T.C.
SUPREME
- CRIMINAL DEPARTMENT
BASE NO: 9306/2014
DECISION NO : 2014/24636
DATE OF DECISION. 09.09.2014
THE COURT OF THE EXAMINED DECISION : Izmir 3. Juvenile Court
DATE : 01/30/2013
NUMBER: 2012/552(E) and 2013/15(K)
CRIME : Theft
SENTENCE : Conviction
THE APPELLANT: The defendant’s defense
The decision given by the local court was appealed, but the file was examined and considered as necessary:
According to the contents of the files and trial minutes, the legally valid and favorable evidence collected and discussed at the decision site, the justification and the judge’s discretion; it was understood that there was no violation of the procedure and the law in accepting that the crime was committed by the child who was dragged into the crime, and other appeals were not considered in place.
However; Article 61/1 of the Turkish Commercial Code No. 5237. according to the article, the fact that the value of the goods is more or less is a criterion for moving away from the lower limit in determining the basic penalty for punishment, and the fact that the value of the goods subject to the crime of theft is less than 145 of the TCC. the fact that it is regulated separately in the article shows the importance that the legislator attaches to the fact that the value of the goods is low in the crime of theft.
As stated in the case law No. 6/242-291 of the Criminal General Assembly of the Supreme Court of Cassation dated 15.12.2009, the opinion “… to take only what is as much as necessary and less in value when there is an opportunity to take more” is 145 of the TCC. although it is not possible to completely reject it in the application of the article, it is also not possible to limit the article to this definition alone. 145. both the initial form and the modified form of the article are based on the fact that, by common definition, the value that constitutes the subject of the crime of theft is small. 145 of the TCK. according to the article, in order to make a discount on the punishment given to the perpetrator, it is sufficient that the value of the goods is low, and the judge determines the discount rate in accordance with Article 3 of the TCK. he must determine it in such a way that it is proportional to the weight of the verb being committed, as provided for in his article. If a decision is to be made to refuse to pay a fine for a lack of value, the method and characteristics of the crime should also be taken into account, as well as the lack of value of the goods.
145 of the TCK. the judge is granted the right of discretion in the application of the article, and the judge should exercise his discretion without arbitrariness in using it, in accordance with each concrete event, by giving legal and sufficient justification.
In a concrete case, in the face of the understanding that the child dragged into the crime stole 2 door locks with a total value of 18.00 TL from the place of work where the client’s construction materials were sold, the child dragged into the crime cannot be stopped from serving a sentence due to the way and characteristics of the crime, but due to the fact that the value of the goods that constitute the subject of theft is low, 145 of the TCC. failure to observe that there should be a reduction in the rate to be determined from the punishment given in accordance with the article required disruption, the child who was dragged into the crime ….. since the appeals of the defender were considered on the spot in this regard, it was unanimously decided on 09.09.2014 that the provision would be OVERTURNED in violation of the communique for the reasons described.
