Theft Of Stored Goods

24 Oct Theft Of Stored Goods

T.C.
SUPREME
CRIMINAL GENERAL ASSEMBLY
E. 2012/6-375
K. 2012/1809
T. 9.10.2012
* Theft ( the defendant stole sweaters inside by breaking the door lock of the workplace – the defendant’s action will be considered theft about the goods stored in the building or its add-ons / 5237 P.K. Md. 142/2-D will not be implemented )
* Theft of stored goods ( the defendant stole sweaters inside by breaking the door lock of the workplace – the defendant’s action will be considered theft of goods stored in the building or its add-ons/5237 P.K. Md. 142/2-D will not be implemented )
* Low value of the property ( the defendant stole sweaters inside by breaking the door lock of the workplace – the value of the property is not small, as well as the way the crime was committed 5237 P.K. Md. 145 does not have conditions for implementation )
* Attempt ( the requirement to show the article when applying the provisions of the attempt in the crime of theft by The Local Court )
* Withdrawal of disclosure of the provision ( the defendant, who was under the age of the date of the crime, stole sweaters inside by breaking the door lock of the workplace/theft – in accordance with the Child Protection Law, the condition for the removal of damage may not be sought if the economic situation of the child’s family or himself is not favorable )
* Minor age ( defendant who is under the age of the date of the crime/theft – withdrawal of disclosure of the provision/in accordance with the Child Protection Law, if the economic situation of the child’s family or himself is not favorable, the condition of removal of damage may not be sought )
* Violation of workplace immunity ( the defendant stole sweaters inside by breaking the door lock of the workplace – the defendant’s action will constitute a qualified crime of theft, as well as crimes of violation of workplace immunity and damage to property )
* Damage to property ( the defendant stole sweaters inside by breaking the door lock of the workplace – the defendant’s action will constitute a qualified crime of theft, as well as crimes of violation of workplace immunity and damage to property )
5237 / m.116, 142, 145, 151
5271 / m.231
765 / m.493
5395 / m.23
Summary : in the crime of theft; disputes;

The complainant by breaking the door lock stolen goods entering the workplace to the act of the accused of tcy 142/1 No. 5237-B ( about goods that are under conservation ) within the scope of, or 142/2-Substance D ( by opening the lock with a key or other tool held unjustly or counterfeit ) remains under,

Whether the defendant’s action constitutes the crime of theft, as well as the crimes of violating workplace immunity and damaging property,

No. 145 of the 5237 tcy. if there are conditions for the application of the article (less the value of the goods ) ,

Whether it is necessary to show the article of the law applied when making a discount due to the attempt,

23 of the Child Protection Act No. 5395. whether the article should be evaluated ( the disclosure of the provision should be withdrawn ) ,

It is collected at points.

According to the crime scene investigation report, it was found that the lock of the steel door of the warehouse subject to theft was opened by breaking with a tool, according to the valuation minutes, the value of the stolen goods was 1,200 pounds, there is no information in the file that the defendant covered the damage to the customer.

The defendant’s action is 5237 tcy No. 142. Article 2. 1, which regulates the state of processing of the crime of theft “about goods stored in a building or add-ons”, not within the scope of Paragraph d. it remains within the scope of Paragraph B. In addition to the crime of theft, if a building or workplace was entered during the commission of the crime of theft and property was damaged, there are also Crimes of violation of the immunity of the residence or workplace and damage to property.

In the face of the understanding that the accused entered by breaking the lock of the warehouse door of the workplace of the customer in the early morning, put 80 sweaters with a material value of 1200 pounds in a bag, during which the sounds were caught by force by the workplace guard, the value of the property that is the subject of the crime of theft is not less than the value of the property as of the way the crime was committed 5237 tcy 145. it is concluded that there are no conditions for the application of the clause.

It is contrary to Article 232/6 of Cy No. 5271 that the law and Article applied by the Local Court when making a discount on the defendant due to the attempt are not shown.

231 of the Cy amended by law No. 5728 in a case where the damage is not covered. although it is not possible to decide whether to withdraw the disclosure of the provision in accordance with Article 23 of the Child Protection Act 5395. in the first case of the article, this condition may not be sought if the economic situation of the child’s family or himself is not favorable.

