Theft Of Protected Goods
T.C.
JUDICIARY
CRIMINAL GENERAL ASSEMBLY
E. 2012/6-375
K. 2012/1809
T. 9.10.2012
– THEFT ( The Defendant Stole Sweaters by Breaking the Door Lock of the Workplace – The Defendant’s Action Will Be Accepted as Theft Regarding the Goods Taken Under Protection in the Building or its Annexes/5237 S.K. Art. 142/2-d Will Not Be Applied)
– THEFT ABOUT PROTECTED GOODS ( The Defendant Stole Sweaters by Breaking the Door Lock of the Workplace – The Defendant’s Action Will Be Accepted as Theft About the Goods Protected in the Building or its Annexes / 5237 S.K. Art. 142/2-d Will Not Be Applied )
– LOW VALUE OF THE PROPERTY ( The Defendant Stole Sweaters by Breaking the Door Lock of the Workplace – The Value of the Goods Is Not Low and There Are No Conditions for the Application of Article 145 of the 5237 S.K. Due to the Way the Crime Was Committed )
– ATTEMPT ( The Local Court should indicate the article when applying the provisions of attempt in theft crime)
– DEFERRAL OF THE RELEASE OF THE CONVICTION ( The Defendant, who was a Minor at the Time of the Crime, Stole Sweaters by Breaking the Door Lock of the Workplace / Theft – Pursuant to the Child Protection Law, if the Economic Situation of the Child’s Family or Himself is Not Favorable, the Condition of Elimination of the Damage may not be Seeked )
– MINORITY OF AGE ( Defendant who was a Minor at the Time of the Crime / Theft – Deferral of the Announcement of the Verdict / Pursuant to the Child Protection Law, in the event that the economic situation of the child’s family or the child himself or herself is not favorable, the condition of compensation of the damage may not be sought )
– BREACH OF WORKPLACE INVASION ( The Defendant Stole Sweaters by Breaking the Door Lock of the Workplace – The Defendant’s Action Will Constitute the Crimes of Violating the Immunity of the Workplace and Damage to Property as well as the Crime of Qualified Theft )
– DAMAGE TO PROPERTY ( The Defendant Stole Sweaters by Breaking the Door Lock of the Workplace – The Defendant’s Action Will Constitute the Crimes of Violating the Immunity of the Workplace and Damage to Property as well as the Crime of Qualified Theft )
5237/m.116, 142, 145, 151
5271/m.231
765/m.493
5395/m.23
SUMMARY : In the offense of theft; disputes;
Whether the act of the defendant, who entered the complainant’s workplace by breaking the door lock and stole the goods inside, is within the scope of Article 142/1-b of the Turkish Penal Code No. 5237 (about the property taken under custody) or within the scope of Article 142/2-d (by opening the lock with an unlawfully possessed or forged key or other device),
Whether the defendant’s act constitutes the offenses of violating the inviolability of the workplace and damaging property in addition to the offense of theft,
Whether there are conditions for the application of Article 145 of the Turkish Penal Code No. 5237 (Low Value of Property),
Whether it is necessary to indicate the applicable article of law when making a reduction for attempt,
Whether Article 23 of the Child Protection Law No. 5395 should be evaluated (deferral of the announcement of the verdict),
It is centered on the following points.
It is understood that the defendant broke the lock of the warehouse door of the complainant’s workplace, entered inside, put 80 sweaters in a sack and left, and was caught by the guard of the workplace who came upon the sounds made during this time by force, according to the crime scene investigation report, it was determined that the lock of the steel door of the warehouse subject to theft was opened by breaking the lock with the help of a tool, according to the appraisal report, the value of the stolen goods was 1.200 Lira, and there is no information in the file that the defendant compensated the complainant for the damage.
The action of the defendant is not within the scope of sub-paragraph d of paragraph 2 of Article 142 of the Turkish Penal Code No. 5237, but within the scope of sub-paragraph b of paragraph 1, which regulates the commission of the offense of theft “about the goods kept in the building or its annexes”. In the event that the building or workplace is entered and the property is damaged during the commission of the crime of theft, in addition to the crime of theft, the crimes of violating the inviolability of the residence or workplace and damaging property also occur.
It is understood that the defendant broke the lock of the warehouse door of the complainant’s workplace in the early hours of the morning and entered inside, put 80 sweaters with a material value of 1200 Lira in a sack, and was caught by force by the workplace guard who came upon the sounds made at this time, it is concluded that the value of the goods subject to the theft crime is not less and that there are no conditions for the application of Article 145 of the Turkish Penal Code No. 5237 in terms of the way the crime was committed.
It is contrary to Article 232/6 of the Criminal Procedure Code No. 5271 that the local court did not indicate the applicable law and its article when making a reduction due to the attempt.
