Absence Of Words And Behavior Indicating Effective Remorse – Supreme Court Decision
T.C.
Supreme Court
Criminal General Assembly
2013/666 E. 2015/91 K.
Defendants F… S… and H… Y… were sentenced to four years and eight months imprisonment pursuant to Articles 142/1, 53/1 and 63 of the Turkish Criminal Code No. 5237, deprivation of rights and confiscation; pursuant to Article 58/6 of the same law, the sentence of the defendant F… S…’s sentence to be executed according to the execution regime specific to repeat offenders, given by the Didim Criminal Court of First Instance on 15.10.2010 and numbered 401-699, was appealed by the defendant F.. S… appealed, the 6th Criminal Chamber of the Court of Cassation, which examined the file, on 27.10.2011 with the number 5124-4535
“The other appellate objections are not deemed relevant, however;
1- After it was reported that there were thieves in Yeni Defne Site, the law enforcement officers who came to the scene saw two people fleeing from the back of the site, the people who did not stop despite the stop warning were caught after fleeing three kilometers, and the defendant F.. S… was caught, three cell phones were found on the floor under the stairs and Turkish currency and dollars were found during a body search, two brown socks and money were found in the left pocket of his tracksuit when the other fleeing defendant was caught, and according to the incident arrest and custody report, F… S… showed which house they entered, the money found in the body search and the cell phones found under the stairs where he was caught, the cell phones and money belonging to K… Y.. who did not apply and stayed in the same house and the cell phones and money belonging to the other victim were handed over. Y…, who did not have an application and stayed in the same house, and the mobile phone and money belonging to the other victim, the provision of effective remorse should be applied,
2- Deciding to deprive him of the rights specified in Article 53/1-c of the TPC until his conditional release by ignoring the second and third paragraphs of the same article”, and in accordance with Article 325 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8 of the Law No. 5320, it was decided that the defendant H.. Y… was also decided to benefit from the reversal.
The local court ruled on 06.04.2012 with the number 51-178;
“The defendants did not return the items subject to the crime with their consent, they were taken off them when they were caught, some of them were seized as a result of the investigations of the law enforcement officers and the interrogation of the defendants, for these reasons, the provisions of return requiring consent cannot be applied to them”.
This judgment was also appealed by the defendant F.. Upon the appeal by S…, the file, which was sent to the First Presidency of the Court of Cassation with the notification of the Chief Public Prosecutor of the Court of Cassation dated 24.09.2013 and numbered 181245 with the request of “approval”, was evaluated by the Criminal General Board and decided with the reason explained.
DECISION OF THE CRIMINAL GENERAL ASSEMBLY
The conviction of the defendant F… S… was finalized by being approved by the Special Chamber, and according to the scope of the appeal, the examination was limited to the conviction of the defendant for the offense of theft.
The dispute between the Special Chamber and the local court, which must be resolved by the Criminal General Assembly, concerns the determination of whether the effective remorse provisions will be applied to the defendant for the offense of theft.
From the scope of the file examined;
In the arrest and detention report; on the day of the incident, when the site in question was visited upon a report that there were suspected thieves in the site, it was seen that two people who noticed the officers fled, despite the stop warning, the persons continued to escape by passing through the gardens in the site and jumping over the walls, they were caught by force, the defendant F… S… showed the houses they entered and declared that they took the things they were wearing from these houses,
The arrest report regarding the accused F… S…; when two people saw the officers when they went to the scene of the incident, they started to run away, as a result of the chase, the defendant was captured under the stairs where he hid, by using force due to his resistance to the police officers, and three cell phones were found in the same place,
Defendant F… During the body search of S… at the police station, four cell phones, three of the same and one of different brands, and various amounts of money, some of which were foreign currency, were found, and no criminal elements were found on the defendant H… Y… no criminal elements were found on him,
The witnesses who prepared the report that in the early hours of the morning on the day of the incident, they were informed that there were two people who were thought to be burglars in an apartment complex, that they did not see them at first, that they drove around the complex in three different cars, that a chase started in the direction of a vehicle, that they could not follow the defendants uninterruptedly from the house they entered, that they caught the defendants in different places after a three-kilometer chase, that they found mobile phones and money on the defendant Faruk, that he showed them two houses belonging to the complainants when they asked him, and that they found women’s tulle socks on the other defendant,
The defendants, who have a criminal record for theft, denied the accusation, argued that the seized cell phones were not found on or near them and that they did not know each other at all,
It is understood that
Article 168 of the Turkish Penal Code, entitled “effective remorse”, which is relevant to the subject matter of the dispute;
“1) After the crimes of theft, damage to property, abuse of trust, fraud and unrequited benefit have been completed, but before the prosecution is initiated for this reason, if the perpetrator, instigator or aider and abettor shows remorse in person and completely compensates the damage suffered by the victim by returning or compensating in kind; the penalty shall be reduced from one third to two thirds. In the case of plunder, the penalty is reduced from one-sixth to one-third.