Therefore, without being convicted of an intentional crime previously imposed on the defendant because there is a legal barrier to the implementation of the disclosure of the closure of this institution applied to a positive or negative decision based on an assessment of being unable isabetsiz be given by the Local Court is.

Case: accused of theft V.T.5237 of tcy 142/2-d, 145, 31/3, 62, 50/1 and 52/2. in accordance with the articles on punishment with a judicial fine of 5,400 pounds, Bakırköy 3. 14.11.2006 day and 477-1497 decision given by the children’s Court of Cassation, which examines the file on appeal by the prosecutor of the Republic and the defendant 6. By the criminal Department 13.10.2008 days and 5832-16779 numbers;

“…Other appeals have not been seen in place.

But;

1-in the face of the understanding that the accused stole the goods inside by breaking the door lock of the workplace, his action 5237 TCK.application in written form with article 142/2-d, without regard to the fact that nun constitutes a crime that corresponds to Article 142/1-b,

2-The defendant’s action, TC 5237.nun 116/1. violation of workplace immunity in Article 151/1. failure to observe that it also constitutes a crime of damage to property in its article,

3-TCK No. 5237.nun 145. article` lack of value of goods ‘ concept, 765 TCK.nun 522. the“ light ” and “very light” criteria in the article have no similarities except that both articles provide a discount on the penalty, the ‘ lack of value` is a separate and new concept specific to law 5237, the way the crime was committed for the purpose of the legislator and the nature of the incident, taking into account the intent of the accused, while there is a possibility to receive more, and if necessary as a value, the punishment can be waived, based on low amounts, provided that legal and adequate grounds are also explained, in a concrete case, comments outside the purpose of the referral to this article are brought and the penalty is reduced,

4-TC 765, which corresponds to the action of the accused.4 of the Law No. 493/1, 62, 522/1, 55/3 and 647. according to its articles, TCK No. 5237, which entered into force on 01.06.2005.142/1-b, 35/2, 31/3, 50, 52; 116/1, 31/3; 151/1, 31/3. 7/2 of the law referred to in terms of the type of punishment binding freedom provided for in articles, the lower and upper limits, 9/3 of the law No. 5252. in light of the articles of law 765, there is an obligation to observe that it is in the interests of the accused,

5-CMK 5271, without showing the article of the law applied when making a discount for attempting to commit a crime against the accused.violation of Article 232/6,

6-23 of the Child Protection Law No. 5395. notesreferences…”,

It was decided that he would be broken by his lack of hits.

Bakırköy 3, which decided to resist the causes of deconstruction 1 and 2 by interim decision and to comply with the other deconstruction reasons. Children’s Court 25.12.2008 days and 510-1522 issues;

“…TCK.article 142/1-b in the grounds of the nun article ‘ the building or the way of entry to such places was not given importance while increasing the penalty for theft made in the surrounding add-ons. Theft committed in huts made for the protection of agricultural vehicles in the field was also provided for the provision of the article. But in a place that does not fall into the definition of a building, for example, a condition of preservation was sought about the goods found in the car; thus, qualified theft is not accepted if the goods in the car, whose doors are not locked or windows are not closed, are stolen.,

In Paragraph ( d ) of Paragraph 2/D of the same article, the processing of the crime of theft by unfairly holding or opening a lock with an imitation key or other instrument is considered a qualified state. It is important for this qualified state that the crime of theft is committed by opening a lock. The lock may have been unfairly held or opened with an imitation key or other tool.

The key may also have been obtained by theft or looting. In this case, it is necessary to admit that two crimes have occurred. The lock must be opened for the purpose of committing theft or transporting stolen property elsewhere. The lock does not have to be muhkem. Keys or other tools must be used to open a lock that cannot be opened without means. Any tool that serves to open the lock without breaking it is considered a tool. The key that the owner forgot on the lock will not be applied if the theft is processed by turning the lock and removing what will be stolen with any tool.,

765 TCK.nun 493. in this article, which is similar to Article 493 and 142. when the substances are evaluated together, it is aimed to increase the amount of penalties. Opening or breaking the lock with a tool, 493. are verbs that are covered by the substance. No. 5237 TCK.nun 142. in the regulation of the article, there is no change indicating the recognition that the legislator increases the penalty for theft by opening the lock, and in turn reduces the penalty for theft by opening it by breaking. In the grounds of the article, there is no indication that this path has been taken.

