Crime of violation of housing immunity

Located in the "Crimes Against Freedom" section of the Turkish Penal Code numbered 5237 and article 116/1. The crime of violating the immunity of residence regulated in the article; It is a type of crime that can be committed by entering a person's house or its extensions against his/her consent or by not leaving after entering with consent. The second paragraph of Article 116 includes the crime of violation of workplace immunity. The difference between the two types of crimes stems from the subject element. For this reason, explanations will be made common to the two paragraphs, and differences will be mentioned where necessary. In addition, the amount of penalty for violation of workplace immunity is determined differently, and this difference will be explained in the trial section. In the 4th paragraph of the article; "The act is committed by using force or threat or at night" is envisaged as an aggravating reason for the punishment. In addition, aggravating circumstances for this type of crime are included in the common provisions of Article 119 of the Law.

As we stated above, the crime of violating the immunity of the residence begins when a person enters his residence or its annexes against his consent, or when he enters with consent but does not leave, and continues until the residence is abandoned, in other words, until the legal or actual interruption occurs.

This regulation in the criminal law should be considered as a reflection of the Constitution. As a matter of fact, Article 21 of the Constitution; Under the title of home immunity, "nobody's home can be touched." It is arranged as follows.

This situation is expressed in the justification of the article as follows: "The article defines the acts of violating the inviolability of home, which is guaranteed in Article 21 of the Constitution, as a crime. Violation of the inviolability of home means shaking the person's unique peace and tranquility and the sense of security that is necessary for the peaceful and safe conduct of his life in his home.

It has been deemed appropriate to define these acts, which are committed against individuals and at the same time violate the security and tranquility that they need, as a crime among the crimes against freedom."

Based on our explanations above, it is concluded that the legal value protected by crime is the right of people to live in peace and security in their homes.

No specific characteristics are required for the perpetrator of the crime. Anyone can be the perpetrator of this crime. Spouses and people living in the same residence cannot commit the crime of violation of residence immunity against each other. Situations in which a restraining order is made are reserved.

The victim of the crime is everyone living in the house.

SUBJECT OF THE CRIME OF VIOLATION OF HOUSING IMMUNITY

The subject of the crime of violation of residence immunity is the "residence" and its annexes. Apart from this, in case of violation of workplace immunity, the subject of the crime is non-usual workplaces and their extensions. For this reason, we find it useful to first explain the concepts of residence, extension and workplace in terms of criminal law.

1- What is Housing?

There is no legal definition of the concept of housing. However, quite broad definitions have been made regarding this concept in doctrine and practice. In our review, the definitions adopted by the Supreme Court will be used. Supreme Court 2nd Criminal Chamber residence; It is defined as "places suitable for permanent and temporary residence of people for settlement and shelter". The general opinion is in this direction.

On the other hand, the definitions in doctrine and practice in the decision numbered 2018/385 K. of the General Criminal Assembly of the Supreme Court of Appeals were compiled as follows:

"It is possible to express the concept of housing in narrow and broad terms. In the narrow sense, housing refers to the house. Accordingly, in order for a place to be considered a residence, that place must be allocated to household needs such as sleeping, waking up, resting, eating and drinking. In the broad sense, housing refers to every place allocated by the individual for his own activities.

The Supreme Court defined housing as places suitable for people to live permanently or temporarily for the purpose of settling and sheltering during the Turkish Penal Code No. 765.

According to the definition of housing in the broadest sense in the doctrine, it is defined as a place where the person or persons still and actually spend their vital activities, bearing the traces of being separated from the outside world, which is not important for being allocated for night rest, for its structure, for continuous use, for being in it at the time of the action.

As can be seen, the concept of residence in the sense of criminal law is different from the concept of "residence" defined in the Civil Code and is interpreted quite broadly.

For a place to be considered a residence, it is sufficient for it to be actually lived in. Life does not have to be continuous. In hotel accommodations, hotel rooms, student dormitory rooms and summer houses are considered residences. Another point that should be mentioned here is that the house does not necessarily have to be dedicated to night rest. The important thing is that that place is dedicated to meeting vital needs.

