Theft Crime
T.C JUDGMENT
2nd Criminal Chamber
Main: 2018 / 6747
Decision: 2019 / 1146
Decision Date: 28.01.2019
COURT :Criminal Court of First Instance
CRIME : Theft, resisting against duty
CONVICTION : Conviction
The file was examined and considered accordingly;
1- In the examination of the appeal request of the defendant … against the conviction of the defendant … for the offense of theft;
As explained in detail in the decision of the Criminal General Assembly dated 18.03.2008 and numbered 9-7-56, in cases where the defendant was not informed of the appointment of a mandatory defense counsel in the prosecution phase, the announcements and notifications made to the mandatory defense counsel will not result in the legal consequences attached to him; Although the defendant … was present during the interrogation of the defendant … at the Criminal Court of Peace during the investigation phase and the court continued to act as his defense counsel, Av. … appealed the judgments established against the defendant, however, in the face of the understanding that the defendant declared during his defense that he did not want a defense counsel and that it was not necessary to appoint a mandatory defense counsel for the defendant; since Av. … does not have the right and authority to appeal the conviction dated 15.02.2013 established against the defendant, the appeal request of Av. …, who is not authorized to appeal the judgment, is rejected in accordance with Article 317 of the Code of Criminal Procedure No. 1412,
2- In the examination of the appeal of the defendant … against the conviction of the defendant … for the offense of theft and the appeal of the defense counsel of the defendants against the conviction of the defendants …, … and … for the offenses of theft and resisting to prevent the execution of duty;
a) It is alleged that on the dates of the offenses, the defendants were in a Fiat Linea vehicle, the license plate number of which could not be determined at night, in the village of … and the village of …. where the shops of the complainants … and … are located. In the incidents where it is claimed that they were in the village and the witness … identified the defendant … as the person who was in the vehicle in question and asked him the address while he was in the village of …. on 28.12.2010 at around 01.15 at night; it is understood that the exact license plate number of the vehicle could not be determined in the analysis of the camera footage of the vehicle in question in the mentioned villages, the identities of the persons inside the vehicle could not be determined exactly due to the low image quality, and the witness … stated in his statement at the hearing dated 07. 06.2011 dated 07.06.2011, the witness … declared that he could not see how many people were in the Fiat Linea vehicle and that he did not remember the face of the person who asked him for the address; Deciding to convict the defendants, who did not accept the accusations at all stages, without explaining and discussing in the decision place what are the definite and convincing evidences sufficient for their conviction that they committed the theft crimes, contrary to their defenses,
b) Considering that in the type of crime regulated under the title of “resisting to prevent the performance of duty” in Article 265 of the Turkish Criminal Code No. 5237 as an “optional action” and “a purposeful act” and punishable for the acts of resisting a public officer with the intention of preventing the performance of duty; it is foreseen that the means of execution of the act can be committed with executive behaviors in the form of “force or threat” and passive acts of resistance that do not include the specified typical acts will not constitute this crime; the defendants, on the night of 11.01. On the night of 2011, when they wanted to be stopped by the complainant gendarmerie officer … upon a report that the perpetrators of the theft incident were found in the vehicle in question, they fled from there by entering another side road without hitting the bollards placed on the road by the complainant for precautionary purposes, then the chase continued and the complainant gendarmerie officer wanted to close the road by turning the team vehicle on its side, but it was understood that the defendants maneuvered from the side of the complainant and escaped from the open part of the road with the vehicle again, in the incident, the defendants … …, … and …, without discussing and showing which actions are accepted to have been committed by … and …, in what way they constitute the elements of force or threat sought in the crime of resistance, and on the basis of which evidence the verdict is based, to establish conviction sentences in writing with incomplete examination and insufficient justification,
Since the appeals of the defendants …, … and … and the defendant … have been deemed appropriate in this respect, it was unanimously decided on 28/01/2019 to VACATE the verdicts partially as requested for the reasons explained.