Crime of Theft in Turkish Criminal Law

Crime of Theft is regulated in the 141st paragraph of the Turkish Criminal Code. According to this, ‘’Any person who appropriates removable property, from its place, which belongs to another, without the consent of the individual in whose possession it is, in order to derive benefit for himself/herself, or a third party, shall be sentenced to a penalty of imprisonment for a term of one year to three years’’. We can make some inferences in the context of the elements of the crime about this provision.

Firstly, I will explain the material element of this crime to you. First of all, it should be determined who may be the perpetrator of the crime of theft. According to this provision, ‘’all people’’ can be perpetrators of this crime. Secondly, it should be determined who may be the victim of the crime of theft. We can understand from this provision that anyone can be a victim of the crime of theft. However, the owner and the possessor doesn't always have to be the same person. If the owner and the possessor is the same person, the victim is the owner. If the owner and the possessor are different people, this time, both of them are victims of the crime of theft[1].

As another inference, the subject of the crime is "movable property". In this crime, "taking" is understood in the context of action. For context of action, there is a discussion in doctirine. For the ‘’confiscate theory (Kontrektationstheori)’’, it is enough for the perpetrator to take the item. For the ‘’sovereignty area theory (Apprehensionstheorie)’’, the crime of theft will occur when the sovereignty of the owner or possessor of the property is removed and the perpetrator or a third party enters the domain of sovereignty. In the justification of Article 141 of the Turkish Penal Code, it is stated that "The act of taking should be understood as the termination of the victim's possession of the property that is the subject of the crime, making it impossible for the victim to exercise his or her rights of disposition arising from possession of the property that is the subject of the crime.

When this possibility of disposition is eliminated, the crime is completed.". From the regulation made by the legislator, it can be said that the crime is a crime that is "suitable for attempt".

Another evaluation will be in terms of the moral element of the crime. In order for the crime of theft to occur, there must be a general intent (consciousness that the property belongs to someone else and there is no consent) as well as a specific intent (taking advantage) [2]. The issue of committing this crime with possible intent is controversial in doctrine. For one opinion, this crime can also be committed with possible intent[3]. For another opinion, Since specific intent and possible intent can’t coexist, this crime can’t be committed with possible intent[4]. For another opinion, The crime of theft can only be committed with direct intent. Therefore, this crime can’t be committed with possible intent[5].

The other evaluation regarding this crime will be made within the scope of "illegality element". In this crime, all of the reasons for compliance with the law listed in Turkish Criminal Code can be realized[6]. All of the reasons for compliance with law are ‘’Provisions of a Statute and Orders from a Superior’’, ‘’Legitimate Defence’’, ‘’Use of a Right’’ and ‘’Consent’’. If these reasons exist, no crime will occur.

Qualified conditions for this crime are included in the 142nd and 143rd. In the 142nd paragraph,

(1) In case of commision of offense of larceny;

a) In public institutions and corporations no matter who is the owner, or in places reserved for worship or by stealing the property used for in public interest or services,

b) (Abolished on 18 June 2014 - By Article 62 of the Law no. 6545)

c) By stealing the property in the transportation vehicles provided for public use, or in arrival/departure terminals,

d) By stealing the property reserved for prevention of damages likely to be caused by a disaster or mitigation of its effects,

e) By stealing the property left in a certain place for use upon requirement,

f) (Abolished on 2 July 2014 - By Article 82 of the Law no. 6352)

the offender is sentenced to imprisonment from three years to seven years.

(2) In case of commission of this offense;

a) Taking advantage of the person's inability to protect his property or his death,

b) By pulling the items carried by hand or on the person or by using special skills,

c) Taking advantage of the fear or chaos caused by a natural disaster or social events,

d) By unlocking or preventing locking with a wrongfully possessed or counterfeit key or other tool,

e) By using information systems,

f) By taking precautions to avoid being recognized or by assuming an official capacity even though he has no authority,

g) (...) about large or small cattle,

h) (Added: 18/6/2014-6545/62 art.) Regarding goods that are locked or kept in a building or its annexes, although they are left in a place accessible to everyone,

If committed, a prison sentence of five to ten years is imposed. If the crime is committed against a person who is unable to defend himself physically or mentally, as specified in subparagraph (b) of this paragraph, the penalty to be imposed is increased by one third.

(3) If the crime is committed regarding liquid or gaseous energy and in facilities for their transportation, processing or storage, a prison sentence of five to twelve years is imposed. If this act is committed within the scope of the activities of an organization, the penalty is increased by half and a judicial fine of up to ten thousand days is imposed.

(5) (Added: 18/6/2014-6545/62 art.) In case of temporary disruption of public services in the field of communication, energy or railway or air transportation as a result of committing the crime of theft, the penalty to be imposed in accordance with the provisions of the above paragraphs is increased from half to two times.

Article 143-

(1) If the crime of theft is committed at night, the penalty to be imposed is increased by half.

Articles 144-147 regulate the mitigating circumstances of the crime of theft.

Article 144-

(1) The crime of theft;

a) On property owned by stakeholders or jointly,

b) For the purpose of collecting receivables based on a legal relationship,

If it is committed, upon complaint, the perpetrator is sentenced to imprisonment from two months to one year or a judicial fine.

Article 145-

(1) (Amended: 29/6/2005 - 5377/16 art.) Due to the low value of the property that is the subject of the crime of theft, the penalty to be imposed may be reduced, or the penalty may be waived, taking into account the manner and characteristics of the crime.

Article 146-

(1) If the crime of theft is committed for the purpose of temporarily using the property and returning it to its owner, the penalty to be imposed is reduced by half upon complaint. However, this provision does not apply if the property has been used to commit a crime.

Article 147-

(1) If the crime of theft is committed to meet a serious and urgent need, the penalty may be reduced or waived, depending on the nature of the incident.

[1] Yenidünya, Crime of Theft, p.21

[2] Mustafa Özen, Criminal Law: Special Provisions Lessons, p.572

[3] Mustafa Özen, p.572

[4] Mustafa Özen, p.572

[5] Mustafa Özen, p.572

[6] Koca/Üzülmez,Turkish Criminal Law: Special Provisions, p.635

[7] https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=5237&MevzuatTur=1&MevzuatTertip=5

[8] https://www.hukukidurum.com/tck-141-hirsizlik-sucu/