It must be determined that a place is used as a residence. The place must be allocated to the residence in a way that can be understood from the outside, and it must also have signs that indicate that it is kept separate from the outside world. (Artuk/Gökcen/Alşahin/Çakır, p. 399.)

The house does not necessarily have to be immovable. In this respect, places such as caravans and tents are also considered as residences and may be subject to crime.

The house must be designated for vital activities. There is no crime of violation of residential immunity in terms of vacant flats. Supreme Court 2nd CD. In a decision on the subject, the following provision was made:

"The legal elements of the crime of violating the immunity of housing were not formed in the action of the defendant, who stole the combi boiler and taps of the apartment, which was vacant due to the tenant's eviction and no one had lived in yet. Residential buildings cannot be considered as residences within the scope of the crime of violating the immunity of housing, as it would be practically impossible to violate the person's right to freedom, peace, tranquility and security when they are not used as residences and are empty." 2015/1902 E.2-

What is a Residential Extension?

TCK 116/1. The subject of the crime of violating the immunity of residence regulated in the article is the residence and its annexes. In this respect, the concept of "add-on" will be evaluated here in terms of criminal law. The General Criminal Assembly's explanations regarding the add-on in its decision No. 1991/135 are quite detailed and are as follows:

"In determining whether a place is an extension or not, it should be checked whether the freedom, peace and tranquility of the occupants of the house are disturbed when entering this place. If so, that place must be considered as an extension. (Eriş, p. 341)

Housing (dwelling) is a place suitable for people to live in for settlement and shelter, either permanently or temporarily. Extensions are other structures or places that complement any of the purposes of use of residences or similar structures. In other words, they are additional structures or places whose entry may disrupt the peace and security of those who have the right to reside in the house. For example; Places such as courtyard, barn, garden, balcony, terrace, woodshed, coal shed are outbuildings.

The residence and the extension should generally come together and form a whole. As a concept, "attachments" are places that are attached to or very close to the residence. The crime of violating the immunity of a residence is also protected by the legislature because it is a crime against personal liberty and is essential for protecting the accessory residence. Places that can be entered or not exited after entering could eliminate the peace and tranquility of the house, and therefore personal freedom, are annexes. The issue to be taken into consideration when determining whether a place is an extension or not is whether the peace, security and personal freedom of the person will be disturbed by entering that place. The basic characteristic of the crime of violating the immunity of residence is that it is committed against individual freedom. Protected; ownership, possession, etc. It is not a right of disposition, but a personal freedom due to residence.

Whether the person's peace, security and personal freedom are violated by accessing the plug-in; It must be determined by taking into account the purpose, behavior, reason for entry, and the legal interest violated in the course of the event and the interest to be protected."

In addition, in the decision of the General Criminal Assembly dated 27.1.1969 and numbered 542/31, apartment stairs were considered as an addition and the following expressions were used:

"The corridors after the apartment door and the front parts of the doors entering the floors are from the common outbuildings of the people living on those floors. Anyone who enters these areas with a specific and evil intention violates the freedom and innocence of the apartment owners, in other words, attacks them. As a matter of fact, Article 193 of the Turkish Penal Code is included in the second chapter (Crimes Committed Against Freedom). "The fact that the apartment door is open does not require that the said areas of the apartment be considered a general area or a dead-end street" and it has been accepted that going up and down the stairs of the apartment constitutes the crime of violating the immunity of the residence.

According to the criteria set by the Supreme Court when determining extensions, places where the peace and tranquility of the residents of the house are disturbed are considered extensions.

What is a Workplace and Its Attachment Other than Usual Places That Can Be Entered Without Requiring Explicit Consent?

116. Paragraph 2 of the article regulates the crime of violation of workplace immunity due to the difference in the subject of the crime. Accordingly; "If the acts falling within the scope of the first paragraph are committed in workplaces and their annexes other than places where it is customary to enter without the need for explicit consent, a prison sentence of six months to one year or a judicial fine shall be imposed upon the complaint of the victim."

The main difference between the two types of crime stems from the subject of the crime. Therefore, it is necessary to change the concept of residence above to workplace in terms of this type of crime.

