TC
SUPREME
CRIMINAL CHAMBER
FILE NO: 9306/2014
DECISION NO: 2014/24636
DATE OF DECISION: 09.09.2014
COURT THAT ISSUED 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: The defendant’s defense
An appeal was filed against the decision rendered by the local court, but the file was reviewed and deemed necessary:
Based on the contents of the files and trial minutes, the legally valid and favorable evidence gathered and discussed in the decision, the reasoning, and the judge’s discretion, it was understood that there was no procedural or legal violation in accepting that the crime was committed by the child who was driven to commit the crime, and the other objections were not considered valid.
However, according to Article 61/1 of Turkish Commercial Code No. 5237, whether the value of the goods is low or high is a criterion for deviating from the lower limit in determining the fine, and the low value of the goods subject to the crime of theft is separately regulated in Article 145. This situation demonstrates the importance that the legislator attaches to the low value of the goods in the crime of theft.
As stated in the Supreme Court Criminal General Assembly’s ruling dated December 15, 2009, No. 6/242-291, “…taking only what is necessary and taking the less valuable item when there is an opportunity to take more” is included in Article 145 of the Turkish Criminal Code. Although it is not possible to completely reject the application of the article, it is also not possible to limit the article solely to this definition. Both the original and amended versions of Article 145 are based on the fact that the value of the property constituting the subject matter of the crime of theft is small, according to the general definition.
According to Article 145 of the Turkish Penal Code, for the offender to receive a reduced sentence, it is sufficient that the value of the property is low, and the judge determines the reduction rate in accordance with Article 3 of the Turkish Penal Code. As stated in the article, it must be determined in proportion to the severity of the act committed. If a decision is made to refuse to pay a fine due to worthlessness, the manner and characteristics of the crime and the worthlessness of the goods must also be taken into account.
Pursuant to Article 145 of the Turkish Penal Code, the judge is granted discretion in the application of the article, and the judge must exercise this discretion without acting arbitrarily, in accordance with each specific case, and with legal and sufficient justification.
In a specific example, although it was understood that the child involved in the crime stole two door locks with a total value of 18.00 TL from a workplace where the customer’s construction materials were sold, it was erroneously concluded that the sentence should be reduced in accordance with Article 145 of the Turkish Penal Code due to the low value of the stolen goods, rather than the manner and characteristics of the crime. In this regard, the defense counsel’s objections were duly examined, and on September 9, 2014, it was unanimously decided to revoke the ruling stated in the notification for the reasons indicated.