The crime and punishment of disturbing the peace and peace of people

One of the types of crimes included in the criminal law in response to the provisions regulated in Articles 17 and 56 of the Constitution is the crime of disturbing the peace and tranquility of individuals.

The crime of disturbing the peace and tranquility of individuals in Article 123 of the Turkish Penal Code, in the seventh chapter titled "crimes against freedom"; It is stipulated that "in cases where a person persistently calls someone, makes noise, or engages in any other unlawful behavior for the same purpose, with the sole purpose of disturbing the peace and tranquility, the perpetrator shall be sentenced to imprisonment from three months to one year upon the complaint of the victim."

As clearly stated in the justification of the article, with this crime, behaviors that disrupt the peace and tranquility of people are punished, and in this way, their right to live in psychological and spiritual tranquility is protected. In order for this crime to occur, one must act with a specific purpose, thus disturbing people by persistently calling, making noise, or committing another unlawful act for the same purpose, and these actions must be carried out with the aim of disturbing the peace and tranquility of the victim.

This type of crime is among the optional mobile crimes. Performing one of the actions we will explain below has been deemed sufficient to constitute a crime.

As we stated above, this crime is a reflection of Articles 17 and 56 of the Constitution in the criminal law. In addition, the fact that the crime is regulated in the "crimes against freedom" section gives a clue about the protected legal interest. Therefore, it is necessary to express the legal interests protected by crime as the right of people to live in peace, peace and health without being disturbed by persistent behavior.

ELEMENTS OF THE CRIME OF DISTURBING THE PEACE AND PEACE OF PEOPLE

Perpetrator and Victim

Anyone can be the perpetrator or victim of the crime of disturbing the peace and tranquility of others. In this regard, no feature is required. But it should not be forgotten that; The occurrence of the crime depends on the identification of the victim. In cases where the victim is not known and the elements are present, the crime of causing noise in Article 183 of the Turkish Penal Code or the crime of noise in Article 36 of the Misdemeanor Law may be in question.

Moral Element - Caste

For a crime to occur, the action must be carried out solely for the purpose of disturbing the peace and tranquility of others. It should be noted that in this form, the moral element of the crime is special intent. This crime can only be committed with direct intent. It is not possible to commit it with possible intent or negligence. The following statements regarding the element of intent were used in the decision numbered 2018/45 K. of the General Criminal Assembly of the Supreme Court of Appeals:

"The dispute is about determining whether the legal elements of the crime of disturbing the peace and tranquility of the people charged against the defendant are met. The crime of disturbing the peace and tranquility of people can only be committed with direct intent. It is not possible to commit this crime with possible intent or negligence. General intent is not sufficient for the crime to occur, and specific intent based on the sole purpose of disturbing the peace and tranquility is required, in the face of the clear statement in the law. This special intent will be made incidentally. It will be determined as a result of an evaluation, in other words, based on the actions of the perpetrator reflected in the outside world, the way the incident occurred and the characteristics. In this sense, it will not be possible to talk about the existence of a special intention in the example of the perpetrator calling the participant in order to reach the person to whom he is owed money. "When the issues of sending the person are evaluated together, it must be accepted that the elements of the alleged crime are not met, since there is no evidence that the defendant persistently searched for the participant with the intention of disturbing the peace and tranquility."

Action

The action element of the crime consists of optional actions. For a crime to occur, a phone call, noise, or other unlawful behavior must be committed for the same purpose. In this regard, there are no restrictions on movements. However, no matter what action is taken, there must be a condition of persistence in the action for the crime to occur.

Explanations will be given below for each action and its insistence condition.

CONDITION OF INSISTING ON THE CRIME OF DISTURBING THE PEACE AND PEACE OF PEOPLE

Performing the optional actions listed above is not considered sufficient by itself to constitute a crime. In order for a crime to occur, it is not enough to commit the actions written in the text of the law, such as phoning, making noise, or committing an unlawful act for the same purpose, once; the actions must be persistently repeated, be continuous, and be committed with the sole motive of disturbing the peace and tranquility of people. In this respect, it shows the characteristics of a mobile crime depending on the type of crime. As stated in the justification; The article punishes efforts to disrupt the peace and tranquility of people through certain addictive actions.

Insistence, which is considered as an element of the crime of disturbing the peace and tranquility of people, is the obligation to commit the crime at different times. The element of persistence can only occur if acts that disrupt peace and tranquility are committed against the same victim more than once.