The joke of putting a lock on a place is to protect that place from the outside, to prevent the person other than the owner from reaching it. No. 5237 TCK.to lock in the absence or in the fortress must be, according to concrete, non-lock, with a piece of wire or a nail, or an ordinary object if it is brought with the bad and accept 142/2-d when you are applying the item, including their disposal of explosives, destructive substances with a pretty solid lock 142/1-item B is a verb that requires less in the context of punishment, it seems impossible to accept.

However, in Article 142/1-b, there is no requirement that this place be locked in order to commit theft in the place where the building is qualified. The requirement to be locked in this article concerns places where anyone can enter.

There is no requirement to be locked in the theft of property contained in the building and its add-ons. If it is stored in buildings and add-ons, it is the only difference that differs from the fact that the property is located in the open, that is, from theft from the open.

So, 142/2 if the lock of the building with the door locked is opened by an object. article 142/1 if broken. the article will be applied. However, the requirement to be locked in buildings is not necessary for the occurrence of a crime.

Again, in the decision to overturn, in terms of the application of the lehe law, in old-dated crimes, penalties for violating the innocence of the abode and crimes of izrar are calculated, 142. according to the article, it was recommended to compare the result to be found and apply whichever is in favor according to the amount of the penalty.

No. 5237 TCK.nun 2. the article says that` no one can be punished for an act that the law does not explicitly consider a crime, and security measures cannot be applied’. 765 TCK. 2. article `according to the law of the time it was committed, no one can be punished for an act that is not considered a crime or a misdemeanor` is included in the provision. Also 765 TCK.nun 79. article, ‘ with the act he committed, the person who violates the various Ahkam of the law…’, 5237 TCK.nun 44. the article was changed to `a person who has committed more than one crime with a verb…`. 765 TCK.in addition, vehicle crimes committed for the purpose of a crime and constitute a future crime are considered a fiduciary crime and melted down in another crime, TC 5237.each act of the accused constitutes a crime is also intended to be punished. In other words, a person who damages the property of a polytheist and enters his house or workplace to commit the crime of theft after 01.06.2005 can also be punished for these acts for committing more than one act. But TC 765.nun 79. because of the openness of the article and the practices of the Supreme Court were also taken into consideration, the person who broke the door for theft and entered the House could only be punished for the crime of theft.

For this reason, at the time of the crime, it is not possible to punish the crimes of violating the innocence of the abode and izrar committed as a vehicle for the crime of theft. For this reason, it should not be possible to take the evil eye in the determination of the law, which is lehe, by calculating the penalty for acts that cannot be punished in the history of the crime.

Because of these statements, it was considered appropriate to partially resist the Supreme Court’s overturning. In the complaint of the client; in the history of the crime, the defendant was caught stealing in his own factory, the loss of 1,500 UAH was not paid, he said that he complained; in the defense of the defendant; he did not steal, he said that he was caught by the defendant’s employee while taking the bag he found in the trash can while collecting scrap,

Witness A. E.in his statement, he said that on the date of the crime, the client was guarding the workplace, when he landed violently at 08.00, the defendant was caught breaking down the door of the warehouse and taking away a bag of material,

According to the crime scene investigation report dated 01.05.2005, it was determined that the warehouse door subject to theft was steel and that the lock was opened by breaking using tools and forcing, according to the value appreciation protocol, it was understood that the value of the stolen goods was 1200 YTL.,

Although the defendant said that he took the goods he found in the trash can, this defense is not considered acceptable when the witness’s statement and the usual flow of life are taken into account,

In the face of the fact that all the actions of the accused in relation to the act of theft have been completed, he was caught when he was about to leave the workplace, TC 765. 62.the accused was 17 years old at the time of the crime. ,

However, as of the date of the crime, it should be examined whether the application of Article 493/1 of TCK 765 or article 142/2-d of TCK 5237 is lehe;

In case of application of Tc 5237, the amount of penalty binding on freedom as written below is calculated as nine months; however, TC 765.if the basic penalty is determined as three years in accordance with article 493/1 of the nun, 62. according to the article, two years and three months are reduced to 1/4 at the same rate; 522 due to lack of value. according to the article, one year is six months when reduced by 1/3 and twelve months when reduced by 1/3 due to age; 5237 is the lehe of law 5237, since the amount of punishment to be imposed according to TCK is nine months…”,

He decided that the defendant should be punished, as did the previous sentence on the grounds that he was.

