Plottage crime

The crime of plunder, also known as extortion, is among the most frequently committed crimes in our country. According to the data of the Ministry of Justice, almost half of the crimes committed in Türkiye consist of crimes against property. One of the most common types of crimes committed against property is the crime of plunder. As we will explain below, the crime of plunder also includes theft and the elements of force or threat. In this state, the severity of the crime and the values ​​it damages are greater. In this respect, the legislator has determined more severe sanctions for the crime of plunder compared to other crimes against property.

According to Article 148 of the Turkish Penal Code, a person who forces another person not to resist the delivery of goods or the taking of goods, by threatening or using force, that he or she will attack his or her relative's life, body or sexual immunity, or cause great damage to his or her property, will be guilty of the crime of plunder.

As can be understood from the text of the law and stated in the justification of the article, the crime of plunder is committed by taking possession of a property from the possessor by using force or threats. The difference between Theft crime and looting comes from exactly this, that is, the element of force or threat comes into play. As a matter of fact, the 6th Criminal Chamber of the Supreme Court of Appeals defined the crime of plunder as forced theft and explained the difference between the two types of crimes in one of its decisions with the following statements:

"The crime of plunder essentially consists of theft committed by using force or threat. In other words, plunder is taking someone's movable property by using force or threat. Theft and plunder crimes have common elements, the only point where they differ, or in other words, the additional element that plunder has compared to theft, is the use of force or threat to take the property. The perpetrator's use of force or threat against the victim to take the property distinguishes the crime of plunder from theft. In this respect, "In the crime of plunder, more than one legal value is protected. Personal freedom, possession and property, which are the legal values protected by the crimes that constitute it, are also the legal values protected by the crime of plunder."

The subject of the crime of plunder is movable goods. Immovable properties are not suitable for crime due to their nature. However, there are also contrary views in the doctrine.

148. In the second paragraph of the article, the looting of the promissory note is mentioned. From this, it can be concluded that looting is evaluated in two ways: looting of promissory notes or goods. We will address these issues under separate headings in our review.

The qualified forms of the crime of plunder are included in Article 149 of the Turkish Penal Code, and the cases requiring lesser punishment are included in Article 150. In cases of looting for the purpose of collecting a legal receivable and the value of the property being low, the perpetrator will be sentenced to a lighter punishment than the basic state of the crime. In cases of qualified plunder, the penalty will be increased.

ELEMENTS OF PLOTTAGE CRIME

In light of our explanations above, we can say that the crime of plunder is a type of compound crime that occurs as a result of the combination of theft and crimes of force or threat. However, it should not be forgotten that the crime of plunder is separately regulated in the law as a mixed crime that includes two different types of crimes but is distinguished from both types of crimes. Considering the mixed crime feature of the crime of plunder, it will be clear that the crime will violate more than one legal value. Therefore, the legal values ​​that are tried to be protected by crime are more than the types of crimes that constitute it. It is possible to count these legal values ​​as the right to property, possession, physical immunity and personal freedom.

The material elements of the crime of plunder are force or threat and taking someone else's property without consent. These two elements will be examined separately under separate headings below. The moral element of the crime is intent. The crime of plunder is regulated separately in the law as plundering goods and plundering bills. Our explanations below are related to the looting of goods, but the looting of bills is examined under a separate heading.

Force and Threat in the Crime of Loot

When we look at the way the crime is regulated in the law, it is seen that the occurrence of the crime of plunder is linked to the presence of the element of force or threat. However, in the text of the law, these two elements or conjunctions are separated. Therefore, the element of force or threat does not need to be present at the same time for a crime to occur. If a property is taken from the possessor with the presence of one or both elements of force or threat, the crime of plunder will be completed.

