The offence of threat is regulated in the section of the Turkish Penal Code (TCK) on offences against liberty:
Article 106- (1) A person who threatens another by stating that he will carry out an attack against the life, bodily or sexual inviolability of that person or of a relative of that person shall be punished with imprisonment from six months to two years. (Additional sentence: 12/5/2022 – Law No. 7406, Art. 6) Where this offence is committed against a woman, the lower limit of the penalty may not be less than nine months. In the case of a threat stating that he will cause a great loss in terms of assets or will inflict some other harm, imprisonment of up to six months or a judicial fine shall be imposed upon the complaint of the victim.
All the situations set out above constitute the offence of threat, but there are differences between them in terms of the nature and significance of the offence. In the basic form of this offence, the life, bodily and sexual inviolability of persons or of their relatives are targeted and made the subject of the threat. The act of threat here is subject to the ex officio (without the need for a complaint) investigation procedure. Where persons are threatened in respect of their assets, on the other hand, the legislator has required a complaint as a condition for prosecution.
As is known, under the repealed Penal Code No. 765 the threat was divided into conditional threat and simple threat. Law No. 5237 abolished this distinction. For example, there is no longer any legal difference between saying “if you do not do this I will kill you” (conditional threat) and threatening without imposing a condition by saying “I will kill you” (simple threat). Both situations give rise to the offence of threat.
The legal interest protected is persons’ inner peace, tranquillity and sense of security. In addition to these, the ability of persons to decide and act freely, of their own free will, is also protected. If we look at the type of the offence in terms of the act, this offence is an offence with alternative acts. The offender’s acts of threatening, by stating that he will harm the victim’s life, bodily inviolability or sexual inviolability, or will cause loss in terms of assets, or will inflict some other harm, are listed as alternatives. These acts may be committed in any manner: in writing, orally, by pictures or by signs. It suffices that the victim’s inner peace, tranquillity and capacity to make decisions are objectively shaken. The offence of threat may be committed directly by the offender himself, an intermediary may be used, or it may be caused to be committed by another person. Although there is no requirement that the harm that is the subject of the threat must necessarily be an offence, in most cases its subject is an offence. For example, in the threat “I will get you fired from your job”, although getting someone fired is not an offence, it will constitute the offence of threat since it falls within the scope of other harm. The harm inflicted may be material as well as non-material. But it must necessarily have been communicated to the other party. Whether there is harm will be assessed by the judge. However, it is necessary here to distinguish a warning from a threat. For example, warning a person in the form “if you go there, such things may happen to you” does not constitute the offence of threat. Indeed, for the offence of threat to be committed, the occurrence of the harm that is the subject of the threat must lie within the offender’s will. In the case of a warning, the person giving the warning has no involvement in the matter and his will does not extend to it, and the harm that may occur may come about through the will of other persons. However, if a threat has been implied under the umbrella of a warning (in a veiled manner), the offence of threat will again be committed here.
The offence of threat must be capable of objectively disturbing the inner peace and tranquillity of the victim. Capability is our basic criterion. That is to say, it is not necessary that the inner peace of the victim of the offence actually be disturbed. If the act is capable of disturbing the inner peace and tranquillity of an objective and standard person, the offence will have been committed even if the victim was not frightened. This stems from the offence of threat being an abstract endangerment offence. Furthermore, this offence is a conduct offence (an offence of mere conduct); the performance of the act gives rise to the offence and the occurrence of a consequence is not required.
Anyone may be the offender of this offence. The victim, however, must be one or more specific persons. A threat made publicly without a specific victim does not constitute this offence. For example, shouting “I will kill all of you” in public does not constitute the offence of threat. However, it does constitute the offence in Article 213 TCK:
Threat for the purpose of creating fear and panic among the public
Article 213- (1) A person who publicly makes a threat in respect of life, health, bodily or sexual inviolability or assets, for the purpose of creating anxiety, fear and panic among the public, shall be punished with imprisonment from two to four years.
(2) Where the offence is committed with a weapon, the penalty to be imposed may be increased by up to one half, depending on the nature of the weapon used.
