Attorney Hüseyin Aydın – Alanya Lawyer
Short answer: A dismissal decision issued because of a pre-payment (ön ödeme) does not extinguish the insulted person’s right to non-pecuniary (moral) damages; however, on its own it is also not sufficient for an award of non-pecuniary damages. The civil judge must separately establish the elements of the tort (an unlawful attack, fault, non-pecuniary harm and causation) through his or her own assessment of the evidence.
This question is no longer exceptional. Law No. 7531 (Official Gazette (RG) 14.11.2024) brought part of the offence of insult, and Law No. 7571 (RG 25.12.2025) brought all acts of insult other than insult of a public official on account of his or her duties, within the scope of pre-payment. As a result, a significant share of insult files began to close not with a conviction or acquittal but with a “decision of non-prosecution” or a “dismissal of the public prosecution”.
Two opposing reflexes are seen in practice. The victim’s side treats the offender’s payment as an “admission of the offence” and argues that compensation arises automatically. The offender’s side, on the other hand, says “I was not convicted, there is a dismissal decision in my favour” and asks for the claim to be rejected. This article explains why both views are incomplete and sets out the criteria by which the civil court should decide.
Table of Contents
- 1. Legal framework: bringing insult within the scope of pre-payment
- 2. Effect of the dismissal decision on the civil court
- 3. Is the fact that pre-payment was made sufficient for non-pecuniary damages?
- 4. Does the civil judge assess insult by criminal law standards, and does criminal procedure apply?
- 5. Conditions for non-pecuniary damages and the balance with freedom of expression
- 6. Criteria for determining the amount of non-pecuniary damages
- 7. Procedural issues
- 8. Case examples
- 9. Frequently Asked Questions
- 10. Conclusion
- 11. Sources
Legal framework: bringing insult within the scope of pre-payment
As things currently stand, the offence of insult under Article 125 of the Turkish Criminal Code (TCK) is subject to pre-payment, except for paragraph 3(a) (insult of a public official on account of his or her duties), and it has been removed entirely from the scope of conciliation (uzlaştırma). The change took place in two stages:
| Law | Official Gazette | TCK 75/6-a-2 (pre-payment) | CMK 253/3 (conciliation ban) |
|---|---|---|---|
| Law No. 7531, Arts. 15-16 | 14.11.2024 | Insult: 125/2, 125/3-b and c, 125/4 brought within pre-payment | Insult (125/2) removed from conciliation |
| Law No. 7571, Arts. 16, 24 | 25.12.2025 | Insult: all cases except 125/3-a brought within pre-payment | Insult (Article 125) removed from conciliation altogether |
For offences covered by TCK 75/6, the fact that the upper limit of the prison sentence exceeds six months does not prevent pre-payment. If the offender pays the amount calculated and the investigation costs within ten days of notification by the public prosecutor’s office, no public prosecution is brought. At the trial stage, if payment is made upon the judge’s notification under TCK 75/2-3, the public prosecution is dismissed.
As regards pending files, the restrictive wording in provisional Article 7/2 added to the Code of Criminal Procedure (CMK) by Law No. 7531 was annulled by the Constitutional Court’s decision of 27.03.2025, E. 2024/197, K. 2025/86 (RG 29.05.2025). For this reason, the criminal chambers of the Court of Cassation (Yargıtay) are also reversing insult files at the appeal stage so that they can be re-examined in terms of pre-payment under the principle of the more favourable law (Constitution Art. 38, TCK 7) (e.g. Yargıtay 6th Criminal Chamber, E. 2023/17200, K. 2025/9755, T. 18.11.2025). As a result, dismissal decisions have become widespread in both new and older cases.
The money paid does not go to the victim
The pre-payment amount is paid into the State Treasury. The victim’s consent is not sought in this process, nothing is paid to the victim, and the process is not aimed at remedying the attack on the victim’s personality rights. This is the key point that distinguishes pre-payment from conciliation.
The key provision: TCK 75/5
TCK 75/5 is clear: “The non-filing or removal of the public prosecution pursuant to this article shall not affect the provisions relating to the claiming of personal rights, the recovery of property and confiscation.” Accordingly, pre-payment does not by law bar the victim’s claim for compensation under Articles 24-25 of the Turkish Civil Code (TMK) and Articles 49 and 58 of the Turkish Code of Obligations (TBK).
Comparison with conciliation
Under the provision re-inserted into CMK 253/19 by Law No. 7531, if conciliation is reached, no action for compensation may be brought on account of the offence, except for damage that could not be determined at the time of conciliation or that arises later. While insult was within the scope of conciliation, the victim’s expectation of compensation was usually met within the conciliation performance. Pre-payment contains no such “compensation lock”; the victim’s entire claim for non-pecuniary damages is left to the civil court.
| Criterion | Conciliation (former regime) | Pre-payment (new regime) |
|---|---|---|
| Victim’s will | Mandatory; no conciliation if the victim does not accept | Not required; only between the offender and the prosecutor’s office/court |
| Recipient of payment | The victim (performance) | The State Treasury |
| Outcome of the criminal file | KYOK or postponement of the filing of the public prosecution / dismissal | KYOK or dismissal of the public prosecution |
| Subsequent action for compensation | As a rule, cannot be brought (CMK 253/19) | Can be brought (TCK 75/5) |
| Record effect | Not entered in the criminal record | Recorded in a special system; pre-payment is not applied to a repeat offence within 5 years (TCK 75/6, 75/7) |
Effect of the dismissal decision on the civil court
A dismissal decision issued because of pre-payment binds the civil judge neither in favour of nor against either party, because that decision establishes neither that the act was committed nor that it was not.
TBK 74 and the limits of binding effect
Under TBK 74, in determining fault and capacity of discernment, the judge is not bound by the provisions of criminal law on liability or by an acquittal judgment of the criminal court; nor is the civil judge bound by the criminal court’s decision on the determination of fault and the calculation of damage. According to settled case law, the only thing that binds the civil judge is the finding of material fact contained in a final conviction judgment of the criminal court.