2) In case of partial restitution or compensation, the consent of the victim is sought in order to apply the provisions of effective remorse”, as amended by Article 20 of the Law No. 5377 published in the Official Gazette dated 08.07.2005 and entered into force
“1) In the event that the perpetrator, the instigator or the aider and abettor, after the crimes of theft, damage to property, abuse of trust, fraud, fraudulent bankruptcy, negligent bankruptcy and unrequited benefit have been completed, but before the prosecution is initiated for this reason, shows remorse in person and completely compensates the damage suffered by the victim by returning or compensating in kind, up to two-thirds of the penalty to be imposed shall be reduced.
2) If the effective remorse is shown after the prosecution starts but before the verdict is given, up to half of the penalty to be imposed shall be reduced.
3) The penalty to be imposed on the person who shows effective remorse for the crime of plunder shall be reduced by up to half in cases falling under the first paragraph and up to one third in cases falling under the second paragraph.
4) In case of partial restitution or compensation, the consent of the victim is also sought in order to apply the provisions of effective remorse”.
As clearly emphasized in the decision of the Criminal General Assembly dated 27.05.2008 and numbered 127-147; in order for the “effective remorse” provisions in Article 168 of the TPC to be applied, in the event of the commission of the crimes listed in the article in a limited manner, the perpetrator must show remorse in person and completely compensate the damage suffered by the victim through restitution or compensation.
The aforementioned article is quite different from Article 523 of the Turkish Criminal Code No. 765. Article 523 of the TPC No. 765 is based on the principle of “restitution and compensation”, as explained in many decisions, particularly in the Decision on Unification of Case Law dated 29.06.1955 and numbered 10-16 and the decision of the General Assembly of Criminal Chambers dated 11.11.1997 and numbered 248-288. Article 168 of the TPC No. 5237, on the other hand, emphasizes the principle of “remorse” rather than compensation.
According to the prevailing opinion in the doctrine, it is accepted that Article 168 of the TPC No. 5237, unlike Article 523 of the TPC No. 765, is based on the principle of “remorse rather than compensation”. (Durmuş Tezcan-Mustafa Ruhan Erdem-Murat Önok, Teorik Ve Pratik Ceza Özel Hukuku, 11th Edition, Seçkin Yayınevi, Ankara 2014, pp. 696-702; Veli Özer Özbek-Mehmet Nihat Kambur-Koray Doğan-Pınar Bacaksız-İlker Tepe, Türk Ceza Hukuku Özel Hükümler, 8th Edition, Seçkin Yayınevi, Ankara 2015, pp. 615-618; Sedat Bakıcı, Ceza Hukuku Özel Hükümleri, Adalet Yayınevi, Ankara 2008, p. 934; Erdal Noyan, Hırsızlık Suçları, Adalet Yayınevi, Ankara 2007, p. 396; Ali Parlar- Muzaffer Hatipoğlu, Türk Ceza Kanunu Yorum, Ankara 2007, c. 2, p. 1318; Hüseyin Eker, Hırsızlık Suçları, 2nd Edition, Adalet Yayınevi, Ankara 2014, p. 756 )
During the drafting of Article 168 of the TPC, the expression “the perpetrator, the instigator or the aider and abettor showing personal remorse and fully compensating the damage suffered by the victim through restitution or compensation” was added to the article in order to prevent possible hesitations. Indeed, the phrase “by showing remorse” in the text is a clear indication that the regulation does not attach importance to “restitution and compensation alone”, but to “restitution and compensation as a result of remorse”. As a matter of fact, during the discussions on the said article in the Commission of the Grand National Assembly of Turkey, the issue was brought up and to the question of the chairman of the session; “Isn’t the important thing to compensate the damage”, İzzet Özgenç, one of the academicians in charge of the preparation of the law, answered as follows; “the humor that this article protects is not only to compensate the victimization of the victim, but to ensure that the person feels remorse.” (Ministry of Justice, Department of Publication Affairs, Turkish Criminal Code with Minutes, Ankara 2005, p. 616)