This provision was also appealed by the public prosecutor and the defendant at that time to the Supreme Court.20.02.2012 day and 163701 notification of the prosecutor general’s willingness to” disrupt ” the file was sent to the first president of the Supreme Court, the punishment was evaluated by the General Assembly and decided on the grounds described:

Verdict: 142/2-d of tcy No. 5237 for theft of the accused, 35, 145, 31/3, 62, 50/1 and 52/2. in a concrete case that was decided to be punished with a judicial fine of 5,400 pounds in accordance with Articles 1 and 2, although it was stated that the violation notice was resisted against the reasons 1 and 2, according to the decision, disputes arising between the Special apartment and the Local Court and which must be resolved by the general criminal Council;

1 – whether the action of the defendant, who is understood to have stolen the goods inside by entering the complainant’s workplace by breaking the door lock, falls within the scope of Article 142/1-b of tcy 5237 or within the scope of Article 142/2-d,

2-the action of the accused, along with the crime of theft, 5237 tcy No. 116/2. 151/1. vandalism crimes can be used to create the item held in,

3-No. 145 of the 5237 tcy. the conditions of implementation of the article the presence of,

4 – which tcy is lehe,

5 – whether the article of law applied when making a discount due to the attempt should be shown,

6-23 of the Child Protection Law No. 5395. whether the article should be evaluated,

It is collected at points.

From the contents of the file under review; In the early morning hours of 01.05.2005, the accused entered by breaking the lock of the warehouse door belonging to the workplace of the customer, put 80 sweaters in a bag and left, during which the sounds were caught by force by the workplace guard, according to the crime scene investigation report of 01.05.2005, it was found that the lock of the steel door of the warehouse subject to theft was opened by breaking with the help of a tool, according to the value of the stolen goods was 1,200 pounds, it is understood that there is no information in the dossier that the accused covered the damages.

After this explanation, it is useful to address dispute issues separately.

1 – whether the action of the accused, who is understood to have stolen the goods inside by entering the workplace by breaking the door lock, falls within the scope of Article 142/1-b of tcy 5237 or article 142/2-d,

The basic form of the crime of theft is 141/1 of tcy 5237. Article 142 of the same law is defined as “taking a movable property belonging to someone else without the consent of the bell from where it is located for the purpose of providing a benefit to him or someone else”. Article 1. in Paragraph ( b ) of Paragraph 2 of the same article, “the processing of goods that have been left in a place where everyone can enter, but are locked or stored in a building or add-ons“. (d ) ; cases of “unfairly possessed or committed by opening a lock with an imitation key or other tool” are also regulated as a qualified crime of theft.

In order for the crime of theft organized in Article 142/2-d of tcy 5237 and committed “unfairly in possession or by opening the lock with an imitation key or other tool” to occur, the lock must be opened by attaching the tools counted in the article to the key cavity and activating the mechanism. In other words, if the lock is broken by an object, it cannot be mentioned to open the lock if it is entered by other means, such as breaking the door, rather than by opening the lock in the locked place.

For this reason, in a concrete case, the action of the accused, who broke the lock on the steel door of the warehouse of the workplace belonging to the customer with a hard object and was caught while stealing 80 sweaters, 5237 tcy 142. Article 2. 1, which regulates the state of processing of the crime of theft “about goods stored in a building or add-ons”, not within the scope of Paragraph d. it remains within the scope of Paragraph B. As a matter of fact, the same result was reached in cgk’s Decision No. 483-240 on day 19.06.2012.

As such, there is no hit in the Local Court’s decision to resist this issue.

2-the action of the accused, along with the crime of theft, 5237 tcy No. 116/2. violation of workplace immunity regulated in Article 151/1. vandalism crimes can be used to create the item held in:

As detailed in cgk’s decision No. 153-285 on 08.2009; the main rule based on the preparation of tcy No. 5237 is the actual drinking and accordingly “how many acts there are so many crimes, how many crimes there are so many penalties” is in question. As a matter of fact, in the report of the Justice Commission, “one of the Basic Rules of Criminal Law is expressed as ‘how many acts there are so many crimes, how many crimes there are so many penalties’. Exceptions to this are set out in the internal Crimes Section. With the exception of these exceptions, punishment will be imposed separately for each crime committed. Thus, each penalty given will maintain its independence ” (report of the Parliamentary Justice Commission on 03.08.2004 day and 1/593-60 ). Exceptions to this rule are 42 ( compound offense), 43 ( chain offense ) and 44 in Section 5237 of tcy “instigation of crimes”. it is arranged in (intellectual drink ) articles.

