This offence is regulated in Article 116 of the Turkish Penal Code (TCK):
Article 116- (1) A person who enters the dwelling of another, or the annexes of that dwelling, against that person’s consent, or who does not leave after having entered with consent, shall be punished, upon the complaint of the victim, with imprisonment from six months to two years.
(2) (Amended: 31/3/2005 – Law No. 5328, Art. 8) Where the acts falling within the scope of the first paragraph are committed in respect of workplaces and their annexes, other than places which it is customary to enter without the need for express consent, imprisonment from six months to one year or a judicial fine shall be imposed upon the complaint of the victim.
(3) (Amended: 31/3/2005 – Law No. 5328, Art. 8) In the case of family members within the marital union, or where a dwelling or workplace is used jointly by more than one person, the provisions of the above paragraphs shall not apply if one of those persons has given consent. However, for this purpose, the declaration of consent must be directed towards a legitimate purpose.
(4) Where the act is committed by the use of force or threats, or at night, imprisonment from one to three years shall be imposed.
The first paragraph regulates the basic form of the offence; the second paragraph, workplaces other than those which it is customary to enter without consent being required; the third paragraph, common areas used by family members or housemates; and lastly, the fourth paragraph, the aggravated form of the offence.
The right to the inviolability of the home is protected under Article 21 of the Constitution:
Article 21 – (Amended: 3/10/2001 – Law No. 4709, Art. 6) The domicile of an individual shall not be violated.
Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorised by law in cases where delay is prejudicial, again on these grounds, no domicile may be entered or searched, or the property therein seized. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours. The judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, the seizure shall automatically be lifted.
The legal interest protected is the right to the inviolability of the home, which, considered in its broad sense, is personal liberty. The rationale for criminalising the violation of the inviolability of the home is to protect peace and tranquillity in the dwelling in which persons live or in the workplace in which they are present.
For there to be a violation of the inviolability of the home, the offender’s whole body must enter the dwelling. For example, where the offender reaches a hand through a window in an attempt to take something, this offence will not be committed. However, where a person, while trying to enter the dwelling, has partly entered and, just as he is about to enter fully, is unable to do so for reasons beyond his control, an attempt will have occurred. Likewise, throwing a foreign object into the dwelling will not give rise to this offence. In the offence of violating the inviolability of the home, it is irrelevant from where the dwelling was entered. If entry is made without consent from any point, such as a window, door or roof, the offence will be committed. The act of not leaving the dwelling or its annexes, on the other hand, will not occur instantaneously. For it to be said that a person has not left the dwelling, a reasonable time must have passed. When a warning to leave the dwelling is given, it may take the person a certain amount of time to leave. For example, where the person gathers his belongings before leaving, the offence will not be committed. The reasonable time must be examined separately in each concrete case.
The violation of the inviolability of the home may occur in any manner. It may also occur by deception. For example, if the offender has entered the house by presenting himself in another capacity (a repairman, etc.), then even though there is consent here, it is contrary to the consent of the right-holder, and the offence of violating the inviolability of the home is committed. The persons authorised to give consent are the persons who are right-holders in respect of the dwelling. Persons residing in the dwelling for a legitimate reason are accepted as right-holders and are authorised to give consent. The third paragraph of the article regulating the offence contains a special provision on this subject. The legislator states that each of the spouses within the marital union is authorised to give consent, but that this consent must be based on a legitimate purpose. Within the scope of the duty of fidelity, when one of the spouses invites a third person into the house for the purpose of adultery, the offence of violating the inviolability of the home will be committed, since the person entering the house will be present there for a purpose other than a legitimate one. Where there is a judgment of separation between the spouses, the offence of violating the inviolability of the home may be committed. Under the Civil Code, spouses in respect of whom a judgment of separation has been given are obliged to respect each other’s dwellings. A woman and a man may be living together in the same dwelling without a marital union. In that case, if the other party enters the dwelling without the consent of the right-holder (for example, the owner of the house), the offence will be committed. Living together for a certain period does not give persons the right to enter the dwelling indefinitely without consent. As regards persons sharing the same dwelling in separate rooms, each person is authorised to give consent for the room he uses. Each separate room counts as a dwelling for the person living there, and entry into it requires the consent of the person living in that room. Likewise, the landlord, despite being the owner, may not enter the house without the tenant’s consent; if he does so, the offence of violating the inviolability of the home will be committed.