Crime of threat Article 106 of the Turkish Penal Code states that "A person who threatens another person with the bet that he or she will attack his or her relative's life, body or sexual immunity is punished with imprisonment from six months to two years." It is a type of crime defined as: According to the justification of Article 106, the subject of the threat is the notification that the person's life or physical integrity will be exposed to danger, that a certain act that constitutes a crime will be committed, that force will be used in general, or that any evil or injustice will be committed. In addition, the legal values ​​protected by this crime are the peace and tranquility of people. In the light of these explanations, it is concluded that the threat has a feature that limits the freedom of decision-making by affecting the psychological state of people. The situation the threatened person finds himself in will take away his ability to control his will. In this case, the victim will have to fulfill the wishes of the perpetrator. In order to constitute the crime of plunder, the threat must be serious. Mild threats were not deemed sufficient to constitute a crime. As a matter of fact, the Supreme Court stated in one of its decisions, "If the victim is more timid than normal and directs the victim to deliver or take the goods, the crime of plunder cannot be considered and the act must be described as theft." He used the expressions. In order to be considered the crime of plunder, the threat to the victim must be that the victim or a relative will suffer great damage to his or her life, physical or sexual immunity, or property. Here, the concept of threat is limited compared to the crime of threat. Any threats other than the threats we have listed will not cause the crime of plunder. As we mentioned above, if the victim surrenders his property to the perpetrator out of fear due to reasons arising from his personal characteristics, the crime of plunder cannot be considered. Again, the crime of plunder will not occur if the victim attributes different meanings to the perpetrator's actions. In the justification of Article 148, this situation states that "the force or threat used must be capable of inducing the person to surrender the property or to remain silent when it is taken."It is explained as follows: "If a force or threat that is not of this nature directs the victim to deliver or take the goods simply because he is more timid than normal, the crime of plunder cannot be considered and the act must be described as theft." The threat can be verbal or written. In addition, the will of the victim can be forced by certain behaviors.

ForceContrary to threats, it is to force the victim to do or not do something by targeting his physical integrity, not his will. Algebra is defined as a separate crime in Article 108 of the Turkish Penal Code, and the text of the article states: "If force is used against a person to force him to do or not do something, or to allow him to do something, the penalty for intentional wounding shall be increased by one-third to one-half." It is arranged as follows. As can be understood from the article, coercion refers to the use of physical force against the victim, just like in the crime of intentional injury. As a matter of fact, in the justification of Article 108, coercion is defined as "Coercion, whose Latin meaning is "vis compulsiva", is the use of physical force against a person to create a forced influence on his or a third person's will and behavior." It is defined as . In terms of the occurrence of the crime of plunder, there is no difference between the use of force on the possessor or the relatives of the possessor. In both cases, the crime of plunder will occur. It is sufficient for the victim to be subjected to force once to constitute the crime of plunder. As long as the will of the victim is broken by force. Continuity is not sought. Force should not be so severe that it would produce no other result than breaking the will of the victim. The extent of this violence is determined by looking at the limits of the crime of intentional injury within the framework of Article 86 of the Turkish Penal Code. If an aggravated crime occurs due to its consequences, the perpetrator will be punished for the crime of intentional injury as well as the crime of plunder.

According to Article 148 of the Turkish Penal Code, making the victim incapable of knowing or defending himself by any means is also considered force in the crime of plunder. In the justification of the article, an example of this situation is given, where the victim is drugged and put to sleep.

As we explained above, force and threats must be strong enough to break the victim's will. If the goods are delivered due to the personal characteristics of the victim or in the absence of serious force or threat, the crime of plunder will not occur.

Receiving Someone Else's Property

We have stated that the crime of plunder is possible in terms of movable properties. Another material element of the crime is the taking of someone else's property by force or threat. Here, taking the property away from the possessor is sufficient for the crime to occur. The possessor does not have to be the owner of the property. Possession refers to the state of possessing and using a property. It is possible for more than one person to own a property. If the perpetrator has possession of the goods, the crime of plunder does not occur. However, if the perpetrator refrains from handing over a property he has received voluntarily by using force or threats, he will be guilty of the crime of plunder. As a matter of fact, the Supreme Court of Appeals stated in one of its decisions, "According to the circumstances and the scope of the file, when it was understood that the defendant did not return the mobile phone belonging to the complainant with his consent, by showing the knife called a butterfly to the complainant and hitting him on the shoulder, without taking into account the need to apply paragraph (a) of Article 149/1 of the TCK No. 5237..." He ruled as follows.