When evaluating here, the element of insistence must be determined meticulously. It should be noted that if persistent acts are interrupted, chain crime provisions may be applied. This issue will be discussed further below. The following expressions were used in the decision numbered 2018/45 K. of the Supreme Court Criminal General Assembly:

"The necessity of the actions taken while committing the crime to be persistent is another feature of the crime of disturbing the peace and tranquility of people. Insistence means to resist, insist, persist, insist on in the Turkish Language Association's Great Turkish Dictionary. The expression "persistently" in the text of the article means the state of acting persistently. Since the mentioned concept includes the element of continuity, in case the actions specified in the text of the article are performed only once, Even if the peace and tranquility of the victim is disturbed, it cannot be said that a crime has occurred. If the actions continue after the victim expresses his/her discomfort due to an action, it is necessary to accept the existence of insistence (Osman Yaşar, Hasan Tahsin Gökcan, Mustafa Artuç, Commentary-Applied Turkish Penal Code, Volume 3, Adalet Publishing House, Ankara, 2010, p. 3871). In practice, making numerous calls or sending messages is considered insistence. However, it is not possible to determine an exact number as to whether insistence has occurred. In this sense, it is important to make an evaluation according to the characteristics of the incident and to consider the number of searches as well as the duration of the searches and the time periods in which the searches were carried out, in order to determine whether the material element has occurred or not (İsmail Malkoç, New Turkish Penal Code No. 5237 with Explanation and Jurisprudence, Volume 1, Malkoç Kitabevi, Ankara 2008, p. 1088 )"

In order to be able to say that the perpetrator persistently disturbs the peace and tranquility of people, he must carry out his actions with a certain frequency. Sample Supreme Court decisions on the subject are shared below.

"Issuing a conviction with insufficient justification, without considering that the defendant's act of listening to music loudly occurred once in the history of the crime and that the element of persistent continuation sought in the article was not present in the incident, necessitated reversal." Y. 23 CDs. K. 2015/4019

"Although the defendant Özlem, who is married to Aydın's older brother and Habibe's brother-in-law Osman, was acquitted based on her defense that she called the participants to help them with their family problems with her husband, but they did not speak to her and hung up the phone; according to the allegations of the participants and the phone records brought, the defendant used the mobile phone used by the participant Aydın 5 times on 25.08.2005. He called the participant Habibe's phone 15 times on 27.08.2005, 3 times on 25.05.2005, 1 time on 26.08.2005, 3 times on 27.08.2005, 2 times on 28.08.2005 and 7 times on 04.09.2005, and the calls to both participants were made at different times of the day and Considering that the calls took place at frequent intervals, that in most calls there were no conversations between the parties, in some calls the calls were very short-term, that the defendant, who admitted that the participants hung up the phone because they did not want to talk to him, acted with the aim of disturbing the peace and tranquility of the people by persistently continuing to call the participants, and that the elements of the alleged crime were formed, it should be decided to punish him, but to acquit him in writing. " Y2CD. 2009/29945 K.

"In the concrete case subject to trial, in the face of the admission that the defendant disturbed the peace and tranquility of the participant by persistently continuing to make phone calls for a very long time, and considering the defense of the defendant that they met with the participant in order to solve the problem between them and the duration of the calls of the defendant to the participant, which was determined to be five times in total, according to the HTS reports, a written judgment was made with insufficient justification without adequately discussing how the defendant intended to disrupt the peace and tranquility of the participant," Y4CD. 2021/8838

Disturbing the peace and tranquility of people by persistently calling people

During the period when telephones became widespread and the internet did not spread to its current usage area, the most common type of crime was disturbing the peace and tranquility of people by making phone calls. In today's conditions, the way this crime is committed has not lost its quantity. In this movement, which also includes the movement popularly known as telephone perversion; A specific person must be called on the phone and these calls must have reached a level that disturbs peace and tranquility. Again, the insistence condition we mentioned above must be observed.

In phone calls, it is not necessary for the defendant to have spoken to the victim. The act of simply ringing the phone and then turning it off also constitutes a crime. In the decision numbered 2011/8247 of the 4th Criminal Chamber of the Supreme Court of Appeals, "According to the call records of the defendant's mobile phone, although the action of calling the home phone of the participants 14 times between 06.06.2007 and 27.06.2007, making the phone ring for 1 second and then hanging it up, constituted the crime of disturbing the peace and tranquility of the people, the decision of acquittal required reversal." The provision was made as follows.