A dismissal decision is not a judgment on the merits. The criminal proceedings end the moment payment is made; whether the words were said, in what context they were said and whether they amounted to an insult are not discussed. Consequently, there is no finding of material fact by which the civil judge would be bound.
Pre-payment is not an admission of the offence
The Assembly of Civil Chambers of the Court of Cassation (HGK) has answered this question expressly. The Chamber had reversed a judgment on the ground that “it was not correct to accept that [the defendant] had no fault at all” where the defendant had made a pre-payment; the local court insisted on its judgment, and the HGK upheld the decision of insistence. According to the HGK, “pre-payment is neither a conviction nor does it mean an admission of the offence”, and “since it is impossible to conduct a trial, it is not possible to attribute fault to the defendant-accused who made the pre-payment” (Yargıtay HGK, E. 2008/823, K. 2009/50, T. 04.02.2009).
The decision concerns the period of the former Criminal Code No. 765 and a traffic accident; however, its findings on the legal nature of pre-payment apply equally to Article 75 of the Criminal Code No. 5237. The rationale of the institution is to reduce the judicial workload and to end minor disputes without trial. The offender often pays not because he or she accepts that the words were insulting, but to escape the burden and risk of a trial.
The evidential value of the criminal file, however, is preserved
Although the dismissal decision is not binding, the evidence in the criminal file is valuable to the civil court. The complaint petition, screenshots, audio recordings, witness statements and especially the suspect’s statement to the prosecutor’s office may be used as discretionary evidence. If the suspect admitted in his or her statement to having said the words, that statement, which amounts to an admission, becomes weighty evidence in the civil case; the pre-payment itself does not.
The Court of Cassation draws the same distinction in decisions on personal grounds for impunity or on there being no need to impose a penalty: a decision that no penalty is to be imposed because of mutual insult (TCK 129/3) does not bind the civil judge, and if the act is established, compensation is awarded (Yargıtay 4th Civil Chamber, E. 2014/4382, K. 2015/629, T. 21.01.2015). Likewise, in the case of deferral of the announcement of the verdict, if the insult is established by the evidence in the criminal file, non-pecuniary damages must be awarded (Yargıtay 4th Civil Chamber, E. 2016/890, K. 2017/7416, T. 20.11.2017).
Is the fact that pre-payment was made sufficient for non-pecuniary damages?
No. Pre-payment is neither a presumption in favour of the claimant nor a ground of defence for the defendant; a claim for non-pecuniary damages can be upheld only if all elements of the tort are separately proven before the civil court.
From the claimant’s perspective
Under TMK 6, the burden of proof lies with the claimant. A petition arguing that “the defendant made the pre-payment, so he insulted me” produces no result on its own in light of the HGK 2009/50 decision. The claimant must at least establish the following:
| Element to be proven | Legal basis | Typical evidence |
|---|---|---|
| Existence and content of the words or message | TMK 24, TBK 49 | Screenshot, audio recording, message transcript, witness, statement to the prosecutor |
| The words targeted the claimant | TMK 24 | Context, addressee, tagging, previous correspondence |
| Unlawfulness: an attack on honour, dignity and reputation | TMK 24/2, TBK 49 | Nature of the words; exceeding the limits of criticism or value judgement |
| Fault (intent or negligence) | TBK 49 | How the incident occurred; deliberate and targeted use of the words |
| Non-pecuniary harm and causation | TBK 58 | Extent of dissemination, setting, the claimant’s position, impact of the incident |
In practice, the strongest evidence is the material evidence gathered in the criminal file. For this reason, when filing the action for compensation, the claimant should request that the criminal investigation file (the payment offer, payment receipt, KYOK or dismissal decision, statements, screenshots) be obtained, and should request an expert examination if necessary.
From the defendant’s perspective
Seeking dismissal of the claim on the basis of the dismissal decision or the decision of non-prosecution does not work either. TCK 75/5 expressly states that the removal of the public prosecution does not affect the claiming of personal rights. The defendant can defend only by proving that the words were not said, that they were not directed at the claimant, that they remained within the limits of criticism or freedom of expression, or by proving grounds for reduction such as unjust provocation or reciprocity.
Civil and criminal standards are not the same
The civil judge assesses the infringement of personality rights by the TMK 24 standard; the definitional elements of TCK 125 are not required one-to-one. For example, while criminal liability for insult in a person’s absence requires communication with at least three people, the Court of Cassation accepts that the insulting nature of the words may be discussed separately even where a decision of non-prosecution was issued because this element was missing (Yargıtay 4th Civil Chamber, E. 2015/11215, K. 2017/3918, T. 12.06.2017). Conversely, words that could be regarded as insult in criminal law may be seen by the civil court as falling within freedom of expression because of their context and their value to public debate.
Does the civil judge assess insult by criminal law standards, and does criminal procedure apply?
In an insult file closed by pre-payment, the civil judge may, and sometimes must, examine whether the act constitutes an offence in the criminal law sense; however, in doing so the judge takes only the offence definition of substantive criminal law (TCK) as the yardstick, while the proceedings and proof are governed entirely by the Code of Civil Procedure (HMK). The procedure of the Code of Criminal Procedure (CMK), the principle “the benefit of the doubt goes to the accused” and the evidentiary rules specific to the CMK do not apply in the civil action.
This does not mean that criminal law produces the outcome on compensation. The criminal law assessment mostly determines not whether compensation exists, but within what period the action can be brought. The compensation itself is in every case based on TMK 24 and TBK 49 and 58.
