What is the Crime of Violation of Immunity of Residence?
In this article, I would like to discuss the crime of violation of residential immunity. This crime is regulated in the seventh chapter of the second part, titled “Crimes Against Liberty,” of the second book of the Turkish Penal Code.
Violation of residential immunity
Article 116- (1) A person who enters the residence or the annexes of the residence of another against their consent, or who does not leave after entering with consent, shall be sentenced to imprisonment from six months to two years upon the complaint of the victim.
(2) In cases where the acts covered by the first paragraph are committed against workplaces and their annexes, other than those places where entry is customary without the need for explicit consent, a sentence of imprisonment from six months to one year or a judicial fine shall be imposed upon the complaint of the victim.
(3) In the case of a marital union, or if the residence or workplace is used jointly by more than one person, if one of these persons gives consent, the provisions of the above paragraphs shall not apply. However, for this to apply, the declaration of consent must be for a legitimate purpose.
(4) If the act is committed by using force or threats, or during the night, a sentence of imprisonment from one to three years shall be imposed.
A residence is defined in the first paragraph of Article 19 of the Civil Code as a person's place of settlement (domicile) where they reside with the intention of staying permanently. For criminal law purposes, a residence is any type of place where a person takes shelter to reside, even if only temporarily.
The legal value protected by the crime of violation of residential immunity is a crime against an individual’s liberty; it is a crime committed against the right to a residence, possession, personal dignity, and the individual and public order. Violation of residential immunity refers to the shaking of a person’s sense of security, which is necessary for their specific peace and tranquility and for the life within their home to proceed in peace and safety. It has been deemed appropriate to define these acts, which are committed against individuals and at the same time violate the security and tranquility they require, as a crime among those committed against liberty.
The material elements of the crime of violation of residential immunity are: entering, not leaving, and the acts of entering and not leaving being against the consent of the right holder.
The act of “entering,” which is not defined in the law, must be directed towards a residence or its annexes. In this respect, "entering" should be understood as entering a residence or its annexes, or a workplace or its annexes. This form of the act is realized if the perpetrator physically enters the residence or its annexes with their entire body. In this respect, it is not sufficient for the completion of the crime for only a part of the perpetrator’s body to have entered the residence. Thus, various actions taken from the outside towards a residence or its annexes (e.g., looking inside through a window, pressing one's ear to the door, looking inside over a wall defining the boundaries of the house, throwing a stone at a window, ringing the doorbell) do not constitute the crime of violation of residential immunity. It does not matter from where the residence or its annexes are entered. The crime also occurs if one enters the residence through a window, the roof, or the chimney. It is not strictly required to enter the residence by walking. For instance, entering by car, helicopter, or parachute also constitutes the crime.
The second of the alternative acts sanctioned in the crime of violation of residential immunity is “not leaving” a residence entered with the consent of the right holder. The occurrence of the act of not leaving depends on the perpetrator not departing from the place entered with consent, despite the right holder inviting them to leave through words, actions, or behavior. There is no clarity in the Turkish Penal Code as to how long the act of not leaving, which constitutes a factual state and situation, must continue. However, for the crime to occur, the unlawful situation must persist for a certain period. In this respect, a person who is warned to leave and hesitates for a moment is not considered to be "not leaving." Similarly, if the perpetrator, who does not intend to act against the will of the right holder, needs to stay in the residence for a short time after being invited to leave (e.g., to gather their belongings), this does not constitute the "not leaving" element of the crime of violation of residential immunity.
According to Article 116 of the Turkish Penal Code, the acts of entering and not leaving must occur "against the consent" of the right holder. When a residence or its annex is entered secretly by deceit, or when one enters with consent but does not leave through one of these methods, the act is committed against the will of the right holder.
When one enters a residence secretly, the right holder is unaware of this situation, and therefore it is impossible for consent to exist. The absence of consent can be indicated explicitly or implicitly. The right holder can declare their will in writing or orally, as well as through certain signs and physical barriers (e.g., surrounding the garden with high walls, installing a bell or lock on the garden gate). However, it is not strictly required for the crime to occur that there be barriers and that the perpetrator overcomes them. Even if the door of the residence or its annex is open, the crime is committed if the right holder has no consent. It is not required for the right holder to be present in the residence during the act of violation of residential immunity.
When one enters a residence by deceit, the right holder's will has been misled, and the consent given is not valid. Deceit is the intentional misleading of a person. For example, the perpetrator identifying themselves as an electrician or plumber, using a false name and title, or imitating the voice of a relative of the homeowner.
The perpetrator of the crime can be anyone. The victim is the right holder living in the residence. If family members live together in the same residence, it is impossible for them to commit this crime against each other within that residence. While being family members, it is possible for the crime of violation of residential immunity to be committed between people who do not live together. As long as the marital union continues and a separation decision has not been issued by a judge, a husband or wife cannot commit this crime against each other.
The moral elements of the crime of violation of residential immunity: this crime can be committed intentionally. The negligent form of this crime is not punished.
Qualified elements requiring a heavier penalty:
-The act being committed by using force or threats
-The crime being committed during the night
-With a weapon,
-By the person making themselves unrecognizable, through an unsigned letter, or special signs,
-By more than one person together,
-By taking advantage of the intimidating power of existing or assumed criminal organizations,
-By abusing the influence provided by a public office,
the penalty to be imposed shall be increased by one fold.
Investigation procedure of the crime; the prosecution of the crime of violation of residential immunity is subject to a complaint. If more than one person resides in the residence (e.g., family members), each of them has the right to file a complaint.
I hope that you will never encounter the type of crime I have tried to summarize above, neither as a perpetrator nor as a victim, and I would like to remind you that if you see/hear this type of crime as an eyewitness, it is your duty as a citizen to report it to law enforcement. Wishing you healthy and peaceful days.