The Ankara Chief Public Prosecutor’s Office has indicted Prof. Dr. İzzet Özgenç—one of Turkey’s leading criminal law scholars and a principal architect of the Turkish Penal Code (Law No. 5237)—for public comments criticizing a chamber of the Court of Cassation (Yargıtay) after it refused to comply with a Constitutional Court judgment. The indictment seeks a custodial sentence on charges of insult and defamation.

Özgenç is widely regarded as one of Turkey’s foremost authorities on criminal law. He played a central role in drafting the modern Turkish Penal Code, which entered into force in 2005.

The Complainants

The prosecution was initiated following complaints by members of the Court of Cassation’s 3rd Criminal Chamber—the same chamber that declined to recognize the binding effect of the Constitutional Court’s ruling in the Can Atalay case.

The complainants are:

• Hakan Yüksel – then a member of the 3rd Criminal Chamber; currently a member of the Council of Judges and Prosecutors (HSK).
• Muhsin Şentürk – then a member of the 3rd Criminal Chamber; currently the Chief Public Prosecutor of the Court of Cassation.
• Mustafa Doğru – member of the 3rd Criminal Chamber.
• Mustafa Karayıldız – member of the 3rd Criminal Chamber.
• Şerafettin Saka – member of the 3rd Criminal Chamber.

The Charges

The indictment charges Özgenç under Articles 125/2, 125/3(a), 125/4, 267/1, and 53 of the Turkish Penal Code. The allegations concern insult committed through written, audio, or visual communication and defamation (iftira), with enhanced penalties on the basis that the alleged victims are public officials.

The Statements at Issue

The prosecution centers on a social media post and an accompanying information note published by Özgenç on 26 November 2023.

The comments followed the Court of Cassation 3rd Criminal Chamber’s decision in the Can Atalay case, issued after the Constitutional Court had already found a violation of Atalay’s constitutional rights and ordered a retrial. In his post, Özgenç argued that the Chamber’s decision had no legal basis under Turkish law.

According to the indictment, Özgenç further asserted that:

• the Chamber’s decision could not have been taken on its own initiative;
• the Presidency of the Court of Cassation should exercise its authority to ensure that the decision was withdrawn;
• the criminal complaint filed against the President and members of the Constitutional Court over their judgment was “a shameful matter”; and
• a public statement by the Chair of the Presidential Legal Policy Council distinguishing between “national law” and “non-national law” was incompatible with the rule of law.

These statements form the basis of the criminal case.

Prosecutor’s Assessment

The indictment notes that the complainants originally alleged a wider range of offences, including attempting to influence a fair trial and interfering with the performance of judicial duties. The Ankara Chief Public Prosecutor’s Office ultimately declined to pursue those allegations and instead limited the prosecution to charges of insult and defamation.

According to the prosecutor, Özgenç’s 26 November 2023 statements were capable of harming the complainants’ honour, dignity, and professional reputation. Because the complainants were targeted in their official capacities as judges, the indictment concludes that the alleged conduct constitutes insult and defamation against public officials under the Turkish Penal Code.

A Case Arising from Judicial Criticism

The case is notable because the criminal proceedings stem directly from criticism directed at members of the very judicial panel that declined to implement a Constitutional Court ruling. Those same judges—together with the current Chief Public Prosecutor of the Court of Cassation, who also sat on the panel at the time—are now seeking criminal sanctions against one of Turkey’s most prominent criminal law scholars for comments made in response to that decision.

Categories: Turkey Human Rights Blog

Tags: Can Atalay, izzet ozgenc