Theft crime

Theft is one of the most frequently committed crimes in Türkiye. Both the high number of acts committed and the severity of the values ​​it violates have caused the act of theft to be considered a crime and subject to sanctions for a long time. The right to property is one of the legal values ​​protected by the crime of theft. In order to protect the right to property guaranteed by Article 35 of the Constitution, the crime of theft is regulated in Article 141 of the Turkish Penal Code. However, it would be an understatement to say that the crime of theft only protects the right to property.

As a matter of fact, Article 141 of the Turkish Penal Code states: "Anyone who takes someone else's movable property from its location without the consent of the possessor, in order to benefit himself or others, is sentenced to imprisonment from one to three years." According to its provision, the fact that the property has been taken from the possessor is sufficient for the crime to occur. Thus, for the crime of theft to occur, possession of the goods is not required, and possession has been deemed sufficient.

The basic form of the crime of theft is regulated in Article 141 of the Turkish Penal Code, as we mentioned above. In addition, Article 142 of the Turkish Penal Code regulates the qualified cases of the crime, Article 143 regulates the crime committed at night, and Article 144 regulates the cases requiring less punishment. All these situations will be examined under separate headings below.

The subject of the crime of theft can only be movable goods. Immovable properties are excluded from the scope of the crime of theft. This situation also reveals one of the differences between theft and fraud.

ELEMENTS OF THE CRIME OF THEFT

The crime of theft is committed by taking property from someone else's possession without the consent of the possessor. Based on this, the subject of the crime is someone else's property. The only items that can be subject to the crime of theft are movable items. It is not possible to commit the crime of theft in terms of real estate.

Perpetrator, Victim and Protected Legal Value in Theft Crime

Anyone can be the perpetrator or victim of the crime. No special qualifications were required in this respect. The legal value protected by the crime of theft is the right of ownership and possession.

Receiving Property Belonging to Someone Else

As we mentioned above, the crime of theft is committed by taking someone else's property. However, just taking the goods is not enough to constitute the crime of theft. After the perpetrator acquires the property, he must place it under his own control. If the perpetrator has not been able to transfer the property he took to his domain, the crime will not be considered completed. Explanations regarding this issue will be included under the title of attempt in the crime of theft.

INTENTION IN THE CRIME OF THEFT

The moral element of the crime is intent. Theft is a crime that can be committed intentionally. However, while defining the crime in Article 141 of the Turkish Penal Code, it is stipulated that anyone who takes it from a place with the aim of benefiting himself or someone else will be punished. For this reason, general intent is not sufficient for the crime of theft, and the presence of specific intent will be required. Whether or not the perpetrator intended to dispose of the goods he bought is important for the formation of the crime.

THEFT CRIME COMPLAINT

None of the basic and qualified cases of the crime of theft are subject to complaint. Investigation and prosecution are carried out ex officio.

However, pursuant to Article 144 of the Turkish Penal Code, if the crime of theft is committed on property owned by stakeholders or jointly or for the purpose of collecting a receivable based on a legal relationship, the investigation can only be initiated upon complaint. The complaint period is 6 months in these two cases.

PUNISHMENT FOR THEFT

If the crime of simple theft is committed, the perpetrator is punished with imprisonment from 1 to 3 years.

The simple form of the crime of theft refers to the taking of items left in the open without the consent of the owner. The Supreme Court has determined in detail the criteria regarding what items left in the open may be.

Explanations regarding the punishment of qualified forms of the crime are made separately under the heading of each case.

QUALIFIED THEFT CRIME

The law stipulates harsher penalties than the basic case for the crime of theft in case certain conditions are met.

TCK 142

1- The crime of theft;

a) About goods located in public institutions and organizations or places reserved for worship or allocated for public benefit or service, regardless of who they belong to,

b) About the goods in the means of transportation offered to the public or at certain destinations or departure points of these,

c) About goods prepared for the purpose of preventing or mitigating the damages that may occur from a disaster or a general disaster,

d) In cases where goods are left exposed due to custom, allocation or use, a prison sentence of three to seven years is imposed.

(2) Your crime;

a) Taking advantage of the person's inability to protect his property or his death,

b) By pulling the item carried by hand or on the person or with special skill,

c) Taking advantage of the fear or chaos caused by a natural disaster or social events,

d) By unlocking or preventing locking with a wrongfully possessed or counterfeit key or other tool,

e) By using information systems,

f) By taking precautions to avoid recognition or by assuming an official capacity even though he is not authorized to do so,

g) About large or small cattle,

h) About goods that are locked or kept in a building or its annexes, although they are left in a place accessible to everyone,

If committed, a prison sentence of five to ten years is imposed. If the crime is committed against a person who is unable to defend himself physically or mentally, as specified in paragraph (b) of this paragraph, the penalty to be imposed is increased by one third.

