The offence of theft is regulated in Article 141 et seq. of the Turkish Penal Code (TCK), Law No. 5237, in the section on offences against property. Article 142 regulates the aggravated form of the offence, Article 143 the commission of the offence at night, Article 144 the circumstances requiring a lesser penalty, Article 145 the low value of the property, Article 146 theft for use, and Article 147 the state of necessity. In addition, Articles 167 and 168 set out common provisions which also cover theft.
Article 141 describes the basic form of the offence of theft (simple theft) as follows:
“Any person who, without the consent of its possessor, takes movable property belonging to another from the place where it is located, with the aim of obtaining a benefit for himself or for another, shall be sentenced to imprisonment of one to three years.”
The legislative rationale of the article explains the offence as follows: “In the text of the article, the basic form of theft is defined. Accordingly, for the taking of movable property to constitute an offence, the consent of its possessor must be absent. Where the conditions required for consent to be valid are present, the consent of the possessor will constitute a ground of justification and no offence will be constituted.
For the offence of theft to be constituted, it is sufficient that the perpetrator acts with the aim of obtaining a benefit for himself or for another; it is not a requirement that this benefit is actually obtained. This benefit may be material or non-material.
What is meant by the act of taking is the bringing to an end of the victim’s possession of the property that forms the subject of the offence, such that it becomes impossible for the victim to exercise the rights of disposal arising from possession over the property that is the subject of the offence. Once this possibility of disposal has been removed, the offence is also completed.”
There are two views in the doctrine regarding the protected legal interest. The first view holds that the legal interest protected by this offence is the right of ownership and, accordingly, that the victim of the offence must be the owner. The other view holds that the protected legal interest is both ownership and possession, and states that the reason for this is that the text of the law is worded as the taking of property without the consent of its possessor. The view adopted by the Court of Cassation (Yargıtay) is that both ownership and possession are protected legal interests. However, where the right of ownership and the right of possession conflict, precedence will be given to the right of ownership. This is because the right of ownership is a right in rem. If a person takes property of which he is the owner, while it is in the possession of another, against that person’s will, he will not have committed the offence of theft. This is because an owner cannot be the perpetrator of the offence in respect of property of which he is the owner.
Among the elements of the offence, the act element is the taking of movable property from the place where it is located without the consent of its possessor. In this sense it is an offence of mere conduct. This is because the taking of the property is sufficient for the completion of the offence. The view accepted on this matter, and which prevails today, is the “theory of the sphere of control”. According to this view, the offence will be completed when the perpetrator removes the property, taken without the possessor’s consent, from that person’s sphere of activity and brings it into his own sphere of disposal. That is to say, the possessor’s ability to benefit from the stolen property is removed and a new possession belonging to the person who stole it is established. For example, in a shopping centre, where an item of clothing is put into a bag and taken out of the shop, the offence will have been completed. However, in the same incident, where the perpetrator is caught while leaving the shop, the offence will have remained at the stage of attempt. Where the property is consumed before being removed from the possessor’s sphere of control, the offence of theft will again be deemed completed. This is because the possessor’s ability to dispose of that item has now become impossible. Furthermore, an item may have been hidden by the perpetrator in a place where the possessor will not be able to find it, even though it remains within the possessor’s sphere of control. In this case, since the possessor will not be able to benefit from or dispose of the item, the offence of theft will have been completed. The legislative rationale of the article explains this as follows: “What is meant by the act of taking is the bringing to an end of the victim’s possession of the property that forms the subject of the offence, such that it becomes impossible for the victim to exercise the rights of disposal arising from possession over the property that is the subject of the offence. Once this possibility of disposal has been removed, the offence is also completed.” Possession may be briefly defined as the establishment of actual control over a thing. Possession is not only actual control but also a legally protected situation.
