Criminal LawWhat are the reasons for personal impunity in theft offences?

The offence of theft is a property crime defined in Article 141 of the Turkish Penal Code (TPC), which consists of taking a movable property belonging to another person without the consent of the possessor. However, in some cases in criminal law, even if the act committed constitutes a crime, the perpetrator is not punished or his/her punishment is reduced due to certain personal characteristics of the perpetrator or his/her relationship with the victim. These situations are called “personal reasons for impunity” or “personal reasons that remove/reduce the punishment”. Especially theft offences committed between family members are subject to a special regulation in this context. In this article, we will discuss in detail the basic definition of the theft offence, the reasons for personal impunity, the cases of reduction of punishment and the legal and social reasons behind these regulations.

Definition of the offence of theft (Article 141 of the TPC): The offence of theft is defined in Article 141 of the TPC as follows:

The basic elements of the offence are as follows:

• Act: Taking a movable property belonging to another person without the consent of the possessor.
• Property: It must be a movable property (money, jewellery, telephone, car, etc.).
• Lack of Consent of the Possessor: The property must be taken without the consent of the owner or possessor (the person in possession of the property).
• Aim to Benefit: The perpetrator must act with the intention of providing an unfair benefit to himself or someone else.

Reasons for Personal Impunity and Reduced Penalty in the Offence of Theft (Article 167 of the Turkish Criminal Code): Article 167 of the Turkish Penal Code stipulates that if the offence of theft is committed within certain kinship relations, the perpetrator shall not be punished or the punishment shall be reduced. This provision is based on the sensitivity of intra-family relations and the idea that disputes in these relations should be resolved within the scope of civil law or family law rather than criminal law.

A. Reason for Personal Impunity (Art. 167/1 of the TPC): If the offence of theft is committed between the following persons, the perpetrator shall not be sentenced to punishment. In other words, the act remains an offence, but the perpetrator is not punished. This is a “reason for personal impunity”.

Relationships within this scope are as follows:

1. To the detriment of one of the spouses for whom a separation decision has not been made: In the event that one of the spouses who are married and for whom no separation decision has been made by the court, steals the property of the other spouse, no penalty shall be imposed. This aims to protect the unity of marriage and not to solve domestic problems through criminal law.
2. To the detriment of his/her lineal descendant or descendants or one of his/her in-laws at this degree:
   • Descendants: The offender’s parents, grandparents, etc. For example, if a child steals money from his mother.
   • Descendants: Descendants of the perpetrator such as children or grandchildren. For example, a father stealing his child’s property.
   • In-laws of this degree: The spouse’s senior (mother-in-law, father-in-law) or junior (children of the spouse).
3. To the detriment of the Adopter or Adoptee: No penalty is imposed for theft offences committed in the relationship between the adopter and the adoptee.
4. To the detriment of one of the siblings living together in the same dwelling: If one of the siblings living together in the same dwelling steals the property of the other sibling, no penalty is imposed. The condition of “living together in the same house” is important; this provision does not apply between siblings living in separate houses.

B. Reason for Reduction in Penalty (Article 167/2 of the TPC): If the offence of theft is committed between the following persons, the penalty to be imposed is reduced by half. This is a “personal reason for reducing the sentence”.

Relationships within this scope are as follows:

1. To the detriment of one of the spouses against whom a separation order has been issued: The penalty is reduced by half in the theft offence committed between spouses who have been granted separation by the court.
2. To the detriment of one of the siblings who do not live together in the same house: The penalty is reduced by half in the offence of theft committed between siblings living in separate houses.
3. To the detriment of one of the uncles, aunts, aunts, aunts, nephews or second-degree in-laws: The penalty is reduced by half for theft offences committed between relatives of this degree. Second degree in-laws are the siblings of the spouse (sister-in-law, brother-in-law) or grandparents of the spouse.

Reasons for Personal Impunity and Reduced Penalties: The main reasons for these regulations are as follows:

• Protection of Family Relations: Encouraging the resolution of disputes between family members through family law or civil law rather than criminal law.
• Limitation of the State’s Power to Punish: Limiting state intervention in the private sphere of the family in certain circumstances.
• Social Peace: Consideration that the transformation of family disputes into criminal proceedings may further weaken family ties and have a negative impact on social peace.

Application Area and Exceptions: Article 167 of the TPC applies not only to theft offences, but also to plunder and qualified plunder offences. However, this article is not directly applicable to other property offences (e.g. fraud, breach of trust); there may be special regulations for these offences.

Important Notes:

• These provisions do not remove the criminal nature of the act. The act is still an offence, but the perpetrator is not punished or the punishment is reduced.
• These provisions only apply to offences committed within the specified kinship relationship. If a third person participates in the offence, the third person is subject to the full penalty.
• Personal grounds for impunity do not prevent the opening of a public prosecution. The case is opened, but no penalty is imposed as a result of the trial.

The reasons for personal impunity in the offence of theft and the circumstances that reduce the penalty are important regulations of the Turkish Penal Code that observe the sensitivity of family relations. While the perpetrator is not punished for theft offences committed between spouses, lineal descendants, descendants, adoptive parents and siblings living in the same dwelling, the punishment is reduced for offences committed between other close relatives. These provisions aim to encourage the resolution of family disputes through civil rather than criminal law and to protect family ties. However, in order for these provisions to apply, the kinship relations and other conditions specified in the law must be present in the concrete case. When faced with such a situation, it is strongly recommended to seek legal advice from an expert criminal lawyer in order to correctly assess the legal consequences and prevent loss of rights.