The concept of workplace is not defined in the criminal law, like the concept of residence. However, a decision of the General Penal Council in which definitions regarding this concept are made is as follows:

"Workplace is defined in the Turkish Dictionary of the Turkish Language Association as "the place where a task is performed, the place where the worker works according to the employment contract", and in the doctrine it is explained as "fixed or non-fixed closed businesses or sales places that serve industrial, artistic, scientific and similar purposes mainly within a certain period of time or continuously." (Serap Keskin Kiziroğlu, Crime of Violation of Housing Immunity, First Edition, Adalet Publishing House, Ankara 2010, p. 68)

In the second article of the Labor Law; It is stipulated that the unit where material and non-material elements and workers are organized together in order to produce goods or services by the employer will be called "workplace".

In paragraph (h) of the third article of the Occupational Health and Safety Law, the workplace; It has been stated that it refers to the organization in which material and non-material elements and employees are organized together in order to produce goods or services, which is qualitatively related to the goods or services produced by the employer in the workplace, and which includes places attached to the workplace organized under the same management, as well as other extensions and tools such as resting, breastfeeding, eating, sleeping, washing, examination, care, physical and vocational training places and courtyards.

Not every place where work is done or worked can be considered a workplace in terms of labor and social security law, and there are also places that can be defined as a workplace even though no workers are working. In this context; Places allocated to or used for commercial, industrial, agricultural or professional activities such as administration offices, offices, clinics, workshops, hostels, hotels, coffee houses, stores, branches, entertainment and sports halls, livestock facilities, farms, fields, vineyards, gardens, construction sites, mines, quarries, ferry kiosks are also considered workplaces. On the other hand, in order for a place to be qualified as a workplace, it must be allocated to any job, even temporarily.

A place that is abandoned, built or arranged for the purpose of using it as a residence or workplace in the future, or a place that has been completed but has not been entered yet or is vacant because the tenant has moved out, cannot be considered as a workplace or a house in terms of crimes of violation of housing immunity."

The concept of workplace cannot be determined only according to labor law; Every place where scientific, artistic, industrial and similar activities are carried out, whether for the purpose of making profit or not, is within the scope of Turkish Penal Code. It is considered a workplace within the meaning of 116/2.

As stated in the justification of the article; In the implementation of this paragraph, the conditions in question in the first paragraph will be sought. Entering places other than those that are customary to enter without requiring explicit consent due to their nature, will constitute this crime. Law offices and private practices are examples of places that require such permission. Likewise, this crime will also occur if one enters, without consent, places that anyone can enter without fulfilling any conditions, such as supermarkets, shops, stores, when they are not open to the public, for example outside working hours. However, if entered while they are open to the public, no crime will occur. Because right holders are deemed to have implicitly expressed their consent from the very beginning for anyone who wishes to enter such places.

The explanations we made above are also valid in terms of the workplace's add-on. However, entering areas such as warehouses that are not connected to the workplace does not cause a crime. An example Supreme Court decision is as follows:

"Although the warehouse subject to the crime does not have to be adjacent to or close to the workplace in order to be considered an extension of the workplace where the main work is done, the victim...'s statement that he was engaged in the textile business, that he did not go to the warehouse on some days, that he last visited the warehouse two days before the date of the incident, and the fact that the warehouse subject to the crime was a separate place used by the victim to store the goods produced at the workplace, considering the number of products seized from the defendants, and the victim did not make a statement that production was carried out in the warehouse, was used by the victim to put materials in case of need. "There is an obligation to accept that the warehouse visited, where it was understood that no production was carried out for the textile business, was not a workplace or an annex, and in this context, the crime of violation of workplace immunity did not occur in terms of its legal elements." YCGK 2020/366 K.

HOW IS THE CRIME OF VIOLATION OF RESIDENTIAL IMMUNITY COMMITTED? – VERB ELEMENT

The act element, which is one of the material elements of the crime of violating the immunity of the home, consists of optional acts of entering a person's house or its extensions against his/her consent or not leaving after entering with consent. Therefore, in order for the typicality element of the crime to occur, one of the actions of entering or not leaving must be performed. In case of entering, it is an executive act, in case of not exiting, it is a negligent act. After entering someone else's house or its extensions with consent and not leaving, the immunity of the house is violated by negligent behavior.

