The Crime of Provoking The Public Hatred, hostility within the scope of hate speech

In the last period, started mentioning new types of crime and speeches in our country and the world together decomposition of identity. Although based on a long history as a date, especially in the last period hate speeches and actions issued as a crime type in national law; reason for limiting freedom of expression in international law. "Provoking the Public to Hatred, Hostility" issued in article 216/1 of Turkish Criminal Code is one of the type of hate speech. Our study aims to analyse hate speech and in this regard provoking people to hatred, hostility.Due to under hate speech, hate crimes and discrimination headings are hate expressions in the field of national law and international law, these concepts are included as a priority in our study. As contents of these concepts are explained, mentioning that individuals suffering from these concepts into action act to victims with prejudice and profoundly influence the members of the group in which. In our study, stated that victim indivuduals and groups are referred to fear and have a feeling that exclusion from society; shake confidence to law and public because of state not to take action. Although prejudice underlines this headings that taken part in our study, all of tham are different each other. Namely;At the present time, there is not only one issuement about hate crime. Organization for Security and Co-Operation in Europe make issuement about this subject comprehensively. According to this issuement "A) Any criminal offence, including offences against persons or property, where the victim, premises, or target of the offence are selected because of their real or perceived connection, attachment, affiliation, support, or membership with a group as defined in Part B.xviiiB) A group may be based upon a characteristic common to its members, such as real or perceived race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or other similar factor."Although there is not a definition or comprehensive about hate speech, Recommendation No. R (97) 20 of the Committee of Ministers to Member States on Hate Speech is only a definition in the field of international. According to this "theterm "hate speech" shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin."United Nations Human Rights Commitee defines disrimination like this "any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms." According to jurisprudence of European Court of Human Rights "In point of article 14 of European Convention On Human Rights, if inequality on a conduct has not objective and reasonable rightness, namely has not legitimate aim or has not reasonable proportionality between means and aim, it will be discrimination."Due to on the basis of the definitions of the concepts, "Provoking the public to hatred, hostility" issued in article 216/1 of Turkish Criminal Code is accepted as one of the type of hate speech in our study. Hence, form of expression of intolarance on the basis of and hate provoking, emitting, praising expressions are charged within the scope of this crime.In our study, mentioned that historical development in the Ancient Greek Law, Roman Law and England, France, Italy, Germany, so seen that the crime wasn't arrenged as same name in these laws, was issued as "incentive and incitation".Within the scope of the thesis topic, even direct issuement about the crime of provoking the public to hatred and hostility is not encountered in international law; xixissuement for preventing hate speech and discrimination, providing freedom of expression, freedom of thought, conscience and religion contribute that the crime enter to national laws. Aforementioned international law documents have the characteristics of recommendation or negative covenant. United Nations International Covenant on Civil and Political Rights and United Nations International Convention on the Elimination of All Forms Racial Discrimination are international documents have the characterics of negative covenant. European Convention on Human Rights, European Social Charter, Framework Convention for the Protection of National Minorities, Convention on Cybercrime, Additional Protocol to the Convention on Cybercrime, European Union Charter of Fundemantal Rights, are regional documents have the characterics of negative covenant. Recommendations of Committee of Ministers of the Council of Europe, resolutions of Council of Europe Parliamentary Assembly, reports of Venice Commission, reports of European Commission against Racism and Intolarance have the characteristics of recommendation.In our study, national legislation of Germany, France, Italy and England are researched and seen that the crime of provoking people to be rancorous and hostile is issued in the criminal code and Youth Protection Act in Germany, in the criminal code and liberty of press code in France, in the criminal code in Italy and in the Public Order Act in England.In the second chapter of our study, before mentioning that elements of provoking the public to hatred, hostility issued in article 216/1 of Turkish Criminal Code, historical development of the crime has been explained. According to this, although the crime of provoking the public to hatred, hostility was not issued before and after the political reforms made in the Ottoman State in 1839, in these periods incitement concept were defined independently of abet and punished incitement to the unity of states. However, after reforms incitement concept was issued more detailed and closer to the crime of provoking the public to hatred, hostility.In the republic period, firstly, the crime of provoking the public to hatred, hostility was issued within a different name in article 312 of Turkish Criminal Code No. 765, in 1981 and 2002, changes were made in article. After entry to force Turkish Criminal Code No. 5237, the crime was issued as article 216/1.xxThe crime of provoking the public to hatred, hostility is issued in "Fifth Section" titled "Offences Against Public Peace " of "Third Chapter" titled "Offences Against Community" of "Special Provisions" titled "Second Volume in the Turkish Criminal Code No. 5237. "Section of The Public Humiliation" and "Insulting Religious Values" are issued in the article 216/2 and 3 of the Turkish Criminal Code.The crime of provoking the