Anyone may be the offender. No special characteristic is required of the offender. However, only persons who are right-holders in respect of the dwelling or workplace cannot be offenders of this offence. Anyone who is a right-holder may be a victim of this offence. The subject matter of the offence is the dwelling, the annexes of the dwelling, the workplace and the annexes of the workplace. The workplace must be one of those places which it is not customary to enter without consent being obtained. Here we must also point out the difference between a dwelling and a domicile. A domicile is a person’s place of settlement, the place where he stays permanently. The concept of a dwelling is broader. A domicile is a place lived in with the intention of permanent settlement. The Civil Code lays down certain criteria for a place to be a domicile. These criteria are actual residence (the objective element) and residence with the intention to settle (the subjective element). For example, a hotel to which one goes to stay for a temporary period is not regarded as a domicile but does have the character of a dwelling. Or a camping tent pitched in a forest, while not being the person’s domicile, is regarded as a dwelling. Where such places are entered without the consent of the right-holder, the offence of violating the inviolability of the home will be committed. In short, every domicile is a dwelling, but not every dwelling is a domicile. Places referred to as public offices, on the other hand, are not regarded by the Court of Cassation (Yargıtay) as falling within the scope of a dwelling or workplace. If entering a public office, or preventing this, is in question, the type of offence in Article 113 TCK occurs. (The offence of preventing the exercise of the right to benefit from public services) In the violation of the inviolability of the home, it is irrelevant whether the dwelling is allocated to night-time rest, what form of structure it takes, whether it is used continuously, and whether the victim was inside at the time of the offence. The offence may be committed in these situations as well.
The aggravated form will arise where the act is committed by force or threats, or at night. Under the Penal Code, night-time is the period beginning one hour after sunset and ending one hour before sunrise. For the aggravated form involving force to be in question, the basic form of intentional injury is required; if an injury that can be remedied by simple medical intervention is in question, the force element will not be present. Aggravated forms are also listed in Article 119 TCK:
Article 119– (1) Where the offences of preventing education and training, preventing the activities of public institutions or of professional organisations having the character of public institutions, preventing the exercise of political rights, preventing the exercise of freedom of belief, thought and opinion, violating the inviolability of the home, and violating the freedom of work and labour are committed;
a) With a weapon,
b) By the person rendering himself unrecognisable, by an unsigned letter or by special signs,
c) Jointly by more than one person,
d) By taking advantage of the intimidating power created by existing or presumed criminal organisations,
e) By abusing the influence afforded by a public office, The penalty to be imposed shall be doubled.
(2) Where, in the course of committing these offences, the forms of the offence of intentional injury aggravated by consequence occur, the provisions relating to the offence of intentional injury shall additionally apply.
This provision regulates the aggravated forms of the offence of violating the inviolability of the home, together with certain other offences. The second paragraph, in turn, provides that where the offence of intentional injury (in its form aggravated by consequence) is committed together with this offence, the provisions on real concurrence of offences shall be applied in respect of intentional injury.
The mental element of the offence of violating the inviolability of the home is intent. It may also be committed with conditional intent (dolus eventualis). (Since no motive is required) However, since its negligent form is not regulated, the negligent form will not constitute an offence. This offence is a conduct offence (an offence of mere conduct), and since the acts of execution can be divided, an attempt is also possible. It is moreover an offence with alternative acts, these acts being “entering” or “not leaving after having entered”. The performance of any one of these acts is sufficient for the offence to be committed. As regards the element of participation, there is no distinctive feature. The presence of more than one person on the victim side will not mean that there is more than one offence. Voluntary abandonment will not be possible in the offence of violating the inviolability of the home. Since this offence is a conduct offence, the offence will be complete upon the execution of the act, and voluntary abandonment of a completed offence is not possible. The basic form of the offence (116/1-2) is subject to complaint. However, its aggravated forms (116/4, 119/1) are not subject to complaint and are investigated ex officio. Furthermore, Article 142(4) TCK provides that where the offence of violating the inviolability of the home is committed for the purpose of theft, the offence will not be subject to complaint:
“Where the offence of violating the inviolability of the home or the offence of damage to property is committed for the purpose of committing the offence of theft, no complaint shall be required for an investigation and prosecution to be conducted in respect of these offences.”
In this offence, the circumstances that remove unlawfulness are legitimate self-defence and the performance of a duty imposed by law. The existence of consent is not a ground of justification. This is because, if there is consent, the definitional elements of the offence will not be fulfilled in the first place, and therefore the offence will not occur at all.
This is an English translation of the author’s article originally written in Turkish.
Link to the original article on Hukuki Haber: https://www.hukukihaber.net/konut-dokunulmazliginin-ihlali-sucu-1