60 Evaluation of Actual Aggregation and Conceptual Aggregation Rules in Terms of the Crime ... is essential for the implementation of the provisions of the conceptual aggregation. However, in the implementations of the provisions of aggregation by the Court of Cassation as a presupposition in terms of the crime of disturbing individuals’ peace and harmony, it is observed that the sameness of the act (movement) is not evaluated separately in each concrete case, and in cases where the provisions of Article 123 of the TCC come to the fore, the conviction provisions for the other crime committed are automatically applied.40 In our opinion, in cases where the crime of disturbing individuals’ peace and harmony and another crime are committed, the acts should be evaluated according to the criteria of full sameness and partial sameness, and in this context, actual aggregation / conceptual aggregation rules should be applied. Because, in practice, it is observed that the crimes of sexual harassment, threats, blackmail, violation of dwelling immunity, insults, violation of privacy of private life and causing noise are discussed together with the crime of disturbing individuals’ peace and harmony.41 In determining the sameness of the act in conceptual aggregation, the exact sameness of the acts should be sought, and all the execution 40 “The crime of disturbing individuals’ the peace and harmony defined in Article 123 of the TCC must have been committed with the sole intend of disturbing the peace and harmony of a specific person. Since this crime is a general and complementary crime, if the act constitutes any other crime, the crime of disturbing individuals’ peace and harmony shall not occur. In the concrete case, it was understood that the accused YÖ had sent sexual messages to the mobile phone of the intervening party on different dates. Imposing penalty on the accused with the justifications that are non-statutory and not deemed appropriate without considering the fact that the acts of the accused are the acts defined in articles 105/1 and 43 of the TCC…” (4th Criminal Chamber of the Court of Cassation, 2013/6856, 2014/32599, 11.11.2014, www.kazanci.com); “In case the perpetrator commits crimes such as threats, insults, blackmail, sexual harassment through the phone call or the messages he sent, investigation and prosecution should be carried out only for these crimes, and should not be punished for committing the crime of disturbing individuals’ peace and harmony which is a general crime.” (4th Criminal Chamber of Court of Cassation, 2013/40149, 2014/35879, 12/11/2014, www.kazanci.com) 41 In our opinion, another reason why the crime of disturbing individuals’ peace and harmony cannot be described as “general” compared to the crimes in question is the difference between the legal values protected by the crimes in question and by the crime of disturbing individuals’ peace and harmony. “The first condition to be able to take into account the “special norm-general norm relationship” is that both norms protect the same legal value. In other words, the legal value protected by the special norm and the legal value protected by the general norm are the same. (9th Criminal Chamber of Court of Cassation, 2020/7817, 2020/2297, 11/25/2020, www.kazanci.com)
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