A composite crime, one of the exceptions to the true drinking rule and closely related to the subject of dispute, is the 42nd anniversary of tcy. in its article,” a crime that is considered a single verb is called a composite crime because one constitutes an element or aggravating cause of the other “is defined as, and not content with this;” the provisions of drinking do not apply to such crimes ” has been introduced.

Article 142/1-b of tcy 5237, which regulates the crime of theft of goods stored in the building or annexes committed by the defendant on the date of the incident; ” The crime of theft;…b ) about goods that are left in a place where everyone can enter, but are locked up or stored in a building or add-ons,… if committed, a prison sentence of two to five years is imposed“, although it can be said that at first glance,” how many verbs there are so many crimes, how many crimes there are so many penalties ” is an exception to the rule, that is, it meets the definition of a compound crime., in this article, the legislator regulated as a qualified state that the crime of theft was committed about “goods stored in a building or add-ons”, and did not seek entry into a building or add-ons as an element in terms of the occurrence of this crime. Accordingly, this qualified state of the crime of theft is possible to be processed by entering the building or attachments about “goods stored in the building or attachments”, and it is possible to be processed without entering the building or attachment, and in both cases it will be necessary to apply Article 142/1-b of the law. In other words,; according to the regulation in the article, it is not a question of whether the building or its add-ons should be entered, but the fact that the stolen goods were stored in the building or its add-ons was important in terms of a qualified state. If the legislator wants to regulate this type of crime as a composite crime, he should edit the text of the article as “if it is committed by entering the building or its additions”, while he prefers the current regulation also confirms this point.

Therefore, building or have entered the workplace during the commission of the crime of theft and damage to assets in the event of the crime of theft in addition to vandalism crimes occur with the destruction of the immunity of your residence or workplace, and accordingly, the perpetrator should be punished for the crimes.

In addition, 6 of the law No. 5560 to reinforce this point. article 5237 No. 142 of tcy. Article 4:” if a crime of violation of housing immunity or damage to property is committed for the purpose of committing a crime of theft, a complaint is not sought to investigate and prosecute for these crimes”. the paragraph has been added. Also in the justification of the added clause; “How many is a verb there, the crime, many crimes there are, the more in accordance with the criminal rule, theft or damage to property in case of entering someone else’s home to commit a crime, the penalties for these crimes also must rule called” the crime of theft committed during the commission of other crimes by the perpetrator should be punished is also clearly demonstrated.

As a result of this, the evaluation of the Lehe law on the defendant is 493/1 of tcy No. 765. article 5237 tcy 142/1-b, 116/2 and 151/1 according to the results of the application should be compared.

As such, the Local Court’s resistance clause in this dispute is not accurate.

3 -) 5237 numbered tcy 145. the conditions of implementation of the article the presence of:

The issue has already come before the General Assembly of punishment and has been resolved in resolutions 30.03.2010 days and 11/17-65, 15.12.2009 days and 242-291 and 13.11.2007 days and 210-234.

No. 145 of the 5237 tcy. Article “ ” ( 1) due to the lack of value of the property that constitutes the subject of the crime of theft, the penalty can be reduced or the penalty can be waived” while the provision, 29.06.2005 days before the date of the crime and 5377 Law No. 16. article; “ ( 1 ) that constitute the crime of theft due to the scarcity of the subject of the value of the goods, the penalty can be reduced, as processing methods and by considering the properties of the fault, giving a dispensable penalty” in the form of modified theft crimes with the item “value”to judge because of the lack of, reduced sentence or has been granted a wide discretion in the direction of give a penalty.

