The Crime of Violation of the Privacy of Residence and Its Penalty
The crime of violation of the privacy of residence is regulated in Article 118 of the Turkish Penal Code, which states: “A person who enters someone’s residence or its premises without consent, or having entered with consent, fails to leave upon the request of the victim, shall be punished with imprisonment from six months to two years upon the complaint of the victim.”
Under the Constitution, the right to privacy of residence is protected. When someone enters your home without your consent, they are committing a crime. The legal interest sought to be protected by this offense is the freedom of individuals, ensuring that they can move and live as they wish in peaceful, safe, and tranquil environments in the neighborhoods they reside in.
The penalty for the crime of violation of the privacy of residence ranges from six months to two years of imprisonment.
II. What Should the Victim Do?
The crime of violation of the privacy of residence is a complaint-based offense. The victim must report the crime to the police or prosecutor’s office once they become aware of it. Since it is a complaint-based offense, the deadline for filing a complaint is 6 months. It is crucial not to exceed this deadline.
When filing a complaint, it is important to present evidence to prove that the crime occurred. Otherwise, the perpetrator may not be penalized. Therefore, it is advisable to submit your complaint letter with the assistance of a lawyer.
III. Act of Violation of the Privacy of Residence
1. Entering a Residence or Workplace Without Consent
The act of violating the privacy of residence occurs when someone enters a residence, workplace, or its attachments without the consent of the rightful owner, or even if they enter with consent, they refuse to leave after the consent has been withdrawn. It is a discretionary offense.
For the offense of violating the privacy of residence, the commission of one or all of the discretionary acts constitutes a single offense. The perpetrator’s entry into the residence against consent, entering through deceit or stealth, are all encompassed within this offense.
Moreover, the method of entry into the residence is not significant. Whether it is through a door, a window, or by digging underground, it does not matter. The perpetrator must enter the residence with their entire body. Actions performed from outside the residence do not constitute this offense. For instance, throwing stones from outside would not constitute this offense. The act is not completed if the perpetrator’s entire body does not enter or if only a portion of their body enters.
The owner of the residence or workplace can express their lack of consent verbally or through their actions in any way possible. Te rightful owner is not expected to demonstrate physical force or action when expressing their will.
2. Refusing to Leave a Residence or Workplace
The act of not leaving entails the perpetrator remaining in a residence, workplace, or its attachments despite the consent of the rightful owner to enter or even after the consent has been withdrawn. The withdrawal of consent must be clearly expressed through verbal, written, or bodily gestures. For the offense to occur, this situation must persist for a reasonable and definite period. The determination of a reasonable period will be at the discretion of the judge.
The Court of Cassation has stated that in cases where the workplace is a place accessible to everyone and is a customary place without explicit consent, the elements of the offense of violating the workplace privacy will not be established.
In cases where a single person is the rightful owner of the residence or workplace, the consent expressed by the rightful owner is considered valid. In cases of marital unity or when the residence or workplace is shared by multiple individuals, if one person provides consent and the expression of consent serves a legitimate purpose, the offense of violating the privacy of residence does not occur. The Court of Cassation defines a legitimate purpose as one that does not violate the rights of other individuals, as long as the cohabiting individuals have purposes that are not violative of others’ rights.
3. Attachments
Attachments are considered part of the residence and workplace. Unauthorized entry into attachments also constitutes the offense of violating the privacy of residence. The Court of Cassation has stated that for a structure to be considered an attachment, there must be a relationship between the residence and the right holder. Places that can be considered as attachments include:
- The garden of the house,
- The storage room of the house,
- The terrace balcony in front of the house,
- The corridor after the entrance door of the apartment building,
- The staircase of the apartment building,
- The stairwell,
- The landing in front of the entrance door of the apartment unit, can all be considered as attachments.
IV. Aggravating Circumstances Requiring Harsher Penalties for Violation of Residential Inviolability Crime
In the event that the crime of violating residential inviolability is committed through the use of force or threat, a penalty ranging from one to three years is imposed. Additionally, if the crime is committed during nighttime, a penalty ranging from one to three years is also imposed. Nighttime is defined as the period starting one hour after sunset and ending one hour before sunrise.
The penalty is increased by one-third in the following circumstances:
- When the crime is committed with a weapon,
- When the perpetrator disguises themselves in a way that they cannot be recognized,
- When the crime is committed using an unsigned letter or a specific mark,
- When the crime is committed collectively by multiple individuals,
- When the crime is committed by benefiting from the intimidating power created by existing or presumed criminal organizations.
V. If the Attempt Stage is Reached and the Crime is Not Completed, What Happens?
If the attempt fails and the crime is not completed, the penalty is reduced by one-fourth to three-fourths. Attempt refers to the initiation of the action but the inability to complete the crime due to reasons not dependent on the perpetrator. In the context of violating the inviolability of a residence or workplace, attempt occurs when there is an attempt to take a step towards the residence or workplace, or when a part of the perpetrator’s body is inserted into the premises.
According to the Supreme Court;
- Attempt is recognized when the defendants attempt to open the shutters of a workplace but leave the scene in panic before entering due to the arrival of the police.
- Attempt is acknowledged when the alarm of a social facility rings and the perpetrator fails to enter the premises.
- Attempt is considered when the perpetrator’s entire body does not enter the residence or workplace.
- Attempt is accepted when the perpetrator steps onto the threshold of the door to enter the residence but fails to enter due to the intervention of another person pushing them back.
In the case of attempted violation of the inviolability of a residence, the penalty is reduced by one-fourth to three-fourths.
VI. The Crime of Theft and Violation of the Privacy of Residence
The violation of the inviolability of a residence or workplace is often committed in conjunction with theft. It serves as a means to commit theft. In cases where theft occurs in a residence, workplace, or its extensions, separate penalties are imposed for both theft and the violation of inviolability of the premises. The perpetrator is punished for both offenses.
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