NIGHTTIME THEFT

According to Article 143 of the Turkish Penal Code, if the crime of theft is committed at night, the penalty to be imposed is increased by half. From the phrase night time; The period of time that starts one hour after sunset and continues until one hour before sunrise is understood. When determining this time period, a separate evaluation is made for each region. A decision of the General Criminal Assembly of the Supreme Court of Appeals dated 2020 provides an example of this situation. In the relevant decision, "However, the fact that the sun set at 16.29 in Tarsus on the date of the crime, that the time period after 17.29 should be considered as night in accordance with Article 6/1-e of the Turkish Penal Code, and that the crime of theft was committed at 17.50, which is considered night according to the camera records showing the moment of the incident, was not taken into account in the judgments made about the defendants, that the penalty should be increased in accordance with Article 143 of the same Law, "Since there is no appeal against it, no grounds for reversal have been made." His statements are included.

Yet in another decision, how the determination will be made according to changing conditions "The case is about the crime of theft. Considering the daylight saving time, the sun rose at 04.47 on the day of the incident; and according to the CD solution report and incident minutes available in the file, it is stated that the children who were dragged into the crime committed the crime at 02.50; in accordance with Article 6/1-e of the Turkish Penal Code No. 5237, although the crime of theft was committed at night, the crime was committed at night." "Article 143/1 of the same law should be implemented regarding dragged children." It is indicated by the expressions in the form.

The principle that the defendant gets the benefit of the doubt should also be mentioned here. Namely; If it cannot be determined at what time the crime was committed, it is assumed that the crime was committed during the day.

The penalty to be given to the perpetrator for theft at night will in all likelihood be increased by half. In other words, whether the simple or qualified form of the crime has been committed does not prevent the punishment from being increased. In case of qualified theft, when determining the penalty, first of all, an increase will be made due to the qualified situation, and then another half increase will be made due to the night time.

REASONS THAT REDUCES THE PUNISHMENT FOR THEFT

According to Article 144 of the Turkish Penal Code, the crime of theft;

a) On property owned by stakeholders or jointly,

b) For the purpose of collecting receivables based on a legal relationship,

If committed, the perpetrator is sentenced to imprisonment from two months to one year or a judicial fine.

If one of the partners takes the belongings they share from the other partner or partners without permission, the penalty to be given to the perpetrator is reduced. It is not important here whether the perpetrator is in possession or not. In order for this situation to apply, the perpetrator must prove partnership. As a matter of fact, the Supreme Court of Appeals stated in one of its decisions, "According to the understanding that the defendant cut down chestnut trees from the jointly shared land, which is not considered a forest, without the consent of the other shareholder and that the crime report was prepared upon the notice of the shareholder, by determining the total number of trees in the area subject to the crime, it is determined whether the cut trees correspond to the amount that will fall to the defendant's share, and if it is more than his share, it is investigated whether the other shareholder has filed a complaint and, according to the result, the action is within the scope of Turkish Penal Code No. 5237." "Article 44 should also be taken into consideration and it should be discussed at the decision-making place whether the same law, which is in favor of the defendant as of the date of the crime, constitutes the crime in Article 144/a." He ruled as follows.

THEFT FOR THE PURPOSE OF COLLECTION OF RECEIVABLES BASED ON LEGAL RELATIONS

If the perpetrator commits the crime of theft in order to collect a receivable based on a legal relationship, the penalty will be mitigated. As a matter of fact, in one of its decisions, the Supreme Court stated that "14 days after the motorcycle subject to the crime was stolen, the defendant was found in his neighbor's garden. The defendant stated that he deducted the account that the customer did not pay at the restaurant where he worked as a waiter, from the restaurant owner's salary, and thereupon, he declared that he took the motorcycle from him in return for his debt. While the restaurant owner was heard as a witness and the veracity of the defendant's defense was investigated, it was discussed whether the action could be evaluated within the scope of Article 144/1-b of the Turkish Penal Code, and the legal situation of the defendant should be assessed and determined according to the result. "It is wrong to establish it." With his statements, he ruled that the legal claim should be evaluated.

