than “special intent” in criminal law. This distinction is the most critical difference detailed in later sections of the report (Section 5). For compensation, it is not a condition that the perpetrator threw the calumny “intentionally”; acting “negligently,” making an accusation carelessly without sufficient research, is also considered fault.

4.2. Non-Pecuniary Damages Claim of Legal Entities

TBK Art. 58 regulates that “anyone” who suffers damage from the violation of personal rights can claim non-pecuniary damages. Although debated in doctrine, established case law of the Court of Cassation (Assembly of Civil Chambers decisions) accepts that legal entities (companies, foundations, associations) can also claim non-pecuniary damages. Slanders directed at a company such as “evading taxes,” “laundering money,” or “fraudster” damage that company’s commercial reputation, brand value, and reliability in the market. In this case, the legal entity can claim non-pecuniary damages due to “loss of prestige,” not “felt pain and suffering.”

4.3. Burden of Proof Regime (HMK 190)

In civil procedure, the burden of proof belongs to the claim owner as a rule (HMK Art. 190/1). In a compensation lawsuit due to calumny, the plaintiff (victim) is obliged to prove the following points:

That the defendant made an imputation against them.
That this imputation is untrue (An acquittal decision or a decision of non-prosecution is strong evidence in this regard).
That they suffered damage due to this act.

However, the defendant proving that “the imputation is true” (right to prove) is a defense tool that removes unlawfulness. The Court of Cassation, in lawsuits regarding attacks on personal rights, may deem it sufficient for the plaintiff to present signs verifying their claim at the level of “approximate proof” and may reverse the burden of proof in cases contrary to the ordinary course of life.

Section 5: Critical Differences and Interaction Between Criminal and Civil Liability

This section of the report reveals the “two-faced” nature (like the face of Janus) of the crime of calumny. The fact that an act does not constitute a crime (acquittal) does not mean it will not constitute a tort (absence of compensation). This distinction should be examined under the headings “Nature of Fault,” “Binding Effect of Court Decisions,” and “Limits of the Right to Complain.”

5.1. Right to Complain vs. Calumny: Where Does the Limit Begin?

The area where civil and criminal liability conflict most is the “Freedom to Claim Rights” and “Right to Complain” regulated in Article 36 of the Constitution.

Criminal Law Perspective (Narrow Interpretation): The criminal court focuses on the existence of “special intent” when evaluating the perpetrator’s act. If the perpetrator has even the slightest sign that the victim is guilty (e.g., seen at the scene, has a similar criminal record) and complains with this suspicion (even if the suspicion is groundless), the crime of calumny does not occur. Because the perpetrator did not attack a “known innocence,” but shared their suspicion with the state. The Assembly of Criminal Chambers of the Court of Cassation persistently emphasizes that the act will not constitute the crime of calumny in case of “exercising the constitutional right to complain.”
Private Law Perspective (Broad Interpretation): The civil judge examines whether the act reaches the dimension of “abuse of right” (TMK Art. 2). Although the right to complain is sacred, if this right is used solely to harm another or involves tarnishing a person with careless accusations unsupported by material facts and contrary to the ordinary course of life, the civil judge may rule for compensation.

As stated in precedent decisions of the Assembly of Civil Chambers of the Court of Cassation (e.g., 2019/424 K., 2021/973 K.); for a complaint to be considered lawful, “sufficient signs” must exist. Complaints made with absolutely no evidence or logical suspicion, directed solely with a motive of hostility, even if resulting in acquittal in criminal court due to the principle of “suspect benefits from doubt,” can be characterized as “unjust complaint” in civil court and be subject to compensation.

5.2. TBK 74 and the Effect of Criminal Court Decision on the Civil Judge

The question “Does the acquittal decision of the criminal court bind the civil judge?” is the most strategic legal problem of calumny lawsuits. TBK Art. 74 (Old BK Art. 53) regulates this relationship and foresees “limited dependence,” not absolute independence.

5.2.1. Criminal Decisions Binding the Civil Judge

The criminal court decision binds the civil judge (compensation lawsuit) definitively in the following cases:

Conviction Decisions: If the criminal court says “the defendant threw this calumny and it is a crime,” the civil judge cannot say “no, the act is not unlawful.” They can only discuss the amount of compensation.
Acquittal Establishing Material Fact: If the criminal court gives an acquittal decision by establishing a material fact such as “the defendant did not write this petition,” “the event never occurred,” or “the defendant was abroad on that date,” this determination binds the civil judge. The civil judge cannot decide contrary to this material truth.

5.2.2. Criminal Decisions Not Binding the Civil Judge

Acquittal decisions given on the following grounds do not bind the civil judge; that is, the perpetrator may have to pay compensation even if acquitted:

Insufficiency of Evidence (Suspect Benefits from Doubt): Since 100% proof is sought in criminal proceedings, the defendant is acquitted in case of doubt (CMK 223/2-e). However, since conscientious conviction and signs are sufficient in civil proceedings, the civil judge may conclude that “the tort was committed” with the same evidence.
Absence of Elements of Crime (Absence of Intent): The perpetrator may have been acquitted because “special intent (knowing innocence)” could not be proven (CMK 223/2-c). However, if the civil judge determines that the perpetrator acted with “gross negligence” or “carelessness” (fault), they can rule for compensation. TBK Art. 74 explicitly commands that “the civil judge is not bound by the criminal judge in the evaluation of fault.”

