Aggravated Theft (TCK Article 142/2-h) and Violation of the Inviolability of the Home (TCK Article 116/1) – Judgment of Conviction and Deferral of the Announcement of the Verdict (HAGB)

The court decisions published in this section were obtained in cases in which Attorney Mert Sönmez personally acted as counsel and defense counsel.

REPUBLIC OF TÜRKİYE

*** COURT

CASE NO: ***

DECISION NO: ***

REASONING

REASONING:

Upon a joint assessment of the allegation, the defendant’s defense, the complainants’ statements, the witnesses’ statements, medical reports, mediation documents, law-enforcement documents, records and the contents of the case file:

The complainant *** stated that on 19/11/2019, approximately one and a half months earlier, his/her sister *** *** had given him/her, for safekeeping, five gold earrings, one gold wedding ring, two gold bracelets, two gold chain necklaces, two gold identity bracelets and one Republic gold coin, weighing 91 grams in total; that the statements of complainant *** *** were also those of complainant ***; that at the *** address they did not suspect anything because at that time they did not know that the gold had been stolen from the home of their sister ***; that one day after filing the complaint, on 20/11/2019, he/she called sibling *** and said, ‘How could you do this to us?’; that *** replied, ‘Yes, I stole the gold’; that he/she then said, ‘You cannot have spent all of it; give back what remains and let us close the matter,’ to which *** replied, ‘I spent it all’; and that he/she complained against *** who had stolen the gold. In the supplementary statement dated 21/11/2019, complainant *** *** stated that his/her sister *** had told him/her that ‘our sibling *** stole our gold’; that *** *** had confessed by saying, ‘I committed the theft’; and that he/she complained against ***. The Court therefore accepts that, as alleged in the indictment, the defendant committed the offenses of theft and violation of the inviolability of the home by stealing the jewelry belonging to the complainants.

At the investigation stage, defendant *** stated in summary that *** and *** *** were his/her sisters; that their mother *** *** died in 2013 and left them some gold as an inheritance; that he/she had from time to time taken gold kept at the residence of *** ***; that the reason for taking it was to meet daily needs because he/she was unemployed; that he/she did not inform anyone because the gold was jointly owned; that most recently, approximately three months earlier, he/she had taken some of their gold from the residence of sibling *** ***; that he/she did not know the total amount taken or the total amount inherited from their mother; that he/she did not take the gold with the intent to steal and did not accept the charge. At the prosecution stage, however, the defendant did not accept the earlier statement and stated that he/she had not committed theft, thereby making contradictory statements at different stages.

Although defendant *** denied the alleged theft, the defendant made a confession-containing defense in the immediate aftermath of the incident during the investigation. The complainants’ statements were consistent at every stage and corroborated one another, and, as the defendant’s siblings, they had no hostility that would cause them to falsely accuse the defendant. The Court therefore did not credit the defense concerning the charged offense, considering it aimed at avoiding punishment, and gave greater weight to the complainants’ statements. It was concluded that the defendant should be punished for theft for stealing five gold earrings, one gold wedding ring, two gold bracelets, two gold chain necklaces, two gold identity bracelets and one Republic gold coin, weighing 91 grams in total, belonging to the complainants; that although the defendant had entered the complainant’s home with consent, that consent was invalidated by the commission of the theft and the defendant should also be punished for violation of the inviolability of the home; that, since the defendant knew, by reason of being their sibling, that the property belonged to both complainants, the sentence should be increased by one quarter pursuant to TCK Article 43/1 through Article 43/2; and that the sentence should be reduced by one half pursuant to TCK Article 167/2 because defendant *** and the complainants were siblings living separately. Judgment was therefore rendered as follows.

JUDGMENT

JUDGMENT: For the reasons set forth above:

A.1–For the duly proven offense of theft of property kept under protection inside a building, the defendant is SENTENCED TO 6 YEARS’ IMPRISONMENT pursuant to Article 142/2-h, departing from the statutory minimum in view of the manner, place and time of the offense, its particular circumstances and the amount of loss.