Both the first form and the modified form of the aforementioned article are based on the fact that, by common definition, the value that constitutes the subject of the crime of theft is small. What is meant by the legislator with a lack of value has not been clarified to prevent pauses, no numerical limitation has been introduced, but the judge has been granted the authority to evaluate and evaluate the material event subject to trial. However, the legislator limited the judge’s discretion to an abstract and different discipline. He, too; ” a value that will be considered small ” is in the judge’s discretion to the extent that it requires him to give up punishment, in other words, a violation based on value is at a lower level that justifies not being punished. The judge may evaluate the lack of this value, which has been stolen or attempted to be stolen, either with a reduced penalty or without giving a penalty based on the characteristics of the crime.

In the amendment after the first text of the article, it is clear that writing the phrase “taking into account the forms and characteristics of the crime” after the option “discount on punishment” and before the option “penalty can be waived” will not differentiate the value of the property subject to the crime. For this reason, it should not be concluded that a higher value will be sought in the” less penalty “option, and that a lower value should be sought in the case of” refusal to give up punishment”.

In this respect, Law No. 5237 No. 145. 522 of tcy No. 765. no interpretation should be made in connection with the concepts of “light” or “very light” provided for in the article, and the Supreme Court should not be expected to determine the annual value measures in parallel with the case law in the implementation process of this article. No. 145 of law 5237. the purpose of Article 522 of tcy No. 765 of the said provision should be observed. it must be accepted that it is different from its substance.

In addition to this assessment, the judge will take into account the way the crime was committed, the position of the victim or defendant, the place and time of the incident, in each concrete incident, tcy No. 5237 3. as stated in the article, it will ensure criminal justice by imposing a penalty “commensurate with the weight of the act committed”. As can be seen, the system introduced by the article does not consist only of determining the value of the goods according to objective criteria, reducing the penalty or not giving a penalty. The nature of the incident, the location of the victim, the offender of the crime and the personality of the teaching method in every case, will be the subject of the evaluation, and the perpetrator of the injustice that occurred by considering the effects on the victims of injustice and the causes of this, and especially about the implementation of the penalty not being given the option for the item, the action determined appropriate for the perpetrator of the grounds for the decision that they would fall and the case will be shown.

Here, however, 5237 is tcy’s 147. 145 with the state of “committing the crime of theft to meet a severe and urgent need”. the concept of “lack of value” provided for in the article should not be confused. 145. 147, which regulates the state of necessity with the lack of value provided for in Article. the conditions of application of the article differ from each other, 147. the distinctive measure of the substance is that theft is carried out to meet a heavy and urgent need.

145 by comparison. the most important criterion in the application of the article is undoubtedly the measure of value, and this value is less than enough to justify the state of “non-punishment”.

In the light of these explanations, when the concrete event regarding the third dispute is evaluated;

In the face of the understanding that the accused entered by breaking the lock of the warehouse door of the workplace of the customer in the early morning, put 80 sweaters with a material value of 1200 pounds in a bag, during which the sounds were caught by force by the workplace guard, the value of the property that is the subject of the crime of theft is not less than the value of the property as of the way the crime was committed 5237 tcy 145. it is concluded that there are no conditions for the application of the clause.

In this respect, the defendant is subject to tcy No. 5237 No. 145. the local court enforcing the clause does not have a decision to resist.

4 -) which tcy is lehe:

In terms of determining which tcy is in favor of the defendant, according to both laws, the results should be evaluated by applying separately.

When the provision was established against the accused in accordance with TCY No. 765; tcy No. 765 493/1, 62, 522 and 55/3. 4 of the Law No. 647 of the 1-year prison sentence established in accordance with articles. according to the article, according to the date of the crime, the defendant will be fined £ 12 and the defendant will be fined £ 4,380 as a result.

When the sentence was established against the accused in accordance with TCY 5237;

a -) in the crime of theft; 5237 tcy 142/1-b, 35 and 31/3. the 9-month prison sentence established under Articles 50/1 and 52/2 of the tcy. in accordance with the articles, The Diary is cashed in at 20 pounds and punished with a judicial fine of 5,400 pounds,

b -) in the crime of violating workplace immunity; 116/1 and 31/3 of tcy. the 3-month prison sentence set in accordance with articles 50/1 and 52/2 of the tcy. in accordance with the articles, The Diary is cashed in at 20 pounds and punished with a judicial fine of 1,800 pounds,

c -) in the offence of damage to property; tcy 151/1 and 31/3. the 2-month prison sentence set in accordance with articles 50/1 and 52/2 of the tcy. in accordance with the articles, The Diary was cashed in at £ 20 and punished with a judicial fine of £ 1,200,

References In this case, the total penalty to be given in case of application of tcy No. 5237 on the defendant will be 8,400 Lira.

