Crime of Damage to Property - Av. Gökhan Akgül

The crime of damage to property is regulated under Chapter 10 of the Turkish Penal Code, titled “Crimes Against Property.” This offense is defined in Article 151 of the Turkish Penal Code (TPC), and its aggravated forms are set forth in Article 152. These provisions aim to protect individuals’ property values. Those who partially or completely destroy, damage, pollute, or render unusable another person’s property are subject to the penalties prescribed by the law.

The legal interest protected under the crime of damage to property is the right of ownership, which is closely tied to the individual and guaranteed by the Constitution. In this context, both movable and immovable properties belonging to individuals are protected under the relevant legal provisions and may constitute the subject of the crime of damage to property. By penalizing acts of property damage, not only is the right of ownership safeguarded, but also the integral parts, natural products, and appurtenances of the property, as regulated under Articles 684, 685, and 686 of the Turkish Civil Code (TCC), are also protected and may become the subject of the offense.

One of the fundamental differences between the crime of damage to property and theft lies in the nature of the right that is violated. Theft involves an attack on the possession of a movable asset held by a person and the resultant harm caused by that act. In contrast, the crime of damage to property involves harm that constitutes an attack on a person’s right of ownership. In this regard, the act committed by the perpetrator targets a different legal right. The right protected under the crime of damage to property is the victim’s right of ownership and its associated values.

The crime of damage to property is a type of offense that can be committed through alternative actions. The offense is considered to have occurred if any one of the alternative actions specifically defined and limited by law is carried out.

>>The optional acts listed in the law can be enumerated as follows: Movable or immovable property owned by individuals, as well as the integral parts, natural products, and appurtenances of such property;

To partially or completely demolish,
to destroy,
to eliminate,
to damage,
to render unusable,
or to pollute.

Attempting to commit the offense of property damage is possible under Article 35, paragraph 2 of the Turkish Penal Code. If the perpetrator acts deliberately and intentionally with the aim of causing a specific result, but their action is interrupted by an external factor beyond their control and the intended result does not occur, then the act is considered to have remained at the attempted stage. In this context, if the perpetrator initiates an act with the intention of damaging property, but due to an external factor the act is interrupted before any damage is caused, it will constitute an attempt to commit the offense of property damage. In such a case, while sentencing the perpetrator, the provisions on attempt as regulated in the law will be taken into consideration.

Article 151 –
(1) A person who partially or completely demolishes, damages, destroys, spoils, renders unusable, or pollutes another person’s movable or immovable property shall be punished, upon the complaint of the victim, with imprisonment from four months to three years or a judicial fine.
(2) (Repealed: 9/7/2021 – Law No. 7332/Article 17)

Article 152 –
(1) If the offense of damaging property is committed:
a) Against a place, building, facility, or other property belonging to public institutions and organizations, allocated for public service or reserved for public use,
b) Against any kind of property or facility designated for protection against fire, flood, accident, or other disasters,
c) Against any kind of standing tree, sapling, or vine stock, regardless of its location, except for those in areas classified as State forests,
d) Against facilities used for irrigation, drinking water supply, or disaster prevention,
e) During a strike or lockout, against buildings, facilities, or property owned or used by employers, employees, or employers’ or workers’ unions or confederations,
f) Against buildings, facilities, or property owned or used by political parties, professional organizations with public institution status, and their higher organizations,
g) Even if the term of office has ended, with the intent of taking revenge on a public official due to their official duty,

the offender shall be sentenced to imprisonment from one to four years.
(2) If the offense of damaging property is committed:
a) By setting fire, or by using flammable or explosive materials,
b) By causing landslides, avalanches, floods, or inundations,
c) By exposing the property to radiation, or by using nuclear, biological, or chemical weapons,

the sentence shall be increased by up to one fold.

(3) (Added: 18/6/2014 – Article 6545/65)
If the offense of damaging property results in the disruption, even temporarily, of a public service in the fields of communication, energy, or railway or airway transportation, the sentence to be imposed under the above paragraphs shall be increased by one-half to twofold.