Although it is not possible to decide to defer the announcement of the verdict pursuant to Article 231 of the CYYY amended by the Law No. 5728 in a situation where the damage is not covered, in the first version of Article 23 of the Child Protection Law No. 5395, this condition may not be sought if the economic situation of the child’s family or the child himself/herself is not favorable.
For this reason, since there is no legal obstacle to the application of the deferment of the announcement of the verdict against the defendant who has not been convicted of an intentional crime before, it is inappropriate that the local court has not made a positive or negative decision by making an evaluation regarding whether this institution will be applied or not.
CASE : The judgment dated 14.11.2006 and numbered 477-1497, rendered by Bakırköy 3rd Juvenile Court, sentencing the defendant V.T. to a judicial fine of 5.400 Lira pursuant to Articles 142/2-d, 145, 31/3, 62, 50/1 and 52/2 of the Turkish Penal Code no. 5237, was appealed by the public prosecutor and the defendant, and the 6th Criminal Chamber of the Court of Cassation, which examined the file, decided on 13.10.2008 and numbered 5832-16779
“… Other appellate objections are not deemed appropriate.
However
1- In the face of the fact that it was understood that the defendant broke the door lock of the complainant’s workplace and stole the goods inside, the application of Article 142/2-d in written form, without considering that his action constitutes the crime that complies with Article 142/1-b of the Turkish Criminal Code No. 5237,
2- Failure to observe that the defendant’s act also constitutes the offense of violating the inviolability of the workplace under Article 116/1 of the Turkish Criminal Code No. 5237 and the offense of damaging property under Article 151/1,
3- The concept of `lack of value of the property’ in Article 145 of the Turkish Criminal Code No. 5237 is not similar to the concept of `light’ and `very light’ in Article 522 of the Turkish Criminal Code No. 765, except that both articles allow for a reduction in the penalty. There is no similarity with the `mild’ and `very light’ criteria in the article except that both articles provide the opportunity to reduce the sentence, `lack of value’ is a separate and new concept specific to the Law No. 5237, taking into account the purpose of the legislator, the way the crime was committed and the characteristics of the incident, and the intent of the defendant, In the concrete case, the penalty was reduced by interpreting this article outside the purpose of the referral, without considering that it can be applied on the condition that it can be applied on the basis of low amounts to the extent that the penalty can be waived if necessary, and legal and sufficient justifications are also explained, when it is possible to get more,
4- According to Articles 493/1, 62, 522/1, 55/3 of the Turkish Criminal Code No. 765 and Article 4 of the Law No. 647, it is obligatory to consider that the Law No. 765 is in favor of the defendant in the light of Articles 7/2 of the aforementioned Law and 9/3 of the Law No. 5252 in terms of the type, lower and upper limits of the freedom-binding penalty envisaged in Articles 142/1-b, 35/2, 31/3, 50, 52; 116/1, 31/3; 151/1, 31/3 of the Turkish Criminal Code No. 5237, which entered into force on 01.06.2005. In the light of Articles 7/2 of the aforementioned Law and 9/3 of the Law No. 5252, it is obligatory to consider that the Law No. 765 is in favor of the defendant in terms of the type, lower and upper limits of the binding sentence foreseen in the articles,
5- Violation of Article 232/6 of the Code of Criminal Procedure No. 5271 by not showing the article of the law applied while making a discount for the defendant due to attempting to commit a crime,
6- Failure to evaluate Article 23 of the Child Protection Law No. 5395…”,
It was decided to be reversed due to injustice.
Bakırköy 3rd Juvenile Court, which decided to resist the reasons for reversal numbered 1 and 2 with an interim decision and to comply with the other reasons for reversal, on 25.12.2008 with the number 510-1522
“… In the article justifications of the Turkish Penal Code, for Article 142/1-b, the penalty for theft committed in a building or its surrounded annexes is increased, while the way of entering such places is not given importance. Theft committed in huts built for the protection of agricultural tools in the field is also included in the provision of the article. However, the condition of being taken under custody was sought for the goods found in a place that does not fall within the definition of a building, for example in an automobile; thus, qualified theft is not accepted in the case of theft of goods in an automobile whose doors are not locked or whose windows are not closed,
In the justification of subparagraph 2/d of the same article, “In subparagraph (d) of the paragraph, committing the offense of theft by opening the lock with a key or other device that is wrongfully possessed or forged has been accepted as a qualified case. What is important for this qualification is that the offense of theft is committed by opening a lock. The lock may have been opened with a wrongfully possessed or counterfeit key or other device.
The key may also have been obtained by theft or looting. In this case, two offenses must be recognized. The lock must have been opened with the intention of committing the theft or transporting the stolen goods to another place. The lock does not have to be strong. The key or other tools must be used to open a lock that cannot be opened without means. Any tool used to open the lock without breaking it shall be considered as a tool. This subparagraph shall not apply in cases where the theft is committed by opening the lock by turning the key that the owner has forgotten on the lock and the thing to be stolen is removed from its place with any tool,
This article, which is similar to Article 493 of the Turkish Criminal Code No. 765, aims to increase the penalty amounts when both Articles 493 and 142 are evaluated together. Opening or breaking the lock with the help of an instrument are acts that are within the scope of Article 493. While regulating Article 142 of the TPC No. 5237, there is no change that indicates the acceptance that the legislator increased the penalty for theft by opening the lock, whereas it decreased the penalty for theft by breaking the lock. There is also no indication in the preambles of the article that this has been done.