Two separate examinations, two separate standards
The civil judge examines the allegation of insult for two different questions and by two different standards:
| Stage | Question asked | Substantive standard | Procedure | Outcome |
|---|---|---|---|---|
| Limitation defence (TBK 72/1, second sentence) | Is the act an offence requiring punishment under the criminal law? | Elements of TCK 125: attribution of a concrete act or swearing, being directed at the victim, communication with at least three people in the victim’s absence, intent; grounds of justification | HMK | If an offence, 8 years under TCK 66/1-e; if not, the general periods of 2 and 10 years |
| Examination on the merits (TMK 24, TBK 49, 58) | Is there an unlawful attack on personality rights? | TMK 24/2: consent, overriding private or public interest, authority conferred by law; balance with freedom of expression | HMK | If there is an attack, non-pecuniary damages; the amount is determined at the judge’s discretion under TMK 4 |
The limitation examination is carried out only if the defendant raises the limitation defence; the judge does not take it into account of his or her own motion. According to the Court of Cassation, if no criminal case has been brought, the civil judge assesses whether the act constitutes an offence and must carry out this examination before rejecting the file on limitation grounds (Yargıtay 4th Civil Chamber, E. 2010/8797, K. 2011/10983, T. 24.10.2011; Yargıtay 4th Civil Chamber, E. 2015/6361, K. 2015/9462, T. 07.09.2015). The Assembly of Civil Chambers has also adopted the principle that “it is sufficient that merely a punishable act has been committed, in other words, that the tort has the nature of an offence” (Yargıtay HGK, E. 2013/1626, K. 2015/1187, T. 08.04.2015).
The result of this examination is not a criminal judgment. The civil judge’s finding that “the act constitutes an offence” convicts no one, is not entered in any record and does not reopen the criminal proceedings; it is merely a preliminary issue resolved for the purposes of the limitation period of the compensation action. For this reason, no contradiction arises between a criminal file closed by pre-payment and the civil judge’s finding.
Which criminal law institutions concern the civil judge?
Criminal law institutions fall into two groups depending on whether or not they affect the criminal nature of the act:
| Institution | Effect on criminal nature | Consequence for the civil action |
|---|---|---|
| Absence of a complaint, expiry of the complaint period (TCK 73/1: 6 months; TCK 73/2: for insult, at most 2 years from the act) | No effect; it is only a condition for prosecution | The extended 8-year limitation period applies |
| Withdrawal of the complaint (TCK 73/4) | No effect | Compensation may be claimed; if personal rights were also expressly waived when withdrawing, no action may be brought (TCK 73/7) |
| Pre-payment (TCK 75) | No effect; the public prosecution is not brought or is dismissed | Personal rights may be claimed under TCK 75/5; the extended limitation period should apply |
| No penalty imposed, waiver of punishment (TCK 129) | No effect; the act remains a wrong | Compensation may be claimed; provocation and reciprocity reduce the amount |
| Grounds of justification (exercise of a right, TCK 26; immunity of allegations and defence, TCK 128) | Remove the act from being an offence | Both the extended limitation period and, in most cases, compensation fall away |
| General amnesty | Removes punishability altogether | According to the literature, the extended limitation period cannot apply; the general periods run |
The Assembly of Civil Chambers has expressly accepted that, in offences subject to complaint, the expiry of the complaint period does not prevent the criminal limitation period from applying to the compensation action, because the complaint is merely a condition for bringing the criminal case; according to the Assembly, the Turkish Criminal Code defines offences by reference to the act, not the offender (Yargıtay HGK, E. 2014/116, K. 2015/1771, T. 16.09.2015; Yargıtay HGK, E. 2021/147, K. 2021/239, T. 09.03.2021). The 43rd Civil Chamber of the Istanbul Regional Court of Appeal (BAM) has likewise stated that a decision of non-prosecution, absence of a complaint or withdrawal of the complaint does not prevent investigation of the criminal nature of the act (Istanbul BAM 43rd Civil Chamber, E. 2020/716, K. 2022/661, T. 25.05.2022).
The same logic applies to pre-payment: like the complaint requirement, pre-payment is a bar to prosecution; it does not eliminate the wrongful content of the act or the definition of the offence. Nevertheless, the literature notes that it is disputed whether the removal of the public prosecution by pre-payment prevents the application of the extended limitation period (Gamze Sivri Türker, Ceza Mahkemesi Kararlarının Hukuk Yargılamasına Etkisi, Thesis, 2021, Thesis No: 701745). No Court of Cassation decision directly on this point could be found; the HGK’s reasoning on the complaint requirement and the clear wording of TCK 75/5 support applying the extended limitation period.
Does criminal procedure (CMK) apply?
No. The compensation action remains a civil action even at the stage where the civil judge examines the criminal nature of the act. According to the prevailing view in legal scholarship, whether a tort alleged to constitute an offence has been proven is determined according to the HMK principles of the burden of proof (HMK 190, TMK 6) and free assessment of evidence (HMK 198); the principle “the benefit of the doubt goes to the accused”, which is specific to criminal procedure, does not apply directly in civil proceedings, and instead of the freedom of evidence under CMK 217, the prohibition of unlawfully obtained evidence under HMK 189 applies (Hilal Betül Güngüneş Şahin, “Anonim Şirket Yönetim Kurulu Üyelerinin Hukuki ve Cezai Sorumluluk Ayrımı”, 2025, Issue 1; İlyas Sağlam, “Haksız Fiil Sorumluluğunda Ceza Davası Zamanaşımı Süresi ve Bu Sürenin Tüzel Kişilerin Tazminat Sorumluluğunda Uygulanıp Uygulanamayacağının Değerlendirilmesi”, 2025, Issue 3).