public to hatred, hostility is issued as this: " A person who publicly provokes hatred or hostility in one section of the public against another section which has a different chracteristic based on social class, race, religion, sect or regional difference, which creates a clear and imminent danger to public security shall be sentenced to a penalty of imprisonment for a termof one to three years."The joint provision is like this: " Where the offences defined in the aforementioned articles are committed through the pres or broadcasting, the penalty to be imposed shall be increased by one half. However, the expression of thought in the from of criticsm and the expression of thoughts which do not go beyond news reporting do not constitute an offence"Doctrine opinions and Supreme Court judgements has been refferred, as explaining the issuement of the type of crime. Thus, various conclusions have been reached in terms of crime. Accordingly;The crime aims to prevent incitement that is harmful to socially, incitation that processing of hostile acts against certain sections of society and so serving to protect common life in peace. Also, the crime aims to protect the feelings of indivudials regarding existence of legal security and public peace. In this respect, public peace is protected legal interest.Any person with criminal liability can be offender, in this crime. Section of society that has characteristics in the article 216/1 is victim. This section must be different from incited group as social class, religion, race, sect, another origin and incited group must direct hostility to this section.In terms of actus reus, the crime is free motion offence and offence with consequence. Act of the crime is publicly provokes hatred or hostility in one section of the public against another section which has a different chracteristic based on social class, race, religion, sect or regional difference. According to general doctrine opinion, provoking the public to hatred, hostility is " a psychological state providing the basis for hostility toward the subject to damage by designing,hatred will need to take revenge." . According to law terminology incitement is "to encourage someone to do or feel something unpleasant or violent". If we leave the two concepts, people's social class, race, religion, sect or region against each other in terms of segments with different characteristics, requirinq intense hostility, revenge, hatred and evil must have incited. Also incitement must be publicly. Publicity have different definitons. These are divided as site of action, can be seen by third parties and perceptibility of act. While some authors see publicity as an element, some authors see objective condition of punishment.Various opinions has been suggested on consult of provoking the public to hatred, hostility and the consult of crime has been determined according to definition of publicity. Incitement must create a clear and imminent danger to public securityfor evolution of this crime. For this reason this crime is a concrete endargement. A clear and imminent danger to public security must be consult for evolution of this crime. A clear and imminent danger to public security must be revealed perceptibly by the judge. Although in our opinion, a clear and imminent danger to public securityis a consult of this crime and the crime is available for attempt, according to other opinion , a clear and imminent danger to public security is objective condition of punishment and is not available for attempt.In provoking the public to hatred, hostility, the reason of compliance with laws is enjoyment and in this context freedom of expression.In provoking the public to hatred, hostility mens rea is intent, the crime is not available for negligence. The crime is consulted with intentionally act. For this reason intention of offender must involve a clear and imminent danger to public security. The crime can be committed by eventual intent. At eventual intent, offender must see risk from the aspect of public safety and deaf to happening of risk. Although specific intention is contentious in doctrine; in our opinion the crime is not xxiiavailable for specific intention because of not required inducement for evolution of the crime. The law- maker hasn't established the specific session for the crime. Therefore successive offence, in coincidence with, consolidation of punishments can be implemented for the crime. In provoking the public to hatred, privity is possible and the crime can be committed by participation of offenders or assistance. In this context, the liability of participants will be according to article 37 of the Turkish Criminal Code and the rest. According to provisional article 1 of the law no. 6352, if provoking the public to hatred committed by way of explanation of thought and opinion committed before 31.12.2011, it will be suspended a proceeding, arrested judgement, suspended execution. In conclusion of our thesis, observed that hate speech hasn't been issued by a specific code, however as certain crime type has been issued like provoking the public to hatred, surmised that the law- maker will not allow act of hate speech. In practical terms, although seen that format of correct application of the crime, determined that in consequence of interpreted wrongly, the crime has been estimated within the scope of indivisibility of state and against freedom of expression. Key Words: Provoking People to be Rancorous and Hostile, Hate Speech, Hate Crime, Discrimination, Xenophobia, Antisemitism, Human Dignity, Society, Individual Communication, Propaganda, Racial Hatred, Human Rights, Racial Discrimination, Minority, Cybercrime, Culture of Tolarance, Freedom of Expression, Respect for Religious Belief, European Council, United Nations, European Union, European Convention on Human Rights, European Court of Human Rights, Convention on Civil and Political Rights, Convention on the Elimination of All Forms of Racial Discrimination, Media, Blasphemous Libel, Adjustment Law, Public Order, Publice Safety, Public Peace, Grave and Obvious Danger, Incitement, Defamation, Degrade a Section of the Public, Degrade the Religious Values of Public, Social Class, Religion, Sect, Race, xxiiiRegional Difference, Laicism, Belief, Atheist, Violence , Tehlike Suçu, Abetment, Incentive, Publicity, Freedom of Expression