The essence of putting a lock on a place is to protect that place against the outside and to prevent access by anyone other than the owner. Since there is no requirement for the lock to be strong in the Turkish Penal Code No. 5237, it is not possible to accept that opening an unstable lock with a piece of wire or nail, or with an ordinary object is considered grave and apply Article 142/2-d, while disposing of a very strong lock with destructive substances, including explosives, is an act that requires less punishment under Article 142/1-b.
Moreover, Article 142/1-b does not stipulate that the place must be locked in order to commit theft in a building. The condition of being locked in this article is related to places where anyone can enter.
There is no requirement of being locked for the theft of property in buildings and their annexes. The only difference from open theft is the fact that the goods are kept in the building and its annexes.
Therefore, if the lock of the building with a locked door is opened with an object, Article 142/2 will be applied, and if it is broken, Article 142/1 will be applied. However, the condition of being locked in buildings is not necessary for the offense to occur.
Again, in the reversal decision, in terms of the application of the favorable law, it was recommended to calculate the penalties for the crimes of violation of the protection of the dwelling and harassment in the old dated crimes, to compare them with the result to be found according to Article 142, and to apply whichever is favorable in terms of the amount of punishment.
Article 2 of the Turkish Penal Code No. 5237 states that “No one can be punished for an act that the law does not explicitly criminalize and no security measure can be applied”. Article 2 of the Turkish Penal Code No. 765 also states that “No one can be punished for an act that is not considered a crime or misdemeanor according to the law of the time it was committed”. In addition, the phrase “whoever violates various provisions of the law with the act he committed…” in Article 79 of the Turkish Penal Code No. 765 has been changed to “whoever causes more than one crime to occur with one act he committed…” in Article 44 of the Turkish Penal Code No. 5237. While in the Turkish Penal Code No. 765, the offenses committed for the purpose of the crime and which constitute a crime on their own were considered as joint crimes and were melted into the other crime, in the Turkish Penal Code No. 5237, it is aimed to punish each act of the defendant that constitutes a crime separately. In other words, after 01.06.2005, a person who damages the property of the complainant and enters his/her home or workplace in order to commit the crime of theft can be punished for these acts as well, since he/she has committed more than one act. However, due to the clarity of Article 79 of the Turkish Criminal Code No. 765 and taking into consideration the practices of the Supreme Court of Appeals, the person who broke the door and entered the house for theft could only be sentenced for the crime of theft.
For this reason, at the time of the crime, it is not possible to punish the crimes of violation of the innocence of the dwelling and harassment, which were committed as a means to the crime of theft. For this reason, it should not be possible to calculate the penalty for the acts that could not be punished at the time of the crime and to take into account the favorable law in determining the favorable law.
Due to these explanations, it was deemed appropriate to partially resist the reversal of the Supreme Court of Appeals. In the complaint of the complainant; that the defendant was caught stealing in his own workshop on the date of the crime, that his 1.500 YTL loss was not paid, that he complained; in the defense of the defendant; that he did not steal, that he was caught by the defendant’s employee while taking the sack he found in the garbage can while collecting scrap,
Witness A. E. stated in his statement that he was working as a watchman at the complainant’s workplace on the date of the crime, and that when he went down at around 08.00, he was caught when the defendant broke the door of the warehouse and took away a sack of material,
On the date of the crime, in the morning, the defendant was caught breaking the door of the complainant’s workplace warehouse and stealing various sweaters and sitting with a sack; according to the crime scene investigation report dated 01.05.2005, it was determined that the warehouse door subject to theft was steel and was opened by breaking the lock by using tools and forcing, and according to the valuation report, it was understood that the value of the stolen goods was 1,200 YTL,
Although the defendant said that he bought the goods he found in the garbage can, this defense was not deemed acceptable considering the statement of the witness and the ordinary course of life,
In the face of the fact that the defendant has completed all the executive actions regarding the act of theft and was caught when he was about to leave the workplace, there is a case of full attempt as mentioned in Article 62 of the Turkish Criminal Code No. 765; the defendant was 17 years old on the date of the crime,
The defendant’s theft offense was found to be fixed; however, as of the date of the crime, it is necessary to examine whether the application of Article 493/1 of the Turkish Criminal Code No. 765 or Article 142/2-d of the Turkish Criminal Code No. 5237 is favorable;
In the case of the application of the TPC No. 5237, the amount of the sentence binding the freedom is calculated as nine months as written below; however, if the basic sentence is determined as three years in accordance with Article 493/1 of the TPC No. 765, two years and three months when it is reduced by 1/4 at the same discretionary rate according to Article 62; one year and six months when it is reduced by 1/3 according to Article 522 due to low value, and twelve months when it is reduced by 1/3 due to age. Article 522 due to lack of value, one year and six months when reduced by 1/3 and twelve months when reduced by 1/3 due to age; since the amount of the penalty to be imposed according to the Turkish Criminal Code No. 5237 is nine months, the Law No. 5237 is in favor…”,
The court decided to punish the defendant as in the previous judgment.
