Court Of Cassation Decision On Theft Crime
T.C. JUDICIARY
13th Criminal Chamber
Main: 2016/5725
Decision: 2016/11037
Date of Decision: 14.06.2016
THE CRIME OF THEFT – INCONSISTENCY OF THE APPLICATION WITHOUT CONSIDERING THAT THE TCK NUMBERED 5237 IS IN FAVOR OF THE DEFENDANTS – THE VERDICT IS REVERSED
SUMMARY: The application of the articles 142/1-b, 143, 62 of the Turkish Penal Code No. 5237 and the articles 493/1-end, 522, 59 of the Turkish Penal Code No. 765, without considering that the comparison should be made accordingly and that the Turkish Penal Code No. 5237 is in favor of the defendants, required a reversal.
(Art. 52, 53, 61, 62, 142, 143, 168 of the TPC No. 5237) (Art. 59, 493, 522 of the TPC No. 765)
Case and Decision: The judgment given by the local court was appealed, the file was examined and the necessity was considered:
I-In the appellate examination of the convictions of the defendants … … and … … … for their acts against the complainant … ..;
Even though the decision of deprivation of the rights specified in Article 53 of the Turkish Criminal Code No. 5237 was not made; since it is a legal consequence of the conviction and it is possible to be observed during the execution phase, it has not been made a reason for reversal.
According to the contents of the file and the minutes of the hearing, the legally valid and favorable evidence gathered and examined and discussed at the decision, the reasoning and the discretion of the judge, the objections of the defendants … … and … … defense counsels were not deemed appropriate, and therefore, since the objections of the defendants … … and … … defense counsels were not deemed appropriate, they were rejected and the judgments, which are in accordance with the procedure and the law, were APPROVED in accordance with the notification,
II-In the appellate examination of the sentences established due to the actions of the child dragged into crime … … against the complainants … … and … … … ;
According to the occurrence and file content, not applying Article 143 of the Turkish Penal Code No. 5237 without considering that the theft, which was fixed to have occurred around 24:00, was committed at night time, was not made a reason for reversal since there was no adverse appeal; The application of Article 168 of the same Law before Article 31 in violation of Article 61 of the Turkish Penal Code was not made a reason for reversal since the final punishment did not change.
According to the content of the file and the trial minutes, the legally valid and favorable evidence collected and examined and discussed at the decision, the reasoning and the judge’s discretion; it has been understood that there is no violation of the procedure and the law in the acceptance and characterization of the crimes committed by the child dragged into the crime, and the other objections of appeal have not been deemed appropriate.
However;
1-Failure to take into account that in case of non-payment of the fine imposed on the child dragged into the crime who is under the age of 18, it cannot be decided to execute the short-term imprisonment sentence partially or completely,
2- Violation of Article 52/4 of the Turkish Penal Code by ruling as “to be paid in 20 equal installments” without showing the installment interval during the installment of the judicial fine imposed,
Since the objections of the defense counsel of the child dragged into crime … … have been deemed appropriate in this respect, the verdicts are DISMISSED contrary to the notification for the reason explained, and since the reason for disruption does not require a retrial, based on the authority granted by Article 322 of the Code of Criminal Procedure No. 1412 through Article 8/1 of the Law No. 5320. Based on the authority granted by Article 322 of the Code of Criminal Procedure No. 1412 by referring to Article 8/1 of the Law No. 5320, by removing the part that the short-term imprisonment sentence will be decided to be fully or partially executed in case the requirements of the alternative sanction are not fulfilled from the paragraph of the sentence and by adding the sentence “in monthly installments” to the paragraph of the sentence regarding the installment of the judicial fine, the provisions, which are in accordance with the procedure and the law in other aspects, except for the criticism, shall be approved by correction,
III-As for the appellate examination of the verdicts established due to the actions of the child dragged into crime … … against the complainant … … and … … and the actions of the defendants … … and … … against the complainant … ..;
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 accepting that the crimes were committed by the defendants, and other appellate objections have not been deemed appropriate.
However
1- Failure to observe that the child dragged into crime … … ensured the return of the car stereo belonging to the complainant … … by showing the place where they hid the stolen goods and the stolen vehicles, and that Article 168 of the Turkish Criminal Code No. 5237 should be applied against him,
2-According to the fact that it is fixed that the child dragged into crime … … returned the criminal property subject to the act of theft committed by the child … … by breaking the door lock of the vehicle belonging to the complainant … … and opening it by breaking the door lock part of the vehicle and returning the criminal property subject to the act of theft committed from inside the vehicle during the investigation phase; pursuant to Article 7/2 of the Turkish Criminal Code No. 5237 and Article 9/3 of the Law No. 5252. Pursuant to Article 7/2 of the Turkish Criminal Code No. 5237 and Article 9/3 of the Law No. 5252, the provision in favor of the defendants should be found by applying all the relevant provisions of the previous and subsequent laws to the case and comparing the results that will emerge, and the comparison should be made in accordance with Articles 142/1-b, 143, 31/3, 168/1, 62 of the Turkish Criminal Code No. 5237 and Articles 493/1-last, 522, 523, 55/3, 59 of the Turkish Criminal Code No. 765, and the decision was made in writing without considering that the Turkish Criminal Code No. 5237 is in favor of the child dragged into the crime,
3-According to the admission that the defendants … … and … … … stole the stereo of the vehicle belonging to the complainant … … after breaking the door lock; pursuant to Article 7/2 of the Turkish Penal Code No. 5237 and Article 9/3 of the Law No. 5252, the provision in favor of the defendants should be found by applying all the relevant provisions of the previous and subsequent laws to the case and comparing the results that will emerge, the actions of the defendants constitute the crimes written in Articles 142/1-b, 143, 62 of the Turkish Penal Code No. 5237 and Articles 493/1-b, 143, 62 of the Turkish Penal Code No. 765, the comparison should be made accordingly and the Turkish Penal Code No. 5237 is in favor of the defendants. Articles 142/1-b, 143, 62. of the Turkish Criminal Code No. 5237 and Articles 493/1-last, 522, 59. of the Turkish Criminal Code No. 765, the comparison should be made accordingly, and the application was made in writing without considering that the Turkish Criminal Code No. 5237 is in favor of the defendants,
4-According to the acceptance;
In the judgment established against the child dragged into crime … … due to the action against the complainant … …, the sentence of imprisonment was determined as 1 year 5 months and 10 days instead of 1 year 9 months and 10 days when the reduction was made with Article 55/3 of the Turkish Penal Code No. 765, and as a result of the application made with Article 59 of the same Law, the sentence was calculated as 1 year 2 months and 13 days instead of 1 year 5 months and 23 days, resulting in an incomplete sentence,
Since the appeals of the defenses of the child dragged into the crime … … and the defendants … … and … … … have been deemed appropriate in this respect, it was unanimously decided on 14.06.2016 to VACATE the judgments contrary to the notification for the explained reason.