The Complaint Requirement in the Crime of Property Damage

The crime of property damage is subject to complaint under the provisions of Article 151 of the Turkish Penal Code (TCK). This means that if the simple form of the crime of property damage is committed, the victim's complaint will be required in order for the prosecution of the crime to proceed. In Turkish criminal law, the statute of limitations for crimes subject to complaint is a 6-month period, which is a time-bar. The person who has suffered damage from the crime must file a complaint within 6 months from the time they learn about the offender or the act. The victim must submit their complaint to the relevant authorities within this 6-month period. If the 6-month period is missed, the victim may request the restoration of the situation if there is a legitimate reason for the delay. However, in cases involving aggravated forms of property damage regulated under Article 152 of the TCK, no complaint from the victim is required for an investigation to be initiated. In such cases, the prosecutor will initiate the investigation ex officio.

Statute of limitations for the crime of property damage

 For the aggravated form of the crime of property damage regulated under Article 152 of the Turkish Penal Code (TCK), the prosecution must initiate an investigation within 8 years from the commission of the crime. The statute of limitations for the crime of property damage is 8 years. If 8 years have passed since the commission of the crime, no prosecution can be conducted against the defendant for the crime of property damage.

Mediation in the Crime of Property Damage

According to Article 253 of the Code of Criminal Procedure No. 5271, certain offenses are subject to mediation. Under Article 253/1-b of this law, the simple form of the crime of property damage, regulated under Article 151 of the Turkish Penal Code, is also among the offenses subject to mediation. In order to continue the prosecution for the simple form of the crime of property damage, a mediation procedure must be applied between the victim and the perpetrator. If the parties cannot reach an agreement, the prosecution must continue. The mediation procedure can be applied during both the investigation and prosecution stages of the trial. As stated, it is mandatory for the mediation procedure to be applied in order to proceed with the prosecution of the crime for both parties.

The Mental Element of the Crime of Property Damage (Intent, Negligence)

The crime of property damage is an intentionally committed offense. There is no need to look for special intent in the commission of the crime; general intent is sufficient. The perpetrator's personal motive is not required in the commission of the crime of property damage. However, if the perpetrator commits the crime of property damage by mistake, believing the property to belong to someone else, but it actually belongs to them, the provisions of Article 30 of the Turkish Penal Code (TCK) regarding mistake will apply, and the perpetrator will not be subject to punishment.

It is also possible to talk about eventual intent in the crime of property damage. If the perpetrator intends to commit the act of property damage, recognizes what the result will be, but does not care about whether the result actually occurs, the crime can be considered as committed with eventual intent.

In criminal law, for a crime to be committed negligently, the negligent form of the offense must be regulated by law according to the principle of legality in crimes and punishments. In the case of property damage, the Turkish Penal Code does not include a negligent form of the offense. Therefore, it is not possible to commit the crime of property damage through negligence. If the perpetrator, under the provisions of Article 22 of the Turkish Penal Code, commits the act without foreseeing the outcome and without desiring the result, they cannot be punished. This situation is particularly significant in frequent traffic accidents. In traffic accidents where only material damage occurs, if the damage is caused because the parties did not want or foresee such damage, they will not be held responsible for the crime of property damage.

Aggravating Circumstances in the Crime of Property Damage

The penalty for the simple form of the crime of property damage, as regulated under Article 151 of the Turkish Penal Code (TCK), is imprisonment from four months to three years or judicial fines. The penalty for the simple form of property damage will either be imprisonment or judicial fines, but both penalties cannot be imposed together. The qualified forms of property damage, as outlined in Article 152 of the TCK, provide for a higher penalty in cases of property damage. According to Article 152/1 of the TCK, the qualified forms of the crime of property damage include:

Regarding property, buildings, facilities, or other items owned by public institutions and organizations, allocated for public services, or designated for the public’s use:
Regarding any items or facilities allocated for protection against fire, flood, accident, and other disasters:
Regarding any planted trees, saplings, or vine poles, wherever located, except for areas designated as state forests:
Regarding facilities used for irrigation, provision of drinking water, or protection from disasters:
Regarding buildings, facilities, or items owned or used by employers or workers, or by employers’ or workers’ unions or confederations during strikes or lockouts:
Regarding buildings, facilities, or items owned or used by political parties, professional organizations with the status of public institutions, and their higher organizations:
In the event of damage to property of a public officer, even after the termination of their duties, with the intention of seeking revenge for their position, the penalty for the perpetrator of the crime of property damage will be increased, and the offender may face up to four years of imprisonment. Similarly, under the conditions outlined in Article 152/2 of the Turkish Penal Code, the penalty for the perpetrator will also be increased. According to Article 152/2 of the Turkish Penal Code:

If the crime is committed by:

Burning, using corrosive or explosive substances,
Causing a landslide, avalanche, flood, or other disasters,
Exposing to radiation, or using nuclear, biological, or chemical weapons,

The penalty for the perpetrator will be increased, and the penalty will be doubled, with a judgment being passed against the perpetrator. In the event of the conditions outlined in Article 152/3 of the Turkish Penal Code, the penalty for the crime of damaging property will also be increased. According to Article 153/3 of the Turkish Penal Code:

If, as a result of the commission of the crime of damaging property, there is a temporary disruption in public services in the fields of communication, energy, or railway or air transportation,
the penalty to be imposed on the perpetrator for the crime of damaging property will be increased by up to twice the penalty stipulated by the law.

Additionally, the provisions on complicity outlined in Article 37 and subsequent articles of the Turkish Penal Code may also apply within the scope of the crime of damaging property. It is possible for the crime of damaging property to be committed in complicity. As a result of the commission of the crime of damaging property in complicity, the penalty to be imposed on the perpetrator may be increased in accordance with the legal provisions on complicity, based on the specific circumstances of the case.

Mitigating Circumstances in the Crime of Damaging Property

In the crime of damaging property, circumstances that require the offender to receive a lesser sentence than the one prescribed by the relevant legal provisions are regulated in Article 167 of the Turkish Penal Code (TCK). According to Article 167 of the TCK, as stated in the content of the judgment, if the crime of damaging property is also regulated, the offender will not be sentenced, or the amount of reduction prescribed in the judgment will be applied to the sentence. According to Article 167 of the TCK;

(1) Except for robbery and aggravated robbery, the crimes listed in this section;
a) One of the spouses for whom no divorce decree has been issued,
b) One of the ascendants or descendants, or a relative of the same degree of in-laws, or an adoptive parent or adopted child,
c) One of the siblings living together in the same household,

If the crime is committed to the detriment of the related relative, no penalty shall be imposed on the relevant relative.

(2) If these crimes are committed to the detriment of one of the spouses for whom a divorce decree has been issued, one of the siblings who do not live together in the same household, an uncle, aunt, maternal uncle, paternal aunt, nephew, or second-degree in-laws living in the same household, the penalty to be imposed on the relevant relative, upon complaint, shall be reduced by half.

If one of the conditions mentioned in the first paragraph of the legal provision is present in the commission of the crime, no penalty will be imposed on the offender. If the familial relationship specified in the second paragraph of the law is present within the scope of the crime, a reduction in the penalty imposed on the offender will apply.

Additionally, if there are circumstances such as self-defense or necessity, which are legal justification reasons that eliminate criminal responsibility, these may apply within the scope of the crime of damaging property.

Effective Remorse in the Crime of Damage to Property

According to the principle of legality, which is one of the fundamental principles of Turkish criminal law, for the provisions of effective remorse to be applied within the scope of a crime, the institution of effective remorse must be regulated by law for that specific crime. Provisions for effective remorse are regulated in the section of our law dealing with crimes against property, which includes the crime of damage to property. In this context, according to Article 168 of the Turkish Penal Code, if the conditions listed in the effective remorse provision are met within the scope of the crime of damage to property, the institution of effective remorse may be applied when sentencing the offender. According to Article 168 of the Turkish Penal Code;

(1) If the crimes of theft, damage to property, abuse of trust, fraud, fraudulent bankruptcy, negligent bankruptcy (…) are completed, and before prosecution begins, the perpetrator, instigator, or accomplice demonstrates genuine remorse by fully compensating the victim’s damage either by returning or making amends, the sentence may be reduced by up to two-thirds.

