Theft is regulated in the section on Crimes Against Property in the Turkish Penal Code (TCK).
The crime of theft is defined as a person unlawfully taking or using someone else’s property without permission. This can occur in many different ways, such as stealing items from a home or workplace, taking a wallet or bag, or withdrawing money from another person’s bank account.
Article 141 of the TCK defines the basic form of the crime as follows: “Anyone who takes movable property belonging to another person from its location without the consent of the possessor, with the intention of providing benefit to themselves or someone else, shall be punished with imprisonment from one to three years.”
Investigation and Prosecution of Theft Crime
The investigation and prosecution of the simple form of theft crime specified in Article 141 of the Turkish Penal Code (TCK) and the aggravated form specified in Article 142 are not subject to a complaint. However, if the theft crime is committed on property jointly owned or co-owned by partners, or for the purpose of collecting a debt arising from a legal relationship, or if the property is temporarily used and intended to be returned to the possessor, an investigation is conducted by the prosecutor upon complaint. The complaint is not subject to any formal requirements but is subject to a 6-month statute of limitations.
Settlement in Theft Crimes
Articles 141 and 142 of the Turkish Penal Code (TCK) are not subject to complaint for investigation and prosecution. However, according to Article 253, paragraph 1 of the Criminal Procedure Code No. 5271, regardless of whether it is subject to complaint or not, theft under Article 141 is considered one of the catalog crimes and is therefore within the scope of reconciliation.
Similarly, the cases listed under Article 144 of the Turkish Penal Code, involving theft committed on jointly owned property or property owned in common, for the purpose of collecting a receivable based on a legal relationship, and theft committed by temporarily using the property and returning it to the possessor, are subject to investigation only upon complaint, and therefore fall within the scope of reconciliation.
Intent and Negligence in Theft Crime
Theft is a crime that can only be committed intentionally. The Turkish Penal Code (TCK) does not provide for a negligent form of theft. Theft cannot be committed through negligence. Regarding attempt, the stage at which the crime is amenable to attempt is from the start of the execution acts until the crime is completed. Once the crime is completed, it is no longer considered an attempt.
According to the decision of the Supreme Court General Criminal Assembly dated 14.03.2017, numbered 2016/13-260 E. and 2017/135 K.:
“In the incident where it is established that the defendants came to the front of the plaintiff’s workplace located on a street with the intent to commit theft, broke the locks on the right side of the shutter at the entrance door, and forced the point where the display window glass and the shutter meet, but fled the scene before entering the workplace due to the arrival of security forces following a report, considering the objective theory adopted by the law, the defendants who broke the lock on the shutter of the door of the plaintiff’s workplace to commit theft intervened in the plaintiff’s dominion and control area protecting the movable property, and started the acts suitable to the legal definition of the crimes of theft and violation of workplace inviolability. However, since they fled the scene without entering and completing the theft due to the arrival of security forces, when these acts are evaluated together, it must be accepted that their acts constitute not only the completed crime of property damage but also an attempt of qualified theft and violation of workplace inviolability.”
Theft does not have any special features regarding participation (accomplices).
Article 142 of the Turkish Penal Code (TCK) enumerates and defines the qualified forms of the theft crime.
The legal value protected by the theft crime is the right of ownership together with possession (custody). In the decision of the Supreme Court Criminal General Assembly dated 10.05.2016, numbered 2014/13-159 E. and 2016/257 K., it is stated:
“The legal interest protected by the theft crime is possession along with the right of ownership. The law uses the term ‘possessor’ (zilyet) and the phrase ‘belonging to another’ simultaneously. In this way, the legislator differentiates possession from ownership in the theft crime by covering two different legal situations simultaneously and protects both.” This expresses the recognition that the legal interest protected by theft includes both ownership rights and possession.
The subject of the theft crime is movable property belonging to others. Anyone can be the perpetrator or the victim of theft. The victim must have possession or physical control of the movable property. For theft to occur, the movable property must be taken from the place where it is held. Taking occurs when the property is removed from the dominion area of the possessor and brought into the dominion area of the perpetrator. The act of taking means terminating the victim’s possession over the property constituting the subject of the crime, making it impossible for the victim to exercise their possessory rights over the stolen item. Once this control is removed, the crime is completed.
Aggravating Circumstances in Theft Crimes
Article 142- (1) In cases of theft involving;
a) Property located in public institutions and organizations or places designated for worship, or property allocated for public benefit or service, regardless of ownership,
b) Property inside transportation vehicles made available for public use or at designated departure or arrival points of such vehicles,
c) Property prepared to prevent or mitigate damages caused by a disaster or a general catastrophe,
d) Property left exposed due to customs, allocation, or usage requirements,
the perpetration of such theft shall be punishable by imprisonment from three to seven years.
(2) The crime committed by:
a) Taking advantage of a person being unable to protect their property or being deceased,
b) Snatching or taking items carried in the hand or on the person, or by using special skill,
c) Exploiting fear or chaos caused by a natural disaster or social events,
d) Illegally possessing or using a counterfeit key or other tool to open a lock or prevent it from locking,
e) Using information systems,
The interpretation regarding theft committed through the use of information systems, as stated in the Supreme Court decision numbered 001/6-30 and dated 10.04.2001 (decision number 2001/57), is as follows: (…) Although there have been many different and varying opinions in national and international legal fields about the definition and description of cybercrimes, and even no consensus on the criteria distinguishing these crimes from traditional crimes, it must be accepted that information crimes—referred to as the misuse of informatics (information) systems and necessarily involving the use of a computer system—can only be committed by persons knowledgeable about informatics technology. Accordingly, to speak of a cybercrime, it is necessary that the system is directed by loading incorrect data or by interfering with one of the stages of the data processing procedure (…)
f) Taking measures to avoid being recognized or assuming an official title without authorization,
g) Involving large or small livestock,
h) Concerning goods left in a place accessible to everyone but secured by locking, or goods kept under protection within a building or its annexes,
If committed, a prison sentence of five to ten years shall be imposed.
