A harsh, disturbing or hurtful statement cannot be punished as an insult merely because of those qualities. Yet freedom of expression does not give anyone unlimited license to attack another person's honour and reputation. The legal boundary is determined by weighing together the statement as a whole, the subject of the debate, its factual basis, the position of the person addressed and the weight of the sanction. The meaning of a word in a dictionary is only one part of this review.
This article examines the balance between Article 26 of the Constitution and the protection of personality, focusing on the decision in Osman Palçik, Application No. 2018/25073, December 15, 2020. In criminal law, insult is one matter; in private law, an infringement of personality rights is another; and in constitutional law, an interference with freedom of expression is a third. Examining the same statement in these areas does not mean it will produce the same result in each of them.
Which expressions does freedom of expression protect?
Article 26 of the Constitution protects the freedom to hold opinions and to impart and disseminate them. The protection may cover written texts, speeches, images, political evaluations and digital posts. The fact that an opinion is not shared by the majority does not take it outside the field of freedom of expression. In particular, the language used in public debate cannot be expected to be wholly gentle, neutral or formal.
However, constitutional protection and the lawfulness of a restriction are different questions. First, it is determined whether the statement falls within the scope of freedom of expression. Then it is examined whether the interference has a legal basis, pursues a legitimate aim, and is necessary in a democratic society and proportionate. Protecting another person's honour and reputation is a legitimate aim, but the existence of that aim does not show that the chosen sanction is necessarily required.
Legal assessment: In an insult dispute, the task of the court is not to declare one right superior from the outset. It is to identify the rights at stake in the concrete case and to strike a reasoned balance between them. A decision that merely states the words were rude, or merely refers to freedom of expression, may fail to explain the whole dispute.
How is a factual allegation distinguished from a value judgment?
A factual allegation is a description of an event whose truth can be investigated. An example is a claim that a person received a particular payment on a particular date. A value judgment, by contrast, contains an evaluation, such as the view that a manager's policy was unsuccessful or unfair. A value judgment is not expected to be mathematically provable. Nevertheless, a severe evaluation that is entirely detached from the facts on which it rests may be examined differently.
This distinction cannot be made by looking only at the word used. A statement that appears to accuse someone of a crime may, within the context of the whole debate, be a figurative political criticism. In another case the same word may amount to a concrete and baseless accusation. The legal nature of a statement is derived from its context; no automatic result can be attached to a word across all cases.
What did the Constitutional Court decide in the Osman Palçik case?
The application concerned a criminal conviction for statements addressed to a politician. The Constitutional Court examined together the public debate in which the words were used, the political position of the person addressed and the factual basis of the evaluations. The decision also treated certain criminal proceedings against the person addressed as part of the context. That fact cannot be read as meaning that the addressee's guilt had been finally established.
Direct quotation from the decision
“The court did not seek to strike a balance between the applicant's freedom of expression and the complainant's right to the protection of honour and reputation”
Where the quotation appears: Constitutional Court, Osman Palçik, Application No. 2018/25073, December 15, 2020, § 44. The passage quoted is the relevant part of the sentence in that paragraph.
The assessment in §§ 40–44 of the decision shows that statements must be examined not in isolation, but within the subject matter of public interest and the political debate. Persons who exercise public power and carry on political activity have a broader duty to tolerate criticism. However, this breadth does not mean that personality rights disappear altogether.
The Court's ruling: The Constitutional Court unanimously found a violation of freedom of expression under Article 26 of the Constitution, and referred the case to the competent court for a retrial to remedy the consequences of the violation. This outcome is not a general permission to use the words in question in every context. The violation concerns the fact that the constitutional balancing was not properly carried out in the concrete case.
Our assessment: The practical value of the decision lies not in providing a list of insulting words, but in showing how a decision should be reasoned. A person who directs the same expression at another person, for a different purpose and without a factual basis, cannot obtain a guaranteed result by relying on this decision alone.
Which criteria matter when assessing criticism against insult?
The public nature of the debate and the position of the addressee
Matters such as the use of public resources, municipal services or the performance of public duties may attract strong public interest. The political position of the addressee and the connection between the statement and their office are therefore important. Attacks directed at areas of private life unrelated to the public debate, however, cannot be defended on the same grounds.
The broad limits of criticism applicable to a politician do not mean that the same measure of tolerance applies to every public official or to every private individual. The nature of the office, the person's participation in the debate, the language they themselves used and whether they had an opportunity to reply are also assessed separately.
The statement as a whole, its medium and its factual basis
A single-sentence screenshot that does not show the earlier post or the accusation it answers may be misleading. The court should take into account the whole conversation, the sequence of posts, the caption of an image and whether the addressee can be identified from it. Sharing a link is not treated in the same way in every case as adopting all the claims in the linked content as one's own statement.
When the factual basis is assessed, it is examined whether the report or document actually exists, on what date the statement was made and what information was knowable at that time. Information that comes to light later does not replace the circumstances in which the earlier statement was made. However, continuing to maintain an allegation with the same certainty after learning that it is wrong may require a new assessment.
The weight of the sanction and its deterrent effect
A criminal prosecution, a conviction, a deferred announcement of the judgment or a compensation obligation may each carry consequences of different weight. The review is not limited to whether the sentence was actually enforced. The effect that may lead a person to refrain from taking part in public debate in future is also taken into account. On the other hand, a claim of deterrent effect does not by itself make every sanction disproportionate; the concrete weight and the necessity of the sanction must be explained.
Why should the current procedure for insult be checked separately?