(2) If genuine remorse is shown after prosecution has begun, but before a judgment is made, the sentence may be reduced by up to half.

(3) In cases of the crime of robbery, if genuine remorse is shown, the sentence may be reduced by up to half in cases covered by paragraph 1, or by up to one-third in cases covered by paragraph 2.

(4) In cases of partial restitution or compensation, in order for the provisions of genuine remorse to be applied, the victim’s consent is also required.

(5) (Added: 2/7/2012 – 6352/84th article) In the case of the crime of unjust enrichment, if the perpetrator, instigator, or accomplice shows remorse and fully compensates the victim’s, public’s, or private legal entity’s damage before the investigation is completed, no public case will be filed; if the damage is fully compensated before judgment is given, the sentence may be reduced by up to one-third. However, a person cannot benefit from this provision more than twice.

The Execution Regime for the Crime of Property Damage

In the crime of property damage, as stated in the law, the penalty of imprisonment or a judicial fine is provided as an alternative punishment. If the defendant is sentenced to imprisonment for the crime of property damage, this can be converted into a judicial fine under certain legal conditions. As mentioned earlier, in the case of the simple form of the crime, imprisonment and a judicial fine cannot be applied together.

One of the criminal procedure institutions, the suspension of the pronouncement of the judgment (HAGB), also applies to the crime of property damage. According to the decision of suspending the pronouncement of the judgment, if the defendant does not commit any crime during the probation period specified under Article 231 of the Criminal Procedure Code (CMK), the punishment imposed will not be enforced, and the criminal case against the defendant will be dismissed as if the defendant had never been punished. However, according to the recent regulation, the Constitutional Court's decision of 01/08/2023 has annulled the provision on HAGB. This decision will come into force on 01/08/2024, and until that date, the conditions of HAGB can still be applied if they are present in the specific case. However, as of 01/08/2024, the application of HAGB provisions will no longer be possible.

Additionally, the suspension of the sentence, a personalized measure regulated under Article 51 of the Turkish Penal Code (TCK), may also be applied to the defendant in the crime of property damage. Under the suspension of the sentence, the defendant's imprisonment may be conditionally waived, and a probationary period will be specified by law. If the defendant completes this probationary period in good conduct, they will be considered to have served their sentence, and the punishment will no longer be enforced in penal institutions.

Example Court of Cassation Decisions Regarding the Crime of Property Damage

17th Criminal Chamber 2019/2346 E., 2019/6717 K.

“Precedent Text”
COURT: Criminal Court of First Instance
OFFENSES: Theft, Damage to Property
VERDICTS: Conviction

The local court’s rulings regarding the offenses of theft and damage to property committed by the juvenile … have been appealed. The case was reviewed based on the appeal deadlines, the nature of the decisions, and the dates of the offenses:

I) In the review of the appeal requests regarding the judgment established for the theft offense committed by the juvenile …;
Based on the case file, hearing records, and the valid and sufficient legal evidence gathered and discussed in the decision-making process, the reasoning, and the judge’s discretion, the appeal grounds of the juvenile … and his/her defense lawyer were not found to be valid. Therefore, the judgment is upheld in accordance with the public prosecutor’s recommendations, and the rulings are confirmed as compliant with procedure and law.