If the crime is committed in the manner specified in paragraph (b) of this subsection against a person who is physically or mentally incapable of defending themselves, the penalty shall be increased by up to one third.
(3) If the crime is committed regarding energy in liquid or gas form and in facilities related to their transportation, processing, or storage, a prison sentence of five to twelve years shall be imposed. If this act is committed within the scope of an organization’s activities, the penalty shall be increased by half and a judicial fine of up to ten thousand days shall be imposed.
(4) In cases where the crime of theft involves violation of residential inviolability or damage to property, no complaint is required for investigation and prosecution of these offenses.
(5) If the commission of the theft causes even temporary disruption in public services related to communication, energy, railway, or air transportation, the penalty to be imposed according to the provisions of the above paragraphs shall be increased from half to twice the amount.
Commission of Theft During Nighttime
Article 143- (1) If the theft crime is committed during nighttime, the penalty to be imposed is increased by half.
For example, in the decision numbered 2019/12666 of the 12th Criminal Chamber of the Supreme Court, although the defendant was convicted on the grounds of committing theft at night, the ruling was overturned on the basis that the “nighttime” qualification, which is an “aggravated” form of theft, did not occur in the concrete case.
Circumstances Requiring Lesser Punishment in Theft Crimes
Article 144- (1) In cases where the theft crime is committed;
a) On property owned jointly or in partnership,
b) For the purpose of collecting a claim based on a legal relationship,
upon complaint, the perpetrator shall be sentenced to imprisonment for a period ranging from two months to one year or a judicial fine.
The Low Value of the Stolen Property
Article 145 – (1) Due to the low value of the property constituting the subject of the theft offense, a reduction in the sentence may be applied, or considering the manner and circumstances of the commission of the crime, the punishment may be waived altogether.
Supreme Court 17th Criminal Chamber, Case No. 2018/5991 – Decision No. 2019/82
Although the penalty cannot be waived due to the manner and characteristics of the offense committed by the juvenile who stole 35.00 TL in coins from the workplace, a reduction in the sentence must be applied in accordance with Article 145 of the Turkish Penal Code (TCK) due to the low monetary value of the stolen property, and a decision should be made accordingly.
The Crime of Theft and Theft for Use
Article 146 – (1) If the crime of theft is committed by temporarily using the property and intending to return it to the possessor, the penalty imposed upon complaint shall be reduced by up to half.
However, this provision does not apply if the property was used to commit a crime.
Theft Crime in a State of Necessity
Article 147 – (1) If the theft crime is committed to meet a serious and urgent need, depending on the nature of the incident, a reduction in the penalty may be applied, or the penalty may be waived altogether.
Effective Remorse in Theft Crime
Effective remorse in theft crime involves actions such as the thief returning the stolen property or compensating for it in another way after the crime has been committed, cooperating with the injured person or organization, or assisting in clarifying the crime. These actions may reduce or compensate for the damage caused by the commission of the crime.
According to Article 168 of the Turkish Penal Code (TCK); if a person who committed theft shows remorse after the crime is completed but before the prosecution begins, by returning the damage suffered by the victim exactly or compensating for it, the penalty to be imposed is reduced by up to two-thirds.
Execution Regime in Theft Crimes
Although there have been periodic changes to the execution laws in our country, all of the changes made have been in favor of theft offenses. Most recently, with the execution regulation law numbered 7242, conditional release during the execution phase for theft was set at 1/2. For repeated theft offenses subject to recidivism under Articles 58/6 and 7 of the Turkish Penal Code (TCK), the conditional release ratio, which was previously 3/4, was changed to 2/3 in favor of the offenders. The probation period for theft crimes has always been longer compared to other offenses, mainly because theft is not considered among exceptional crimes such as sexual offenses, terrorism, or intentional homicide.
If a decision is made to postpone the announcement of the verdict for a person who committed theft, the defendant is subject to probation for 5 years. If the person does not commit an intentional crime during this 5-year probation period, the sentence is dropped.
Supreme Court 17th Criminal Chamber Case No. 2015/5233 Main – Decision No. 2015/7335
If the defendant did not have the intent to commit theft, did not act with the intention of acquiring property, and acted with the intent to cause harm to the complainant, no penalty shall be imposed on the defendant for the crime of THEFT.
Supreme Court 2nd Criminal Chamber Case No. 2019/1401 Main – Decision No. 2019/5172
After being caught by law enforcement officers, the accused showed the places where they stole the motorcycles involved in the crime and ensured their return to the complainants who had not yet filed a complaint. Considering that the complainants declared in their statements at various stages that they had suffered no damage, the provisions of active repentance should be applied to the children involved in the crime.
Supreme Court 6th Criminal Chamber Case No. 2020/11315 Main – Decision No. 2021/13861
If the defendant is caught after leaving the store following continuous pursuit inside the shopping mall, the provisions related to attempt shall be applied.