PLORD CRIME INTENTION

Since the crime of plunder can only be committed intentionally, intent constitutes the moral element of the crime. As it is known, there are two types of caste: general and special caste. Special intent is the type of intent in which the perpetrator acts for a specific purpose, and this is the type of intent sought for the crime of plunder. In order for the perpetrator to be considered to have committed the crime of plunder, there must be a special intention to obtain possession and ownership of the property. This determination must be made by the courts, taking into account all the characteristics of the case. If the perpetrator's purpose is not to have a right of ownership or possession over the property, the crime of plunder cannot be considered. For example, if one of two lovers takes the other's phone by force or threat in order to read their messages with someone else, the crime of plunder cannot be mentioned here.

BILL PLOIDING

TCK 148/2. In the article, looting of promissory notes; "The same punishment is given if, by using force or threat, the victim is forced to give a document that may put him or someone else in debt or a document explaining that an existing document is invalid, not to resist the receipt of such a document, to sign a document that can be turned into such a document in the future, or to destroy an existing document or not to resist its destruction." Edited with expressions.

In the justification of the article, it is stated that the promissory note must be "debt-inducing" for the person who signs it, and "This debt may be a monetary debt, or it may be related to doing or not doing a job, donating an immovable property, evacuating a building rented, or being a guarantor for an existing debt. Written statements containing a promise not to collect a receivable, not to file a lawsuit, or not to change the will are also considered "debt-inducing" promissory notes. In this case, the person who is financially capable of evaluating the victim is "Any document that prevents the person from exercising a right falls within the definition of debt-bearing promissory note." His statements are included.

The looting of promissory notes, like the looting of goods, occurs in the presence of elements of force or threat. Although the explanations we have made above in terms of force and threats are also valid for bill looting, threats are not limited in terms of subject matter in bill looting. The condition that the threat will inflict great damage to the life, physical or sexual immunity, or property of the victim or a relative is not required for the crime of bond plunder. Any threat to break the will of the perpetrator has been deemed sufficient for the crime to occur.

As can be understood from the text of the article, the crime is a crime of pure action. Also, no results are sought. If there are movements, it is considered that a crime has occurred.

PUNISHMENT FOR PLOTTAGE

The basic case of the crime of plunder requires a prison sentence of 6 to 10 years. If there are no qualified circumstances of the crime, the penalty will be assessed within this limit.

In the case of qualified plunder, the basic penalty will be increased. If the crime committed contains qualified elements, the lower limit of the sentence to be given to the perpetrator will be 10 years and the upper limit will be 15 years. If more than one qualified situation is found in the incident, the judge will move away from the lower limit and choose punishment.

Since the crime of plunder is not a crime subject to complaint, there is no complaint period. But the statute of limitations for the case is 15 years.

Attempted Plunder

In order to constitute the crime of plunder, possession of the property must be seized in addition to force and threats. As this crime is a divisible crime, it is possible to attempt the crime of plunder. If the property in his possession is not taken from the victim by being threatened or forced, the crime will be said to be in the attempted stage. For example, if the defendant tries to take the victim's mobile phone by threatening him with a knife and runs away after seeing the police patrolling the scene, the crime of plunder will remain at the attempted stage.

The situation where the defendant threatens the victim with the aim of getting money, but the defendant cannot obtain any benefit because the victim does not have money, is also considered as an attempt by the Supreme Court. Despite this, if the defendant returns or throws the property to its owner or to those who want to catch him as soon as he realizes that he will be caught, the crime will be considered completed. As a matter of fact, in a Supreme Court decision"The case is about the crime of looting. With this typical action of the defendant, who broke the resistance of the victim who did not want to give up the phone in his hand and picked up the phone that fell on the ground, the element of taking the goods in the crime of looting was realized and the victim's ability to dispose of the property was eliminated, in other words, the crime was completed when the defendant took the phone subject to the crime without encountering any external obstacles. After this stage, the defendant started to run away with the mobile phone he bought, while the phone in his hand was followed uninterruptedly by the victim and the surrounding citizens." "It should be accepted that the crime of plunder is completed by throwing it on the ground and that the crime of plunder remains at the stage of attempt, because unlike the crime of theft, in the crime of plunder, the perpetrator is not required to establish actual control over the property in a way that allows it to be used freely." The provision has been made as follows.

