51 Union of Turkish Bar Associations Review 2022 Bahar TOPSAKAL The crime of disturbing individuals’ peace and harmony differs from the crime of “causing noise” defined in Article 183 of Law No. 5237 and from the misdemeanor of “noise” defined in Article 36 of the Misdemeanor Law No. 5326, which are thought to have similar characteristics. 6 In this context, the fact that the victim of the crime of disturbing individuals’ peace and harmony must be a specific person, 7 the insistence on the act is a condition for the occurrence of the crime, and the fact that the crime can only be committed with a special intention are the distinguishing features.8 In the article, the material (act-action) element of the crime is expressed as persistently making phone calls, making noise or executing any other unlawful behavior for the same purpose. 9 As can be clearly understood from the wording of the provision here, the element of insistence is valid for all the actions specified as elective. 10 In other 6 Ümit Kocasakal, “Kişilerin Huzur ve Sükununu Bozma Suçu (TCK 123) [Crime of Disturbing Individuals’ Peace and Harmony (TCC Art.123)]”, Ankara Barosu Dergisi, 2015/2, p. 116. 7 “There is no specific victim of the crime of causing noise. Anyone living in the society can be a victim of this crime. The fact that the noise is made against an unknown person distinguishes this crime from the crime of disturbing individuals’ peace and harmony defined in Article 123 of the TCC. While the perpetrator of the crime defined in Article 123 of the TCC targets a certain person, the perpetrator of the crime in the Article 183 of the TCC does not target a specific person.” (18th Criminal Chamber of Court of Cassation, 2016/14794, 2019/31, 01/0/2019, www. kazanci.com) 8 On the other hand, it is stated by some authors in the doctrine that the legal interests targeted by the above-mentioned crimes are also different, and in this respect, the crimes should be considered separately: Gökhan Taneri, Ne Bis İn İdem ve Kanunilik İlkesine Göre Çevreye Karşı Suçlar İdari Yaptırımlar-Kabahatler [Crimes Against Environment According to Ne Bis İn İdem and Legality Principle Administrative Sanctions- Criminal Misdemeanors], Seçkin Yayıncılık, 2021, p.186 and 293.; Ahu Karakurt Eren, “Türk Ceza Kanunu’nda Gürültüye Neden Olma Suçu [Crime of Making Noise in Turkish Criminal Code]”, Türkiye Barolar Birliği Dergisi, Edition 132, 2017, p. 60-61) 9 In the doctrine, some authors (Meral Ekici Şahin, “Kişilerin Huzur ve Sükununu Bozma Suçu [Crime of Disturbing Individuals’ Peace and Harmony]”, Ceza Hukuku Dergisi, 2013, p.21.) consider the material element of the crime, especially the part of “another act against the law for the same purpose” as problematic in terms of the principle of clarity and definiteness of criminal law. Again, Şen underlines that a provision contrary to the principle of legality was created, with the expression of “another unlawful behavior”. (Ersan Şen, “Özel Hayata Karşı Suçlar [Offences Against Private Life]”, İstanbul Barosu Dergisi, 2005/3, p.711.) 10 Muharrem Özen/Atacan Köksal, “Kişilerin Huzur ve Sükununu Bozma Suçu [Crime of Disturbing Individuals’ Peace and Harmony]”, Ankara Üniversitesi Hukuk
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