The Crime of Disposing of Lost or Mistakenly Acquired Property
This offense, regulated under Article 160 of the Turkish Penal Code, occurs when a person, without returning it or notifying the competent authorities, disposes of property that has either left the possession of its owner due to being lost or has been obtained by mistake, as if they were the rightful owner.
Although this crime may appear similar to simple theft, in essence, it differs — the criminal act does not arise at the moment of acquiring the property, but from the subsequent intention and will to keep or use it as one’s own.
In other words, the property may have come into the perpetrator’s possession accidentally or by mistake; however, their conscious decision not to return it and to use or dispose of it constitutes the crime.
For culpability to arise, it is not necessary that the perpetrator had criminal intent at the time they obtained the property.
However, once they realize that the property was lost or given to them by mistake, an obligation to return it arises.
Failure to comply with this obligation triggers criminal liability.
The Penalty for the Crime of Disposing of Lost or Mistakenly Acquired Property
The crime of disposing of lost or mistakenly acquired property is regulated under Article 160 of the Turkish Penal Code as follows:
“Any person who, without returning it or notifying the competent authorities, disposes of property that has either left the possession of its owner due to being lost or has been obtained by mistake, as if they were the owner, shall be punished — upon complaint — with imprisonment for up to one year or a judicial fine.”
As can be seen, the law prescribes a penalty of up to one year of imprisonment or a judicial fine for this offense.
Is the Crime of Disposing of Lost or Mistakenly Acquired Property Subject to a Complaint?
The crime of disposing of lost or mistakenly acquired property is subject to a complaint.
Is the Crime of Disposing of Lost or Mistakenly Acquired Property Subject to Reconciliation?
The crime of disposing of lost or mistakenly acquired property is subject to reconciliation.
Statute of Limitations
Since the crime of disposing of lost or mistakenly acquired property is subject to a complaint, the statute of limitations period is six months.
Postponement of the Sentence
Pursuant to Article 51 of the Turkish Penal Code, “The execution of a prison sentence of two years or less imposed on a person for an offense may be postponed.”
Therefore, the postponement of the sentence may be decided in relation to this offense.
Judicial Fine
For the crime of disposing of lost or mistakenly acquired property, the law provides for an alternative sanction — either imprisonment or a judicial fine. Therefore, if a prison sentence is imposed, it cannot be converted into a judicial fine.
Deferred Announcement of the Verdict (HAGB)
A decision to defer the announcement of the verdict (HAGB) may be made in relation to this offense. For an HAGB decision to be granted, the following conditions must be met:
- The defendant must not have been previously convicted of an intentional crime,
- The court must be convinced, taking into account the defendant’s character, attitude, and behavior during the trial, that they are unlikely to commit another offense,
- The damage caused to the victim or the public by the offense must be fully remedied through restitution, restoration to the previous state, or compensation.
Competent Court
The competent court for trying the crime of disposing of lost or mistakenly acquired property is the Criminal Court of First Instance.
Precedent Decisions
“As a result of the investigation conducted regarding the offense of disposing of property lost or obtained by mistake, upon the request for reversal in favor of the law;
In the concrete case, it was determined that the complainant filed a complaint alleging that his mobile phone had been stolen, providing the brand and IMEI number of the phone. However, no investigation was carried out regarding the incident. It is necessary to obtain the HTS (Call Detail Records) of the phone to identify the individuals who used the phone after the date of the incident, and after receiving the complainant’s detailed statement about the location where the incident occurred, to investigate whether there are any security camera recordings from the workplaces in the area. If such recordings exist, they should be reviewed and transcribed.
Accordingly, it has been understood that the investigation must be expanded, and based on the results, a substantive assessment should be made regarding the decision of non-prosecution.”
(Criminal Chamber No. 2 of the Court of Cassation, E. 2018/2766, K. 2018/6733, Decision Date: 23.05.2018)
“H.. Ç.. applied to the Erciş District Governor’s Office on 10.02.2009, stating that his licensed hunting rifle had been lost during the flood disaster that occurred in 2007 in the Erciş district of Van province, and he also placed a lost-item notice in the local newspaper.
During an investigation conducted against the defendant for the crime of intentional homicide, it was determined that the firearm registered as criminal evidence and used in the offense belonged to H.. Ç… Since the defendant stated in his defense that the said hunting rifle had belonged to his deceased father, it has been understood that the defendant’s act constitutes the offense of “disposing of property lost or obtained by mistake” regulated under Article 160 of the Turkish Penal Code (TCC).
Accordingly, both the owner of the hunting rifle, H.. Ç.., and the defendant should have been summoned to the hearing, and H.. Ç.. should have been asked whether he wished to file a complaint. If he stated that he withdrew his complaint, the defendant should then have been asked whether he accepted this withdrawal. Based on the outcome, a judgment should have been rendered for the offense of disposing of property lost or obtained by mistake under Article 160 of the TCC, or the case should have been dismissed in accordance with Articles 73/4–6 of the TCC and 223/8 of the Criminal Procedure Code No. 5271.
However, without taking this into account and due to a mischaracterization of the offense, the court erroneously applied Article 165 of the same law.”
This necessitated reversal, and since the defendant’s and defense counsel’s appeals are therefore deemed justified, the judgment is REVERSED for this reason.
(Criminal Chamber No. 2 of the Court of Cassation, E. 2014/20137, K. 2015/23869, Decision Date: 23.12.2015)
“On the day of the incident, the victim, who had stopped at a rest facility, forgot his wallet containing his ID card, driver’s license, money, a check, and various business cards in the restroom. Shortly after, when he returned, he could not find his wallet. The defendant, who entered the same restroom, took the wallet, spent the money inside, and was later identified and apprehended at the bank on the day he went to cash the check.
In order for the offense of disposing of lost or mistakenly acquired property to apply, the property must be considered lost — meaning the owner does not know its whereabouts and it has left the owner’s sphere of control, so that the owner no longer has the opportunity to possess it. In this concrete case, the victim knew that the wallet was in the restroom he had used and, shortly after leaving, realized it was no longer there when he returned to retrieve it. On the other hand, the defendant knew that the wallet belonged to the victim based on the ID and driver’s license inside it.
Without considering this, and by mischaracterizing the act, the court treated the offense as disposing of lost or mistakenly acquired property under Article 160 of the Turkish Penal Code, instead of recognizing that the defendant’s act constituted theft under Article 142/1-b of the Turkish Penal Code. Consequently, a dismissal for lack of complaint was incorrectly issued.
RESULT: This required reversal, and since the appeals of the local Public Prosecutor were deemed justified on this basis, the judgment is REVERSED for this reason.”
(Criminal Chamber No. 2 of the Court of Cassation, E. 2013/16167, K. 2014/4878, Decision Date: 24.02.2014)
Lawyer. Gökhan AKGÜL & Lawyer. Züleyha APAYDIN
