53 Union of Turkish Bar Associations Review 2022 Bahar TOPSAKAL sole aim of disturbing the peace and harmony of the victim. 14 In the doctrine, this necessity appears as “special intent”, which can also be expressed as a purpose or motive and is classified as a form of direct intent. 15 In this context, phone calls made to insult or threaten the person will not constitute this crime in principle, since the existence of a special intent is sought for the occurrence of the crime referred to; in these cases, if the conditions exist, the perpetrator will be prosecuted for other related crimes. 16 “Exercise of a right and the consent of the person concerned”, which are stipulated in Article 26 of the Law No. 5237, are the most common reasons of eliminating the unlawfulness of the act for the crime in question. Because an individual’s right to peace and harmony is an absolute right that he/she can benefit from. For this reason, if the relevant person consents to the violation of his/her right, the crime in question will not occur. Again, in the case of exercising a right arising from the law or custom, it will be possible to argue that the crime does not occur, considering that the action is not directed to a particular victim and there is no special intent. For example, cases such as a wedding organization, repairing, or moving house can be considered in this scope. Finally, the crime is an offense prosecuted on complaint, and the sanctions to be imposed is stipulated in the text of the article as imprisonment from three months to one year. We consider as a deficiency the fact that no qualified versions of the crime in question is defined.17 14 Ali Parlar/Muzaffer Hatipoğlu, Cezai ve Hukuki Sorumluluk Boyutlarıyla Çevre Hukuku [Environmental Law with Criminal and Legal Responsibility Dimensions], Adalet Yayınevi, Ankara 2010, p. 309. 15 Veli Özer Özbek/Koray Doğan/Pınar Bacaksız, Türk Ceza Hukuku Genel Hükümler [Turkish Criminal Code General Provisions], Seçkin Yayıncılık, Ankara 2021, p.265. 16 Veli Özer Özbek/Koray Doğan/Pınar Bacaksız, Türk Ceza Hukuku Özel Hükümler [Turkish Criminal Code Special Provisions], Seçkin Yayıncılık, Ankara 2021, p.487. 17 For example, it would have been more appropriate in terms of the criminal justice system if the Law had included some qualified versions of the crime such as the crime being committed at night or the perpetrator being a public official.
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