The crime of violation of the inviolability of residence, as defined by law, is committed when the perpetrator unlawfully enters the victim’s residence or its annexes without consent or refuses to leave after having entered.
Turkish Penal Code Article 116
(1) A person who enters another’s residence or its annexes without consent or, having entered with consent, refuses to leave, shall be sentenced to imprisonment from six months to two years upon the complaint of the victim.
Whether the Crime is Subject to Complaint or Not
The crime of violation of the immunity of residence is regulated as a complaint-dependent crime under the Turkish Penal Code (TCK). In the investigation and prosecution of this crime, the Public Prosecutor cannot act ex officio; a complaint from the victim is required. The complaint period is six months, starting from the date the victim learns of the act and the identity of the perpetrator.
Whether the crime is subject to reconciliation
All paragraphs of the crime of violation of the immunity of residence regulated under Article 116 of the Turkish Penal Code (TCK) fall within the scope of reconciliation. Therefore, if sufficient suspicion is obtained during the investigation phase to file a lawsuit and before initiating the case, the investigation file must be referred to the reconciliation office for the reconciliation of the parties.
The Mental Element of the Crime
The crime of violation of the inviolability of residence is not mentioned in the law as being committed negligently. In any case, due to its nature, this crime is not suitable to be committed negligently. Therefore, the crime can only be committed with intent.
Aggravated Forms of the Crime
TCC -116 (4) If the act is committed by using force or threat, or at night, the offender shall be sentenced to imprisonment for a term of one to three years.
Article 119: a) By using a weapon,
b) By disguising oneself in a manner that makes it unrecognizable, through an unsigned letter or special symbols,
c) By more than one person acting together,
d) By exploiting the intimidating power of existing or assumed criminal organizations,
e) By abusing the influence provided by a public office,
In these cases, the penalty shall be increased by one degree.
Apart from the commission of the crime at night and using threat or force as specified in the provision of the offense, the situations listed in Article 119, which provide common provisions, also require an increase in the penalty for the offense.
If the crime of violation of the inviolability of the dwelling is committed by the perpetrator disguising themselves in an unrecognizable manner, with multiple offenders, in the name of a criminal organization, or by using the influence derived from a public office, the penalty for the offense is increased by one degree.
The circumstances of the crime that require a lesser penalty.
TCK 116 (2)
If acts falling under the first paragraph are committed in workplaces and their annexes, which are not places where entry is customary without explicit consent, the offender shall be sentenced to imprisonment for a term of six months to one year or a judicial fine upon the complaint of the victim.
As explicitly stated in the law, if the crime is committed in workplaces and annexes, other than places where entry is customary without consent, a reduction of up to half of the maximum penalty will be applied.
TCK 116 (3)
In the case where the family members in a marital union or multiple persons are jointly using the residence or workplace, if one of these persons gives consent, the provisions of the above paragraphs shall not apply. However, the consent must be for a legitimate purpose.
This situation, as regulated by the law, is a condition that prevents the crime from occurring. If one of the persons using the shared residence or workplace gives their consent, it is not possible for the crime to occur. In such a case, no punishment can be imposed on the individual.
(Y18CD, 06/04/2016 T., 2015/29125 E ; 2016/7044 K.)
“In the case where the residence is used by family members or multiple persons together, in order to speak of the valid consent of one of the cohabitants to enter the residence, the perpetrator, who entered based on this person’s consent, must not violate the rights of the other residents of the house. In other words, for the consent of the cohabitants to be valid regarding the perpetrator’s entry into the residence, the consent statement must be for a legitimate purpose, lawful, and the action should not violate the rights of the other individuals using the residence.”
Whether the offense falls under the scope of effective remorse
The violation of the inviolability of the home is not one of the offenses covered by effective remorse in the law. Since the result of the crime occurs simultaneously with the act, it is technically impossible for the institution of effective remorse to apply in this case.
The execution regime of the crime.
A judicial fine is a type of sanction that can be applied either together with a prison sentence or independently in response to a crime committed.
