THE DISTINCTION BETWEEN THE CRIME OF PLUNDER (EXTORTION) AND THE CRIME OF THEFT
In this article crime of plunder with crime of theftBy revealing their main differences due to the mixing of these crimes, we aimed not to confuse the aforementioned crimes. Indeed in practice crime of plunder with crime of theft When confused, unlawful consequences arise when the corresponding perpetrator is punished. In the decision of the Supreme Court, which we will add at the end of our article, it will be clearly understood that sometimes such situations can arise because the material elements of the crime committed are not fully revealed.
First of all, before proceeding to the distinction of both crimes, let us refer to the definitions and material elements of the crime of robbery and the crime of theft according to the Turkish Penal Code. Needed in our previous articles crime of plunder if necessary crime of theftsince we have described in detail nu (bknz.) in this article, we will try to make the difference between them, referring only to their material elements and definitions;
· Crime of plunder; In the text of the law ''A person who compels another person not to resist the delivery or receipt of a good, by threatening or using algebra with a bet that he will commit an attack on the life, bodily or sexual immunity of himself or a relative or that will cause great damage to his propertyIt has been described as. The material elements of the crime of plunder, then;
- Receipt of property belonging to someone else,
It is necessary to use Algebra or threats against the life, bodily or sexual immunity of oneself or one's relatives.
· Crime of Theft; To state the crime of theft as defined in the law, a person who takes a movable property belonging to another person without the consent of the citizen from his place of residence for the purpose of providing a benefit to himself or to another person will have committed the crime of theft. If the material elements of the crime of theft are;
- Receipt of property belonging to someone else,
The lack of consent of the Zilaid,
It must be taken for the purpose of benefiting oneself or another.
Considering the above definitions and material elements, between the crime of theft and the crime of extortion the verb that is common, “the taking of property that belongs to someone else” is a verb. crime of plunder, crime of theftIt is a compound crime, embodied in the use of “algebra” or “threat” at the time of taking the property, in addition to the verb “taking property belonging to another”, which is an element of “the taking of property”.
Another thing to note is that
This algebra and threat used must be conducive to directing the person not to make noise in handing over or receiving the goods,
- In this crime, the act of coercion of the will directed at the victim should be considered as a threat,
A threat of slight danger, that is, a threat that does not pose a great danger to the person and property is not sufficient for the crime of plunder to occur,
Θ It is that if there is no ratio between the threatened evil and the delivery of the good, there can be no mention of plunder.
If we cannot speak of the existence of the above criteria, we cannot speak of the existence of the crime of plunder here. In this case, it is necessary to accept that the crime of theft has occurred. In practice, it seems that the perpetrator is punished for looting, since this situation is sometimes assessed incorrectly, while the perpetrator must be punished for the crime of theft. In order to avoid the occurrence of unlawful situations, it should be well considered whether an act committed constitutes the crime of theft or the crime of plunder. Otherwise, victimization will be inevitable. The following Supreme Court decision also does not contain the text of the decision on the imposition of punishment for the crime of looting, while the perpetrator must be punished for the crime of theft due to the fact that this distinction is not well made.
Finally, it will be in your favor to defend yourself with a criminal lawyer, since the penalties for looting and theft offenses are high crimes and the penalties given are extremely heavy. Otherwise, you may face much higher penalties if you are convicted of looting as a result of a misassessment of a situation in which you should otherwise be convicted of theft.
It does not matter where the lawyer who handles the criminal cases in which you will work or where the crime was committed. It does not make any difference if your case is seen in Bakırköy, Çağlayan, Kartal, Ankara or İzmir courthouses. The important criterion here is that the lawyer you will work with will effectively defend. That is why you do not need to search for criminal lawyer Istanbul, criminal lawyer Bakırköy, criminal lawyer Çağlayan, criminal lawyer Kartal.
SUPREME COURT DECISION ON THE SEPARATION OF THE CRIME OF LOOTING, THEFT
T.C.