THEFT OF PROPERTY OWNED BY A STAKEHOLDER OR CO-OPERATE

If one of the partners takes the belongings they share from the other partner or partners without permission, the penalty to be given to the perpetrator is reduced. It is not important here whether the perpetrator is in possession or not. In order for this situation to apply, the perpetrator must prove partnership. As a matter of fact, the Supreme Court of Appeals stated in one of its decisions, "According to the understanding that the defendant cut down chestnut trees from the jointly shared land, which is not considered a forest, without the consent of the other shareholder and that the crime report was prepared upon the notice of the shareholder, by determining the total number of trees in the area subject to the crime, it is determined whether the cut trees correspond to the amount that will fall to the defendant's share, and if it is more than his share, it is investigated whether the other shareholder has filed a complaint and, according to the result, the action is within the scope of Turkish Penal Code No. 5237." "Article 44 should also be taken into consideration and it should be discussed at the decision-making place whether the same law, which is in favor of the defendant as of the date of the crime, constitutes the crime in Article 144/a." He ruled as follows.

IMPAIRMENT OF VALUE IN THEFT

Article 145 of the Turkish Penal Code regulates that if the value of the property subject to theft is low, the penalty may be reduced or even the penalty may be waived depending on the characteristics of the incident.

The low value of the goods is sufficient for discount. However, the discount rate is at the discretion of the judge. When determining the discount rate, the judge should take care to ensure that it is proportionate to the severity of the act committed. If the judge decides to give up punishment, he must also take into account the manner and characteristics of the crime. A comprehensive evaluation was made on the subject in a decision made by the General Criminal Assembly of the Supreme Court of Appeals in 2009. Accordingly:

Although it is not possible to completely reject the view of "taking only what is needed and less in value when it is possible to buy more", which is consistently applied by the 6th Criminal Chamber of the Supreme Court of Appeals, in the application of Article 145, it is not possible to limit the article only with this definition. Both the first version and the amended version of Article 145 are based on the common definition, which is the low value that constitutes the subject of the crime of theft. What is meant by the Legislator by low value, It has not been clarified to prevent hesitation, and a numerical limitation has not been introduced, but the judge has been given the discretion and evaluation authority regarding the material event in question. However, the Legislator has limited the judge's discretion with an abstract and different discipline; that is, the "value to be considered low" must be at a level that is insignificant enough to warrant giving a penalty, in other words, the value-based violation must be at a level that would justify not imposing a penalty. The small amount of value attempted to be stolen may be assessed either by a reduced penalty or by not imposing a penalty due to the characteristics of the crime.

In the change after the first text of the article; It is clear that writing the phrase "taking into account the manner and characteristics of the crime" after the "reduction in punishment" option and before the "punishment can be waived" option will not differentiate the value of the property subject to the crime. Therefore; It should not be thought that a higher value will be sought in the "less punishment" option, and that a lesser value should be sought in the "withholding punishment" option.

Another example of the Supreme Court decision regarding diminished value in theft is as follows:

"According to the appraised value and delivery report, although it is understood that the value of the mobile phone subject to the crime is 65 TL, it is not possible to give up punishing the defendants due to the way the crime was committed and its characteristics, but due to the low value of the property that constitutes the subject of the theft, it is not considered that there should be a reduction in the penalty given in accordance with Article 145 of the Turkish Penal Code.." Y13CD. 2020/11768 K.

Attempted THEFT

In order for a crime to be considered to have occurred, the act must exactly comply with the definition of crime set out in the law. Otherwise, a crime is not considered to have occurred. However, in some cases, the crime cannot be completed for reasons beyond the control of the perpetrator. In such cases, since the perpetrator's impunity would not be compatible with the understanding of justice, the institution of attempt was established and the way was paved for punishment for unfinished crimes.

The enterprise institution states in Article 35 of the Turkish Penal Code: "If a person directly initiates the execution of a crime that he intends to commit with appropriate actions, but cannot complete it for reasons beyond his control, he is held responsible for the attempt." It is defined and governed by its expressions. If a crime remains at the attempted stage, the penalty will be reduced. The crime of theft is one of the crimes that can be attempted. In order for the crime of theft to remain at the attempted stage;

1-The perpetrator has the intention to commit a crime,

2-Starting the execution of the act,

3-Performing acts conducive to crime,

4-The conditions for the execution to not be completed due to unforeseen reasons must be present.

In the presence of the above conditions, the penalty may be reduced from one quarter to three quarters, as the crime will remain at the attempted stage. The discount rate is determined by the judge according to the characteristics of the case and the severity of the danger.

In addition, if the perpetrator of the crime of theft is caught as a result of an uninterrupted pursuit, the crime will be deemed to have remained at the attempted stage. However, if the pursuit is interrupted and the perpetrator takes control of the stolen goods, then punishment will be imposed for the crime of completed theft.