Furthermore, since as a rule the offence is completed upon the taking of the property, it is an instantaneous offence. Benefiting from the taken property for a certain period of time will not render the offence a continuing one. However, there is also a form of theft committed on a continuing basis. Theft of gas or liquid energy may be given as an example. As a rule, the offence of theft is committed by a positive act. The offence of theft cannot be committed by omission. No additional characteristic is required of the perpetrator, which is one of the elements of the offence, and anyone may be the perpetrator of the offence. Only the owner cannot be the perpetrator of this offence. If the possessor is the owner, the possessor will not be a perpetrator of this offence either; if the possessor and the owner are different persons, no offence will be constituted where the owner takes the item in question from the possessor. The victim of this offence, on the other hand, is the person whose property is taken and stolen. Accordingly, no special characteristic is required of the victim; anyone may be the victim of this offence. Where the possessor and the owner are different persons, in the event that a third party takes the property, the possessor will be the victim and the owner will be the person harmed by the offence. This offence can also be committed against a perpetrator. This is because possession does not need to have been established lawfully. The offence of theft will also be constituted where an item in the hands of a person who has come into possession of it unlawfully (the person who stole it) is stolen.
The subject of the offence is movable property; immovable property does not constitute the subject of this offence. Property is an object which has a material existence, over which control can be established, which can be delimited and which has economic value. Things over which control cannot be established and which have no economic value will not constitute the subject of the offence. The mental element of the offence is intent, and the offence of theft cannot be committed negligently. For example, where a person takes property, not knowing that it belongs to another and believing that it is his own, no offence is constituted. However, if this is subsequently realised and the property is not handed over, the offence of disposal of property obtained by mistake under Article 160 is constituted. Furthermore, where property is taken in the belief that the owner of the property has consented, this is accepted as a mistake as to grounds of justification and it negates the person’s intent. Of course, here the mistake must be unavoidable. Where the property is taken by deceit, the offence constituted is not theft but fraud. Where property taken with consent is not returned, the offence of breach of trust is constituted. Where the property is taken by force or violence, the offence of robbery will be constituted. If the perpetrator takes the property in order to damage it, then it will be a matter not of theft but of the offence of damage to property.
Where the perpetrator tries to take an item but this is impossible, two situations arise. These are absolute impossibility and relative impossibility. For example, where the perpetrator puts his hand into the victim’s pocket and the pocket is empty, there is relative impossibility. However, where the house the perpetrator enters is empty, since there is impossibility from the outset, it is a case of absolute impossibility and the offence of theft is not constituted. Furthermore, for example, where the thing the person stole is counterfeit, here too, since the property has no economic value, it should be treated as an impossible attempt. There is nothing special about the commission of the offence jointly. The offence may be participated in in every form. Where the offence of theft is committed pursuant to a decision to commit more than one offence against the same person, a single offence of theft will be deemed to exist. According to the Court of Cassation, where the belongings of residents living in the same dwelling are stolen, the existence of a single offence must be accepted. Damage arising from the execution of the act while the property is being taken will not separately constitute the offence of damage to property. This is because, in the offence of theft, all acts necessary for the property to be stolen will be counted as part of this offence. For example, if it is necessary to cut the cable of a television in order to steal it, the offence of damage to property will not be separately constituted. Acts of destroying or selling the property after taking it are not punished separately, since they are unpunished subsequent acts. These acts are regarded as the natural consequence of the offence of theft. For the offence of theft to be constituted, there must be no ground of justification present in the incident. The grounds of justification listed in the TCK are: execution of a statutory provision, execution of an order, legitimate self-defence, exercise of a right and the consent of the person concerned.
The offence of theft is investigated ex officio. However, where it is committed for the purpose of collecting a debt, where it is committed in respect of property held in co-ownership or joint ownership, or where it is committed between the relatives listed in the law, it is subject to a complaint. The cases subject to a complaint and the basic form of the offence are subject to conciliation. The court with jurisdiction in respect of the offence of theft is the Criminal Court of First Instance.
This is an English translation of the author’s article originally written in Turkish.
Link to the original article on Hukuki Haber: https://www.hukukihaber.net/hirsizlik-sucu-1