SUPREME COURT
6.CEZA APARTMENT
BASIC:2012/29507
DECISION:2015/38211
DECISION DATE: 09.03.2015
>DISTINCTION BETWEEN LOOTING, THEFT-- THREAT WITH LOOTING---THE ACT OF COERCION OF WILL BE CONSIDERED A THREAT
(5237 p. TCK m. 141/1, 148)
SUMMARY: Algebra and/or threats are used in the crime of looting to ensure the receipt or delivery of goods. This algebra and threat used must be conducive to leading the person to deliver the goods or not to make a noise in receiving the goods. In this crime, the act of forcing the will towards the victim should be considered as a threat, with a slight danger, i.e. that if the threat that does not constitute a great danger of ahsen and malen is not sufficient for the occurrence of the crime of plunder, if there is no ratio between the threatened evil and the delivery of the goods, there can be no mention of plunder, this it should be observed that the determination of the situation is a factual matter, the place and time of the person to whom the threat is directed and that a quantitative examination of the concrete event should be carried out by observing the place and time.
By appealing the judgment given to the Local Court, the file was discussed according to the nature of the application, the type of punishment, the duration and the date of the crime:
According to the contents of the file and the minutes of the hearing, the legally valid and favorable evidence that was discussed by examination at the place of the decision, the justification and the judgment of the Board of Judges; since it is understood that there was no violation of procedure and law in accepting that the crime was committed by the accused, other appeal objections were not considered in situ.
However;
1-The act of looting constitutes the act of plunder of the person who obliges another, himself or a relative, not to resist the delivery or receipt of a property by threatening with bet or using algebra because he is going to commit an attack on his life, body and sexual immunity, or cause great damage to his property. Algebra and threats are used on the dial to ensure the receipt or delivery of goods. In the face of algebra and threat, the victim has no other choice, and in this case the perpetrator takes the property directly. That is, the victim delivers the goods. The legal value protected by this crime is not only his property, but also the freedom of the person and the immunity of the body.
Plunder is a type of crime that can be committed by the act of execution, and the material element of this crime is the part of the act. The algebra and threat used must be conducive to directing the person not to make noise in delivering or receiving the goods. Algebra means “using a hard time for someone to do or not do something against someone, or to do it themselves.” The “hard” used here against the victim is physical coercion.
The coercion of the will is considered not in the concept of algebra, but in the context of threat. The threat is that the coercive effect on the interlocutor is formed not by coercion, which is already physically acting, but by a spiritual compulsion, intimidation, which is indicated in the future. The serious threat must also evoke an objectively serious appearance and be taken seriously by the threatened. In the crime of plunder, the threat must be weighted in relation to his person or property and would place the person in great danger. The threat in this position becomes a convenient means of coercion of looting. Therefore, even a threat with a slight danger, that is, a threat that does not pose a great danger personally and financially, is not sufficient for the occurrence of looting rot. Whether the danger is great or not is a matter of fact, and the person to whom the threat is directed must be examined quantitatively in the concrete event by considering the place and time to which the threat is directed. If there is no ratio between the threatened evil and the delivery of the goods, then again there can be no mention of plunder.
As for the concrete event;
In which the defendant asked for money from the victim he met in the park, asked the victim for his cell phone after he declared that the victim had no money, and asked for it again when the victim did not want to give it, and then the victim, fearing that the defendant, who was alcoholic, gave his phone to the defendant with the thought that he might harm him, the defendant said this time you will buy me a beer or I will give him his phone, In the concrete incident, which occurred in the form of removing the card from the phone and giving it to the victim, he walked away from the scene with the phone; Given that the words and/or the existing physical conditions cannot be considered as an element of the aforementioned crime of looting, it does not involve an algebra of threats and looting, since the thoughts created by the victim's psychological state and/or timid personality cannot be perceived in this way will cause great damage to his property, given that the thoughts generated by the victim's psychological state and/or timid personality cannot be perceived as such will cause great damage to his property. requiring, without prejudice to Article 141/1 of TCK No 5237, to be annulled in writing,
Since the appellate objections of the defendant's defense have been seen in place as of this time, the judgment was decided unanimously on 09.03.2015, contrary to the request (DISSOLUTION) of the judgment.