Example Scenario: A suspects B of theft and complains. Camera recordings are not clear. The Criminal Court acquits A of calumny because it cannot be proven that A knew of B’s innocence. However, the Civil Court can sentence A to non-pecuniary damages by stating that A accused B openly without conducting any research and without reasonable suspicion, and that this is “careless behavior” (fault).

Section 6: Statute of Limitations and “Extended Statute of Limitations” Risk

In liabilities arising from the act of calumny, the biggest legal weapon for victims and the biggest risk for perpetrators is the “extended criminal statute of limitations” (TBK 72/1, sentence 2) rule. This rule extraordinarily extends the duration of compensation lawsuits.

6.1. Civil (Compensation) Statute of Limitations

Under normal circumstances, a compensation lawsuit arising from tort must be opened within:

Subjective Period: 2 years from the date the victim learns of the damage and the perpetrator.
Objective Period: In any case, within 10 years from the date the act was committed (TBK Art. 72).

6.2. Extension of Criminal Statute of Limitations (Extended Period)

Since the act of calumny also constitutes a crime under the TCK, the exception in TBK 72/1 comes into play: “If the compensation arises from an act requiring a penalty for which the penal laws foresee a longer statute of limitations, this statute of limitations applies.”

The statute of limitations for prosecution in TCK Article 66 constitutes the periods below and applies exactly to the compensation lawsuit:

Basic Form (1-4 years imprisonment): The statute of limitations for prosecution is 8 years.
Qualified Form (If Victim Gets Life Imprisonment): Since the perpetrator will be tried with 20-30 years of imprisonment, the statute of limitations can go up to 20 or 30 years.

Approach of the Assembly of Civil Chambers of the Court of Cassation: The Court of Cassation does not stipulate that a criminal lawsuit must have been filed for the application of the extended statute of limitations. Even if the perpetrator has died, no criminal lawsuit has been filed, an amnesty has been issued, or the criminal lawsuit has been dropped due to statute of limitations, the civil judge examines the “criminal nature” of the act and applies these long periods (8, 15, 20 years) to the compensation lawsuit. This grants calumny victims the right to file a compensation lawsuit even if 2 years have passed since learning of the event (e.g., in the 7th year).

The table below presents a comparative analysis of statute of limitations periods:

Nature of the Act	Civil Statute of Limitations (TBK 72)	Criminal (Extended) Statute of Limitations (TCK 66)	Applicable Period
Simple Calumny	2 Years / 10 Years	8 Years	8 Years
Victim Received Life Imprisonment due to Calumny	2 Years / 10 Years	30 Years	30 Years
If Perpetrator is 15-18 Years Old	2 Years / 10 Years	5 Years 4 Months (Reduced)	5 Years 4 Months (If criminal period is short, TBK period does not shorten; the longer one applies)

Section 7: Conclusion, Evaluation, and Implementation Recommendations

The crime of calumny is founded upon one of the most delicate balances of the legal system. As a result of the comprehensive analysis, it is observed that criminal and civil liability regimes operate independently but interactively. The basic findings and expert opinion conclusions of the report are as follows:

The Gap in the Element of Will: While the criminal court seeks that the perpetrator “definitively knew the victim’s innocence” (special intent) for punishment; the civil court may deem the perpetrator’s “careless, negligent, or malicious” complaint (fault) sufficient for compensation. Therefore, clients acquitted in a criminal case should not be guaranteed that “the legal process is over.”
The Ground for Acquittal is Vital: For a criminal lawyer, a client’s acquittal is a success; however, for a compensation lawyer, “on what ground” the acquittal was given (insufficiency of evidence? absence of crime? commission of the charged crime not proven?) is of vital importance. An acquittal due to “insufficiency of evidence” does not eliminate the compensation risk.
Extended Statute of Limitations Trap: The fact that the act of calumny constitutes a crime effectively deactivates the short 2-year statute of limitations in compensation lawsuits and spreads the process over at least 8 years. Defense attorneys should not skip this detail when putting forward the statute of limitations defense, and plaintiff attorneys should know they can rely on the extended statute of limitations even if they miss the 2-year period.
Corporate Reputation Management: Companies and legal entities facing baseless accusations (commercial calumny) should not settle for just a refutation or criminal complaint; they should file a non-pecuniary damages lawsuit for “damage to commercial reputation” pursuant to TBK 58, thereby deterring the slanderer with economic sanctions as well.

In conclusion; calumny is not just an article of the TCK, but the most concrete manifestation of the boundary struggle between the constitutional freedom to claim rights and personal rights. It is essential for legal practitioners to correctly manage the “transitivity” and “difference in standard of proof” between these two areas for the establishment of the right to a fair trial.

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