The practical consequences of this are as follows:
| Issue | Criminal proceedings (CMK) | Compensation action (HMK) |
|---|---|---|
| Investigative principle | Ex officio investigation; the prosecutor and the judge gather evidence | Party presentation principle (HMK 25); the judge does not of his or her own motion gather facts and evidence not relied on by the parties |
| Burden of proof | On the prosecution; the accused is not required to prove innocence | On the claimant (TMK 6); anyone wishing to benefit from the extended limitation period by relying on the criminal nature of the act must also prove it |
| Case of doubt | The benefit of the doubt goes to the accused | This principle does not apply; the rules on the burden of proof and the judge’s inner conviction are decisive |
| Unlawfully obtained evidence | CMK 206/2-a, 217/2 | HMK 189/2 |
| Outcome | Conviction, acquittal, dismissal | Acceptance or rejection of compensation; no criminal judgment is rendered |
A decision of the 21st Civil Chamber of the Ankara BAM illustrates this distinction: the majority of the Chamber did not apply the extended limitation period because there was no concrete information or evidence on the elements of the offence alleged by the claimant; the dissenting opinion argued that, when faced with a limitation defence, the judge must himself or herself assess, according to criminal law principles, whether the act requires punishment (Ankara BAM 21st Civil Chamber, E. 2023/663, K. 2025/1027, T. 01.10.2025). The practical lesson of the decision is this: the elements of the offence must also be proven by the claimant under the HMK; the evidence in the pre-payment file is the most suitable source for this proof.
There is also a critical view in legal scholarship: since the principles of evidence and proof in criminal and civil procedure differ, it is argued that assigning the role of a criminal judge to the civil judge may lead to erroneous outcomes (Güngüneş Şahin, 2025; Alper Özboyacı, “Anonim Ortaklıklarda Yönetim Kurulu Üyelerinin TTK 560 Uyarınca Uzamış Zamanaşımına Göre Sorumlu Tutulması”, 2021, Issue 2). The case law search did not find any decision accepting that the civil judge must apply CMK procedure in this examination.
Preliminary question (awaiting the criminal outcome)
If an insult case is pending, the Court of Cassation requires that the outcome of the criminal case be awaited, because a conviction would bind the civil judge as to the material facts (Yargıtay 4th Civil Chamber, E. 2011/2529, K. 2012/5246, T. 29.03.2012; Yargıtay 4th Civil Chamber, E. 2015/12795, K. 2017/5108, T. 27.09.2017). In the literature, however, it is argued that waiting under HMK 165 is not an absolute requirement and should be left to the judge’s discretion, having regard to the right to a trial within a reasonable time (Halis Yaşar, “Ceza Mahkemesi Kararlarının Hukuk Hâkimini Etkileyip Etkilememesi Meselesinin Makul Sürede Yargılanma Hakkının İhlaline Varan Boyutu”, TBB Dergisi, 2014, Issue 109).
This problem does not arise in a file closed by pre-payment: there is no pending criminal case and no conviction to wait for. What the civil judge must do is obtain the criminal file, assess the evidence under the HMK and, if necessary, determine the criminal nature of the act himself or herself. The only exception is where the objection procedure against the decision of non-prosecution has not yet been concluded; however, Court of Cassation decisions make clear that the objection will be rejected if payment has been made.
Step-by-step examination for the civil judge
- If the defendant has raised the limitation defence and 2 years have passed since the incident, examine whether the act constitutes an offence within the meaning of TCK 125.
- In this examination, apply the TCK’s definition of the offence, intent and the grounds of justification; disregard bars to prosecution such as the complaint requirement, pre-payment and no penalty being imposed.
- Establish the facts under the HMK: the burden of proof is on the claimant, there is no “benefit of the doubt to the accused” principle, and unlawfully obtained evidence is assessed under HMK 189/2.
- If the act is an offence, apply the 8-year period; if not, apply the general periods.
- If the action is within time, proceed to the merits and assess compensation not under criminal law but under TMK 24 and TBK 49 and 58.
Case examples relating to this section
Yargıtay 4th Civil Chamber, E. 2010/8797, K. 2011/10983, T. 24.10.2011: The first-instance court had rejected a compensation action based on insult on limitation grounds. The Chamber reversed, stating that “in cases where no criminal case has been brought, the civil judge assesses whether the act constitutes an offence”, on the ground that the merits had to be examined. In a file closed by pre-payment, too, the criminal case did not end with a trial, so the same assessment falls to the civil judge.
Yargıtay 4th Civil Chamber, E. 2013/15251, K. 2014/9993, T. 16.06.2014: The criminal case brought for threats and insult had been dismissed on limitation grounds. The Chamber reversed the total rejection of the claim, stating that “the criminal file should be obtained, its content assessed and a decision rendered according to the outcome”. Whatever the type of dismissal decision, the civil judge’s task is to assess the evidence in the criminal file himself or herself.
Yargıtay HGK, E. 2013/4-36, K. 2013/1457 (2013): The Assembly accepted that an acquittal based on insufficient evidence does not bind the civil judge and that the civil judge will investigate the criminal nature of the wrongful act himself or herself. If even an acquittal for insufficient evidence is not binding, a pre-payment decision issued without any trial is, a fortiori, not binding.
Istanbul BAM 4th Civil Chamber, E. 2024/1063, K. 2024/1270, T. 03.04.2024: Stating that “even the public prosecutor’s decision of non-prosecution is neither binding nor decisive”, the Chamber set aside the first-instance decision so that the criminal character of the act could be determined by the civil judge.
AYM, B. 2020/14156, T. 22.05.2024: The Constitutional Court emphasised that the action for compensation is “as a rule, an effective remedy both in theory and in practice, independent of the decision rendered at the end of the criminal proceedings”. This finding confirms that the civil remedy operates under its own procedure, regardless of how the criminal file was closed.
Example case: how does the two-stage examination work?
A, who lives in Alanya, writes about his neighbour B in a 15-member residents’ messaging group of their housing complex: “a fraudster who pockets the maintenance fees”. B files a complaint; the prosecutor’s office offers pre-payment, A pays, and a decision of non-prosecution is issued. Three years after the incident, B brings an action for non-pecuniary damages; A raises the limitation defence.
