Crime of Violating the Inviolability of Residence in Turkish Law
What is Violation of Inviolability of Residence?
The inviolability of residence is a constitutional right to protect private life and peace. This right means that entry into a residence without the consent of the person is prohibited. Turkish Penal Code Article 116 regulates the violation of inviolability of residence.
According to the article, it is a crime to enter a person’s residence or its annexes without consent or to refuse to leave after entering with consent. The residence does not have to be closed for this crime to occur. Annexes of the residence such as gardens, garages, and depots are also considered within this scope.
The victim of the crime is the homeowner or the person using the annexes of the residence. Since the crime depends on a complaint, no investigation can be conducted without the victim’s complaint.
What is the Penalty for Violation of Inviolability of Residence?
The crime of violating the inviolability of residence is punishable by imprisonment from six months to two years. If the crime is committed against a workplace and its annexes, the penalty can be imprisonment from six months to one year or a judicial fine. If the crime is committed using force or threats or at night, the penalty is increased to imprisonment from one to three years.
Is Violation of Inviolability of Residence Subject to Complaint?
Is There a Statute of Limitations for the Crime of Violating the Inviolability of Residence?
The crime of violating the inviolability of residence is regulated under Article 116 of the Turkish Penal Code. The statute of limitations for this crime is 8 years according to TCK 66/1-e. However, if aggravated elements are added to the crime, this period can be extended up to 15 years according to TCK 66/3.
Is the Crime of Violating the Inviolability of Residence Subject to Reconciliation?
The crime of violating the inviolability of residence is subject to reconciliation under Article 253 of the Code of Criminal Procedure (CMK). Reconciliation provisions apply regardless of whether the crime is subject to a complaint. Even if the qualified conditions in Article 119 of the Turkish Penal Code occur, the crime is still evaluated within the scope of reconciliation.
Examples of Situations Related to Violation of Inviolability of Residence:
The violation of inviolability of residence can occur in various ways. Some examples are:
Entering a house without consent: Entering a person’s house without the owner’s permission is a violation of the inviolability of residence. This can occur by forcibly breaking the door or entering through a window, as well as unauthorized entry by opening with a key.
Searching without consent: Searching a person’s house or workplace without the owner’s or business owner’s consent is also a violation of the inviolability of residence. This can happen when the police conduct a search without a warrant or when a repairman enters the house and rummages through belongings without the owner’s permission.
Secretly listening or watching: Secretly listening to or watching a person’s house or workplace is also a violation of the inviolability of residence. This can be done by placing cameras or listening devices or by peeping through windows.
Cutting off electricity or water: Cutting off electricity or water to a person’s house or workplace without their consent is also a violation of the inviolability of residence.
There are also exceptions to the inviolability of residence. For example, it is possible for the police to enter a house without a search warrant in an emergency situation or when pursuing a criminal.
Additional Examples:
A building manager entering an apartment for repairs without the tenant’s permission
A neighbor entering another neighbor’s balcony or garden without permission
An employer searching an employee’s desk or locker without permission
A public official entering a house without a search warrant for an official duty
Perpetrator of the Crime: Who Violates the Inviolability of Residence?
Although the Turkish Penal Code (TCK) does not specifically define the perpetrator of the crime of violating the inviolability of residence, anyone who commits the crime is considered a perpetrator. In this context, potential perpetrators are:
Foreign Persons: Any foreign person entering the residence without the consent of the homeowner or tenants can be the perpetrator of this crime.
Family Members: Among family members living in the same residence, it is not possible to enter each other’s residence without permission. This relates to the law’s protection of the residence and inclusion of all family members living in the same place. Therefore, a family member living under the same roof does not violate the inviolability of residence by entering the residence or other family members’ rooms without permission.
Spouses: As long as the marriage continues and there is no separation decision by the court, spouses cannot commit this crime against each other’s residences. However, if a separation decision is made by the court or if the conditions stated in Article 197 of the Civil Code occur, spouses living separately can be perpetrators of this crime. Even if there is no official separation decision, if the spouses are actually living in separate residences within the marriage union, one spouse entering the other’s residence without permission does not constitute a crime. However, if the wife lives in another person’s or family’s house, the husband’s entry into this residence without consent constitutes a violation of the inviolability of residence.
Shared Living Areas: Multiple people living in the same room cannot be perpetrators of the crime of violating the inviolability of residence by entering each other’s rooms or commonly used areas without permission. However, if multiple people live in separate rooms, they can be perpetrators of this crime by entering each other’s rooms without permission. However, they do not commit this crime in commonly used areas.
