TCK Article 116 punishes "a person who enters a person's house or its extensions against his/her consent, or who does not leave after entering with consent". This crime protects the immunity of residence guaranteed by Article 21 of the Constitution.
Penalties
- Art.116/1 (basic case): 6 months-2 years imprisonment.
- Article 116/2: Entering the workplace or its annexes without consent: 6 months-1 year imprisonment or judicial fine.
- Art.116/3 (prevention of use): The penalty is increased by half for preventing the use of a residence or workplace.
- Art.116/4 qualified situations:
- Using force or threats.
- Night time. → The penalty is increased to 1-3 years imprisonment.
The Concept of "Housing"
- Apartment, house, detached building.
- Hotel room (even if temporary, it is considered a residence).
- Caravan, yacht (if lived in).
- Additions: garden, balcony, garage, warehouse, coal shed.
The Concept of "Workplace"
- Shop, office, shop, factory.
- It is a crime to enter without the owner's consent, even outside working hours.
- General public areas (restaurants, markets) remain outside during working hours.
The "Consent" Element
A crime does not occur when entry into a residence is with consent. However:
- Consent must be valid (in the absence of force, threat, fraud).
- Consent must be obtained from authorized person
- Failure to exit after entering with consent is a separate crime.
Reasons for Compliance with the Law
- Search by judge's decision (CMK article 116): Lawful.
- Fire, life safety, etc. obligation:Reason for compliance with law.
- Consent: Reviewed above.
- In flagrante delicto: The authority of the law enforcement to intervene immediately.
Combination with Theft
In case of entering the residence for the purpose of theft:
- TCK Article 116: Immunity of residence.
- TCK article 142/1-b: Theft from residence (qualified case).
- Two crimes are punished separately by real assembly
Supreme Court 13th CD and 4th CD — Established Approach
4. CD and 13th CD seek the concrete evaluation of the validity of "consent", the determination of the victim's explicit or implicit request to leave in case of "not leaving after entering", and the application of door/wall/restricted area criteria in extension discussions.
Complaint and Ex officio Prosecution
- Art.116/1, Art.116/2 (basic case): Depends on the complaint.
- Art.116/4 (force, threat, night time): Prosecuted ex officio.
Compromise
In case of residence/workplace immunity, the scope of compromise is valid; If a compromise is reached between the defendant and the victim, the case is dismissed.
What the Victim Should Do
Housing immunity cases are often combined with other crimes. General evaluation with Criminal defense attorney is recommended.