- Limitation stage: The general 2-year period has passed. The judge examines whether the act constitutes an offence within the meaning of TCK 125. There is an attribution of a concrete act, it is directed at B, it was shared with 15 people in the group and the words were written knowingly. The pre-payment and the decision of non-prosecution do not affect this examination. Since the act has the nature of an offence, the 8-year period applies and the action is within time.
- Proof: This finding is made under the HMK on the basis of the message screenshots obtained from the prosecution file, the testimony of group members and A’s statement to the prosecutor. The fact that A made the payment does not by itself count as evidence.
- Merits stage: The judge now considers, by the TMK 24 standard, whether the words constitute an unlawful attack on personality rights and whether they fall within freedom of expression. If there is no document showing that the allegation is based on truth, the attack is unlawful.
- Amount: The size of the group, the neighbourly relationship, the seriousness of the allegation and the parties’ circumstances are taken into account; if it is proven that B had provoked A beforehand, a reduction is made. The pre-payment amount A paid to the Treasury is not taken into account.
In the same case, the outcome changes if A submits an audit report showing that B committed irregularities in the maintenance fee accounts: an allegation that is based on truth and serves the public interest may constitute a ground of justification within the meaning of TMK 24/2; in criminal law, too, proof of the allegation results in impunity under TCK 127. In that case, if the judge concludes that the act does not have the nature of an offence, the 8-year period does not apply and, since 2 years have passed, the action is rejected on limitation grounds; even if it had been brought within time, it could have been rejected on the merits because the attack would be deemed lawful. Since the legal nature of TCK 127 is disputed in legal scholarship, the extended limitation period should be discussed separately at this point.
Conditions for non-pecuniary damages and the balance with freedom of expression
The legal basis for non-pecuniary damages is not the criminal file but TMK 24-25 and TBK 49 and 58. TMK 24 provides that a person whose personality rights are unlawfully attacked may seek protection from the judge; TBK 58 provides that a person whose personality rights are harmed may claim non-pecuniary damages for the non-pecuniary harm suffered. Under TMK 24/2, unlawfulness is removed by consent, an overriding private or public interest, or authority conferred by law.
In insult allegations, the debate on lawfulness is mostly conducted through freedom of expression (Constitution Art. 26, ECHR Art. 10) and the right to criticise. The civil court should ask the following questions in order:
- Is the statement an attribution of fact or a value judgement? For an attribution of fact, a degree of truth is required; for a value judgement, a sufficient factual basis.
- Does the statement contribute to a debate of public interest? Politicians, public officials and well-known persons must tolerate wider criticism.
- Has the tone exceeded what criticism requires and turned into mere denigration, swearing or an attempt to humiliate?
- In what context, within which debate and in reaction to what was the statement made?
Applying this test to social media posts, the 4th Civil Chamber of the Court of Cassation upholds non-pecuniary damages for statements that exceed the limits of criticism, rejects the defence of political criticism, and reverses where it finds the amount awarded too low (Yargıtay 4th Civil Chamber, E. 2023/11396, K. 2026/1529, T. 12.02.2026). By contrast, on a matter of public interest, posts containing measured criticism of a club executive were found to fall within freedom of expression, and the first-instance court rejected the action (Yargıtay 4th Civil Chamber, E. 2022/6002, K. 2025/1281, T. 30.01.2025).
The Assembly of Civil Chambers has likewise assessed words not one by one but within the whole of the conduct and statements, and has accepted that words that humiliate a person in public and spread on the internet warrant compensation (Yargıtay HGK, E. 2017/2926, K. 2021/1341, T. 04.11.2021).
Criteria for determining the amount of non-pecuniary damages
Once the existence of the insult is accepted, the amount is determined under TMK 4 according to the principles of justice and equity; the pre-payment amount is taken into account in this determination neither as a minimum nor as an item to be set off, because that money was paid not to the victim but to the Treasury.
According to the settled formula of the Court of Cassation, non-pecuniary damages are not a means of enrichment; however, the aim should be to alleviate, at least in part, the pain and suffering caused by the incident, having regard to the social and economic circumstances of the parties and the manner in which the incident occurred (Yargıtay 4th Civil Chamber, E. 2023/7898, K. 2024/8443, T. 02.10.2024). The amount awarded should, on the one hand, remedy the non-pecuniary suffering and be accepted by the public and the social conscience, and on the other hand not be a means of enrichment (Yargıtay 11th Civil Chamber, E. 2021/9130, K. 2023/349, T. 18.01.2023). Adapting these general principles to insult cases yields the following criteria:
| Criterion | Effect on the amount | Basis / example |
|---|---|---|
| Seriousness and nature of the words (swearing or attribution of a concrete act) | Increases as they become more serious | Y. 4th CC, E. 2017/652, K. 2019/3602 |
| Publicity and extent of dissemination (face to face, message, social media, press) | Increases as dissemination grows | Y. 4th CC, E. 2023/11396, K. 2026/1529 |
| Continuity or repetition of the act | Repetition and continuity increase it | Y. 4th CC, E. 2021/17143, K. 2021/4756 |
| Social and economic circumstances and social standing of the parties | Assessed together | Y. 4th CC, E. 2023/7898, K. 2024/8443 |
| Relationship between the parties (family, work, neighbours) | The impact may be heavier in a close relationship | Y. 4th CC, E. 2021/17143, K. 2021/4756 |
| Defendant’s degree of fault (intent, incitement) | Increases as it becomes more serious | TBK 49, 58 |
| Unjust provocation or mutual insult | Not a ground for rejection but a ground for reduction | Y. 4th CC, E. 2014/11845, K. 2015/8780; E. 2013/8459, K. 2014/9252 |
| Date of the incident and purchasing power of money | Current value is taken into account | Y. 4th CC, E. 2018/365, K. 2020/1090 |
| Defendant subsequently apologising or removing the content | May reduce the impact of the harm | Discretion under TBK 51-52 |
| The fact that pre-payment was made | No effect (neither a presumption of fault nor a ground for reduction) | TCK 75/5; HGK, E. 2008/823, K. 2009/50 |
Unjust provocation and reciprocity
In the criminal file, a claim of unjust provocation or mutual insult is usually closed without being discussed, because the pre-payment offer is calculated without any reduction for provocation. For this reason, the provocation claim is examined for the first time and in full before the civil court. According to the Court of Cassation, mutual insult or a reaction to a wrongful act does not remove the unlawfulness of the defendant’s act, but it may be a ground for reducing the amount of compensation (Yargıtay 4th Civil Chamber, E. 2014/11845, K. 2015/8780, T. 29.06.2015; Yargıtay 4th Civil Chamber, E. 2013/8459, K. 2014/9252, T. 04.06.2014).