Crime of Violation of Inviolability of Residence in Rental Houses
Inviolability of Residence: Tenant’s Rights
The inviolability of residence is a fundamental right not only for homeowners but also for tenants. This right is protected under Article 116 of the Turkish Penal Code. According to the article, a person who enters a residence or its annexes without consent or refuses to leave after entering with consent is punishable by imprisonment from 6 months to 2 years upon the victim’s complaint.
In this context, the property rights of the homeowner do not justify the violation of the tenant’s inviolability of residence. The homeowner cannot enter the tenant’s residence without consent except as allowed by the lease agreement or legal regulations.
Actions Violating the Inviolability of Residence by the Tenant
Some situations where a homeowner can violate the tenant’s inviolability of residence are:
Entering the house without consent: The homeowner cannot enter the house without prior notice or the tenant’s consent. This applies even if the entry is necessary for repairs or maintenance.
Entering the house in violation of the lease agreement: The lease agreement may specify when and under what conditions the homeowner can enter the house. If the homeowner enters the house in violation of the agreement, they violate the inviolability of residence.
Bringing guests into the house without the tenant’s permission: The homeowner cannot bring guests into the house without the tenant’s consent. The tenant’s consent is required for guests to enter the house.
Touching the tenant’s personal belongings: The homeowner cannot touch or use the tenant’s personal belongings without permission.
Behaving in a manner that disturbs the tenant’s peace: The homeowner cannot disturb the tenant’s peace by actions such as playing loud music, arguing, or interfering with the tenant’s private life.
Tenant’s Rights
When the inviolability of residence is violated, the tenant can:
Report to the police or gendarmerie: The tenant can report the violation of the inviolability of residence by the homeowner to the police or gendarmerie.
File a criminal complaint with the prosecutor’s office: The tenant can inform the prosecutor’s office about the violation of the inviolability of residence by the homeowner and file a criminal complaint.
Terminate the lease agreement: The tenant can terminate the lease agreement due to the violation of the inviolability of residence by the homeowner.
Authority to Give Consent in Violation of Inviolability of Residence
In the crime of violating the inviolability of residence, the authority to give consent allows everyone living in the same house or each family member living in the family residence to enter the residence alone. However, this consent must be shown for a legitimate purpose and must not be unlawful. Additionally, it should be acceptable to other rights holders.
Persons Authorized to Give Consent:
In the TCK, the person authorized to give consent is defined as “the person who has the right to remove himself from there.” In this context, the legal value protected in the crime of violating the inviolability of residence is not property, but the individual freedom of the persons living in the residence. Therefore, the person or persons still living in the residence have the authority to give consent for a legitimate reason.
Situation of Shared Residence:
If the residence is used by a single person, it is easy to determine the person authorized to give consent. However, if there are different rooms occupied by different people in the residence, each room owner is only authorized to give their consent. For common areas, it should be accepted that each one has the authority to give consent alone.
Persons Sharing the Same Room:
If the same room is used by more than one person as a residence, these people are jointly authorized to give consent. However, entering the residence without the consent of one of these people or not leaving after entering constitutes the crime of violating the inviolability of residence.
Consent of Family Members:
When family members live in the residence, it should be examined which family member is authorized to give consent. In the old Civil Code, the head of the family, the husband, was considered authorized to give consent. However, today, spouses jointly manage the marriage union and do not have the authority to give consent in a way that harms each other’s legitimate rights.
Consent of Guests:
A guest staying with the family does not have the authority to give consent to allow another person into the house. Because they are there based on someone else’s consent.
Mental Element in the Crime of Violating the Inviolability of Residence
The mental element of the crime of violating the inviolability of residence is intent. This crime cannot be committed through negligence. The perpetrator must knowingly and willingly violate the inviolability of another’s residence.
Intent:
The perpetrator must be aware that they are violating the inviolability of residence and that their action is unlawful. The perpetrator’s intent can be direct or indirect.
Direct Intent:
The perpetrator’s intention to violate the inviolability of residence by entering the residence or refusing to leave after entering is clear and explicit.
Indirect Intent:
The perpetrator realizes that their action will violate the inviolability of residence but proceeds with the action, accepting or desiring the result.
Error:
If the perpetrator is unaware that they are violating the inviolability of residence or believes that their action is lawful, intent is not established. In this case, the mental element of the crime is not present, and the perpetrator is not punished.
Specific Intent:
The legal regulation does not require the perpetrator to act with a specific purpose. General intent is sufficient.
Special Manifestations of the Crime:
What Happens if the Crime of Violating the Inviolability of Residence Remains at the Attempt Stage?
An attempt to violate the inviolability of residence means that a person starts to enter the residence but cannot complete it. This can happen when the person tries to open the door of the residence, tries to enter through the window, or searches for an opportunity to enter by walking around the house.
To talk about an attempt, the perpetrator must have the intent to enter the residence and start an action in line with this intent. Even if the perpetrator’s action is not completed, the connection between the intent to enter the residence and the action should be clearly seen.
