Theft Offense – Low Value Of Property
T.C.
COURT OF APPEALS
13th CRIMINAL CHAMBER
CASE NO: 2014/9306
DECISION NO: 2014/24636
DATE OF DECISION: 09.09.2014
COURT OF THE DECISION UNDER REVIEW: Izmir 3rd Juvenile Court
DATE: 30/01/2013
NUMBER: 2012/552 (E) and 2013/15 (K)
CRIME: Theft
JUDGMENT: Conviction
APPELLANT: Defendant’s counsel
Upon appeal of the judgment rendered by the local court, the case file was reviewed, and the following was considered:
Based on the contents of the file and the trial minutes, the legally valid and admissible evidence collected and examined at the trial, the reasoning, and the judge’s discretion, it was determined that there was no procedural or legal violation in accepting that the alleged crime was committed by the child involved in the crime, and the other appeals were also found to be unfounded.
However, According to Article 61/1 of the Turkish Penal Code No. 5237, the value of the property, whether low or high, is a criterion for deviating from the lower limit in determining the basic sentence. The fact that the value of the property subject to the theft offense is separately regulated in Article 145 of the Turkish Penal Code demonstrates the importance that the legislator attaches to the low value of the property in theft offenses.
As stated in the Supreme Court Criminal Chamber’s ruling dated December 15, 2009, No. 6/242-291, “…the view that ‘taking only what is necessary and of low value when there is the possibility of taking more’,” cannot be entirely rejected in the application of Article 145 of the Turkish Penal Code, but the article cannot be limited solely to this definition either. Both the original and amended versions of Article 145 are based on the common definition that the value of the property constituting the subject matter of the crime of theft is low. According to Article 145 of the Turkish Penal Code, for a reduction in the sentence imposed on the offender, it is sufficient that the value of the property is low, and the judge must determine the reduction rate in proportion to the severity of the offense, as provided for in Article 3 of the Turkish Penal Code. If a decision is made to refrain from imposing a penalty due to the low value of the property, the manner and characteristics of the crime must also be taken into account in addition to the low value of the property.
The judge has discretionary power in the application of Article 145 of the TCK, and when exercising this power, the judge must apply it in a manner that is appropriate to each specific case, legal, and sufficiently justified, without resorting to arbitrariness.
In the specific case, it was determined that the child involved in the crime stole two door locks with a total value of 18.00 TL from a business selling construction materials belonging to the complainant. Although it is not possible to waive punishment for the child involved in the crime based on the manner and characteristics of the crime, the failure to consider the reduction in the sentence to be determined in accordance with Article 145 of the Turkish Penal Code due to the low value of the property constituting the theft necessitated the reversal of the judgment, and the child involved in the crime … Since the defense counsel’s appeal objections are deemed valid in this regard, it was decided by unanimous vote on September 9, 2014, that the ruling be overturned for the reasons stated above, contrary to the notification.