In short, the offence of threat must be directed at a specific person or persons. However, it is not necessarily required that it be directed at the victim; the threat may also be directed at his relatives. The concept of “Relative” used here should not be understood merely as kinship. A very close friend or a confidant also falls within the concept of “Relative” referred to in the article.
The aggravated forms of the offence, in turn, are regulated in the second paragraph:
(2) Where the threat is made;
a) With a weapon,
b) By the person rendering himself unrecognisable, by an unsigned letter or by special signs,
c) Jointly by more than one person,
d) By taking advantage of the intimidating power created by existing or presumed criminal organisations,
Imprisonment from two to five years shall be imposed on the offender.
Article 6 TCK explains what a weapon is.
1. Firearms,
2. Explosive substances,
3. All kinds of cutting, piercing or bruising instruments made for use in attack and defence,
4. Other things which, even if not made for the purpose of attack and defence, are in fact suitable for use in attack and defence,
5. Burning, corrosive, wounding, asphyxiating, poisonous, nuclear, radioactive, chemical and biological substances causing permanent illness,
In general, things suitable for killing or injuring are characterised as weapons. In addition to real pistols, a blank-firing pistol may also be used in the offence of threat with a weapon. Of course, here the victim must not know that the weapon is a blank-firing one and must believe it to be a real pistol. This is because, if the victim knows that the weapon is not capable of harming him, the intimidating power of the weapon cannot be spoken of. Consequently, the aggravated form will not be in question. Furthermore, the prevailing view in the legal doctrine is that the weapon being on the person is not sufficient, and that it must be shown to the person threatened or its presence must be made felt. According to the generally accepted view, where the offender threatens the victim as if he had a weapon although he has none on him, the aggravated form of threat with a weapon will again not arise. However, in my personal opinion, this situation ought to be regarded as an aggravated form. Since giving the appearance that there is a weapon is of a nature to increase the fear and sense of threat in the victim, the offender behaving as if he had a weapon, although in reality he does not, should also be accepted as an aggravated form. Authors holding the opposing view state as their reasoning that the absence of a weapon is contrary to the principle of capability.
The aggravated form of threatening by the person rendering himself unrecognisable, by an unsigned letter or by special signs is an aggravated form because it creates a more frightening situation than the basic form of the offence of threat and because the offender has taken precautions to avoid being caught. Examples that may be mentioned include disguising oneself, wearing the uniform of a profession, sending a bloody letter in an envelope addressed to the person, or leaving a bloody knife at his door. However, if the victim has recognised the offender despite the offender’s attempt not to be recognised, this aggravated form will not be applied. In the aggravated form of commission jointly by more than one person, an intention of joint perpetration among the offenders is required. In the case of participation at the level of aiding or instigation, this aggravated form is not applied.
Grounds of justification may also arise in this offence. For example, where a person is compelled, within the scope of legitimate self-defence, to threaten with a weapon a person coming at him with a knife, no penalty will be in question since a ground of justification exists. If the offence of threat has been committed in response to an unjust act, then, depending on the gravity of the unjust act, the application of the provisions on legitimate self-defence or unjust provocation may come into consideration. For the offence of threat to remain at the stage of attempt, since it is a conduct offence, the acts of execution must be divisible and must have been left incomplete for reasons beyond the offender’s control. For example, a situation where, while a threatening letter is being sent to someone, this is left incomplete for reasons beyond the offender’s control. As regards concurrence, a person threatening another person more than once within the scope of the same offence gives rise to the provisions on successive offences. Even if the first act is a simple threat and the second act is an aggravated threat, the provisions on successive (continuing) offences will be applied. This is because the aggravated form of an offence is also regarded as the same offence, and the provisions on successive offences are applied.
The third paragraph, in turn, provides that where the offences of intentional killing, intentional injury or damage to property are committed for the purpose of threat, the provisions on real concurrence shall be applied and the offender shall be punished for these offences in addition to the offence of threat committed. Although normally, where more than one offence is committed by a single act, heterogeneous notional concurrence is applied and the offender is punished for the gravest act, the legislator has here laid down a special provision for homogeneous notional concurrence to be applied.
This is an English translation of the author’s article originally written in Turkish.
Link to the original article on Hukuki Haber: https://www.hukukihaber.net/tehdit-sucu-2