An attempt to violate the inviolability of residence is considered the attempt stage of the crime of violating the inviolability of residence regulated in TCK Article 116. In the case of an attempt, the perpetrator is punished with half of the full crime.
Example:
1- A person tries to open the door of a house but is caught and prevented by the homeowner. In this case, the perpetrator is considered to have attempted to violate the inviolability of residence.
2 – A person tries to enter through the window of a house but loses their balance and falls. In this case, the perpetrator is also considered to have attempted to violate the inviolability of residence.
Participation
All forms of participation are possible in the crime of violating the inviolability of residence. Incitement, aiding, and participation in the commission of the crime can also be applied to this crime.
Marriage Union and Participation:
Whether a woman who takes her lover into the residence during the marriage union is responsible for participating in the crime of violating the inviolability of residence on behalf of her lover has been debated in practice. In its decision, the Supreme Court stated that the action of “violating the inviolability of the residence” committed between husband and wife during the continuation of the marriage union does not constitute a crime. Therefore, the woman, who is the defendant, is not responsible for inciting the crime of “violating the inviolability of the residence at night” by taking her lover into the common home and committing adultery.
Joinder:
Independent Crime:
The violation of the inviolability of residence is an independent crime and is evaluated separately even if it is committed together with another crime. For example, entering a house to commit another crime such as theft or robbery is still evaluated under Article 116.
However, if there is a connection between the crime to be committed by entering the house and the violation of the inviolability of residence (i.e., if the violation of the inviolability of residence is an element or aggravating reason for the other crime), no penalty is imposed under Article 116. The penalty is given according to the article related to the main crime.
Examples:
- A thief entering a house and committing theft
- A person forcibly entering an ex-lover’s house and threatening them
Exception:
The High Court ruled in a decision that a person’s act of entering a property to seek their own right (self-redress) does not constitute the mental element of the violation of the inviolability of residence, and therefore, no penalty should be imposed under Article 116.
What Are the Aggravated Circumstances that Increase the Penalty for the Crime of Violating the Inviolability of Residence?
The penalty for the crime of violating the inviolability of residence is normally imprisonment from six months to two years. However, the penalty can be increased depending on the purpose and methods used by the perpetrator. These are called aggravated circumstances. The legislator has also regulated various aggravated circumstances for the crime of violating the inviolability of residence.
The aggravated circumstances that increase the penalty for the crime of violating the inviolability of residence are:
1. Use of Force or Threat: If the perpetrator uses force or threats to enter the residence, the penalty is increased to imprisonment from one to three years.
2. Committed at Night: The crime being committed at night is also an aggravating circumstance. In this case, the perpetrator is punished with imprisonment from one to three years.
3. Use of Weapons: If the perpetrator commits the crime using a weapon, the penalty is doubled.
4. Disguising Identity: If the perpetrator disguises their identity by wearing a mask or using makeup to commit the crime, the penalty is doubled.
5. Committed by Multiple Persons: If the crime is committed by at least two people together, the penalty is increased.
6. Use of the Intimidating Effect of a Criminal Organization: If the perpetrator commits the crime by using the intimidating effect of a criminal organization, the penalty is doubled.
7. Use of Public Authority: If a public official commits the crime by abusing their authority, the penalty is increased.
Penalty and Sanctions for the Crime of Violating the Inviolability of Residence
The penalty and sanctions for the crime of violating the inviolability of residence vary depending on the location and conditions under which it is committed. Here are the details of the penalty and sanctions for the crime of violating the inviolability of residence:
Amount of Imprisonment:
In the Residence: A person who enters a residence or its annexes without consent or refuses to leave after entering with consent is sentenced to imprisonment from six months to two years.
In the Workplace: A person who enters or refuses to leave the workplace and its annexes, except for places where open consent is not required, is sentenced to imprisonment from six months to one year or a judicial fine.
Conversion of Imprisonment to Judicial Fine:
Under certain conditions, the conversion of imprisonment to a judicial fine is possible. If a sentence of imprisonment of one year or less is imposed for intentional crimes, taking into account factors such as the perpetrator’s remorse, social, and economic situation, the imprisonment sentence may be converted to a fine. In the crime of violating the inviolability of residence, if a one-year imprisonment sentence is imposed and other conditions are met, this imprisonment sentence can be converted to a judicial fine.
Other Sanctions:
Suspension: The law allows for the suspension of the sentence. If the conditions in Article 51 of the Turkish Penal Code are met, it is possible to decide to suspend the sentence in the crime of violating the inviolability of residence.