The rule on the starting date of interest and proportional set-off added to TBK 55 by Law No. 7589 relates only to compensation for loss of earning capacity and loss of support; it does not affect non-pecuniary damages claimed for insult.
Procedural issues
In files closed by pre-payment, procedural errors are a more frequent cause of losing than the merits; in particular, limitation and evidence gathering must be structured correctly.
| Issue | Rule | Note |
|---|---|---|
| Court with subject-matter jurisdiction | Civil court of first instance (asliye hukuk mahkemesi) (HMK 2) | If there is also an employment or family relationship between the parties, jurisdiction should be checked separately |
| Court with territorial jurisdiction | The defendant’s domicile (HMK 6), or the place where the tort was committed, where the damage occurred or where the injured party is domiciled (HMK 16) | For example, a person living in Alanya who was insulted on social media may bring the action before the Alanya civil court of first instance |
| Mediation as a precondition to suit | None | Non-pecuniary damages based on tort are not within the scope of mandatory mediation; voluntary mediation is possible |
| Type of action | The action for an undetermined receivable (HMK 107) was abolished by Law No. 7589 with effect from 31.07.2026 | If a partial action is brought, the claim may be increased once until the end of the examination of evidence, and limitation is deemed interrupted on the filing date for the increased part as well (HMK 109/4) |
| Limitation | TBK 72: 2 years from knowledge, in any event 10 years; if the act constitutes an offence, the longer criminal limitation period | For insult, 8 years under TCK 66/1-e |
| Interest | Statutory interest from the date of the tort | The rate is determined on the basis of eighty per cent of the Central Bank of the Republic of Türkiye (TCMB) rediscount rate under Article 1 of Law No. 3095 as amended by Law No. 7589; it is not awarded unless claimed |
| Additional claims | TMK 25: declaration of the attack, cessation of the attack, publication of the judgment | For internet content, an access ban from the criminal judgeship of peace under Article 9 of Law No. 5651; in large provinces, the first criminal judgeship of peace is competent by decision of the Council of Judges and Prosecutors (HSK) |
Extended limitation period after pre-payment
The critical point is this: a dismissal decision or a decision of non-prosecution does not prevent the criminal limitation period from applying in the compensation action. According to the Court of Cassation, the extended limitation period does not require that a criminal case has been brought or that there is a conviction; the civil judge himself or herself assesses whether the act constitutes an offence and applies the 8-year period for insult (Yargıtay 4th Civil Chamber, E. 2015/1191, K. 2015/2595, T. 05.03.2015; Yargıtay 4th Civil Chamber, E. 2014/2547, K. 2014/3211, T. 26.02.2014). Since limitation is a defence, the judge does not take it into account of his or her own motion.
Gathering evidence
The statement of claim should request that the entire criminal investigation or prosecution file be obtained; the payment offer and payment receipt, the suspect’s statement, witness statements and digital evidence should also be submitted separately. For deleted social media content, a notarial determination or the record of findings in the criminal file should be used. The rule that statements made during conciliation negotiations cannot be used as evidence (CMK 253/20) does not apply to the pre-payment process; however, it should be remembered that no conclusion of fault can be drawn from the pre-payment itself.
Case examples
The following decisions were selected by searching a case law database; each illustrates a point made in this article through a concrete case.
1. After pre-payment, the victim cannot reopen the criminal route
Yargıtay 4th Criminal Chamber, E. 2026/1462, K. 2026/5736, T. 26.03.2026: In Bursa, in a case of alleged insult by audio, written or video message, the suspect paid a pre-payment of 10,500 TRY and a decision of non-prosecution was issued. The decision of the criminal judgeship of peace accepting the complainant’s objection was reversed in the interest of the law; according to the Court of Cassation, once payment has been made the objection must be rejected. To the same effect: Yargıtay 4th Criminal Chamber, E. 2025/12336, K. 2026/3008, T. 10.02.2026.
Relevance to the article: After pre-payment, the victim has no criminal route left; the only route for establishing and remedying the infringement of personality rights is the civil court.
2. Pre-payment is not an admission of fault
Yargıtay HGK, E. 2008/823, K. 2009/50, T. 04.02.2009: In a compensation action against a driver whose criminal case was removed by pre-payment, the HGK held that “pre-payment is neither a conviction nor does it mean an admission of the offence” and accepted that fault cannot be inferred from the payment.
Relevance to the article: The claimant should rely not on the payment but on the material evidence in the criminal file and the evidence he or she submits.
3. The outcome of the criminal file does not relieve the civil judge of the duty to balance
AYM, B. 2023/47839, T. 16.09.2025: Both a judicial fine and non-pecuniary damages had been imposed for calling the president of a professional organisation a “dangalak” (“blockhead”). The civil court of first instance had relied solely on the final conviction, and the regional court of appeal had merely stated that the word was an insult. The Constitutional Court found a violation of freedom of expression because no balancing had been carried out between freedom of expression and honour and reputation. Similarly, the Constitutional Court found a violation in its decision B. 2022/55481, T. 05.11.2025.