Entering the Residence or Its Attachments Without Consent

Girmek, in the Turkish Language Association Dictionary; It is defined as "being included" and means entering and being included in places protected by crime type, against the will of the right holder. It is argued by some authors in the doctrine that the body should completely enter the protected areas. ( Nevzat Toroslu, Criminal Law Special Section, Ankara, 2018, p. 100, Artuk, Gökcen, Criminal Law Special Provisions, Ankara, 2017, p. 297 ) According to this view, in order to complete the crime, the perpetrator must enter the residence, workplace or annex with his whole body. Inserting an arm, leg or head through the doorway is not sufficient to complete the crime, and in case of partial entry, the provisions of attempt may be applied. Some other authors argue that, considering the legal values ​​protected by the crime, the acts of entering against the right owner's will, indicating that he does not want anyone else to enter his residence or extension, which may be enough to violate these values, are sufficient to constitute the crime. (Veli Özer Özbek, Koray Doğan, Pınar Bacaksız, İlker Tepe, Turkish Criminal Law Special Provisions, İzmir, 2017, p. 439; Durmuş Tezcan, Mustafa Ruhan Erdem, R. Murat Önok, Theoretical and Practical Criminal Special Law, İzmir-İstanbul, 2017, p. 533)

Since the act of entering must be directed at a residence, workplace or extension, various actions taken from outside without entering a person's residence or extension (for example, looking inside the window of the residence, throwing stones at the window or ringing the exterior doorbell) do not constitute the crime of violation of residence immunity. It is not important from where the residence, workplace or annex that is the subject of the crime is entered, in terms of the occurrence of the crime. YCGK 2018/451 K.

It does not matter from where you enter the house. In one of its decisions, the Supreme Court ruled that the elements of the crime of violating workplace immunity were not met for the defendant who broke the window of the workplace and stole something by reaching out. Relevant parts of the decision are as follows:

"It should be accepted that the crime of violation of workplace immunity has not occurred in terms of its legal elements, considering that the defendant came to the complainant's workplace on the street for the purpose of theft and broke the shop window of the workplace, that the defendant did not enter the workplace, that he stole the meat by simply reaching out his hand through the broken showcase and refrigerator windows, that the refrigerator containing the meat was within reach of the defendant and that there was no reason to prevent him from entering, and that he left the scene on his own after stealing the meat." YCGK 2018/451 K.

Not Leaving the House Entered with Consent

Another optional act that the law seeks in this type of crime is the act of "not going out". A crime occurs when the perpetrator does not leave the place after entering the house, workplace or its annex with consent, despite the right owner's declaration of intention to leave. The state of not dating must continue for a certain period of time.

CONSENT IN THE CRIME OF VIOLATION OF HOUSING IMMUNITY

We tried to explain the act element of the crime above. In order for the crime of violating the inviolability of residence to occur, both of the above actions must be committed against consent. As a matter of fact, in the justification of the article, the consent of the home owner is accepted as an element of the crime.

According to the justification; In order for the crime of violating the immunity of residence to occur, the authorized person must not have consent to enter the residence. The fact that the owner of the house is not aware of the entry into the house also means that he does not have his consent. Therefore, if the house is entered secretly or fraudulently, this crime occurs. After entering the house based on the owner's consent, the house must be abandoned if this consent is withdrawn. Otherwise, the crime in question occurs. For the reasons stated, the lack of consent of the home owner constitutes an element of this crime.

The consent that eliminates the illegality of the crime of violating the immunity of the home must be a legally valid consent. In addition to the person being authorized to express consent to enter the house, the expressed consent must not be impaired, for example, by fraud.

As can be seen, the legislator requires that consent be given in a sound manner by the authorized person. The right to express consent belongs to the person living in the house and the ownership status does not matter. For example, if the owner of the property enters his tenant's house, he will be considered to have committed a crime. It is necessary to distinguish between consent and permission. If a person knows that he does not want anyone to enter the house he entered, then there will be a violation of consent. Likewise, there is no element of crime in entering a house without permission by a person who knows that he can enter in the same way. Therefore, in cases where there is implicit consent, there will be no crime.