In case of attempt, the penalty may be reduced from one quarter to three quarters, taking into account the characteristics of the concrete incident.

QUALIFIED PLOTTAGE CRIME

The crime of plunder;

a) With a gun,

b) By making the person unrecognizable,

c) By more than one person together,

d) By blocking roads or at residences, workplaces or their annexes,

e) Against a person who is unable to defend himself physically or mentally,

f) By taking advantage of the frightening power created by existing or assumed criminal organizations,

g) In order to benefit the criminal organization,

h) If it is committed at night, the punishment to be given to the perpetrator is increased.

The weapon has been subjected to an extensive evaluation within the scope of the Turkish Penal Code. According to Article 6 of the Law, firearms, explosive substances, all kinds of cutting, piercing or bruising tools made for use in attack and defense, other things that can be used in actual attack and defense even if they are not made for attack and defense, and nuclear, radioactive, chemical and biological substances that are caustic, corrosive, injurious, suffocating, poisonous and cause permanent disease are defined as weapons. The use of a gun is not required to commit the crime of looting with a gun. Even if the perpetrator only shows his gun, he will be committing the crime of plunder.

Committing the crime of plunder by more than one person is also considered a qualified situation in the law. The legislator introduced this regulation with the motivation that the coercive effect on the victim will increase if there is more than one perpetrator. The point to be considered here is that if there are cases of participation in the crime such as incitement, indirect perpetration or aiding in the crime of plunder, these situations will not be considered as a reason for increasing the penalty. Penalty enhancement is applied in cases of joint perpetration.

Committing the crime of looting at night is regulated as another qualified situation. According to Article 6 of the Turkish Penal Code, from the expression night time; The period of time that starts one hour after sunset and continues until one hour before sunrise is understood.

In other cases listed above, the penalty for the crime of plunder will be increased.

LOAD CRIME LOW VALUE OF GOODS

If the value of the property subject to the crime of plunder is low, the penalty to be given to the perpetrator is reduced. The judge evaluates the discount rate according to the characteristics of the event. The penalty can be reduced from one third to one half. The judge will also evaluate whether there is diminished value or not. There is no numerical value specified in the law. While making this evaluation, the judge uses objective criteria. According to the Supreme Court, if the defendant has the opportunity to buy more but buys less, a discount should be made. For example, if only 20 TL is taken from the victim who has a large amount of money on him, this is seen as a reason for the discount.

The crime of plunder for the purpose of collecting the receivable based on a legal relationship, which is another reason for discount, is examined under a separate heading below.

LOADING FOR THE PURPOSE OF COLLECTION OF RECEIVABLES

Committing the crime of plunder for the purpose of collecting the receivable, also known as the right of redemption, is regulated as a reason to mitigate the punishment. If the perpetrator uses force and threats to take the victim's property in order to collect a debt arising from a legal relationship, the crime of plunder will not occur. In this case, the perpetrator is punished according to whether he committed intentional injury or threat. "If a person uses threat or force to collect his receivables based on a legal relationship, only the provisions regarding the crime of threat or intentional injury apply." TCK 150/1

In order for a reduction in the sentence to be made, there must be a legal relationship between the perpetrator and the victim. It does not matter whether this relationship is established in writing or verbally. Even the fact that a contract, which is a formal form requirement, has been made orally is sufficient for the existence of a legal relationship.