Article 125 of the Turkish Penal Code No. 5237 (TCK) defines the offence of insult, and Article 128 regulates immunity for allegations and defence. The elements of criminal liability are one matter; procedural matters such as advance payment (önödeme), complaints and the roles of other institutions must be evaluated separately. Whether a statement is criticism is a question of substantive criminal law. That a file falls within the advance payment procedure does not, by itself, resolve whether the statement is constitutionally protected.
Following the amendment made by Law No. 7571, which entered into force on December 25, 2025, the scope of advance payment for the offence of insult was expanded. According to the current statement of the Ministry of Justice (Adalet Bakanlığı), insult acts other than those falling under subparagraph (a) of the third paragraph of Article 125 TCK are covered. Because of the exception for insulting a public official on account of their duties, it cannot be said that the same procedure applies to all insult files. The date of the act and the transitional provisions must also be examined file by file.
The Constitutional Court's norm review decision No. E.2024/173, K.2025/277, dated December 25, 2025, rejected the requests for annulment directed at the relevant rules in Article 125(3)(a) and Article 131(1) of the TCK. Therefore, this decision should not be reported as the abolition of the insult-of-a-public-official exception. Constitutional review of whether a particular statement is criticism continues separately.
Are a criminal case, compensation and content removal the same route?
No. In a criminal investigation, the elements of the offence and criminal liability are examined. In a compensation action, the unlawful infringement of personality rights, the damage and the related conditions of liability are examined. In a request to remove internet content or restrict access, the conditions for protection against an ongoing publication and the proportionality of the measure matter. The outcome of one route does not show that all the conditions of another route are automatically met.
In particular, arguments based on former Article 9 of Law No. 5651 should not be repeated as the current procedure for internet publications. Following the annulment of that article, the general legal remedies for protecting personality rights and the special regulations are assessed according to the type of interference. Content removal is discussed in detail in a separate article in this series.
How should the file be prepared and which remedies should be followed?
At the first stage, the original form of the statement should be preserved. The date, the account or publisher, the full address, what came before and after the statement, the visibility setting of the post and, where available, the supporting documents should be recorded together. Partial or cropped images that give the impression the person accepted an accusation should be avoided in favour of completeness. Whether the records were obtained lawfully is also taken into account.
In a defence, it is not enough to say only “I exercised my freedom of expression.” It should be explained why the debate was public, why the statement is regarded as a value judgment or a factual statement, what its basis is, and why the sanction is considered disproportionate. A person who claims that their honour and reputation were violated should also specify which statement targeted them, why it is false or demeaning, and what its effects were.
In ordinary legal remedies, the substance of the constitutional objection must be raised. An individual application (bireysel başvuru) to the Constitutional Court is, as a rule, made within thirty days after the available and effective remedies have been exhausted; the starting date is linked to learning of the final decision. The time limits for a complaint, a regional appeal (istinaf), an appeal to the Court of Cassation (temyiz) and an individual application must not be confused. The Constitutional Court is not a higher appellate authority that re-examines a file simply because the outcome was not accepted.
For details of the subject, see our articles on constitutional rights in Constitutional Court decisions, the balance between press freedom and honour and reputation, dismissal over a social media post and the boundary between terrorist propaganda and freedom of expression. For our firm's work in this area, see the Constitutional Court and European Court of Human Rights (AİHM) applications page.
Conclusion
The line between freedom of expression and insult cannot be drawn by an abstract ban on words. The court should assess the statement in its context and separate fact from value judgment, public debate from personal attack, and the purpose of a sanction from its severity. The Osman Palçik decision shows that failure to carry out this balancing may give rise to a constitutional violation. A strong legal assessment links the outcome of a decision to concrete facts and does not carry its consequences automatically over to other files.
Frequently Asked Questions
Is every harsh statement directed at a politician protected by freedom of expression?
No. Political criticism enjoys wide protection. However, the public context, the factual basis, the statement as a whole and personality rights are assessed together. Decisions do not provide unlimited protection for every harsh word.
Does deleting a post remove criminal or compensation liability?
Deletion does not by itself remove the earlier publication. The duration and accessibility of the publication, any correction, and the effect of the deletion may be assessed in the concrete dispute. The legal consequence needs to be examined separately.
Does sharing someone else's report remove liability entirely?
No. The manner of sharing, whether the claim was adopted, the source, the possibility of verification and the context of the statement all matter. It is also not correct that every act of sharing is treated as identical to the original author's words.
Are all insult offences subject to the same procedure?
No. The current advance payment rule, the exception for insulting a public official on account of their duties and the date of the act must be examined together. Earlier explanations about victim–offender mediation (uzlaştırma) cannot be applied to all files unchanged.
Is a Constitutional Court violation judgment the same as an acquittal?
No. A violation judgment in an individual application differs from an acquittal by a criminal court. Where a retrial is ordered, the relevant court must remedy the violation and its consequences in line with the reasoning of the violation judgment.
Sources and legal bases
- Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), in particular Articles 13, 17, 26 and 148.
- Constitutional Court, Osman Palçik, Application No. 2018/25073, December 15, 2020, §§ 40–45 and the operative part. Full text of the decision; access may require a login.
- Turkish Penal Code No. 5237 (5237 sayılı Türk Ceza Kanunu), Articles 75, 125, 128 and 131; Ministry of Justice, general information on advance payment (Adalet Bakanlığı, önödeme hakkında genel bilgiler), explanation of the amendment made by Law No. 7571.
- Constitutional Court, E.2024/173, K.2025/277, December 25, 2025, operative part; Official Gazette, May 4, 2026, No. 33243.
- Law No. 6216 (Anayasa Mahkemesinin Kuruluşu ve Yargılama Usulü Hakkında Kanun), Articles 45–50.
- Constitutional Court, Fundamental Rights: Summaries of Decisions, June 2025, the thematic starting source. The reasoning and operative part of the decision were assessed from the full text.