Upon the appeal of this verdict by the public prosecutor and the defendant, the file 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 20.02.2012 and numbered 163701 with the request of “reversal”, and the file was evaluated by the Criminal General Assembly and decided for the reasons explained:
DECISION : In the concrete case where the defendant was sentenced to a judicial fine of 5.400 Lira pursuant to Articles 142/2-d, 35, 145, 145, 31/3, 62, 50/1 and 52/2 of the Turkish Penal Code No. 5237 for the crime of theft, although it is stated that the defendant resisted against the reasons numbered 1 and 2 of the reversal decision, the disputes between the Special Chamber and the local court according to the decision given and which should be resolved by the Criminal General Assembly;
1- Whether the action of the defendant, who entered the complainant’s workplace by breaking the door lock and stole the goods inside, is within the scope of Article 142/1-b of the Turkish Penal Code No. 5237 or within the scope of Article 142/2-d,
2- Whether the defendant’s act constitutes the crimes of violating the inviolability of the workplace regulated in Article 116/2 of the Turkish Penal Code No. 5237 and the crime of damage to property regulated in Article 151/1 in addition to the crime of theft,
3- Whether there are conditions for the application of Article 145 of the Penal Code No. 5237,
4- Which Penal Code is favorable,
5- Whether it is necessary to indicate the applicable article of the law when making a reduction due to the attempt,
6- Whether Article 23 of the Child Protection Law No. 5395 should be evaluated,
It is centered on these points.
From the contents of the file examined; on 01.05.2005, in the early morning hours, the defendant broke the lock of the warehouse door of the complainant’s workplace and entered inside, put 80 sweaters in a sack and left, at this time, he was caught by the workplace guard who came by force upon the sounds, according to the crime scene investigation report dated 01.05.2005. 2005 dated crime scene investigation report, it was determined that the lock of the steel door of the warehouse subject to theft was opened by breaking the lock with the help of a tool, according to the valuation report, the value of the stolen goods was 1.200 Lira, and there is no information in the file that the defendant compensated the complainant’s damage.
After this explanation, it is useful to address the dispute issues separately.
1- Whether the action of the defendant, who entered the workplace of the complainant by breaking the door lock and stole the goods inside, falls within the scope of Article 142/1-b or 142/2-d of the Turkish Penal Code No. 5237,
The basic form of the crime of theft is defined in Article 141/1 of the Turkish Penal Code No. 5237 as “taking a movable property belonging to another person without the consent of the possessor from the place where it is located with the intention of providing a benefit to himself or someone else”, and in subparagraph (b) of paragraph 1 of Article 142 of the same Law; “committed against property that is left in a place where anyone can enter but locked or kept in a building or its annexes” and in subparagraph (d) of paragraph 2 of the same article. In sub-paragraph (b) of paragraph 1 of Article 142 of the same Law, the cases of “committing the crime of theft by locking or by taking into custody in a building or its annexes, even though it is left in a place where everyone can enter” and in sub-paragraph (d) of paragraph 2 of the same Article, the cases of “committing the crime of theft by opening the lock with an unjustly possessed or forged key or other tool” are also regulated as qualified theft crimes.
In order for the theft crime regulated in Article 142/2-d of the Turkish Penal Code No. 5237 and committed “by opening the lock with an unlawfully possessed or forged key or other tool” to occur, the lock must be opened by inserting the tools listed in the article into the key cavity and activating the mechanism. In other words, in cases where the lock is broken with an object or the locked place is entered not by opening the lock but by other means, such as breaking the door, there can be no talk of opening the lock.
Therefore, in the concrete case, the action of the defendant, who broke the lock on the steel door of the warehouse of the workplace belonging to the complainant by breaking the lock with a hard object and was caught while stealing 80 sweaters, is not within the scope of subparagraph d of paragraph 2 of Article 142 of the Turkish Penal Code No. 5237, but within the scope of subparagraph b of paragraph 1, which regulates the commission of the offense of theft “about the goods kept in the building or its annexes”. As a matter of fact, the same conclusion was reached in the decision of the CGK dated 19.06.2012 and numbered 483-240.
In this respect, there is no justification in the local court’s decision of resistance regarding this issue.
