CRIME OF THEFT – Turkish Legal Advisor

This report has been prepared to answer the question posed by the user, "What is the crime of theft, what is its penalty, the reasons that increase and decrease the penalty, what are the points to be considered during the trial?" The report is based on the findings obtained by examining various decisions given by the Court of Cassation and Regional Courts of Justice. Its purpose is to present the legal framework of the crime of theft, the penal practices and the important points in the trial processes in a comprehensive, consistent and informative manner in the light of the judicial precedents. Starting from the definition of the crime, the report will touch on the factors affecting its penalty and the procedural and substantive issues that the courts should meticulously consider during the trial.

Main Findings

1. Definition of the Crime of Theft

In judicial decisions, the crime of theft is generally defined by reference to the relevant articles of the Turkish Penal Code (TCK). The basic definition is the act of "taking movable property belonging to another person from its location without the consent of the possessor, for the purpose of providing a benefit to oneself or another person". This definition was expressed in the decision of the 6th Criminal Chamber of the Supreme Court of Appeals, numbered 2021/3586, Decision numbered 2021/20086 and dated 22.12.2021, as "taking movable property belonging to another person from its location without the consent of the possessor (TCK art. 141/1)" and in the decision of the Constitutional Court, numbered 2014/162, Decision numbered 2015/47 and dated 13.05.2015, as "taking movable property belonging to another person from its location without the consent of the possessor, for the purpose of providing a benefit to oneself or another person" (TCK art. 141).

The crime of theft is regulated in its basic form in Article 141 of the TCK and in its qualified forms in Article 142. In the decision numbered 2007/15573, Decision numbered 2010/5014 and dated 28.04.2010 of the Supreme Court of Appeals 6th Criminal Chamber, it was emphasized that " the elements of the crime of theft defined in Articles 141 and 142 of the TCK numbered 5237 and the crime included in Article 493/1 of the TCK numbered 765 are different" and the distinction between the new TCK and the old TCK was drawn attention.

2. Punishment for the Crime of Theft

The penalty for the crime of theft varies depending on whether the crime is simple (TCK Art. 141) or qualified (TCK Art. 142), the manner in which it is committed, and other aggravating or mitigating factors. For example, in the decision numbered 2011/5, 2011/5 Decision numbered 18.01.2011, of the Board of Presidents of the Criminal Chambers of the Supreme Court of Appeals, it was stated that the penalty for the qualified case in Article 142/1-b of the TCK is "imprisonment from 2 to 5 years". In the decision numbered 2017/169, 2018/42 Decision numbered 02.05.2018, of the Constitutional Court, it was stated that the penalty for the crime of theft committed "on the items kept in the building or its annexes" within the scope of Article 142/2-h of the TCK is "imprisonment from five to ten years". Penalties are determined by making increases and reductions from the basic penalty according to the characteristics of the concrete case.

3. Factors Increasing the Penalty

In judicial decisions, the factors that increase the penalty for the crime of theft are frequently emphasized:

Committing at Night (TCK Art. 143): In many decisions ( e.g. Court of Cassation-6th Criminal Chamber-2009/17037-2010/1464-18.02.2010; bam-Erzurum Regional Court of Justice 4th Criminal Chamber-2018/337-2018/1144-08.06.2018) it has been stated that committing the crime at night is a reason that increases the penalty. In the decision numbered 2011/25989, Decision numbered 2011/8290 of the 13th Criminal Chamber of the Court of Cassation, it has been underlined that "the concept of night, which is not an aggravating factor in Law No. 765, is a reason that increases the penalty according to Article 143 of Law No. 5237".
Qualified Cases (TCK Art. 142):
- Committing the theft by breaking a lock at home or at work: The Supreme Court of Appeals 6th Criminal Chamber (2007/15573-2010/5014) has shown that "committing the theft by breaking a lock at home (TCK 142/1-b)" is an aggravating factor.
- Processing on Items Kept in Preservation Inside a Building: Erzurum BAM 4th Criminal Chamber (2018/337-2018/1144) has deemed processing "on items kept in preservation inside a building" (TCC art. 142/2-h) as a qualified case.
- Committing with Special Skill: The 6th Criminal Chamber of the Supreme Court of Appeals (2021/3586-2021/20086) emphasized the situation of "committing by "taking away an item carried in the hand or on the person or with special skill" in Article 142/2-b of the TCK."
- Theft from a Locked Vehicle: The 22nd Criminal Chamber of the Supreme Court of Appeals (2015/17201-2016/7539) stated that "the act of stealing a locked vehicle complies with Article 142/1-b of the Turkish Penal Code (TCK)."
Repetition (TCK Art. 58): Gaziantep BAM 8th Criminal Chamber (2018/3652-2020/129) stated that it was decided to apply the execution regime specific to repeat offenders in accordance with TCK Art. 58 due to the defendant's previous convictions "included in his criminal record" .
Committing the Crime by Inciting Children (TCK art. 38): The Supreme Court of Appeals 6th Criminal Chamber (2008/15352-2012/8662) stated this situation as a reason for increase.
Committed by More than One Person Together (crimes that can be assessed within the scope of TCK Art. 142 or related crimes, e.g. TCK Art. 119/1-c): The 13th Criminal Chamber of the Supreme Court of Appeals (2011/25989-2011/8290) has stated this situation in the violation of the inviolability of the residence.

4. Mitigating Factors for Punishment

The reasons for reducing the penalty are also discussed in detail in the decisions:

Low Value of Property (TCK Art. 145): This issue, which is mentioned in many decisions, was explained in the decision of the 6th Criminal Chamber of the Supreme Court of Appeals (2006/10280-2010/7137) as being applicable "in cases where only the necessary and really low value things are taken when there is the possibility of taking more."
Effective Remorse (Compensation of Damages/Restitution) (TCK art. 168): This is also a frequently encountered reason for reduction. The 13th Criminal Chamber of the Supreme Court of Appeals (2011/25989-2011/8290) stated that "in the event that it is understood that some of the stolen goods have been returned," it is mandatory to conduct a favorable legal evaluation by investigating the "conditions for the application of the effective remorse provisions" in article 168 of the TCK. In the decision of the Erzurum BAM 4th Criminal Chamber (2018/337-2018/1144), it was emphasized that this reduction cannot be applied if the damage is not compensated.
Attempt (TCK art. 35): In the decision of the Supreme Court of Appeals 6th Criminal Chamber (2008/4234-2010/7246), it was stated that the attempt should be evaluated.
Discretionary Discount Reasons (TCK art. 62): It can be applied for reasons such as the defendant's attitude and behavior during the hearing. Gaziantep BAM 8th Criminal Chamber (2018/3652-2020/129) stated that a discount was made "by accepting the discretionary discount reason in favor of the defendant's respectful behavior".
Minority (TCK art. 31/3): In the decision of the Supreme Court of Appeals 6th Criminal Chamber (2013/16504-2013/15955), it was determined that "the defendant had not reached the age of 18 on the date of the crime" and it was emphasized that a reduction in the sentence should be made in accordance with article 31/3 of the TCK.

5. Matters to be Considered in the Trial

Judicial decisions set out many procedural and substantive points to which courts should pay particular attention in theft trials:

