Violation of the Inviolability of the Home (Article 116 of the Turkish Penal Code)

The offence of violation of the inviolability of the home and workplace is regulated under Article 116 of the Turkish Penal Code (TPC) and aims to protect individuals’ private living spaces.

For this offence to occur, the perpetrator must:

• enter another person’s home or workplace without consent, or
• refuse to leave despite the victim’s request after having entered with consent.

The offence may only be committed intentionally; it cannot be committed through negligence.

Furthermore, the victim does not have to be the owner of the property. A person who actually occupies or uses the residence or workplace may also qualify as the victim.

Statutory Regulation of the Inviolability of the Home

According to Article 116 of the Turkish Penal Code:

A person who enters another’s residence or its appurtenances without consent, or who fails to leave despite being requested to do so after entering with consent, commits the offence of violating the inviolability of the home.

The legal interest protected by this provision is the right to peaceful and secure living ensured by the inviolability of the home.

Penalties for Violation of the Inviolability of the Home

The legislator has established different levels of protection for residences and workplaces.

Violation of Residential Inviolability

In its basic form, the offence is punishable by:

imprisonment from six months to two years.

Violation of Workplace Inviolability

With respect to workplaces, the penalty is:

imprisonment from six months to one year or a judicial fine.

This distinction arises from the fact that a residence constitutes an individual’s private sphere, which is therefore afforded stronger legal protection.

Prosecution Subject to Complaint

The offence of violating the inviolability of the home is subject to complaint by the victim.

Accordingly:

• if the victim does not file a complaint, an investigation cannot be initiated
• if the victim withdraws the complaint, the case is dismissed

In certain circumstances, the offence does not arise at all. For example:

• the consent of the victim
• the exercise of authority granted by law

constitute grounds of lawfulness.

For instance, a search conducted by law enforcement officers pursuant to a judicial warrant does not constitute the offence of violating the inviolability of the home.

Distinction Between Residence and Workplace

The essential element of the offence is entering a protected space without the consent of the right holder or refusing to leave upon request.

In its decision numbered 2015/3-2018/423, the Criminal General Assembly of the Court of Cassation made an important distinction regarding workplace inviolability. The decision states that workplace inviolability requires that the relevant location be:

“a place other than those where entry is customary without requiring explicit consent.”

Accordingly:

• entering a supermarket outside working hours may constitute the offence
• entering during business hours generally does not constitute the offence.

The Concept of Residence and Appurtenances

In the case law of the Court of Cassation, the concepts of residence and appurtenances are interpreted broadly.

In the decision numbered 2014/13970 of the 13th Criminal Chamber, it was stated that:

the common areas of an apartment building are considered appurtenances with respect to each apartment owner.

Therefore, even entering the stairwell of an apartment building without permission may constitute the offence of violating the inviolability of the home.

However, in the decision numbered 2013/17641 of the 2nd Criminal Chamber, it was held that entering an independent barn that does not qualify as an annex of the house does not constitute this offence.

Aggravated Forms of the Offence

In certain circumstances, the offence is considered an aggravated form requiring a more severe penalty.

Commission at Night (TPC Article 116/4)

If the offence is committed at night, the penalty is increased.

In such cases, the penalty may be:

imprisonment from one to three years.

In the decision numbered 2018/3652 of the Gaziantep Regional Court of Justice, it was stated that when this aggravating circumstance exists, the penalty should be determined above the statutory minimum.

Use of Force or Threat

In the decision numbered 2016/1137-2018/385, the Criminal General Assembly made an important distinction regarding the use of force.

According to the decision:

• if force is used against a person, the aggravated form applies
• if force is used against property, it does not constitute an aggravated form of this offence.

For example:

If a person breaks the door to enter a house, the separate offence of damage to property may also occur.

Commission by Multiple Persons (TPC Article 119/1-c)

If the offence is committed by more than one person acting together, the penalty must be increased.

According to the decision numbered 2021/21699 of the 2nd Criminal Chamber, the penalty in such cases shall be increased by onefold.

The 6th Criminal Chamber, in its decision numbered 2021/4819, held that the existence of personal grounds of impunity, such as minority of age of one of the participants, does not prevent the application of this aggravated circumstance.

Other Aggravated Circumstances (TPC Article 119)

According to the decision numbered 2015/7-2018/480 of the Criminal General Assembly, the following circumstances also lead to an increased penalty:

• commission of the offence with a weapon
• the perpetrator disguising themselves to avoid recognition
• benefiting from the intimidating power of a criminal organization
• abuse of the authority derived from public office

In such cases, the penalty is increased by onefold.

Circumstances Reducing the Penalty

In certain situations, the court may apply sentence reductions.

General Provisions

According to the decision numbered 2016/18789 of the 2nd Criminal Chamber, discretionary mitigation may be applied due to factors such as:

• the minority of the offender (TPC Article 31)
• the attitude and conduct of the defendant during the trial (TPC Article 62)

Mistake of Unlawfulness (TPC Article 30/4)

In the decision numbered 2015/7-2018/480, the Criminal General Assembly also referred to the theoretical possibility of mistake of unlawfulness.

Accordingly:

The perpetrator may inevitably fail to recognize that the act is unlawful. In such a case, the person may not be punished or the penalty may be reduced.

The Approach of the Court of Cassation

The decisions of the Court of Cassation emphasize that the legal value protected by the offence of violating the inviolability of the home is the sense of peace and security of individuals.

For this reason, the concepts of:

• residence
• appurtenances
• workplace

are evaluated according to the specific circumstances of each case.

Frequently Asked Questions

What is the offence of violating the inviolability of the home?

The offence occurs when a person enters another’s residence or workplace without consent or refuses to leave despite being requested to do so.

What is the penalty for this offence?

In its basic form, the offence is punishable by imprisonment from six months to two years.

Is the offence subject to complaint?

Yes. As a rule, the offence is subject to complaint, and an investigation is initiated upon the victim’s complaint.

Legal Assistance in Cases of Violation of the Inviolability of the Home

The offence of violating the inviolability of the home is a criminal offence that may lead to different legal consequences depending on the specific circumstances of the case.

In such cases, the evaluation of evidence, determination of aggravated circumstances, and proper interpretation of the case law of the Court of Cassation are of great importance. Therefore, it is crucial for both the victim and the defendant that the legal process be conducted with the assistance of a lawyer specializing in criminal law, in order to prevent potential loss of rights.