Theft Offense – Judgment of Acquittal

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

In its decision dated 06/06/2017, docket no. ***-1250 and decision no. ***, the Criminal General Assembly of the Court of Cassation held as follows: "Pursuant to the principle of in dubio pro reo—one of the most important principles of criminal proceedings, meaning that the accused benefits from doubt—the fundamental condition for punishing an accused for an offense is that the offense be proved with certainty leaving no room for doubt. Events and allegations whose manner of occurrence is doubtful and has not been fully clarified cannot be interpreted against the accused so as to enter a conviction. This rule, which has a very broad field of application, applies where doubt arises as to whether an offense was actually committed or, if committed, as to the manner in which it was carried out, and it also applies to determining the legal characterization of the offense. A criminal conviction must be based on definite and clear proof. Such proof must be so clear as to leave no room for any doubt or alternative course of events. Punishing an accused on the basis of a probability, even a high one, means rendering judgment on assumptions without reaching the truth, which is the most important purpose of criminal proceedings. Accordingly, a conviction in criminal proceedings must rest not on a greater or lesser probability but on certainty beyond all doubt. There is no other way to prevent miscarriages of justice."

In light of this precedent, when the present case is assessed, it is understood that the participating party *** entrusted gold to the victim ***, who is the participating party's sibling, for safekeeping, and that the gold kept at the victim ***’s residence was stolen. In statements taken by law enforcement during the investigation without defense counsel present, the accused stated that the gold located at the home of the victim ***, who is the accused's sister, had been inherited from their mother and that the accused had taken it from time to time for personal needs without the sisters' knowledge, thereby making an equivocal admission. At the trial stage, however, the accused retracted the earlier statements and denied the accusation. The witnesses heard by the court also did not confirm that the accused had sold gold to them. Article 148/4 of the Code of Criminal Procedure provides that statements taken by law enforcement without defense counsel present may not be used as the basis of a judgment unless confirmed before a judge or court. Apart from the statements taken by law enforcement without counsel and not confirmed before the court, the case file contains no other concrete evidence such as camera footage, witness testimony, traces, or a confession. Since no definite, concrete, and convincing evidence beyond all doubt sufficient for conviction was obtained, entering a conviction instead of an acquittal, on incomplete and inadequate grounds inconsistent with the case file, was unlawful.

Although the accused's appellate objection was therefore found well-founded on different grounds, this issue did not require a hearing to be opened for a retrial under Article 280/1-e of the Code of Criminal Procedure; it was considered possible for our Chamber to decide on the file under Article 303/1-a by virtue of Article 280/1-a.

Accordingly, the conviction for theft rendered by İskenderun *** Criminal Court of First Instance on 23/05/2024, numbered *** and ***, was SET ASIDE pursuant to Article 280/2 of the Code of Criminal Procedure and, in its place, pursuant to Article 303 of the Code of Criminal Procedure by virtue of Article 280/1-a, it was decided that: "Since it has not been established that the accused committed the charged offense of theft, THE ACCUSED SHALL BE ACQUITTED pursuant to Article 223/2-e of the Code of Criminal Procedure; since the acquitted accused was represented by defense counsel under a power of attorney, counsel fees of TRY 45,000, determined in accordance with the Minimum Attorney Fee Schedule in force on the date of the decision, shall be paid to the accused from the Treasury; and the trial costs shall be borne by the public treasury." The unlawfulness was thereby CORRECTED, THE APPEAL ON THE MERITS WAS DISMISSED, and the file was sent to the first-instance court that rendered the judgment.

JUDGMENT

Pursuant to the relevant article: "Since it has not been established that the accused committed the charged offense of theft, THE ACCUSED SHALL BE ACQUITTED pursuant to Article 223/2-e of the Code of Criminal Procedure."