In Theft Crime, The Time When The Crime Is Reported To Have Been Committed Is Considered To Be Daytime Due To The Proximity Of The Beginning Of The Night Time, In Accordance With The Principle That The Accused Benefits From Suspicion
Republic of Turkey Court of Cassation 17th Criminal Chamber Main No: 2015/9562, Decision No: 2016/1673
COURT :Criminal Court of First Instance
Crime : Theft, invasion of privacy
CONVICTION : Conviction
The judgment rendered by the local court was examined upon appeal, and the necessity was discussed and considered:
According to the contents of the file and the minutes of the hearing, the legally valid and favorable evidence collected and examined and discussed in the decision, the reasoning and the discretion of the judge; it was understood that there was no violation of the procedure and the law in accepting that the crimes were committed by the defendant, and the other reasons for appeal were not deemed appropriate.
However;
1) In the face of the understanding that the defendant committed theft by climbing into the house of the complainant living on the fourth floor of the building by using the balcony bars of the lower floors, since the act of theft was not committed against the goods carried in the hand or on the body, instead of Article 142/1-b of the Turkish Penal Code, the application of Article 142/2-b of the same Law instead of Article 142/1-b of the Turkish Penal Code, which corresponds to the action of the defendant, and the imposition of excessive punishment,
2) Regarding the crime of theft, the fact that the participant stated that he fell asleep around 00.10 at night and woke up at 07.00 and realized that his house was burglarized in the meantime, that the sun rose at 07.15 and set at 17.02 on the date of the crime, and that the night ended at 06.15, taking into account the provision of Article 6/1-e of the TPC and the summer time application seen in the UYAP system. In the face of the fact that it was understood that it ended at 15 p.m.; due to the proximity of the time when the crime was reported to have been committed and the starting time of night time, it should be accepted that the act was committed during the daytime in accordance with the rule of “the accused benefits from the doubt”, and without showing and discussing what the evidence of the act being committed at night consisted of at the place of decision, applying Article 143 of the Law No. 5237 and sentencing with Article 116/4 of the aforementioned Law for the crime of disturbing the inviolability of the dwelling on the same grounds,
3)According to the incident report dated 28/04/2008 available in the file and the defendant’s confession, when the defendant was caught after another act of theft, it was understood that the defendant showed the house of the participant from whom he stole the pistol caught in his house and that the pistol, which was one of the stolen items, was delivered to the participant; first of all, by asking the complainant whether she consented due to partial return, it was not observed that the application conditions of the effective remorse provision defined in Article 168/1-4 of the TPC No. 5237 should be discussed,
According to the acceptance;
4) The 3-year imprisonment sentence determined in accordance with Article 142/2-b of the Turkish Penal Code No. 5237, due to the action of the defendant determined for the offense of theft, was increased by 1/6 in accordance with Article 143 of the aforementioned Law, from 3 years and 6 months imprisonment to 4 years imprisonment,
…/…
In accordance with Article 62, when a 1/6 reduction was made, an excessive sentence was determined by sentencing to 3 years and 4 months imprisonment instead of 2 years and 11 months imprisonment,
5)Although it was decided with the interim decision dated 13/10/2009 to take the additional defense of the defendant in accordance with Article 142/2-b of the Turkish Penal Code, the defendant was punished in accordance with Article 142/2-b of the Turkish Penal Code, which did not give the right to additional defense, contrary to Article 226 of the Code of Criminal Procedure No. 5271, by giving the right to additional defense over Article 58 of the Turkish Penal Code in the instruction statement,
6)Since the annulment decision of the Constitutional Court of the Republic of Turkey on Article 53 of the TPC, numbered 2014/140 Main and 2015/85 Decision, was published in the Official Gazette dated 24.11.2015 and numbered 29542, it is imperative to re-evaluate the deprivation of rights under Article 53 of the TPC in line with the annulment decision,
Since the reasons of appeal of the defendant … were deemed appropriate in this respect, it was decided on 15.02.2016 with the majority of votes that the verdicts be DISMISSED in accordance with the notification for the reasons explained.
(Dissenting) (Dissenting)
DISSENTING OPINION
There is no doubt that the defendant committed the crime of theft by going up to the building of the victim on the 4th floor, which is 10 meters above the ground, by using personal agility, that is, special skill, and entering through the balcony door, and the existence of special skill was confirmed in the expert report prepared as a result of the discovery.
In subparagraph (b) of Article 142/2 of the TPC, two types of qualified cases are regulated, one of which is “taking the property in the person’s hand or on the person” and the other is “taking the property with special skill”.
If we link special skill (special skill) to the property in the hand or on the person, it would be a very unnecessary phrase. Such an acceptance is contrary to the will of the Legislator, which we think is clearly understood in the subparagraph. Because when the item in contact with the victim is taken, there will be no need for special skill for the application of the qualified case.
Moreover, in the justification of the subparagraph, it is stated that “The cases of theft committed by pickpocketing and personal agility are included in the scope of the subparagraph, and the application of the subparagraph is also provided for the acts committed by accustoming an animal and taking advantage of it.” and it is revealed that the subparagraph does not only cover the goods on the body or in the hand. “We see a similar situation in subparagraphs (a) and (c) of the first paragraph and subparagraphs (a), (d), (f) and (h) of the second paragraph of Article 142 of the TPC and apply it in this way.
It cannot be ignored that the text of the law and the justification were prepared by the same commission, that no changes were made to them, and that the justification of the relevant subparagraph of the article, which is the most important document revealing the purpose of the Legislator, clearly states that “personal agility” falls within the scope of the subparagraph.
For the reasons explained, we do not agree with the majority’s acceptance numbered (1) in the direction of reversal, on the grounds that the court based its judgment on the correct qualified state.