What Is The Crime Of Theft? TCK M. 141-147
What is Theft?
The crime of theft protects a person’s property rights and, in a broader sense, their right of possession. In this context, the crime of theft occurs when a movable property belonging to another person is taken from its location without the consent of the person in possession of it, for the purpose of benefiting oneself or another person. The crime of theft is a crime committed against property values. The purpose of the crime of theft is defined as obtaining economic gain. The crime of theft is regulated in Articles 141 and 147 of the Turkish Penal Code.
Is the Crime of Theft Subject to Complaint?
The crime of theft, in all its forms, whether simple or aggravated, is one of the crimes that must be investigated ex officio. Since the crime of theft is not considered a complaint-based crime, there is no complaint period for the crime.
The complainant may request to intervene at any stage of the proceedings after the public prosecution has been initiated and thereby acquire the status of a party in the criminal case. Since the crime in question is not subject to complaint, withdrawal of the complaint does not result in the dismissal of the public prosecution.
Simple theft (TCK md.141) is one of the crimes that require the application of a reconciliation procedure between the parties. In crimes subject to reconciliation, the reconciliation procedure must be applied first, both during the investigation and prosecution stages. If reconciliation cannot be achieved, the investigation or prosecution must continue.
Conditions and Elements of Theft
As mentioned above, the perpetrator of the crime of theft reduces or completely deprives the victim of their property as a result of their actions.
Elements and conditions of theft
1- The subject of theft is movable property
According to the Turkish Penal Code, theft can only be committed against movable property. For example, cars, bicycles, household items, wallets, etc. are considered movable property. Items that have a certain economic value are referred to as “property.” If an item with no economic value is stolen, the crime of theft does not occur.
The crime of theft cannot be committed against immovable property. For example, if a real estate owner transfers property to another person without their consent using forged documents, it is not the crime of theft but rather the crimes of forgery of official documents and aggravated fraud that may apply.
2- The Crime of Theft Protects Possession
The crime of theft protects the rights of possession, which have a broader scope than ownership. Possession refers to a person who has actual control over an item. The person in possession of an item may not be the owner of the item. For the crime of theft to occur, it is not necessary for the possessor of the property to also be its owner. For example, if a car is given to a person to use and a third party takes the car without the consent of the person using it, the crime of theft occurs.
Similarly, it does not matter whether the person who has the right of possession over the property obtained it lawfully or unlawfully. In other words, if a car stolen by a thief is stolen again by someone else, the crime of theft is also committed.
For the crime of theft to be committed, the property must be removed from the possessor’s sphere of control, and the perpetrator must establish physical control over the property in order to obtain possession. Attempted theft, on the other hand, depends on whether the act is completed or not. If the perpetrator is caught immediately after taking the property from its location as a result of continuous pursuit, the perpetrator should be tried for attempted theft rather than theft. This is because the crime is considered incomplete when the perpetrator, who is caught as a result of continuous pursuit, has not been able to gain complete physical control over the property. However, if the perpetrator disappears from sight for a period of time during the pursuit, the pursuit is interrupted, and the perpetrator is later seen again and apprehended, the crime of theft is considered to have been completed.
Penalty for Simple Theft and Property Left Unattended
Property left exposed refers to property left in public places such as streets, parks, gardens, beaches, and similar locations outside the victim’s private premises. The basic form of the crime of theft, as regulated in Article 141 of the Turkish Penal Code, pertains to property left exposed.
If the property subject to the theft crime is left exposed due to its nature or custom, or if it is required to be left exposed, then the qualified form of the crime applies rather than the basic form. For example, agricultural tools left out in the open in a field are items that are left out in the open as required by their use, so the qualified form of the crime would apply. Even though these items are left out in the open, if they are taken without the owner’s consent, the crime of qualified theft is committed.
According to established Supreme Court practice, acts constituting the offense of simple theft are as follows (Supreme Court CGK -2015/98 k.):
Theft of personal belongings left unattended by construction workers,
Theft of items displayed in front of workplaces,
Theft of vegetables and fruits left unattended at markets, as well as the theft of clothing items displayed on stalls at markets,
The theft of agricultural tools left in fields outside the agricultural season,
The theft of items other than construction materials left at construction sites,
The theft of items temporarily left unattended while unloading goods at a workplace,
Theft of items left unprotected on the street for a short time while moving house,
Theft of bicycles left unlocked on streets and avenues,
Theft of items left in open areas on beaches,
Theft of a bag left on a bench by a person sitting in a park,
Theft of items from a stroller or shopping cart.
The penalty for simple theft is imprisonment for a term of one to three years (TCK 141).