2- Whether the defendant’s act constitutes the crimes of violating the inviolability of the workplace regulated in Article 116/2 of the Turkish Penal Code No. 5237 and the crimes of damaging property regulated in Article 151/1:
As detailed in the decision of the CGK dated 08.12.2009 and numbered 153-285; the main rule taken as basis in the preparation of the Turkish Criminal Code No. 5237 is true cumulative and accordingly, “the more acts, the more crimes, and the more crimes, the more punishment” is in question. As a matter of fact, in the report of the Justice Commission, this issue is stated as follows: “One of the basic rules of criminal law is that ‘there are as many crimes as there are acts, and as many crimes as there are punishments’. The exceptions to this are set out in the section on the aggregation of offenses. Apart from these exceptions, separate sentences will be imposed for each offense committed. Thus, each punishment will maintain its independence” (Report of the TGNA Justice Commission dated 03.08.2004 and numbered 1/593-60). The exceptions to this rule are regulated in Articles 42 (compound crime), 43 (chain crime) and 44 (intellectual aggregation) in the “aggregation of crimes” section of the Turkish Penal Code No. 5237.
Compound crime, which is one of the exceptions to the rule of true aggregation and is closely related to the subject of the dispute, is defined in Article 42 of the Turkish Penal Code as follows; “A crime that is considered as a single act because one of them constitutes the element or aggravating reason of the other is called a compound crime” and not content with this; “the provisions of aggregation are not applied in such crimes”.
In Article 142/1-b of the Turkish Penal Code No. 5237, which regulates the offense of theft about the goods kept in the building or its annexes, which the defendant committed on the date of the incident; “The offense of theft;…b ) About the goods that are left in a place where everyone can enter but are locked or kept in the building or its annexes, … If it is committed, a sentence of imprisonment from two years to five years shall be imposed.” Although at first glance, it can be said that these statements are an exception to the rule of ‘the more acts, the more crimes, the more crimes, the more punishment’, that is, they comply with the definition of a compound crime, the legislator has regulated the fact that the theft crime is committed against the ‘goods kept in the building or its annexes’ as a qualified case with this article, and did not seek entry into the building or annex as an element for the formation of this crime. Accordingly, it is possible to commit this qualified form of the offense of theft by entering the building or its annexes about the “goods kept in the building or its annexes”, as well as it is possible to commit it without entering the building or annex, and in both cases, Article 142/1-b of the Law will have to be applied. In other words; with the regulation in the article, it is not important whether the building or its annexes are entered or not, but the fact that the stolen goods are kept in the building or its annexes is important in terms of the qualified case. The fact that the legislator, if he wanted to organize this type of crime as a compound crime, should have regulated the text of the article as “if it is committed by entering the building or its annexes”, while he preferred the current regulation confirms this point.
Therefore, in the event that the building or workplace is entered during the commission of the offense of theft and the property is damaged, in addition to the offense of theft, the offenses of violating the inviolability of the dwelling or workplace and damaging the property also occur and accordingly, the perpetrator must be punished for these crimes as well.
In addition to this, in a way to reinforce this issue, with the Article 6 of the Law No. 5560, the 4th paragraph was added to Article 142 of the Turkish Penal Code No. 5237 as follows: “In case of violation of the inviolability of the dwelling or damage to property is committed in order to commit the crime of theft, no complaint is required for investigation and prosecution for these crimes”. In the justification of the added paragraph, it is clearly stated that the perpetrator should also be punished for other crimes committed during the commission of the crime of theft by stating that “In accordance with the rule of how many acts, so many crimes, so many crimes, so many punishments, in case of entering someone else’s residence or damaging the property in order to commit the crime of theft, it is necessary to impose punishment for these crimes as well”.
As a result of this, the evaluation of the favorable law for the defendant must be made by comparing Article 493/1 of the Turkish Penal Code No. 765 with Article 142/1-b, 116/2 and 151/1 of the Turkish Penal Code No. 5237.
In this respect, the local court’s judgment of resistance regarding this dispute is unjustified.
3- ) Whether there are conditions for the application of Article 145 of the Penal Code No. 5237:
The issue was previously brought before the Criminal General Assembly and resolved in the decisions dated 30.03.2010 and numbered 11/17-65, 15.12.2009 and numbered 242-291 and 13.11.2007 and numbered 210-234.
While Article 145 of the Turkish Penal Code No. 5237 stipulates that “ ( 1 ) Due to the low value of the property that constitutes the subject of the theft crime, the punishment to be imposed may be reduced or the punishment may be waived”, the aforementioned provision was amended by Article 16 of the Law dated 29.06.2005 and numbered 5377 before the date of the crime; “ ( 1 ) Theft. Article 16 of the Law No. 5377 dated 29.06.2005 was amended as follows: “ ( 1 ) Due to the low value of the property that constitutes the subject of the theft crime, the punishment to be imposed may be reduced, or the punishment may be waived, taking into account the manner and characteristics of the crime”, and with the article, a wide discretionary power was granted to the judge to reduce the punishment or not to impose a punishment due to the low value of the “value subject” of the theft crimes.