Customs, customs and old relationships between people should be taken into consideration when entering a house. If more than one person lives in the house, they all have the right to express consent. This situation is stated in the 3rd Paragraph of Article 116. "If one of the family members or the house or workplace is used jointly by more than one person in the marriage union has the consent of one of these people, the provisions of the above paragraphs do not apply. However, the declaration of consent must be for a legitimate purpose." It is stated as follows.

The legitimate purpose requirement sought by the legislator in the declaration of consent is exemplified as follows:

"In this regard, for example, if one of the spouses consents to a repairman entering the house to repair a technical malfunction in the house, without the knowledge of the other, this consent should be accepted as a valid consent. On the other hand, if one of the spouses accepts another person into the house to commit adultery, it is impossible for the consent of this person to enter the house to be accepted as a valid consent, and in this case, the crime of violation of the immunity of the house committed against the other spouse is in question."

As a matter of fact, in the decision numbered 2020/363 K. of the General Criminal Assembly of the Supreme Court of Appeals, the following provision was established:

"Despite the consistent statements of the participant in the stages that he did not know the defendant before and that he called the police after seeing the defendant at home with his wife when he came home from work at night, the witness, who is the partner of the participant, could not provide a consistent and reasonable explanation for taking the defendant into the house at a time period considered to be night time. During the investigation phase, the defendant stopped by the witness's neighbor's house to take measurements for the glass balcony system to be built, and when the participant suddenly came home and saw her, she said, "What is a man I do not know in my house?" Although he claimed that he shouted and called the police, during the prosecution phase, his contradictory defense stating that they had met the participant before and that he went to the participant's house to measure the balcony upon request cannot be relied upon, and considering that the defendant's wife and the defendant had coffee at night, while the participant was at home and without his knowledge, was not in line with the ordinary flow of life, it was concluded that the consent of the defendant's wife to enter the participant's house was not for a legitimate purpose, and therefore there was no valid or assumed consent. "It must be accepted that the immunity of residence has been violated at night."

Consent of guests or servants cannot be considered as valid consent. Therefore, in such cases, punishment may be imposed on people who enter the house at the invitation of people other than the rightful owner. However, in terms of workplaces, entitlement is broader. It should not be forgotten that everyone working in the workplace has the right to express their consent individually in terms of the crime of violation of workplace immunity.

In terms of workplaces, the existence of implicit consent is accepted for the usual locations of the workplace. It cannot be ruled that people who enter these places have committed a crime. This situation is stated as follows in a Supreme Court decision on the subject:

"Special Chamber, "TCK 116/2. In accordance with the article, in order to constitute the crime of violating workplace immunity, the action must be committed against workplaces and their annexes other than places where it is customary to enter without the need for explicit consent, and the defendant entered the delicatessen, which is a customary place to enter, belonging to the complainant, and injured the complainant. It was decided to overturn the decision for "establishing a conviction on illegal grounds, without taking into account the fact that the material element of the crime of violating workplace immunity was not formed."

Although it was not clearly stated, after the defendant, who went to talk to the delicatessen shop belonging to the participant, during the daytime, to talk to the delicatessen shop belonging to the participant, for which there are no hesitation in both doctrine and practice, that there will be no conditions required during the hours when it is open to customers, and that it will be considered as a place where everyone can enter and exit without the need for explicit consent, was injured as a result of the argument that occurred; Although there is no doubt that the person participating in the workplace would not consent to his presence in the workplace, the implied non-consent was clearly revealed with the injury incident, and in the face of the inability to obtain definitive evidence free of doubt to prove the contrary of the defendant's defense that he did not leave the workplace within an unreasonable period of time; "It should be accepted that the crime of violating workplace immunity has not been constituted in terms of the elements of the crime of violating workplace immunity, for which it has been concluded that the suspect left the workplace within a reasonable time, according to the available evidence, after the implied non-consent was revealed by evaluating the suspicious situation in favor of the defendant." YCGK 2018/423 K.

