Governed by Article 122 of the Turkish Penal Code under offences against liberty, this offence covers conduct that, motivated by hatred based on grounds such as language, race, nationality, colour, sex, disability, political opinion, belief or religion, denies a person goods, services, employment or ordinary economic activity.
Every offence infringes a legal interest. The hate and discrimination offence may infringe the notions of equality and justice more deeply still, because it additionally involves prejudice and a divisive intent.
The offence can be characterised as conduct carried out with a prejudicial purpose and with elements of hostility or discrimination. Discrimination is regulated in numerous domestic and international instruments. The purpose of the provision is to protect individuals so as to preserve social life and peace. Societies contain many cultures and communities, and the provision exists so that they may live together without conflict. Because cosmopolitan societies contain different cultures and different senses of belonging, conduct motivated by hatred has been made subject to criminal sanction.
The offence is governed by Article 122 of the Turkish Penal Code (Law No. 5237), under the heading “Offences Against Liberty”. Under that provision, a person who, on account of hatred arising from differences of language, race, nationality, colour, sex, disability, political opinion, philosophical belief, religion or sect, prevents another from:
is punished with imprisonment from one to three years.
In addition to the elements set out above, the motive must be to discriminate between persons on the basis of membership of a group. Acts carried out with that motive are subject to sanction, with the aim of preventing divisive conduct.
According to the statement of reasons accompanying the amendment made by Law No. 6529, the word “hatred” was added alongside “discrimination” in the heading of the article, emphasising that the offence concerns discrimination grounded in hatred.
For that reason, the offence can only be committed with direct intent, that is, with a motive of hatred.
Article 2 of the Universal Declaration of Human Rights provides that everyone is entitled to all the rights and freedoms set out in the Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 14 of the European Convention on Human Rights provides that the enjoyment of the rights and freedoms set out in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
A judicial fine may be applied together with, or instead of, a prison sentence. Where the sentence imposed for this offence is one year or less, it may be converted into a judicial fine.
Deferral of the announcement of the verdict is a mechanism under which the sentence produces no effect during a supervision period and, where the conditions are met, is set aside entirely, resulting in dismissal of the case. A deferral decision is possible for this offence.
Suspension is the conditional decision not to enforce the sentence in prison. Suspension is likewise possible for this offence.
The offence is not among those requiring a complaint, so it is investigated by the prosecutor of their own motion and no complaint period applies. Withdrawal of a complaint does not result in dismissal of the prosecution. The offence may be investigated at any time, subject to the limitation period.
Limitation is the institution under which a prosecution is dismissed where a case has not been brought, or has been brought but not concluded within the statutory period, after a given time has passed since the offence. For this offence the ordinary limitation period is eight years. The offence may be investigated at any time within that period; after it expires, no investigation may be conducted.
Mediation is a process in which the accused and the victim reach agreement through a mediator. The hate and discrimination offence is not among the offences subject to mediation.
Frequently Asked Questions
Under Article 122 of the Turkish Penal Code, it is an offence to refuse, on account of hatred based on grounds such as language, race, nationality, colour, sex, disability, political opinion, belief, religion or sect, to sell goods offered to the public, to provide a public service, to recruit a person, or to allow ordinary economic activity. The penalty is imprisonment from one to three years.
No. The offence is investigated of the prosecutor’s own motion. The limitation period for prosecution is eight years.
No. It can only be committed with direct intent, that is, with a motive of hatred.
The information on this page is general in nature and does not constitute legal advice. Please contact our office for an assessment of your specific matter.
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