Relevance to the article: If even a conviction is not sufficient on its own, a pre-payment decision issued without trial is certainly not sufficient. The civil court’s reasoning must expressly discuss the context of the statement and the balance with freedom of expression.
4. Compensation despite a decision of non-prosecution
Istanbul BAM 14th Civil Chamber, E. 2022/203, K. 2025/1555, T. 02.10.2025: A decision of non-prosecution had been issued in the insult investigation concerning the defendant’s posts on a professional networking platform disparaging the claimant company with expressions such as “forged documents” and “robbery”. The first-instance court rejected the claim for non-pecuniary damages on the basis of that decision; the BAM held that there was an attack on personality rights because the posts were made on a platform with thousands of users and damaged professional reputation.
Relevance to the article: Even an unfavourable outcome of the criminal file does not bind the civil judge; the reasoning of the KYOK and the infringement of personality rights are assessed separately.
5. Mutual insult and provocation call for a reduction, not rejection
Yargıtay 4th Civil Chamber, E. 2014/4382, K. 2015/629, T. 21.01.2015: The criminal court had decided that no penalty would be imposed because of mutual insult, and the civil court, treating the parties as equally at fault, rejected the claim for non-pecuniary damages. The Court of Cassation reversed, stating that the criminal decision was not binding and that, as the insult was established, an appropriate amount of non-pecuniary damages should be awarded.
Relevance to the article: Since no reduction for provocation is made in the pre-payment offer, provocation and reciprocity are discussed for the first time before the civil court as factors reducing the amount.
6. The extent of dissemination on social media increases the amount
Istanbul BAM 13th Civil Chamber, E. 2022/1167, K. 2025/66, T. 23.01.2025: The first-instance court had awarded 500 TRY in non-pecuniary damages. Having regard to the fact that the posts were made on a platform with a large user base, the claimant’s public profile, the date of the act, the parties’ circumstances and the purchasing power of money, the BAM increased the amount to 5,000 TRY; it also emphasised that it could not go below the 3,000 TRY acquired right established by the earlier decision.
Yargıtay 4th Civil Chamber, E. 2023/11396, K. 2026/1529, T. 12.02.2026: Holding that a comment posted under an online news article could not be regarded as political criticism, the Court of Cassation found the award of 1,500 TRY in non-pecuniary damages too low and reversed.
Relevance to the article: The criteria of dissemination, public profile and purchasing power in the criteria table are also reviewed at the appeal and cassation stages when the amount is redetermined.
7. A person who was not targeted cannot claim compensation
AYM, B. 2022/26271, T. 12.06.2024: In an action for 7,000 TRY in non-pecuniary damages brought over a social media comment containing general statements, the first-instance court had held that the requirement of being targeted (matufiyet) was not met because it could not be established that the applicant was clearly targeted.
Relevance to the article: If the criminal file was closed by payment, whether the words were directed at the claimant may never have been discussed; the claimant must prove this element separately before the civil court.
8. The criminal limitation period applies without a conviction
Yargıtay 4th Civil Chamber, E. 2015/1191, K. 2015/2595, T. 05.03.2015: The first-instance court had rejected on limitation grounds an action brought about five years after the incident over statements in a reply petition. The Court of Cassation reversed, stating that the extended limitation period does not require a criminal case or a conviction and that the 8-year period for insult had not expired.
Relevance to the article: In a file closed by pre-payment, too, the civil judge assesses the criminal nature of the act himself or herself and applies the 8-year period.
9. A decision of non-prosecution is not binding either
Istanbul BAM 4th Civil Chamber, E. 2024/668, K. 2024/1456, T. 17.04.2024: In an action for non-pecuniary damages based on allegations of insult and slander, the BAM, stating that “even the decision of the Chief Public Prosecutor’s Office not to prosecute is neither binding nor decisive”, held that the civil judge would determine whether the act constituted an offence and that the 8-year period under TCK 66 would apply, and set aside the first-instance decision.
Relevance to the article: The same result applies to a KYOK issued following pre-payment; a limitation objection can be overcome on this basis.
10. An example from Antalya: evidence in the criminal file and criteria for the amount
Antalya BAM 4th Civil Chamber, E. 2017/159, K. 2017/206, T. 21.03.2017: The BAM held that the civil court is not bound by the criminal judgment but that “there is no doubt that the documents, information and statements in the criminal file will constitute evidence before the civil court”, and accepted the insult as established by the CD recordings in the criminal file. For the amount, it listed the manner in which the incident occurred and its effects, the parties’ social standing, professions, family relations and incomes, the content of the words and the place where they were said, unjust provocation and the purchasing power of money at the date of the incident; it set aside the first-instance decision and partially accepted the claim.
Yargıtay 4th Civil Chamber, E. 2024/4729, K. 2025/12348, T. 11.09.2025 likewise upheld compensation awarded for insult and threats, finding the criteria of “the manner in which the incident occurred, the existence of more than one act, the intensity of intent” appropriate.
Relevance to the article: In a file closed by pre-payment, audio recordings, message transcripts and statements remain in the criminal file; obtaining the file is the shortest route to proof.
11. A current comparison: money paid to the victim in conciliation may exhaust non-pecuniary damages, pre-payment does not
Tekirdağ BAM 4th Civil Chamber, E. 2026/353, K. 2026/1102, T. 30.09.2026: In an investigation for negligent injury, the suspect paid the victim 15,000 TRY under a conciliation; the conciliation report also stated that the victim’s rights to pecuniary and non-pecuniary damages were reserved. Since it was not specified which damage the payment was meant to cover, the first-instance court treated half of the payment as non-pecuniary damages and held that, under the principle of the singularity and indivisibility of non-pecuniary damages, no new non-pecuniary damages could be claimed. The BAM upheld this decision with final effect and relied on the decision of Yargıtay 4th Civil Chamber, E. 2022/3084, K. 2024/11230, T. 18.11.2024, to the same effect.