In addition, the word "call" also includes sending messages. As a matter of fact, in a decision of the 4th CD of the Supreme Court of Appeals, the following provision was made:

"In the face of understanding that the defendant sent 13 messages to the participant at different times and that the content of the messages included the following phrases: "I was annoying you, I was going to take it out on you, you can't find out who I am, I like it when I make you angry, know that", an acquittal decision was made on illegal and improper grounds, without considering that the defendant's actions constituted the crime of disturbing the peace and tranquility of the person.." (2014/11251)

A crime also occurs if internet-based messaging applications used on phones are used. For example, if a person is constantly sent a message via WhatsApp or a call is made from there, it will be considered a crime.

According to a view in the doctrine that we also agree with; The expression "to telephone" should be interpreted appropriately and should be understood as "by using means of communication", considering the legal interest protected by this crime. Therefore, TCK art. Provision 123 should be reviewed and a statement should be included to include technological developments. (Özbek, Doğan, Bacaksız Turkish Criminal Law Special Provisions 15th Edition p. 490)

According to the Supreme Court, calls made several times to ask for debts do not constitute a crime. However, if the limit is exceeded, that is, the persistence condition is met, the perpetrator is punished. As a matter of fact, this issue is stated in the following decision as follows:

"Although it is understood that the defendant persistently called the participant at various times of the day and night, late at night, and that such actions were aimed at disturbing the peace and tranquility of the participant, their previous acquaintance and the existence of a receivables-debt relationship between them does not eliminate the crime charged depending on the way the action was carried out." Y.2CD. K. 2009/41511

Disturbing the peace and tranquility of people by persistently making noise

Another of the dependent actions specified in the law article is making noise. Some definitions of noise are as follows:

Noise is generally defined as sounds that occur artificially, have deteriorated quality and quantity, are undesirable, and can disturb people. (Yaşar-Gökcan-Artuç, 3870.)

Noise making is the production of sounds that disturb people, beyond the sound intensity that occurs under normal living conditions. This noise can come from any tool or equipment, or people or animals can be used for it. (Özbek, Doğan, Bacaksız Turkish Criminal Law Special Provisions 15th Edition p. 490)

The noise must reach disturbing levels and reach the victim. As we mentioned above, the insistence condition must be met. Therefore, one-time noise actions will not constitute a crime.

But it must be accepted that a crime has occurred in terms of uninterrupted noise.

It cannot be accepted that a crime occurs in cases such as repairs and renovations. It should not be forgotten that the moral element of the crime is the specific intention to disturb.

In terms of noise, TCK Articles 123 and 183 should be considered together.

BREAKING THE PEACE AND PEACE THROUGH PERSISTING OTHER ILLEGAL BEHAVIOR

By counting the acts of phoning and making noise, the legislator did not specify which actions would be considered as another behavior. The provision regarding this aspect has been subject to objection. However, the Constitutional Court decided that the annulment of the provision was not necessary and used the following statements:

"It is understood that the legislator, with the rule in question, aims to ensure that people continue their lives and activities in a peaceful environment, without being disturbed, in peace and tranquility, by imposing criminal sanctions in cases of persistent actions specified in the article, as well as in cases of other unlawful actions for the same purpose, for the sole purpose of disturbing the peace and tranquility. In the article, it is stated that insistently calling a person to a person with the purpose of disturbing the peace and tranquility It cannot be said that accepting that other unlawful acts committed for the same purpose will also constitute this crime, after such acts as making noise or shouting, will lead to legal uncertainty, because when the text of the law is evaluated as a whole and the legal benefit sought to be protected by the article is taken into consideration, it is understood that the contested rule refers to acts contrary to the legal order that disrupt peace and tranquility. Therefore, the fact that the act regulated as a crime can be committed with different forms of action does not mean that the contested rule is ambiguous. There is nothing contradictory about it.

On the other hand, since "unlawful behavior" for the sole purpose of disturbing a person's peace and tranquility can occur in many different ways, it cannot be said that all behaviors falling within this concept must be determined in advance by the legislator and counted one by one. It is sufficient to ensure the principle of legality that the law is written in a way that allows it to be foreseen with a certain clarity and certainty as to what action constitutes a crime and what the sanctions attached to this action are. As explained above, with the rule in question, the act of committing an unlawful act with the sole purpose of disturbing the peace and tranquility is regulated as a crime and the relevant sanction is determined, so the rule does not contradict the principle of legality of crimes and penalties."

Situations such as following a person, frequently flashing a flashlight, and ringing the doorbell intermittently are considered within the scope of this situation.