Determination of the Favorable Law (Law No. 5252, Article 9/3): It is one of the most important issues emphasized in almost all decisions. The Supreme Court of Appeals 6th Criminal Chamber (2009/17037-2010/1464) stated that "in determining the favorable law, all relevant provisions of previous and subsequent laws should be applied to the case and the results should be compared with each other".
Obligation to Write Reasoned Decisions (Constitution Art. 141/3, CMK Art. 34): The 6th Criminal Chamber of the Supreme Court of Appeals (2009/17037-2010/1464) has emphasized that court decisions must be "clear enough to allow for the Supreme Court's review" and that "all the evidence on which the decision is based, the court's conclusions based on this evidence, the evaluations of the claim, defense and other documents in the file, and the actions of the defendant must be clearly reflected in the reasoning."
Necessity of Holding a Hearing (Circumstances Requiring Discretion): The 6th Criminal Chamber of the Supreme Court of Appeals (2008/4234-2010/7246) stated that holding a hearing is mandatory in cases such as "the elements or special circumstances of the crime have been changed, the determination and discretion of the penalty is required, and the determination of the increase and reduction rates requires discretion".
Aggregation of Crimes (Violation of Domicile Inviolability, Damage to Property, etc.): It has been stated in many decisions ( e.g .: Court of Cassation-6th Criminal Chamber-2009/17037-2010/1464) that these crimes, which are frequently committed together with the crime of theft, should also be evaluated separately .
Evaluation of Conciliation Provisions: It has been emphasized that conciliation provisions (CMK art. 253 et seq.) should be evaluated, especially in terms of crimes such as damaging property committed together with theft ( e.g .: Court of Cassation-6th Criminal Chamber-2008/47-2010/5770).
Deprivation of Rights (TCK Art. 53): It has been stated that the deprivation of rights that should be implemented as a result of conviction should be determined correctly ( e.g .: Court of Cassation-6th Criminal Chamber-2008/23258-2012/21125).
The Principle of Benefit of Doubt for the Accused: The 17th Criminal Chamber of the Supreme Court of Appeals (2015/25716-2016/1121) emphasized that in the absence of "definite and convincing evidence beyond all doubt" that a crime has been committed, this principle can be applied and an acquittal decision can be given.
Additional Right of Defense (CMK art. 226): It has been stated that if a penalty is to be imposed based on a law article that is not requested in the indictment, an additional right of defense must be granted (Court of Cassation-13th Criminal Chamber-2011/20912-2011/6234).
Suspension of the Announcement of the Verdict (CMK art. 231): It has been stated that the HAGB institution should be evaluated if the conditions are met (Court of Cassation-6th Criminal Chamber-2009/10210-2010/5643).
Liability for Trial Expenses: The 6th Criminal Chamber of the Supreme Court of Appeals (2006/10280-2010/7137) emphasized that "Trial expenses should be charged separately for each defendant in the amount they have caused . "

Examination

The decisions of the Court of Cassation and the Regional Court of Justice examined show that the crime of theft is not only about taking a property, but is a complex legal phenomenon in which many factors such as the way it is committed, the time, the nature and value of the stolen property, and the situation of the perpetrator and the victim are evaluated together . One of the most frequently emphasized issues in the decisions is "determination and application of the law in favor" in accordance with Article 9/3 of Law No. 5252. This is of vital importance for a fair trial, especially in periods when there are changes in the law.

Court decisions reveal how important the principle of individualizing punishment is in the crime of theft. It has been frequently stated that provisions such as TCK article 143 (night time), TCK article 145 (diminution), TCK article 168 (effective repentance), TCK article 31/3 (minority), TCK article 62 (discretionary reduction) should be meticulously evaluated and applied according to the concrete case. The requirement that these evaluations be made clearly and in detail in accordance with the "reasoned decision" principle and in a manner that will allow for the review of the Court of Cassation is also an invariable element of the decisions.

It is observed that the crime of theft is often committed together with the crimes of violation of the inviolability of the home and damage to property. In these cases, the elements of each crime should be evaluated separately, the provisions of conciliation for the combined crimes should be observed and issues such as the addition of sentences should be addressed correctly.

An important function of the decisions of the Court of Cassation is to correct the errors made by the first instance courts in practice and to ensure unity of jurisprudence. In particular, deficiencies in the application of the reasons for increase and reduction, in the use of discretionary power or in compliance with procedural rules (opening a hearing, granting additional defense rights, etc.) are grounds for reversal.

Conclusion

As a result, in the light of the examined judicial decisions, the crime of theft is a multidimensional crime type with its definition, penalty, reasons that increase and decrease the penalty and the issues that should be taken into consideration during the trial process. In the trial of this crime, which is regulated in its basic and qualified forms in the Turkish Penal Code, it is of great importance to meticulously comply with the procedural rules, observe the principle of favorable law, individualize the penalty and have reasoned decisions, as well as to reveal the material truth. The decisions of the Court of Cassation and the Regional Court of Justice both guide the practitioners in this complex process and guarantee the right to a fair trial. In the trials regarding the crime of theft, it is essential to take into account the established precedents as well as the articles of the law in order to make lawful and fair decisions.

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