In this respect, since the provisions of TCY No. 765 on the defendant are in favor, the Local Court resistance provision is also not accurate in relation to this dispute.

5 – whether the article of law applied when making a discount due to the attempt should be shown:

268/4 of Cyuy No. 1412, which was in force at the time of the first provision and the decision to resist. in Article 232/6 of Cy No. 5271, which is regulated similarly to Article; “Provision in paragraph one, article 223, according to the decision of what it is applied and the amount of the penalty of the law, and law of compensation and the ability to request an effective remedy, whether you are the opportunity to apply if you have the time and the question of authority must be clearly displayed so that he won’t” shaped clear legal regulation implies is that the defendant applicable laws and the imprisonment provision in paragraph demonstration of the provision of materials is required.

As is accepted in teaching and practice, the law and Article applied in the provision paragraph should not be shown or similar violations should be added to other causes of violation if they are not the reason for violation alone and there is another reason for violation.

In a concrete case, it is contrary to Article 232/6 of Cy 5271 that the law and Article applied by the Local Court when making a discount for an attempt against the defendant are not shown. Although this can not be done alone, it is an application that should be added to the distortion if there are other reasons for the distortion.

6-23 of the Child Protection Law No. 5395. whether the article should be evaluated:

The authority for the cancellation of the disclosure of the provision is the 23rd Child Protection Law No. 5395, which entered into force on 15.07.2005 for the first time in our law. “(1 ) if the penalty established at the end of the trial for the crime imposed on the child is imprisonment or a judicial fine of up to three years ( including three years), the court may decide to withdraw the disclosure of the sentence.

(2 ) the conditions necessary for the decision to withdraw the disclosure of the provision are as follows:

a) the fact that the child has not previously been convicted of a premeditated crime.

b) the fact that the child has come to the conclusion that he will not commit a crime again.

c) there is no need for a sentence to be imposed on the child due to his personality traits and attitude and behavior at the hearing.

d) full remedy of the damage suffered by the victim or the public by the commission of the crime, in the same way as restitution, pre-emption or compensation. If the amount of damage suffered by the public by the commission of the crime cannot be determined, the amount of money to be assessed by the court shall be deposited at one time to the Treasury cashier. However, this condition may not be sought if the economic situation of the child’s family or himself is not favorable.

(3) if a decision is made to withdraw the disclosure of the provision, the child shall be subject to a probation measure for five years. During this period, it may be decided that the child will continue in an educational institution, be banned from going to certain places, be obliged to continue in certain places, or fulfill other obligations that will be appreciated. During the audit period, the case stops the timeout.

( 4 ) if the condition specified in Paragraph ( d ) of the second paragraph cannot be met; during probation, the defendant may be charged with one of the following obligations and decide to withdraw the disclosure of the provision:

a) complete elimination of the damage suffered by the victim or the public by committing the Crime, paid in monthly installments.

b) if the amount of damage suffered by the public by the commission of the crime cannot be determined, the amount of money to be assessed by the court shall be deposited with the finance teller in monthly installments.

(5) if he is not sentenced to prison for a deliberate crime committed during his probation and is treated in accordance with his obligations, it is decided to drop the case. ( 6) if the child is convicted of a deliberate crime requiring a prison sentence committed during the probation period or acts contrary to his obligations, the court shall explain the provision he has left behind. But the court can give a discount of up to half the sentence set against the child, taking into account the state of fulfillment of obligations.

(7) the decision to withdraw the disclosure of the provision may be appealed.

(8) the decision to withdraw the disclosure of the provision is recorded in a system specific to them. These records may only be used for the purpose set out in this article if requested by the public prosecutor, judge or court in connection with an investigation or prosecution.”

No. 231 of law 5271. 5-14, which was added to the article by Law No. 5560, which entered into force on 19.12.2006. this institution was also adopted for elders with paragraphs, 40 of the same law. Article 23 of law 5395. article; ” at the end of the trial for the crime imposed on the child, if the conditions in the Criminal Procedure Law exist, the court may decide to leave the disclosure of the provision. However, the audit period for these persons is three years”, with the exception of the difference in the audit period, juvenile offenders and adult offenders are subject to the same conditions in terms of the withdrawal of the disclosure of the provision.