II) In the review of the appeal request regarding the judgment established for the offense of damage to property committed by the juvenile …;
As stated in the decision of the Court of Cassation’s General Assembly dated 21/01/2014, with Case No. 2013/2-686 and Decision No. 2014/19, both theft and damage to property offenses are regulated under the “Crimes Against Property” section of the Turkish Penal Code (TCK) under Article 5237. Both offenses protect the legal value of an individual’s property. In the act of theft, the perpetrator, without the consent of the owner, takes movable property belonging to another person, either in whole or in part, with the intent to benefit themselves or others, thereby causing harm to the victim’s property.
In the offense of damage to property, the perpetrator damages another person’s movable or immovable property by partially or completely destroying, degrading, or making it unusable, or by contaminating it. In both types of crimes, the victim suffers harm in terms of their property. In the offense of theft, the property subject to the crime is completely taken away, thereby completely eliminating the victim’s possession. In the offense of damage to property, however, it is not necessary for the property to be taken; usually, the entire property is not destroyed, but it is rendered partially or completely unusable through damage. A significant distinguishing feature between the two offenses is that in theft, the perpetrator carries out the act with the intent to benefit, whereas in the offense of damage to property, the perpetrator acts with the intention of causing harm to the victim.

If the subject of both crimes is the same movable property, there should be no additional penalty for damage to property. However, if damage is caused to another item besides the property involved in the theft, the offense of damage to property will also occur.

In the evaluation of the specific case; it was understood that the juvenile delinquent damaged the wires of the stolen motorcycle, broke the front headlight, bent the handlebars, and caused damage to the ignition area. In this case, since damage was caused to another item besides the property involved in the theft, the offense of damage to property would have occurred. However, since the stolen property was damaged, the elements of the offense of damage to property were not met. Therefore, instead of acquitting the juvenile delinquent, a conviction should have been made in writing. This required an overturn of the decision. As the appeal reason of the juvenile delinquent … and his/her defense lawyer was deemed valid for this reason, the judgment was REVERSED for the reasons explained and in contradiction to the public prosecutor’s recommendations, and the decision was made unanimously on 06.05.2019.

As stated in the decision of the Court of Cassation General Criminal Assembly dated 21/01/2014, with the case number 2013/2-686 and the decision number 2014/19, theft and property damage offenses are regulated under Chapter 10 of the Turkish Penal Code (TCK), titled “Crimes Against Property,” and both crimes protect the legal value of a person’s property. In the case of theft, the perpetrator harms the victim’s property by taking a movable good belonging to another person, either entirely or partially, without the owner’s consent, and with the intent to benefit either themselves or someone else. In the offense of damage to property, the perpetrator causes harm to another person’s movable or immovable property by partially or completely destroying, vandalizing, or making it unusable, or by contaminating it. In both types of crimes, the victim suffers harm in terms of their property. In theft, the property subject to the crime is entirely removed, which completely eliminates the victim’s possession. In property damage, it is not necessary for the property to be taken; often, the entire property is not destroyed, but it is rendered partially or completely unusable by causing damage.

An important distinguishing feature between the two crimes is that, in theft, the perpetrator acts with the intent to benefit, whereas in property damage, the perpetrator acts with the intent to cause harm to the victim. If the subject of both crimes is the same movable property, then no separate penalty should be imposed for property damage. However, if damage is caused to another item, besides the property involved in the theft, the offense of property damage will also occur.

In the evaluation of the specific case, it was understood that the juvenile delinquent broke the window of the stolen car by throwing a stone. Since another item besides the property subject to the theft was damaged during the theft, the offense of property damage would have occurred. However, since the item attempted to be stolen was damaged in this case, the elements of the offense of property damage were not met. Therefore, the decision to convict the juvenile delinquent in writing, instead of acquitting them, was a reason for overturning the decision (Court of Cassation 17th Criminal Chamber – Decision: 2019/9656).

The defendant’s act of attempting to set fire to his father-in-law’s vehicle for family reasons, considering that the fire did not spread to the surroundings, constitutes the offense of property damage by fire as regulated under Articles 151/1 and 152/2-a of the Turkish Penal Code No. 5237. Furthermore, in accordance with Article 167/1-b of the same Law, due to personal immunity, a penalty should not have been imposed. The failure to consider this and the establishment of a conviction by written judgment constitutes a reason for overturning the decision (Court of Cassation 8th Criminal Chamber – Decision: 2019/3228).