There must be a ratio between the value subject to the crime of plunder and the value arising from the legal relationship. If the perpetrator received much more than what he was due from the legal relationship, this will not be accepted as a reason for discount. For discount, the parties to the legal relationship must be the perpetrator and the victim. If the perpetrator resorts to this method because someone else will receive it, he will be punished for the crime of plunder. Again, if the perpetrator commits the crime of plunder against someone other than the victim for his own receivable, there will be no discount. The decision numbered 2009/263 K. of the General Criminal Assembly of the Supreme Court of Appeals summarized all the conditions we have mentioned and included detailed explanations on the subject. The land in question is as follows:

"Some of the actions that are protected as a crime committed against the courthouse in Article 308 of the Turkish Penal Code No. 765 have been transformed into a crime related to property with Article 150/1 of the Turkish Penal Code No. 5237. According to this regulation, if force or threats are used for the purpose of collecting a receivable based on a legal relationship, the act constitutes the crime of plunder, but due to this special regulation, the perpetrator will be punished for the crime of intentional injury and/or threat. Thus, a crime based on a legal relationship will be punished for the crime of intentional injury and/or threat. Acting for the purpose of collecting the receivable was accepted as a situation requiring less punishment, in other words, importance was given to the motive of the perpetrator.

In order for the provision of this article to be implemented, there must be a legal relationship between the perpetrator and the victim giving rise to a claim. It is not mandatory for this legal relationship to be established in accordance with the form requirement specified in the relevant Law, but it is sufficient that it be a legitimate relationship acceptable to the legal order.

In Article 484 of the Code of Obligations; Despite the regulation stating that "the validity of the bail depends on complying with the written form and the will of the guarantor to a certain amount for which he will be responsible", the fact that the bail contract is not made in writing at the beginning and the formal condition is not complied with will not mean that the bail relationship has not been established between the victim and the defendants. In other words, the fact that this relationship established without complying with the formal requirement will not have legal consequences in the field of Law of Obligations will not prevent it from being taken into consideration in the field of Criminal Law. What is important here is whether there is a legitimate legal relationship, whether or not the formal requirement is complied with, and whether the action is taken to collect the receivable based on this legal relationship.

When the concrete incident is evaluated in the light of these explanations;

Since the defendants restricted the freedom of the victim Faki Gümüş, who had nothing to do with the matter, by taking him from the coffeehouse where he was, deliberately injuring him, forcing him to sign as a guarantor under the bill whose debtor was Menderes Akar, and taking the 240 Liras on him, for the debt of the person named Menderes Akar, and taking the 240 Liras on him, was not in line with the ordinary course of life and the evidence in the file, the victim verbally guarantors for the debt arising from the white goods purchased by the person named Menderes Akar from the white goods store belonging to the defendants. It is concluded that . While it was possible for the victim, whom they neutralized by using force and threats, to sign a high-amount open promissory note as a debtor, the fact that they only signed the said promissory note as a guarantor clearly reveals that the defendants' aim was to collect their receivables based on a legal relationship. In addition, the fact that the defendants took the 240 Liras from the victim, whom they forced to sign as guarantor on the promissory note, will not eliminate the fact that the action was taken for the purpose of collecting the receivable based on a legal relationship, considering that nearly five months have passed since the date of the crime and that the amount of the receivable includes interest as well as the actual receivable.

For this reason, the actions of the defendants, who acted with the aim of collecting their receivables based on legal relations at the date of the crime, are in accordance with Article 150/1 of the Turkish Penal Code No. 5237. It must be accepted within the scope of the article."

CRIME OF PLOUD ACTIVE REGRET

Effective repentance means that the perpetrator regrets a completed crime with his own free will, compensates for the damages caused by the crime, and contributes to the administration of justice by informing those who participated in the crime, if any.

Article 168 of the Turkish Penal Code includes regulations regarding effective repentance. In the 3rd paragraph of the relevant article, it is regulated that the provisions of effective remorse can be applied in the crime of plunder. The discount rate to be given to the perpetrator who benefits from effective remorse varies depending on the time of remorse. If the perpetrator of the crime of plunder shows remorse before the prosecution begins, the penalty can be reduced by up to half. If the perpetrator shows remorse before the trial begins and the verdict is given, the penalty can be reduced by up to 1/3.

The discounts specified by law are regulated as the maximum discount rate that can be made. The judge evaluates the discount rate according to the characteristics of the case.