For adult defendants, Cy’s 231. 5-14, added to Article 5560 by law. jokes with crimes related to a complaint that initially imposed one year or less of imprisonment or criminal fines for a limited this institution, which was adopted, into force on 23.01.2008 08.02.2008 day and then of law, 5728 562. article 231 of law 5271. Article 5. the phrase “one year” in the clause is “two years”, 14. references; ” (14 ) the provisions of this article on the withdrawal of the disclosure of the provision shall not apply to the crimes contained in the laws of the revolution protected in Article 174 of the Constitution”, making the provision applicable to imprisonment or judicial fines for two years or less, thus initially limited to crimes related to complaints against adult defendants, 174 of the Constitution. the crimes contained in the laws of the Revolution provided for in the article have been converted to cover all crimes, including discrete ones.

However, law 5739, which entered into force on 01.03.2008, and law 3713, 13. Amendment to the article and Annex 10 to the military Penal Code 1632. article; terrorist crimes committed by persons older than 15 years of age and the withdrawal of disclosure of the provision in terms of crimes contained in law 1632 are excluded from the scope and the scope of application of the institution is again narrowed.

After the entry into our law of the institution for the cancellation of the disclosure of the provision and subsequent changes to the law related to it are summarized in this way, on the basis of this dispute, there are three separate legal regulations that can be applied to the defendant in terms of the cancellation of the disclosure of the provision in a concrete case and come into force on different dates:

First; 23, which was in force before the amendment of the Child Protection Law No. 5395, which entered into force on 15.07.2005, published in the Official Gazette, with Law No. 5560, which entered into force on 19.12.2006. its substance is its provision.

Second, Law No. 5271 No. 231. 5-14, which was added to the article by Law No. 5560, which entered into force on 19.12.2006. paragraphs 23 of the Child Protection Act No. 5395 as amended by Law No. 5560. article provisions. With this amendment, the 23 of the Child Protection Act No. 5395. by removing the detailed regulation on the withdrawal of the disclosure of the provision in the article, it was provided that the withdrawal of the disclosure of the provision could be applied if the conditions contained in the Cy about children were present, however, the period of supervision for children was set at 3 years. However, Cy’s 231. 14, which was added to the article as a result of the amendment to the law No. 5560. because of the regulation in the paragraph, the authority to withdraw the disclosure of the provision, its investigation and prosecution can be applied limited to crimes related to the complaint, it is not possible to apply to the defendant who has committed the crime of theft, which is not subject to the complaint, in the case subject to the dispute.

The third is Cy’s 231. 23, which is in force after the amendment to the law No. 5728 in article and the Law No. 5560, which defines the period of supervision of children of the Child Protection Law No. 5395 as 3 years. article provisions.

23 of the Child Protection Act 5395 with regard to compensation for damage suffered by the victim, which is closely related to our dispute issue. in the first case of Article 231, amended by law 5728 of Cy, it is stated that this condition may not be sought if the economic situation of the child’s family or himself is not favorable. a similar arrangement was not included in the article.

In a concrete case, there is no clarity in the file regarding the damage caused at the door of the workplace with the damage determined as 1200 pounds for the theft of the customer. In the case of violation of workplace immunity, no harm can be mentioned. 231 of the Cy amended by law No. 5728 in a case where the damage is not covered. although it is not possible to decide whether to withdraw the disclosure of the provision in accordance with Article 23 of the Child Protection Act 5395. in the first case of the article, this condition may not be sought if the economic situation of the child’s family or himself is not favorable.

Therefore, it is not appropriate that a positive or negative decision has not been made by the Local Court regarding whether this institution should be applied, as there is no legal obstacle to the application of the withdrawal of the disclosure of the sentence against the defendant who has not previously been convicted of a deliberate crime.

As a result, since the reasons for resistance to all dispute issues are not hit, the Local Court should decide to overturn the decision to resist.

Conclusion: for the reasons described;

1-Bakırköy 3. Violation of the Juvenile Court’s decision to resist day 25.12.2008 and 510-1522 with respect to all dispute issues,

2-the appeal of the file to the prosecutor general’S Office of the Supreme Court to be sent to the district, 09.10.2012 was unanimously decided in the negotiation.