The short answer is no, a complaint is not required. This is an express exception to the general rule governing the offence of insult and has direct consequences for journalism.
The provision: Article 131
“(1) Save where committed against a public official on account of their duty, the investigation and prosecution of the offence of insult depend on the complaint of the victim.
(2) Where the victim dies before making a complaint, or where the offence was committed against the memory of a deceased person, a complaint may be made by the ascendants and descendants up to the second degree, the spouse or the siblings of the deceased.”
Two conditions must coincide
| Element | Meaning |
|---|---|
| The victim must be a public official | The capacity is assessed as at the time of the act |
| The insult must have been committed on account of their duty | An insult directed at the person’s private life is outside this scope and remains dependent on a complaint |
The penalty is also increased
Article 125/3: “Where the offence of insult is committed: (a) against a public official on account of their duty … the lower limit of the sentence may not be less than one year.” The three-month lower limit in Article 125/1 thus rises to one year.
To that Article 125/4 adds a further increase of one sixth where the insult is committed publicly; publication carries publicity. Under Article 218 commission through the press and media increases the sentence by up to one half.
| Stage | Effect |
|---|---|
| Basic penalty (Art. 125/1) | 3 months to 2 years’ imprisonment or a judicial fine |
| Against a public official on account of duty (Art. 125/3(a)) | The lower limit may not be less than one year |
| Committed publicly (Art. 125/4) | The sentence is increased by one sixth |
| Committed through the press and media (Art. 218) | The sentence is increased by up to one half |
The other two sub-paragraphs of Article 125/3
The same paragraph names two further cases in which the lower limit may not be less than one year:
- (b) On account of a person expressing, changing or seeking to disseminate their religious, political, social or philosophical belief, thought or conviction, or acting in conformity with the commands and prohibitions of the religion to which they belong
- (c) By reference to values held sacred by the religion to which the person belongs
But note: the complaint exception in Article 131/1 applies only to insult committed against a public official on account of their duty. The cases in (b) and (c) are aggravated as to penalty but remain subject to the complaint rule.
Public officials working as a board
Article 125/5: “Where public officials working as a board are insulted on account of their duties, the offence shall be deemed committed against the members constituting the board. In that case, however, the provisions on chain offences shall apply.”
What this means for journalism
The practical result is that where a report about a public official’s duties contains an element of insult, that official saying “I do not wish to complain” does not stop the process. This explains why the choice of language must be more careful in stories concerning public officials.
The protective provisions still apply
The last sentence of Article 218 applies to stories about public officials too: “expressions of opinion that do not exceed the limits of reporting and are made for the purpose of criticism shall not constitute an offence.” Further, under Article 127, where the attributed act constitutes an offence and is proved, no penalty is imposed; acceptance of a request to prove depends on there being a public interest.
Immunity for allegations and defence
Article 128 provides that no penalty is imposed where concrete attributions or negative assessments concerning persons are made within written or oral applications, allegations and defences before judicial or administrative authorities; but the attributions and assessments must rest on real and concrete facts and be connected with the dispute. That immunity attaches to applications and pleadings and does not apply directly to a news report.
The limits of criticism are covered in the politicians guide and proof in the proof guide.