Postponement of the announcement of the verdict (hagb) is a criminal procedure institution that causes the case to be dismissed, where the sentence pronounced against the defendant does not produce any result within a certain probation period, and the sentence is abolished in a way that produces no consequences if certain conditions are fulfilled within this period.
Postponement of the sentence refers to the conditional waiver of the execution of the sentence determined by the court.
In the crime of violating the inviolability of a residence or workplace, the postponement of the sentence, postponement of the announcement of the verdict, or conversion to a judicial fine is possible in the following situations:
In all cases of the violation of the inviolability of a residence regulated in Article 116 of the Turkish Penal Code (TCK), it is possible to postpone the sentence or issue a decision to postpone the announcement of the verdict.
Regarding judicial fines, in the violation of the inviolability of the residence outlined in Articles 116/1 and 116/4 of the TCK, the fine can be applied if the conditions are met. However, in the crime of violating the inviolability of the workplace, as regulated in Articles 116/2 and 116/2-4 of the TCK, a judicial fine is listed as an alternative penalty. Thus, the court may impose either a prison sentence or a direct judicial fine on the defendant. When a prison sentence is imposed for the violation of the inviolability of a workplace, the court cannot convert the prison sentence into a judicial fine.
Court of Cassation decisions related to the crime
(YCGK, 18/10/2018 T. , 2015/13-332 E. , 2018/451 K.)
In the case where the defendant came to the complainant’s shop located on the street with the intent of theft, broke the shop’s display window, and stole meat from a refrigerator located just behind the display window by breaking its glass and reaching in; considering the defendant’s statement that he kicked and broke the display window, took the meat from behind the glass, and was caught afterward, and the findings in the crime scene investigation report, which showed that the refrigerator from which the stolen meat was taken was located just behind the shop’s display window, it should be accepted that the defendant did not enter the workplace. He only reached in through the broken display and refrigerator glass to steal the meat. Since the refrigerator containing the meat was within reach of the defendant, and there was no indication that the defendant had the intent to enter the workplace or that there was any reason preventing him from entering, and it was understood that he left the scene on his own after stealing the meat, it should be concluded that the legal elements of the crime of violation of workplace inviolability are not present.
(Y2CD, 10/04/2000 T., 2000/3523 E., 2000/3913 K.)
The defendant’s unlawful entry into the residence for illegitimate purposes due to his relationship with the complainant’s wife, and without the complainant’s consent, constitutes the crime of violating the inviolability of the home.
(Yargıtay 18. Ceza Dairesi – Karar : 2019/12782).
As stated in the decision of the General Assembly of the Court of Cassation dated 15/09/2015 with case number 2014/413 E., 2015/273 K., which was also adopted by our court, as a general rule, workplaces are places such as restaurants, shops, stores, greengrocers, butcher shops, shopping malls, theaters, cafes, hospitals, bank branches, cinemas, and schools, where anyone can enter and receive services, assuming implied consent, without the need for the permission of the owner or employees. Entering these places during public hours or working hours will not constitute a crime. However, if after entering, the owner or employees warn the person to leave, but the person continues to stay inside or enters at a time when the place is closed or on a break (e.g., during lunchtime or before opening), the crime of violating the inviolability of the workplace will occur. It is assumed that there is no consent from the workplace owner when entering non-public places such as company buildings, doctor’s offices, law firms, workshops in production facilities, or restaurant kitchens without explicit consent. Therefore, entering these places without explicit consent may constitute the crime of violating the inviolability of the workplace. On the other hand, if a part of the workplace is used as a residence by the owner or employees, and a person enters those places without the consent of the relevant parties or does not leave despite warnings, it may constitute the crime of violating the inviolability of the home, not the workplace.
In this regard, when the defendant is accepted to have entered the school yard during the school’s closed hours and stolen basketball hoops, the school building and its yard must be considered as a workplace within the scope of Article 116/2 of the Turkish Penal Code, as other public buildings. The yard, as an extension of the workplace, must be clearly determined through an inspection, taking into account whether it is enclosed and whether there is a gate, leaving no room for doubt. Failure to conduct a complete investigation and making a judgment based on incomplete research constitutes a reason for reversal.
