What is the Crime of Violation of Immunity of Residence?
What is the Crime of Violation of Immunity of Residence?
In this article, I would like to discuss the crime of violation of immunity of residence. This crime is regulated in the seventh section of the second part of the second book of the Turkish Penal Code, which covers "Crimes Against Liberty".
Violation of immunity of residence
Article 116- (1) A person who enters another's residence or its appurtenances against their consent, or who does not leave after having entered with consent, shall be sentenced to imprisonment from six months to two years upon the complaint of the victim.
(2) If the acts falling within the scope of the first paragraph are committed against workplaces and their appurtenances, excluding places where entry is customary without the need for explicit consent, the offender shall be sentenced to imprisonment from six months to one year or a judicial fine upon the complaint of the victim.
(3) The provisions of the above paragraphs shall not be applied if, in a marital union or in cases where the residence or workplace is used jointly by more than one person, one of these persons gives consent. However, for this to be valid, 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 time, the penalty shall be imprisonment from one year to three years.
A residence is defined in the first paragraph of Article 19 of the Civil Code as a person's place of settlement (domicile), the place where they reside with the intent to stay permanently. In terms of criminal law, a residence is any kind of place where a person takes shelter to live, even if temporarily.
The legal value protected by the crime of violation of immunity of residence is a crime against an individual's liberty; it is a crime committed against the right to housing, possession, personal honor, the individual, and public order. Violation of immunity of residence refers to the disturbance of a person's specific peace and quiet and the sense of security necessary for life within one's home to proceed in peace and safety. It has been deemed appropriate to define these acts, which are committed against individuals and simultaneously violate the security and tranquility they require, as a crime among those committed against liberty.
The material elements of the crime of violation of immunity of residence are: entering, failing to leave, and the acts of entering and failing to leave being against the consent of the rights holder.
The act of "entering," which is not defined in the law, must be directed toward a residence or its appurtenances. In this respect, "entering" should be understood as entering a residence or its appurtenances, or a workplace or its appurtenances. This form of the act is realized if the perpetrator actually enters the residence or its appurtenances with their whole body. Therefore, it is not sufficient for the completion of the crime that only a part of the perpetrator's body has entered the residence. Thus, various actions taken from the outside toward a residence or its appurtenances (for example, looking inside through a window, pressing one's ear against the door, looking inside over a wall that defines the boundaries of the house, throwing a stone at a window, ringing the doorbell) do not constitute the crime of violation of immunity of residence. It does not matter where the residence or its appurtenances are entered from. The crime also occurs in cases where entry is made through a window, roof, or chimney. It is also not strictly required to enter the residence on foot. For example, entering by car, helicopter, or parachute also constitutes the crime.
The second of the alternative acts subject to sanctions in the crime of violation of immunity of residence is "failing to leave" a residence entered with the consent of the rights holder. The occurrence of the act of failing to leave depends on the perpetrator not departing from the place entered with consent, despite the rights holder inviting them to leave through words, actions, or attitudes. There is no clarity in the Turkish Penal Code as to how long the act of failing to leave, 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 regard, a person who is warned to leave and hesitates for a moment is not considered to be failing to leave. Likewise, if the perpetrator, who does not actually wish to act against the will of the rights holder, is compelled to stay in the residence for a period upon being invited to leave (for example, staying to pack their belongings), it does not constitute the "failing to leave" element of the crime of violation of immunity of residence.
According to Article 116 of the Turkish Penal Code, the acts of entering and failing to leave must occur "against the consent" of the rights holder. When a residence or its appurtenance is entered secretly by deceit, or when it is entered with consent but not departed from through one of these means, the act is committed against the consent of the rights holder.
When a residence is entered secretly, the rights holder is unaware of this situation, and therefore, it is impossible for their consent to exist. The lack of consent can be stated explicitly or implicitly. The rights holder may express their will in writing or verbally, or through certain signs and physical barriers (for example, surrounding the garden with high walls, installing a bell or lock on the garden gate). However, for the crime to occur, it is not strictly necessary for such barriers to exist and for the perpetrator to overcome them. Even if the door to the residence or its appurtenances is open, the crime occurs if the rights holder does not consent. It is not necessary for the rights holder to be in the residence during the act of violation of immunity of residence.
When a residence is entered through deceit, the will of the rights holder has been misled, and the consent given is invalid. Deceit is the intentional misleading of a person. For example, the perpetrator introducing themselves as an electrician or plumber, using a fake 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 rights 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. Although they are family members, it is possible for the crime of violation of immunity of residence to be committed between persons who do not live together. Spouses cannot commit this crime against each other as long as the marital union continues and no separation decision has been rendered by a judge.
The moral elements of the crime of violation of immunity of residence; this crime can be committed intentionally. Negligent forms of this crime are not punishable.
Qualified elements requiring a heavier penalty;
The act being committed by using force or threats,
The crime being committed during the night time,
With a weapon,
By the person making themselves unrecognizable, via an unsigned letter or special signs,
By more than one person together,
By taking advantage of the intimidating power created by existing or assumed criminal organizations,
By abusing the influence provided by a public office,
If committed, the penalty to be imposed shall be increased by one fold.
The investigation procedure of the crime; the prosecution of the crime of violation of immunity of residence is subject to a complaint. If more than one person resides in the residence (for example, family members), each of them has the right to file a complaint.
I hope that you 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, you must report it to law enforcement agencies as a civic duty. Wishing you healthy and peaceful days.