Relevance to the article: The decision shows concretely the difference between pre-payment and conciliation. In conciliation, since the money is paid to the victim, part of the payment may be regarded as non-pecuniary damages even if rights were reserved, and this may bar a subsequent action. In pre-payment, however, the money is paid to the Treasury; since the victim receives nothing, the principle of singularity of non-pecuniary damages does not operate and the amount paid is not set off. If an insult case was closed by conciliation before Law No. 7571, the nature of the payment made to the victim should be assessed separately in light of these decisions.
Limits of the search
The case law search conducted (2015-2026, 112 candidate decisions, 58 full texts) did not find any recent civil decision directly discussing whether pre-payment for insult is to be regarded as an admission of fault in a compensation action. Since the issue has only recently begun to reach the civil chambers following Laws No. 7531 and 7571, the strongest authority on this question today is the HGK 2009/50 decision together with TCK 75/5. The Constitutional Court has also emphasised that criminal and civil remedies are both available for insult and that pre-payment is “an alternative means of resolution” (AYM, B. 2022/49332, T. 09.01.2025).
Frequently Asked Questions
Is a person who makes the pre-payment deemed to have committed insult?
No. According to the Assembly of Civil Chambers of the Court of Cassation, pre-payment is neither a conviction nor an admission of the offence. The civil court determines separately, on the evidence, whether there was an insult.
Can an action for non-pecuniary damages be brought after the case is dismissed because of pre-payment?
Yes. Under TCK 75/5, the non-filing or dismissal of the public prosecution does not affect the claiming of personal rights. The victim may claim non-pecuniary damages under TMK 24-25 and TBK 58.
Is the money paid as pre-payment deducted from the compensation?
No. Pre-payment is paid to the State Treasury; nothing is paid to the victim. It is therefore not set off against non-pecuniary damages. A payment made to the victim in conciliation, however, may be regarded as non-pecuniary damages.
Within what period must an action for compensation for insult be brought?
The general period is 2 years from learning of the damage and the person liable, and in any event 10 years (TBK 72). If the act constitutes the offence of insult, the 8-year criminal limitation period under TCK 66/1-e applies; pre-payment or a decision of non-prosecution does not prevent this.
Do the rules of criminal procedure apply in a compensation action?
No. Although the civil judge assesses whether the act is an offence according to the definition of the offence in the TCK, the proceedings and proof are governed by the HMK. The principle “the benefit of the doubt goes to the accused” does not apply, and the burden of proof is on the claimant.
In which court is an action for non-pecuniary damages for insult brought?
It is brought before the civil court of first instance (asliye hukuk mahkemesi). The courts of the defendant’s domicile, the place where the act was committed or the injured party’s domicile have jurisdiction (HMK 6, 16); for example, a person living in Alanya may bring the action in Alanya. There is no mandatory mediation requirement.
Conclusion
Pre-payment closes the criminal dimension of an insult dispute; the compensation dimension, however, is left intact to the civil court. In these cases the civil judge should follow this order:
- Record the dismissal or KYOK decision not as a binding finding but merely as a procedural fact (TBK 74, TCK 75/5).
- Draw no conclusion of fault or admission from the pre-payment (HGK, E. 2008/823, K. 2009/50).
- Independently establish the existence, content and context of the words using all the evidence, including the evidence in the criminal file.
- Assess unlawfulness using TMK 24 and the freedom of expression test.
- If the insult is established, determine the amount by criteria such as the seriousness of the words, the extent of dissemination, the parties’ circumstances, fault, provocation and reciprocity; do not take the pre-payment amount into account in this calculation.
In short, the fact that pre-payment was made is neither necessary nor sufficient for an award of non-pecuniary damages. For the insulted person, the new regime has opened the path to compensation more widely than the former conciliation regime, because there is no longer any obstacle such as the bar on bringing a compensation action due to conciliation (CMK 253/19). For the offender, pre-payment is a solution that closes off the criminal risk but continues to carry the risk of compensation.
Sources
Legislation (consolidated text of the Ministry of Justice, checked as of 18.10.2026; the binding text is that published in the Official Gazette): TCK Arts. 26, 66, 73, 75, 125, 127, 129; CMK Arts. 206, 217, 253; TBK Arts. 49, 55, 58, 72, 74; TMK Arts. 4, 6, 24, 25; HMK Arts. 2, 6, 16, 25, 107, 109, 165, 189, 190, 198; Law No. 7531, Arts. 15-16 (RG 14.11.2024); Law No. 7571, Arts. 16, 24 (RG 25.12.2025); Law No. 7589 (RG 31.07.2026).
Literature:
- Hilal Betül Güngüneş Şahin, “Anonim Şirket Yönetim Kurulu Üyelerinin Hukuki ve Cezai Sorumluluk Ayrımı”, 2025, Issue 1
- İlyas Sağlam, “Haksız Fiil Sorumluluğunda Ceza Davası Zamanaşımı Süresi ve Bu Sürenin Tüzel Kişilerin Tazminat Sorumluluğunda Uygulanıp Uygulanamayacağının Değerlendirilmesi”, 2025, Issue 3
- Alper Özboyacı, “Anonim Ortaklıklarda Yönetim Kurulu Üyelerinin TTK 560 Uyarınca Uzamış Zamanaşımına Göre Sorumlu Tutulması”, 2021, Issue 2
- Halis Yaşar, “Ceza Mahkemesi Kararlarının Hukuk Hâkimini Etkileyip Etkilememesi Meselesinin Makul Sürede Yargılanma Hakkının İhlaline Varan Boyutu”, TBB Dergisi, 2014, Issue 109
- Gamze Sivri Türker, Ceza Mahkemesi Kararlarının Hukuk Yargılamasına Etkisi, Thesis, 2021, Thesis No: 701745
- Hayrunnisa Altın, “Haksız Fiillere Ceza Kanunlarındaki Zamanaşımının Uygulanması”, 2020, Issue 1
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