Theft – Low Value Of Property Decision Of The Court Of Cassation
T.C.
Supreme Court
17th Criminal Chamber
No: 2015/10811
Decision No: 2016/2841
Date of K.: 2.3.2016
COURT : Criminal Court of First Instance
Crime : Theft
CONVICTION : Conviction
The judgment given by the local court was examined upon appeal, and the necessity was discussed and considered:
In the defendant’s criminal record, ….. 6. Criminal Court of First Instance’s judgment numbered 2006/589-2007/372, and although the conditions were met, the non-application of Article 58 of the Turkish Criminal Code No. 5237 to the defendant was not a reason for reversal since there was no adverse appeal;
According to the contents of the file and the minutes of the hearing, the legally valid and favorable evidence collected and examined and discussed at the decision, the reasoning and the discretion of the judge; it has been understood that there is no violation of the procedure and the law in the acceptance and characterization of the crime committed by the defendant, and other reasons for appeal have not been deemed appropriate.
However;
1-The act of stealing insulation materials left in front of the construction site to be used in the construction is within the scope of Article 142/1-e of the Turkish Penal Code, but the application is made in accordance with Article 141/1 of the same Law;
2-The defendant ……. stole 14 pieces of insulation materials from the construction site belonging to the complainant’s company and returned to the place where he left them to sell them, and the stolen goods were taken by the police and delivered to the complainant within the scope of the investigation, without any location and assistance of the defendant, without considering that it is not possible to apply the provisions of effective remorse to the defendant, the defendant was sentenced to an incomplete punishment by applying Article 168/1 of the TPC No. 5237 in the established sentence,
According to Article 61/1 of the Turkish Criminal Code No. 3-5237, the value of the goods being more or less is a criterion for moving away from the lower limit in determining the basic penalty, and the fact that the value of the goods subject to the crime of theft is regulated separately in Article 145 of the Turkish Criminal Code shows the importance given by the legislator to the value of the goods being less in the crime of theft. As stated in the case law of the Criminal General Assembly of the Court of Cassation dated 15.12.2009 and numbered 6/242-291, although it is not possible to completely reject the view of “…taking only what is as much as needed and less in value when there is the possibility to take more” in the application of Article 145 of the TPC, it is also not possible to limit the article only with this definition. Article 145, both in its original and amended form, is based on the common definition that the value constituting the subject of the offense of theft is small. According to Article 145 of the TPC, in order to reduce the penalty imposed on the perpetrator
value of the property is sufficient, and the judge should determine the discount rate to be “proportional to the gravity of the act committed” as stipulated in Article 3 of the TPC. If a decision is to be made to refrain from imposing a penalty due to the low value, the “manner and characteristics of the crime” should also be taken into consideration in addition to the low value of the property. The judge has the right of discretion in the application of Article 145 of the TCC, and the judge should exercise his discretion without arbitrariness and by showing legal and sufficient justification for each concrete case.
In the concrete case; in the face of the fact that the defendant stole 60,00 TL worth of insulation material from the construction site of the complainant on the date of the crime; not considering that due to the low value of the goods constituting the subject of theft, the punishment imposed in accordance with Article 145 of the TPC should be reduced at the rate to be determined,
4-The annulment decision of the Constitutional Court of the Republic of Turkey on Article 53 of the TPC, numbered 2014/140 Main and 2015/85 Decision, was published in the Official Gazette dated 24.11.2015 and numbered 29542; therefore, it is necessary to re-evaluate the deprivation of rights under Article 53 of the TPC in line with the annulment decision,
Since the reasons of appeal of the defendant …….. were deemed appropriate in this respect, it was decided unanimously on 02.03.2016 that the verdict be DISMISSED contrary to the notification for the reasons explained, and the acquired right of the defendant pursuant to Article 326/last of the Law No. 1412 be observed.