Will The Defendant Who Stole 36.75 Kr Worth Of Cheddar Cheese And Chocolate Be Punished?
Supreme Court of Appeals of the Republic of Turkey
2nd Criminal Chamber
Case No.: 2015/1595
Decision No.: 2018/164
Date of Decision: January 23, 2018
THEFT OFFENSE – STEALING CHEESE AND CHOCOLATE WORTH THIRTY-SIX TL AND SEVENTY-FIVE KURUŞ – THE LOW VALUE OF THE PROPERTY CONSTITUTING THE SUBJECT OF THE THEFT – NECESSITY OF REDUCING THE SENTENCE BY A CERTAIN PERCENTAGE
SUMMARY: In the case where the defendant, entering a market as a customer, attempted to steal cheddar cheese and chocolate worth 36.75 TL according to the value assessment report, although punishment cannot be waived due to the manner and characteristics of the crime, a reduction in the sentence must be made at a rate to be determined due to the low value of the goods constituting the subject of the theft.
(5237 S. K. m. 3, 61, 141, 145) (5271 S. K. m. 231) (YCGK. 15.12.2009 T. 2009/6-242 E. 2009/291 K.)
The file was reviewed and the necessary considerations were made;
Based on the contents of the file, the other appeals were found to be unfounded. However;
1- The concept of “low value of the property” in Article 145 of the Turkish Criminal Code No. 5237 is not similar to the criteria of ‘minor’ and “very minor” in Article 522/1 of Law No. 765, except that both articles provide for the possibility of a reduction in punishment. The “low value” is a separate and new concept specific to Law No. 5237, and that it can be applied by evaluating the characteristics of the incident, the personality of the defendant, and the intent attributed to them, and by showing legal and sufficient justifications. In the specific incident; In the case where the defendant attempted to steal cheese and chocolate worth 36.75 TL, according to the value assessment report, from a market he entered as a customer; the failure to consider whether Article 145 of Turkish Criminal Code No. 5237 should be applied,
2- While deciding that there are no grounds for postponing the announcement of the verdict regarding the defendant, The objective and subjective conditions listed in Article 231 of the Criminal Procedure Code (CMK) should have been evaluated and the relevant reasons should have been stated. The decisions to defer the pronouncement of the judgment in the defendant’s criminal record do not prevent the application of the provisions on deferring the pronouncement of the judgment. Another objective condition for deferring the pronouncement of the judgment, as indicated in Article 231/6 -c of the same Law, which is another objective condition for postponing the announcement of the judgment, is the material damage to be taken as a basis for the complete compensation of the damage suffered by the victim or the public as a result of the crime, through restitution, restoration to the previous state, or indemnification, which shall be determined by a simple investigation that is convincing. In the present case, since there is no material damage arising from the attempted theft offense that the judge could determine through a simple investigation, considering that the objective conditions specified in paragraphs (a) and (c) of Article 231(6) of the Criminal Procedure Code, which are required for the decision to postpone the pronouncement of the judgment, have been met; the subjective condition specified in subparagraph (b) of paragraph 6 of Article 231 of the Criminal Procedure Code, namely, “the conviction that the defendant will not commit another crime, taking into account the defendant’s personality traits and attitude and behavior during the trial,” should have been evaluated to determine whether it was met and, based on the outcome, the defendant’s legal status should have been determined. However, the decision that there were no grounds for postponing the pronouncement of the judgment against the defendant on the basis of the legal and insufficient reasoning that “the defendant has a previous conviction for which the pronouncement of the judgment was postponed”
This necessitated reversal, and the defendant’s appeals were therefore deemed valid. For these reasons, it was unanimously decided on January 23, 2018, to REVERSE the judgment as requested.