QUALIFIED ELEMENTS OF THE CRIME OF VIOLATION OF HOUSING IMMUNITY

Law 116/4. Some qualified forms of the crime are included in the article. But qualified situations are not limited to these. Moreover, the common provision regulated in Article 119 of the Turkish Penal Code also finds application in terms of this crime. Based on this, the following situations will be evaluated within the scope of qualified situation and the penalty to be given to the perpetrator will be increased:

Committing the crime by using force or threats,

Commission of the crime at night,

With a gun,

By making the person unrecognizable, by unsigned letter or special signs,

Together by more than one person,

By taking advantage of the frightening power created by existing or assumed criminal organizations,

By abusing the influence of public office.

In case of aggravated situations due to the consequence of the crime of intentional injury during the commission of this crime, the provisions regarding the crime of intentional injury also apply.

TCK 116/4. Pursuant to the article, if the crime of violation of residence and workplace immunity is committed by using force or threat, the penalty shall be imposed only for the crime of qualified violation of residence immunity.

In the justification of the article, it is stated that "the force in question here should be considered as a less punishable version of the crime of intentional injury. Therefore, if the force used has created an effect on the person beyond the extent that can be eliminated with a simple medical intervention, separate punishments will be imposed for both the crime of violating the immunity of home and the crime of intentional injury." It is stated as follows. But 119/4. The justification is no longer valid against the article. As a matter of fact, TCK 119/4 states, "In case of aggravated situations due to the consequence of the crime of intentional wounding during the commission of this crime, the provisions regarding the crime of intentional wounding also apply." It is arranged as follows. As can be seen, unless aggravated situations occur due to the consequence of the crime of intentional injury, the scope of application of Article 86/1 of the Turkish Penal Code will not arise. The General Criminal Assembly of the Supreme Court of Appeals is also of the opinion that the actions within the scope of Article 86/1 of the Turkish Penal Code, as opposed to Article 119/4 of the Turkish Penal Code, remain unsanctioned.

In addition, there is no legal clarity regarding the application of force to persons or things. This issue was discussed in a decision of the Supreme Court. The objection of the Supreme Court of Appeals Chief Public Prosecutor's Office in the Supreme Court of Appeals Criminal General Assembly decision numbered 2018/385 K. is as follows:

"Force is the use of physical force. It can be committed as holding the victim's arms, holding his feet, or bending his arm in a way that will break his resistance. It is not necessary to apply force during the continuation of the action, it is sufficient to be suitable to break the victim's initial resistance. The force here is material force, the use of physical force. According to Article 116/4 of the Turkish Penal Code, it is stated in the law that the use of physical force should be used against people or things in order to commit the crime of breaking the immunity of the home." There is no clarity.

In the face of the fact that Article 116/4 of the Turkish Penal Code No. 5237 does not clearly state how the act of force will be carried out, it must be accepted that the perpetrator can take effective action against the victim as well as use force against the property."

However, CGK rejected this objection on the following grounds:

"In the incident where the defendant ... and the victim ... went to the house of the participant ... on the day of the incident, where the defendant and the victim started to argue after drinking alcohol for a while, the defendant who hit the victim with his fist during the argument was taken out with the help of the participant, the defendant returned in the morning of the same day and knocked on the door of the participant, broke the door by kicking the door when the door did not open, entered and hit both the participant and the victim with his fist, injuring both the participant and the victim in a way that could be remedied with simple medical intervention; The defendant's action of breaking the door to enter the participant's house was not considered coercive because it was carried out against things, not people...”

Again, in the decision numbered 2021/1006 K. of the 6th Criminal Chamber of the Supreme Court of Appeals, a provision in this direction was established:

"The crime of violation of residential immunity is an instant crime. Considering that the crime is completed by entering the victim's house without his/her consent, that if the force and gun threat used during the incident are used against the person, the qualified situation regulated in Articles 116/4 and 119/1. "It is inaccurate to make a written judgment without taking into account that the action of pulling a knife to take goods after entering the house, without making any movement, is not intended to commit the crime of violation of qualified residence immunity, and that it falls within the scope of TCK 116/1."

PUNISHMENT FOR VIOLATION OF HOUSING IMMUNITY

• If the basic form of the crime is committed, the perpetrator is sentenced to imprisonment from six to two years.
• If the acts falling within the scope of the first paragraph are committed in workplaces and their annexes other than the places where it is customary to enter without the need for explicit consent, a prison sentence of six months to one year or a judicial fine is imposed upon the complaint of the victim.
• If the act is committed by using force or threats or at night, the perpetrator is sentenced to imprisonment from 1 to 3 years.

