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 the residence or the appurtenances of the residence of another person against their will, 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) In the event that the acts within the scope of the first paragraph are committed against workplaces and their appurtenances, excluding places that are customary to enter without the need for explicit consent, the perpetrator shall be sentenced to imprisonment from six months to one year or a judicial fine upon the complaint of the victim.
(3) In cases where family members in a marital union or more than one person jointly use a residence or workplace, the provisions of the above paragraphs shall not apply if 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, the penalty shall be imprisonment from one year to three years.
A residence; in the first paragraph of Article 19 of the Civil Code, is defined as a person's place of settlement (domicile), the place where they reside with the intention of staying permanently. In terms of criminal law, a residence is any type of place where a person takes shelter to live, even temporarily.
The legal value protected in the crime of violation of immunity of residence; it is a crime against an individual's liberty, and it is also a crime against the right to housing, possession, personal dignity, and the individual and public order. Violation of immunity of residence refers to the disruption of a person's specific peace and tranquility and the sense of security necessary for life in their 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 the crimes against liberty.
The material elements of the crime of violation of immunity of residence are; entering, not leaving, and the acts of entering and not leaving being against the will of the rights holder.
The act of "entering," which is not defined in the law, must be directed at the 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 physically enters the residence or its appurtenances with their whole body. In this respect, the entry of a part of the perpetrator's body into the residence is not sufficient for the completion of the crime. Thus, various actions performed by a person from the outside towards a residence or its appurtenances (for example; looking inside through a window, pressing one's ear to the door, looking inside from 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 immunity of residence. It does not matter from where one enters the residence. The crime is also committed in cases where one enters the residence through a window, roof, or chimney. It is also not required to enter the residence by walking. For example; entering by car, helicopter, or parachute also constitutes the crime.
The second of the alternative actions subject to sanction in the crime of violation of immunity of residence is "not leaving" a residence entered with the consent of the rights holder. The occurrence of the act of not leaving depends on the perpetrator not leaving 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 not leaving, which constitutes a factual state and situation, must continue. However, for the crime to occur, the unlawful situation must continue for a certain period of time. In this respect, if a person who has been warned to leave hesitates for a moment, it does not count as not leaving. Likewise, if the perpetrator is required to stay in the residence for a while despite the rights holder's invitation to leave, provided they do not actually wish to act against the will (for example; staying to pack their belongings), it does not constitute the "not leaving" element of the crime of violation of immunity of residence.
According to Article 116 of the Turkish Penal Code; the acts of entering and not leaving must occur "against the will" of the rights holder. When a residence or its appurtenances are entered secretly by deception, or when they are entered with consent but not left due to one of these circumstances, the act is committed against the will of the rights holder.
When entering a residence secretly; the rights holder is unaware of this situation, therefore, it is impossible for consent to exist. The absence of consent can be stated explicitly or implicitly. The rights holder can express their will in writing or verbally, or through certain signs and physical obstacles (for example; surrounding the garden with high walls, installing a bell or lock on the garden gate). However, for the crime to be realized, it is not strictly necessary for there to be obstacles and for the perpetrator to overcome them. Even if the door of the residence or its appurtenances is open, if the rights holder does not consent, the crime is committed. It is not necessary for the rights holder to be present in the residence during the act of violation of immunity of residence.
When entering a residence by deception; the will of the rights holder has been misled, and the consent given is not valid. Deception is the intentional misleading of a person. For example; the perpetrator introducing 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 rights holder living in the residence. If family members live together in the same residence, it is not possible for them to commit this crime against each other within this residence. Although they are family members, it is possible for the crime of violation of immunity of residence to be committed between people who do not live together. Spouses cannot commit this crime against each other as long as the marital union continues and a separation decision has not been given by a judge.
The mental 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;
If the act is committed by using force or threats
If the crime is committed during the night
With a weapon,
By disguising oneself so as not to be recognized, or by using anonymous letters 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,
the penalty to be imposed shall be increased by one fold.
Investigation procedure of the crime; the prosecution of the crime of violation of immunity of residence is dependent on 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 will never encounter the type of crime I have tried to summarize above, either as a perpetrator or 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.