Postponement of the Announcement of the Verdict: The postponement of the announcement of the verdict (HAGB) means that the sentence given to the defendant does not produce results. The defendant is subject to supervision for a certain period, and if they comply with the conditions during this period, the sentence will be dropped. It is possible to decide on HAGB in all cases of the crime of violating the inviolability of residence.
Which Court is Authorized and Competent for the Crime of Violating the Inviolability of Residence?
The competent court for the crime of violating the inviolability of residence is the Criminal Court of First Instance. The competent court determines where the trial will be conducted. According to the general jurisdiction rule in criminal trials, the court in the place where the crime was committed is competent. Therefore, trials related to the crimes of violating the inviolability of residence are conducted by the Criminal Court of First Instance in the place where the crime was committed.
Joinder
Independent Crime:
The violation of the inviolability of residence is an independent crime and is evaluated separately even if it is committed together with another crime. For example, entering a house to commit another crime such as theft or robbery is still evaluated under Article 116.
However, if there is a connection between the crime to be committed by entering the house and the violation of the inviolability of residence (i.e., if the violation of the inviolability of residence is an element or aggravating reason for the other crime), no penalty is imposed under Article 116. The penalty is given according to the article related to the main crime.
Examples:
- A thief entering a house and committing theft
- A person forcibly entering an ex-lover’s house and threatening them
Exception:
The High Court ruled in a decision that a person’s act of entering a property to seek their own right (self-redress) does not constitute the mental element of the violation of the inviolability of residence, and therefore, no penalty should be imposed under Article 116.
What Are the Aggravated Circumstances that Increase the Penalty for the Crime of Violating the Inviolability of Residence?
The penalty for the crime of violating the inviolability of residence is normally imprisonment from six months to two years. However, the penalty can be increased depending on the purpose and methods used by the perpetrator. These are called aggravated circumstances. The legislator has also regulated various aggravated circumstances for the crime of violating the inviolability of residence.
The aggravated circumstances that increase the penalty for the crime of violating the inviolability of residence are:
1. Use of Force or Threat: If the perpetrator uses force or threats to enter the residence, the penalty is increased to imprisonment from one to three years.
2. Committed at Night: The crime being committed at night is also an aggravating circumstance. In this case, the perpetrator is punished with imprisonment from one to three years.
3. Use of Weapons: If the perpetrator commits the crime using a weapon, the penalty is doubled.
4. Disguising Identity: If the perpetrator disguises their identity by wearing a mask or using makeup to commit the crime, the penalty is doubled.
5. Committed by Multiple Persons: If the crime is committed by at least two people together, the penalty is increased.
6. Use of the Intimidating Effect of a Criminal Organization: If the perpetrator commits the crime by using the intimidating effect of a criminal organization, the penalty is doubled.
7. Use of Public Authority: If a public official commits the crime by abusing their authority, the penalty is increased.
Penalty and Sanctions for the Crime of Violating the Inviolability of Residence
The penalty and sanctions for the crime of violating the inviolability of residence vary depending on the location and conditions under which it is committed. Here are the details of the penalty and sanctions for the crime of violating the inviolability of residence:
Amount of Imprisonment:
In the Residence: A person who enters a residence or its annexes without consent or refuses to leave after entering with consent is sentenced to imprisonment from six months to two years.
In the Workplace: A person who enters or refuses to leave the workplace and its annexes, except for places where open consent is not required, is sentenced to imprisonment from six months to one year or a judicial fine.
Conversion of Imprisonment to Judicial Fine:
Under certain conditions, the conversion of imprisonment to a judicial fine is possible. If a sentence of imprisonment of one year or less is imposed for intentional crimes, taking into account factors such as the perpetrator’s remorse, social, and economic situation, the imprisonment sentence may be converted to a fine. In the crime of violating the inviolability of residence, if a one-year imprisonment sentence is imposed and other conditions are met, this imprisonment sentence can be converted to a judicial fine.
Other Sanctions:
Suspension: The law allows for the suspension of the sentence. If the conditions in Article 51 of the Turkish Penal Code are met, it is possible to decide to suspend the sentence in the crime of violating the inviolability of residence.
Postponement of the Announcement of the Verdict: The postponement of the announcement of the verdict (HAGB) means that the sentence given to the defendant does not produce results. The defendant is subject to supervision for a certain period, and if they comply with the conditions during this period, the sentence will be dropped. It is possible to decide on HAGB in all cases of the crime of violating the inviolability of residence.
Which Court is Authorized and Competent for the Crime of Violating the Inviolability of Residence?
The competent court for the crime of violating the inviolability of residence is the Criminal Court of First Instance. The competent court determines where the trial will be conducted. According to the general jurisdiction rule in criminal trials, the court in the place where the crime was committed is competent. Therefore, trials related to the crimes of violating the inviolability of residence are conducted by the Criminal Court of First Instance in the place where the crime was committed.