Both the original and the amended version of the aforementioned article are based on the common definition that the value constituting the subject of the theft offense is low. The legislator has not clarified what is meant by the lack of value in a way to prevent any ambiguity, no numerical limitation has been imposed, but the judge has been given the authority of discretion and evaluation in relation to the material event subject to the trial. However, the legislator has limited the discretion of the judge with an abstract and different discipline. That is; “the value to be considered as little” must be insignificant enough in the judge’s discretion to require him to refrain from imposing a penalty, in other words, the violation based on value must be at a low level to justify not imposing a penalty. The judge may consider the insignificance of the value stolen or attempted to be stolen either by a reduced penalty or by not imposing a penalty due to the characteristics of the commission of the offense.
In the amendment after the first text of the article; it is clear that the inscription of the phrase “taking into account the manner and characteristics of the commission of the crime” after the option of “reduction in punishment” and before the option of “punishment may be waived” will not differentiate the value of the property subject to the crime. Therefore, it should not be concluded that a higher value will be sought in the option of “lesser punishment”, whereas a lesser value should be sought in the option of “waiver of punishment”.
In this respect, in the application of Article 145 of the Law No. 5237, no interpretation should be made in connection with the concepts of “light” or “very light” stipulated in Article 522 of the Turkish Penal Code No. 765, and the Court of Cassation should not be expected to determine the annual value measures in parallel with its jurisprudence during the application of the said article. The purpose of Article 145 of the Law No. 5237 should be considered and it should be accepted that the said provision is different from Article 522 of the Turkish Penal Code No. 765.
In addition to this evaluation, the judge will take into account the manner in which the crime was committed, the position of the victim or the defendant, the place and time of the incident in each concrete case, and will ensure criminal justice by imposing a sentence that is “proportional to the gravity of the act committed” as stated in Article 3 of the TPC No. 5237. As can be seen, the system introduced by the article does not only consist of determining the value of the property according to objective criteria and reducing the penalty or not imposing a penalty. The characteristics of the incident, the position of the victim, the personality of the perpetrator and the manner in which the crime was committed will be subject to evaluation in each case, the factors that push the perpetrator to commit the injustice and the effects of this injustice on the victim will be taken into consideration, and it will be determined whether the article should be applied or not, and especially whether the option of not imposing a penalty will be appropriate for the perpetrator of the act, and the justification for the discretion will be shown in the decision.
However, the concept of “committing the crime of theft in order to meet a heavy and urgent need” regulated in Article 147 of the Turkish Penal Code No. 5237 should not be confused with the concept of “low value” stipulated in Article 145. Article 147, which regulates the state of necessity, and the lack of value stipulated in Article 145 are different from each other, and the distinctive criterion of Article 147 is that the theft is committed to meet a severe and urgent need.
On the other hand, the most important criterion in the application of Article 145 is undoubtedly the measure of value, and this value must be low enough to justify “non-punishment”.
In the light of these explanations, when the concrete case is evaluated regarding the third dispute issue;
It is understood that the defendant broke the lock of the warehouse door of the complainant’s workplace in the early hours of the morning and entered inside, put 80 sweaters with a monetary value of 1200 Lira in a sack, and was caught by the workplace guard who came upon the sounds made during this time by using force, it is concluded that the value of the goods that are the subject of the theft crime is not low and that there are no conditions for the application of Article 145 of the Turkish Penal Code No. 5237 in terms of the way the crime was committed.
In this respect, the local court’s decision to apply Article 145 of the Turkish Penal Code No. 5237 to the defendant is not appropriate.
4- ) Which Penal Code is favorable:
In order to determine which Penal Code is favorable for the defendant, it is necessary to evaluate the results by applying both laws separately.
When a judgment is rendered against the defendant in accordance with the Turkish Penal Code No. 765, the 1-year imprisonment sentence determined in accordance with Articles 493/1, 62, 522 and 55/3 of the Turkish Penal Code No. 765 shall be converted into money at 12 Liras per day according to the date of the crime in accordance with Article 4 of the Law No. 647, and the defendant shall be sentenced to a judicial fine of 4.380 Liras as a result.
When the verdict is rendered against the defendant in accordance with the Turkish Penal Code numbered 5237;
a- ) For the crime of theft; sentencing the convict to a judicial fine of 5.400 Liras by converting the 9 months imprisonment sentence determined pursuant to Articles 142/1-b, 35 and 31/3 of the Turkish Penal Code No. 5237 into a fine of 20 Liras per day pursuant to Articles 50/1 and 52/2 of the Turkish Penal Code,
b- ) For the offense of violation of the inviolability of the workplace; the sentence of 3 months imprisonment determined pursuant to Articles 116/1 and 31/3 of the Penal Code shall be converted into a fine of 20 Liras per day pursuant to Articles 50/1 and 52/2 of the Penal Code and sentenced to a judicial fine of 1.800 Liras,
c- ) For the offense of damaging property; sentencing to a judicial fine of 1.200 Liras by converting the imprisonment sentence of 2 months determined pursuant to Articles 151/1 and 31/3 of the Penal Code into a fine of 20 Liras per day pursuant to Articles 50/1 and 52/2 of the Penal Code,
It will be necessary. In this case, the total penalty to be imposed on the defendant in case of application of the Turkish Penal Code numbered 5237 will be 8.400 Lira.