The crime of violation of residential immunity;

• With a gun,
• By making the person unrecognizable, by unsigned letter or special signs,
• Together by more than one person,
• By taking advantage of the frightening power created by existing or assumed criminal organizations,
• If it is committed by abusing the influence of public office, the penalty to be imposed is increased by one fold.

In case of aggravated situations due to the consequence of deliberate injury crime during the commission of this crime, the provisions regarding the crime of intentional injury also apply.

Attempted Violation of Housing Immunity

The crime of violation of residential immunity is completed by entering the residence, workplace or annexes against the consent of the right owner, or by not leaving these places after entering them with consent. This crime is simply a crime of action. While the attempt is possible in terms of the optional action of "entering" because this movement can be divided into parts, in terms of the optional action of "not leaving", the attempt is not possible since there is no clarity in the Law as to how long the non-exit should last. (Tezcan, Erdem, Önok, p.548) YCGK 2018/451 K.

If the house cannot be entered despite the actions taken to enter, the crime will be considered to remain in the attempt stage. In case of attempt, the penalty to be given to the perpetrator will be reduced. The discount rate is determined by the judge from one quarter to three quarters of the sentence.

We have stated above that the attempt is not possible in terms of the action of not going up. However, in practice, there are also authors who have the opposite opinion. According to this view, which we also agree with, although the act of not quitting has a continuous nature, the existence of the continuum does not prevent the attempt. Moreover, the ongoing outcome is not the ongoing result, but the unfair content of the action. (Özbek, Doğan, Bacaksız Turkish Criminal Law Special Provisions 15th Edition p. 458)

CONVENTION OF VIOLATION OF RESIDENTIAL IMMUNITY

The most common crime that occurs together with the violation of residential immunity is theft crime. In cases where two crimes are committed together, the perpetrator is given separate punishment for two separate crimes by applying real community rules. However, in case of violation of workplace immunity, the workplace must be within the scope of non-customary workplaces in order to be punished separately for two crimes. An example Supreme Court decision on the subject is as follows:

"It is understood that the defendant entered the complainant's workplace, which was operated as a monopoly dealer, during the daytime, stole the mobile phone next to the cash register and left the workplace.

The court convicted the defendant for both theft and violation of workplace immunity. However, considering that the workplace where the defendant stole during the day was open to the service of customers at the time of the incident, and that it remained within the scope of ordinary places whose entry was not based on explicit consent, an acquittal decision should be given for the crime of violating workplace immunity, which does not exist due to its elements, but it is against the law to give a verdict of conviction. 2019/2783 K.

As we explained in detail above, in cases where the situation is aggravated due to the result of the crime of intentional injury, the perpetrator is also punished for the crime of intentional injury. Although there are contrary opinions, according to the opinion of the Supreme Court, which we also agree with, in cases where the basic form of the crime of intentional injury and the crime of violation of home immunity coexist, the perpetrator cannot be punished for the crime of intentional injury.

If the perpetrator commits the crime of home immunity while also committing the crime of damaging property, he will be punished separately for two crimes.

It is controversial whether the chain crime provisions will be applied in cases where the perpetrator enters a residence where more than one person lives. In our opinion, it is not possible to apply chain crime provisions in such cases.

COMPLAINT AND TRIAL CONDITIONS FOR THE CRIME OF VIOLATION OF HOUSING IMMUNITY

The investigation and prosecution of simple cases of crime are subject to complaint. The complaint period is 6 months. This period starts from the date on which the act and the perpetrator become known. There is no complaint requirement for qualified cases. The right to complain belongs not only to the person authorized to express consent, but also to the person staying in the house at the time the house was entered.

Everyone working in workplaces has the right to complain.

All paragraphs of the crime regulated in TCK Article 116 are included in the scope of reconciliation.

The court responsible for the trial of the crime is the criminal court of first instance.

If the perpetrator is sentenced to 2 years or less, a decision may be made to postpone the announcement of the sentence.

The statute of limitations for the lawsuit is 8 years.