Since there is no regulation regarding internet-based applications, messages sent from social channels such as Facebook, Instagram and Twitter should also be considered within this scope. We believe that WhatsApp messages are actions carried out over the phone. In fact, other applications are also mobile-based applications. Calls and messages can be made over the phone from these applications. As we stated above, we believe that the scope of the law should be expanded by regulating it.

A Supreme Court decision specific to this situation will be shared below.

"Issuing a written decision of acquittal with illegal and insufficient justification, without considering that the defendant's action, which consisted of climbing to the third floor of the building that did not belong to him at around 00.30 and watching the bedroom of the complainants living in the opposite building, constituted the crime regulated in Article 123/1 of the Turkish Penal Code" Y4. CD. 2013/286

PUNISHMENT FOR DISTURBING PEOPLE'S PEACE AND PEACE

Insistently say to a person for the sole purpose of disturbing his peace and tranquility; If a phone call is made, noise is made, or any other unlawful behavior is committed for the same purpose, the perpetrator is sentenced to imprisonment from three months to one year upon the complaint of the victim.

The punishment given to the perpetrator may be postponed or converted into a judicial fine.

If the conditions are present, a HAGB decision may be made.

The trial of the crime is carried out in the criminal courts of first instance.

The crime is among the crimes within the scope of mediation.

The statute of limitations for the lawsuit is 8 years.

CAN CHAINING CRIME PROVISIONS APPLY TO THE CRIME OF DISTURBING THE PEACE AND PEACE OF PEOPLE?

In the crime of disturbing the peace and tranquility of people, insistence on the necessity of committing the crime at different times is an element of the crime. The element of persistence can only occur if acts that disrupt peace and tranquility are committed against the same victim more than once.

It is possible to apply chain crime provisions if there is an interruption between the actions, indicating that the crime was committed at different times within the scope of the execution of the decision to commit a crime, such as persistently calling a person for a week with the sole purpose of disturbing the peace and tranquility, taking a break for a while and continuing the same actions. Y4CD. K. 2016/9234

disturbing the peace and tranquility of people and sexual harassment

The material element of the sexual harassment regulated in Article 105 of the Turkish Penal Code is to disturb a person for sexual purposes. The moral element of the crime is intent, and the perpetrator must have a sexual purpose, in other words, he must act with the aim of satisfying his sexual desires and desires.

The material element of the crime of disturbing people's peace and tranquility is; It is persistently calling a certain person, making noise, or engaging in any other unlawful behavior.

Legal benefit protected by this crime; While people have the right to live in peace, peace and health without being disturbed by persistent behavior, the sexual immunity and integrity of the person is protected in the crime of sexual harassment.

Persistent acts of harassment committed against the victim for sexual reasons also disrupt the peace and tranquility of people. In such cases, the crime of disturbing the peace and tranquility of people will be an element of the crime of sexual harassment and the perpetrator will be punished only for the crime of sexual harassment. Persistence in the action will be considered as a chain crime. However, it should not be forgotten that it must be proven that the sexual perpetrator acted with sexual motivation. Otherwise, the crime of disturbing the peace and tranquility of people will be considered.

The following Supreme Court decision serves as an example for our explanations:

"The sincere, insistent and unhesitating statement of the participant, who does not know the defendant and who has no previous animosity between them or any reason to slander him on an issue that concerns his own honor and reputation, the statement of the witness who confirms these statements, the defendant's defense that he called the defendant's house several times and said "Let's meet at the market, I'll stop by while I'm passing by", which is considered an interpreted confession, and the entire file content. Considering this, it must be accepted that the words "Are you at home, dear, I miss you so much, I'm coming home", which the participant persistently called her phone at different times, had a sexual purpose and that her action as a whole constituted the crime of sexual harassment. YCGK 2015/34

In another decision, the absence of sexual harassment content in the perpetrator's words was described as the peace and tranquility of the people.

"According to the scope of the file, it is understood that the defendant sent a message saying "Hello, how are you, ma'am, is it possible to meet" to the victim whom he persistently called from his mobile phone, and since the defendant did not say anything of sexual harassment either when he called or in the message he sent, instead of making a judgment by considering that his action constitutes the crime of disturbing the peace and tranquility of people regulated in Article 123 of the Turkish Penal Code No. 5237, a mistake was made in determining the nature of the crime. "It is wrong to give a conviction for sexual harassment in this way." Y14. CD. K. 2018/314