In this respect, since the provisions of the Turkish Penal Code No. 765 are in favor of the defendant, the local court’s judgment of resistance is also inaccurate regarding this dispute.
5- Whether it is necessary to indicate the applicable article of the law when making a reduction due to the attempt:
Article 232/6 of the Code of Criminal Procedure No. 5271, which was in force at the time of both the first judgment and the decision to resist, and which was similar to Article 268/4 of the Code of Criminal Procedure No. 1412 As it can be understood from the clear legal regulation in Article 232/6 of the CYY No. 5271, which is similar to Article 268/4 of the CYY No. 1412; “In the paragraph of judgment, the decision made according to Article 223, the articles of law applied, the amount of the penalty imposed, whether there is the possibility to apply for legal remedies and compensation, and if there is the possibility to apply, the duration and authority must be clearly shown in a way that does not leave room for doubt”, it is necessary to show the law and articles applied in the paragraph of the judgment of the conviction established against the defendant.
As it is accepted in the doctrine and practice, the failure to indicate the applicable law and article in the paragraph of judgment or similar violations should not be made a reason for reversal alone, but should be added to other reasons for reversal if there is another reason for reversal.
In the concrete case, the fact that the local court did not indicate the applicable law and its article while making a discount due to the attempt against the defendant is contrary to Article 232/6 of the CPL No. 5271. Although this issue cannot be made a reason for reversal alone, it is a proper practice to add it to the reversal in case there are other reasons for reversal.
6- Whether Article 23 of the Child Protection Law No. 5395 should be evaluated:
The institution of deferment of the announcement of the verdict has been accepted for the first time in our law for children with Article 23 of the Child Protection Law No. 5395, which entered into force on 15.07.2005: “ ( 1 ) If the penalty determined at the end of the trial for the offense charged to the child is imprisonment up to a maximum of three years (including three years) or a judicial fine; the court may decide to defer the announcement of the verdict.
( 2 ) The conditions for the decision to defer the announcement of the verdict are as follows:
a ) The child has not been convicted of an intentional crime before.
b ) There is a conviction that the child will not commit a crime again.
c ) It is not deemed necessary to impose a penalty on the child due to his/her personality traits and his/her attitude and behavior at the hearing.
d ) The damage suffered by the victim or the public as a result of the commission of the crime is fully compensated through restitution in kind, restoration to the status before the crime or compensation. In the event that the amount of damage suffered by the public as a result of the commission of the offense cannot be determined, an amount of money to be determined by the court shall be deposited at once into the Treasury. However, this condition may not be sought if the economic situation of the child or his/her family is not favorable.
( 3 ) In case of a decision to defer the announcement of the verdict, the child shall be subject to probation for five years. During this period, it may be decided that the child shall attend an educational institution, be prohibited from going to certain places, be obliged to attend certain places or fulfill other obligations to be appreciated. During the period of supervision, the statute of limitations for lawsuits shall be suspended.
( 4 ) In the event that the condition specified in subparagraph ( d ) of the second paragraph cannot be fulfilled, a decision to defer the announcement of the verdict may be made by imposing one of the following obligations on the defendant during the probation period:
a ) The complete elimination of the damage caused to the victim or the public by the commission of the crime by paying in monthly installments.
b ) If the amount of the damage caused to the public by the commission of the offense cannot be determined, the amount of money to be appreciated by the court shall be deposited in monthly installments to the Treasury.
( 5 ) If the child is not sentenced to imprisonment for an intentional crime committed during the probation period and if the obligations are fulfilled, the case shall be dismissed. ( 6 ) If the child is convicted of an intentional crime punishable by imprisonment committed during the probation period or if he/she violates his/her obligations, the court shall announce the suspended sentence. However, the court may reduce the sentence determined for the child by up to half, taking into account the fulfillment of the obligations.
( 7 ) The decision to defer the announcement of the verdict may be appealed.
( 8 ) The decision to defer the announcement of the verdict shall be recorded in a special system. These records may only be used for the purpose specified in this article if requested by the public prosecutor, judge or court in connection with an investigation or prosecution.”
With paragraphs 5-14 added to Article 231 of the Law No. 5271 by the Law No. 5560, which entered into force on 19.12.2006, this institution was also accepted for adults, and with Article 40 of the same Law, Article 23 of the Law No. 5395 reads as follows: “At the end of the trial for the crime charged to the child, the court may decide to defer the announcement of the verdict if the conditions in the Criminal Procedure Law are present. However, the period of supervision for these persons is three years.” By amending Article 23, juvenile offenders and adult offenders are subject to the same conditions in terms of deferment of the announcement of the verdict, except for the difference in the period of supervision.