Convicted of THEFT

TCK 142/4. Article "In case of violation of residence immunity or damage to property for the purpose of committing the crime of theft, a complaint is not required for investigation and prosecution for these crimes." It is shaped like.

The conclusion of the provision is that the provisions of compound crime will not be applied in the crime of theft. Therefore, if the crime of theft is committed at home, a separate penalty will be imposed for violating the immunity of the home. Again, if a property is damaged while committing a crime, the perpetrator is punished for the crime of damaging property as well as the crime of theft.

It is possible to apply chain crime provisions in theft crime.

THEFT CRIME RECONCILIATION

The crime of simple theft, regulated in Article 141 of the Turkish Penal Code, is considered a crime within the scope of reconciliation. In crimes within this scope, the reconciliation procedure is first applied during the investigation or prosecution phase. If the parties cannot reach an agreement, the trial continues.

ACTIVE REGRET FOR THE CRIME OF THEFT

In accordance with Article 168 of the Turkish Penal Code, it is possible to apply effective remorse provisions in the crime of theft. In order for the perpetrator to benefit from effective repentance, he must compensate the victim for his damage or return the property as is.

If the perpetrator returns the goods or repairs the damage during the investigation phase, the penalty will be reduced by 2/3.

If the perpetrator wishes to benefit from the provisions of effective repentance during the prosecution phase, the penalty will be reduced by ½ this time.

In case of partial return of stolen goods, Article 168/4 of the Turkish Penal Code. According to the article, the consent of the victim is required. If the victim does not consent to partial restitution, effective repentance provisions cannot be applied to the perpetrator. This issue was taken into consideration in the decision of the 13th Criminal Chamber of the Supreme Court of Appeals No. 2018/16007 and the verdict was established as follows.

"The yellow colored necklace registered in the Judicial Deposit, which the defendant voluntarily surrendered, was shown to the participant, and the participant was clearly asked whether the necklace subject to the crime was among the items stolen on the date of the incident, and based on the result, a written judgment was made without taking into account the need to determine and evaluate the legal status of the defendant, and according to the content of the arrest report, it was understood that the defendant came to the police station and stated that he had committed theft and handed over the necklace subject to the crime to the law enforcement officers to be returned to the victim; TCK No. 5237 In accordance with Article 168/4, the issues of making a written judgment about the defendant without determining whether Article 168/1 of the same Law will be applied by asking the victim whether he/she consents to partial restitution have also been determined, and it has been decided that the file will be sent to the Chief Public Prosecutor's Office of the Supreme Court of Appeals to be submitted to the Ministry of Justice in order to determine whether a request for reversal will be made in these respects.

ABUSE OF TRUST AND THEFT

We have stated that in order for the crime of theft to occur, possession must be taken without consent. If possession is transferred with consent, the elements of the crime of theft will not occur. If the perpetrator does not return an item loaned to him, it should be assumed that the possession was handed over by consent. And in such a case, punishment should be taken not for theft but for abuse of trust. However, the point that should be taken into consideration in the distinction is that the victim transferred the possession voluntarily and within the scope of a legal relationship. The victim must have a will to transfer possession. For example, a person who takes the victim's mobile phone to call someone and runs away should be punished for theft, not for breach of trust. Because the victim does not have the will to transfer possession.

USE THEFT

Use theft is regulated in Article 145 of the Turkish Penal Code. Article of the law states: "If the crime of theft is committed in order to use the property temporarily and return it to its owner, upon complaint, the penalty to be imposed is reduced by half. However, if the property is used to commit a crime, this provision does not apply." It is shaped like.

The perpetrator must prove that he took the item subject to the crime for the purpose of using it and that he will return it.

THEFT CRIME STATE OF NECESSITY

If the crime of theft is committed to meet a serious and urgent need, the penalty to be given to the perpetrator is reduced depending on the characteristics of the incident. The existence of the state of necessity may also require not to impose a penalty. This situation will be appreciated by the judge. The perpetrator must prove the urgency and severity of the need.

An example of a severe and urgent need is the theft of a medicine needed for a fatal disease from the pharmacy.

THEFT TURNED INTO LOOT

Explanations regarding this crime are included in our article titled

Looting Crime. The crime of plunder refers to the act of committing theft by force. Therefore, the difference is made by the element of force and threat. If the perpetrator of the crime of theft encounters the victim while committing the act and threatens the victim or uses violence against him, then the crime of theft turns into the crime of plunder.