2–As the precise time and date of the offense could not be determined, the doubt is assessed in favor of defendant ***, and THERE IS NO GROUND to apply Article 143 or TCK Article 43/1.

3–As the defendant knew, by reason of being their sibling, that the property belonged to both complainants, the sentence is increased by one quarter pursuant to TCK Article 43/1 through Article 43/2, and the defendant is SENTENCED TO 7 YEARS AND 6 MONTHS’ IMPRISONMENT.

4–Pursuant to TCK Article 167/2, the sentence is reduced by one half because defendant *** and the complainants are siblings living separately, and the defendant is SENTENCED TO 3 YEARS AND 9 MONTHS’ IMPRISONMENT.

5–Considering defendant ***’s conduct at the hearing and the possible adverse effects of the sentence on the defendant’s future, TCK Article 62/1 is applied as a matter of discretion and the sentence is reduced by one sixth; the defendant is SENTENCED TO 3 YEARS, 1 MONTH AND 15 DAYS’ IMPRISONMENT.

6–There is no discretionary ground to apply any other statutory or discretionary increase or reduction to the defendant’s sentence.

7–In view of the amount of the sentence imposed, THERE IS NO GROUND to apply Articles 50 and 51/1 of TCK or Article 231/5 of CMK to defendant ***.

8–Taking into account the annulled provisions in the Constitutional Court’s decision dated 08/10/2015, nos. *** and ***, published in the Official Gazette dated 24/11/2015 and no. ***, and the amendments introduced by Article 10 of Law no. 7242, published in the Official Gazette dated 15/04/2020 and no. *** and entering into force on the same date, Article 53/1-2-3 of TCK no. 5237 shall be applied.

B.1–As the defendant’s act of violating the inviolability of the home is proven, the defendant is SENTENCED TO 6 MONTHS’ IMPRISONMENT pursuant to TCK Article 116/1, taking into account the manner, time and place of the offense, the defendant’s purpose, and personal and social circumstances.

2–As the possible effects of the sentence on the defendant’s future are accepted as a discretionary mitigating factor, the sentence is reduced by one sixth pursuant to TCK Article 62 and the defendant is SENTENCED TO 5 MONTHS’ IMPRISONMENT.

3–Pursuant to Article 231/5 of CMK as amended by Law no. 5728, considering that the defendant had not previously been convicted of an intentional offense, that no loss resulted from the offense, that the Court formed a positive opinion that the defendant would not reoffend, and that the defendant accepted the application of this measure, THE ANNOUNCEMENT OF THE VERDICT against defendant *** IS DEFERRED.

4–Pursuant to CMK Article 231/8, the defendant shall be SUBJECT TO A 5-YEAR SUPERVISION PERIOD.

5–There is no discretionary ground to impose any other probation obligation.

6–The defendant is warned that if no new intentional offense is committed during the supervision period, the deferred verdict will be extinguished and the CASE WILL BE DISMISSED (warning given).

7–The defendant is warned that the limitation period will be suspended during the supervision period and that, if a new offense is committed during that period, the Court will announce the verdict it has rendered (warning given).

8–Since the announcement of the verdict against defendant *** has been deferred pursuant to Article 231/5, there is no ground to apply TCK Articles 50, 51 and 53.

9–Once the decision becomes final, a copy shall be SENT to the Chief Public Prosecutor’s Office for monitoring the defendant.

10–The total trial costs of TRY 1,105, consisting of TRY 190 for eight summonses, TRY 65 for one rogatory expense and TRY 850 for one mediation expense, shall be CHARGED TO defendant *** pursuant to CMK Article 325/1.

The decision was pronounced in the presence of the Public Prosecutor. With respect to the decision pronounced to defendant ***, it was explained that an appellate application may be filed before the Adana Regional Court of Appeal within seven days by submitting a petition to this Court or another Criminal Court of First Instance for transmission to this Court, or by making a statement to the court clerk to be entered in the record and approved by the judge; and, if in prison, by submitting a petition to the prison administration for transmission to this Court. It was further explained that the judgment would become final if no legal remedy were sought within the statutory period. The decision, consistent with the prosecutor’s opinion, was read aloud and duly explained. 23/05/2024