The crime of disturbing the peace and tranquility of individuals, regulated under the title “Crimes Against Liberty” in the Turkish Penal Code, is defined as follows: “If a person persistently calls someone, makes noise, or engages in any other unlawful behavior with the sole purpose of disturbing their peace and tranquility, the perpetrator shall be sentenced to imprisonment for a period of three months to one year upon the complaint of the victim.”
Elements of the Crime of Disturbing the Peace and Tranquility of Individuals:
1- It should be noted initially that the presence of intent is a requirement for the commission of the crime. The relevant legal provision explicitly states “…with the sole purpose of disturbing the peace and tranquility…” which establishes the necessity of intent for the formation of the crime. Therefore, the crime does not occur if the act is committed with possible intent or negligence; for the crime to be constituted, direct and specific intent is required.
| The 4th Criminal Chamber of the Court of Cassation, 2015/3575 E. 2015/24514 K. “…It has been accepted that the defendant, who resides in the apartment building with the victim on the floor below, gave food to street cats in the building’s garden, and the smell of this food caused many street cats to come to the garden, thereby disturbing the victim. In order for the crime to be constituted, it is necessary for the defendant to act with a specific purpose and for the perpetrator to have the specific intent to disturb the peace and tranquility of the victim. Therefore, without clarifying and discussing whether the act was committed solely to disturb the victim’s peace and tranquility and how the element of persistence in the alleged crime occurred, a conviction was issued with insufficient reasoning…” |
2- The second required element for the formation of the crime is the fulfillment of the persistence condition. The person whose freedom, psychological, and mental well-being is sought to be protected by the relevant legal provision. Therefore, a single occurrence of the act is not sufficient for the formation of this crime. For the crime to be constituted, the act must be committed multiple times against the same victim.
| The 18th Criminal Chamber of the Court of Cassation, 2019/8026 E. 2020/4736 K. “…The legal interest protected by the crime of disturbing the peace and tranquility of individuals is defined as the protection of personal freedom and the individual’s right not to be disturbed psychologically or mentally, and to lead a healthy life. For this crime to be constituted, it is not sufficient for the acts listed in the law, such as making phone calls, creating noise, or engaging in unlawful behavior with the same intent, to be done only once. The actions must be persistently repeated, show continuity, and be committed solely with the intention of disturbing the peace and tranquility of individuals…” |
3- The crime in question will occur when one of the three alternative actions specified in the relevant provision is carried out. However, the scope of the alternative actions listed in the law is a subject of debate in legal doctrine. For example, whether the phrase “persistent phone calls” only refers to phone calls, or whether actions made through messaging on social media platforms should also be considered within this scope, is a topic of discussion. The general opinion on this matter is that the phrase includes not only phone calls but also sending text messages. According to this interpretation and practice, forms of communication carried out through applications such as “WhatsApp,” which allow instant messaging via mobile devices, should also be considered within this action. Indeed, the decision of the Criminal General Assembly, No. 2018/45, is in this direction. What is important here is that the act must be persistent and intentional with respect to all three alternative actions. Therefore, situations such as sending blank messages that carry no content or the perpetrator keeping the phone on but not speaking during a call do not prevent the formation of the crime.
For the crime to occur with an unlawful act as one of the alternative actions, the act must not constitute another crime. When the act becomes an element of another crime, it merges within that crime. For example, if a person develops a mental illness as a result of the actions, the crime of intentional injury would occur. If the act involves phone-based sexual harassment, the crime of sexual harassment would be constituted.
4- Another element of the crime is that the act must be committed against a specific individual. This is highlighted in the text of the provision with the phrase “against a person.” Indeed, the fact that the crime is committed against a specific individual is one of the key features that distinguishes this crime from actions regulated under Articles 546 and 547 of the seventh chapter titled “Acts Disturbing the Public” in the third book of the previous Turkish Penal Code, No. 765. Considering the structural nature of the crime, legal entities cannot be victims of this crime, so only natural persons can be the victims. Similarly, since legal entities cannot be perpetrators of this crime, only natural persons can be the perpetrators.
Regarding the complaint period, punishment, and competent court for the crime:
5- The crime in question is subject to complaint and falls within the scope of offenses that can be resolved through reconciliation. In the event of the crime’s commission, the public prosecutor cannot initiate an investigation ex officio. In this regard, the provisions of Article 73 of the Turkish Penal Code apply, and the complainant must exercise their right to file a complaint within 6 months from the time they learn of the perpetrator and the act. The statute of limitations for prosecuting the crime is 8 years.
6- The penalty for the crime is imprisonment for a period of 3 months to 1 year. According to Article 100/4 of the Criminal Procedure Code, “A detention order cannot be issued for crimes punishable only by judicial fines or intentional crimes against bodily integrity, except for crimes punishable by imprisonment of no more than two years.” The upper limit of the penalty for this crime is set at 1 year. Considering the upper limit of the imprisonment penalty, a detention order cannot be issued directly by the judge for this crime. Therefore, the penalty may be converted into one of the alternative sanctions provided under Articles 49/2 and 50 of the Turkish Penal Code. It is also possible for the court to decide on the suspension of the pronouncement of the judgment. However, for this decision to be made, the defendant must compensate for the damages of the other party.
7- According to Articles 11 and 14 of the Law on the Organization, Duties, and Powers of Regional Courts of Appeal, since the upper limit of the penalty for this crime is under 10 years, the competent court is the Criminal Court of First Instance, and the jurisdictional court is the Criminal Court of First Instance in the location where the crime was committed.
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