In terms of adult defendants, with the paragraphs 5-14 added to Article 231 of the Criminal Procedure Code by the Law No. 5560, this institution, which was initially accepted for imprisonment or judicial fine sentences of one year or less, limited to crimes subject to complaint, was later amended by Article 562 of the Law No. 5728 dated 23.01.2008, which entered into force on 08.02.2008, by changing the phrase “one year” in paragraph 5 of Article 231 of the Law No. 5271 as “two years” and paragraph 14 as “ ( 14 ) The provisions of this article regarding the deferment of the announcement of the verdict shall not be applied in relation to the crimes included in the reform laws protected under Article 174 of the Constitution”. paragraph was amended as “ ( 14 ) The provisions of this article regarding the deferment of the announcement of the verdict shall not be applied in relation to the crimes included in the Revolutionary Laws protected under Article 174 of the Constitution” and made applicable for sentences of imprisonment of two years or less or judicial fines, thus, this institution, which was initially limited to crimes subject to complaint against adult defendants, has been transformed into a form that covers all crimes, except for the crimes included in the Revolutionary Laws guaranteed under Article 174 of the Constitution.
However, with the amendment made to Article 13 of the Law No. 3713 with the Law No. 5739 which entered into force on 01.03.2008 and with the Additional Article 10 added to the Military Penal Code No. 1632; the scope of application of the institution has been narrowed again by excluding the deferment of the announcement of the verdict in terms of terrorist crimes committed by those over the age of 15 and the crimes included in the Law No. 1632.
After summarizing the entry of the institution of deferral of the announcement of the verdict into our law and the subsequent amendments to the Law in this way, when it comes to the merits of this dispute; in the concrete case, there are three different legal regulations that can be applied to the defendant in terms of deferral of the announcement of the verdict and which entered into force on different dates:
The first one is the provision of Article 23 of the Child Protection Law No. 5395, which entered into force after being published in the Official Gazette on 15.07.2005, which was in force before the amendment made by the Law No. 5560, which entered into force on 19.12.2006.
Secondly, paragraphs 5-14 added to Article 231 of the Law No. 5271 by the Law No. 5560 which entered into force on 19.12.2006 and the provisions of Article 23 of the Child Protection Law No. 5395 amended by the Law No. 5560. With this amendment, the detailed regulation on the deferment of the announcement of the verdict in Article 23 of the Child Protection Law No. 5395 was abolished, and it was stipulated that the deferment of the announcement of the verdict can be applied to children in the presence of the conditions in the CPL, and the supervision period for children was set as 3 years. However, since the deferment of the announcement of the verdict can be applied limited to the crimes whose investigation and prosecution are subject to complaint due to the regulation in the 14th paragraph added to the 231st article of the CPL as a result of the amendment made by the Law No. 5560, it is not possible to apply it to the defendant who committed the crime of theft, which is not subject to complaint in the case subject to the dispute.
Thirdly, the provisions of Article 231 of the Criminal Procedure Code in force after the amendment made by the Law No. 5728 and Article 23 of the Child Protection Law No. 5395 amended by the Law No. 5560, which determines the supervision period for children as 3 years.
Regarding the compensation of the damage suffered by the victim, which is closely related to our subject of dispute, while the first version of Article 23 of the Child Protection Law No. 5395 states that this condition may not be sought if the economic situation of the child’s family or the child himself/herself is not favorable, Article 231 of the CPL amended by the Law No. 5728 does not include a similar regulation.
In the concrete case, there is no clarity in the file that the damage of the complainant, which was determined as 1200 Lira for the crime of theft, and the damage to the door of the workplace were covered. In the offense of violating the inviolability of the workplace, no damage can be mentioned. In a situation where the damage is not compensated, it is not possible to decide to defer the announcement of the verdict in accordance with Article 231 of the CYYY amended by the Law No. 5728, but in the first version of Article 23 of the Child Protection Law No. 5395, this condition may not be sought if the economic situation of the child’s family or himself is not favorable.
For this reason, since there is no legal obstacle to the application of the deferment of the announcement of the verdict against the defendant who has not been convicted of an intentional crime before, it is not appropriate that the local court has not made a positive or negative decision by making an evaluation regarding whether this institution will be applied or not.
As a result; since the reasons for resistance regarding all the dispute issues are unjustified, the local court’s decision of resistance should be reversed.
CONCLUSION : For the reasons explained
1- The decision of Bakırköy 3rd Juvenile Court dated 25.12.2008 and numbered 510-1522 to be reversed in relation to all issues of dispute,
2- In the discussion held on 09.10.2012, it was decided unanimously that the file be referred to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to its neighborhood.