Should You Return the Property or Pay? What TCK 168/3 is worth in a robbery file

Article 168 of the Turkish Penal Code sets one set of ceilings for theft, criminal damage, breach of trust and fraud, and a separate, lower set for robbery. Robbery sits in TCK 168/3, and it turns on a single date.

The contrast with theft matters, because people arrive with the theft figures in their heads. Under TCK 168/1 full restitution before prosecution begins is worth up to two thirds, and under TCK 168/2 up to one half afterwards. In robbery each of those is cut back one step: what in a theft file would be a two-thirds reduction is, on the same payment, one half here.

Note the words up to. The court fixes a figure inside the ceiling and gives reasons for it. Payment that is complete, early and made before anyone asked for it sits at the top of the band.

Three requirements sit in the text, and each one defeats payments made in good faith but arranged badly.

• In full. The loss must be made good completely, by returning the thing itself or by compensating for it. Under TCK 168/4, where the return or compensation is only partial, the reduction applies only with the victim's consent. A part payment the complainant refuses to accept buys nothing, and you will not get it back.
• Personally. The article names the perpetrator, the instigator and the helper as the people who show remorse. A co-defendant who settles his own share does not carry you with him.
• Traceably. Payment made through the file, recorded against the case number and the named complainant, is provable. A transfer with no reference, or cash handed over by an intermediary, is not.

One practical point catches robbery files in particular. In many of them the property never left police hands: it was recovered in a search and returned to the complainant under a seizure record. That is the work of the authorities, not remorse shown by you. Where the item comes back intact, the argument is that no loss remains to be made good; where it was damaged, sold on or partly spent, that residue is what a payment has to cover — and either way it has to be put on the record and argued.

Restitution in a robbery case buys a sentence reduction. It does not buy the three things people most often expect from it.

The complainant cannot withdraw the case. Criminal mediation under CMK 253 applies to a listed set of offences. Simple theft under TCK 141 is on that list. Robbery under TCK 148 and 149 is not, and neither is qualified theft under TCK 142. An arrangement with the complainant, however complete, does not close a robbery file; the prosecutor continues and the payment resurfaces later as a sentencing argument.

It does not produce release. Detention is decided under CMK 100, and robbery sits inside the catalogue at CMK 100/3-a-8, named there alongside theft, where a ground for detention may be presumed on strong grounds based on concrete evidence. Money in the file does not remove the offence from that list. It can support an application for judicial control under CMK 109 by weakening the argument that loss is continuing, but that is an argument to be made rather than a result that follows. What that application involves is set out on the page on remand, judicial control and release.

It does not touch an injury sentence. Under TCK 149/2, where the aggravated forms of intentional injury by result occur during the robbery, the intentional injury provisions are applied in addition. That additional sentence comes from articles that are not among the property offences listed in TCK 168. Returning the phone does not reduce it.

The order is fixed by TCK 61/5: personal grounds for reduction such as TCK 168 are applied to the sentence the court has fixed, and the discretionary reduction in TCK 62 — up to a further one sixth — comes last. Two thresholds then decide whether anything is served: two years or less for suspension under TCK 51, and two years or less for deferral of the announcement of the judgment under CMK 231/5.

Take the basic offence at its floor. TCK 148/1 starts at six years. A full one-half reduction under TCK 168/3 leaves three years, and a further sixth under TCK 62 leaves two years and six months. That is still above both thresholds — from the most favourable starting point in the article, with the largest reduction the remorse provision allows.

The low-value provision is what changes the arithmetic. TCK 150/2 permits a discretionary reduction of one third to one half for the low value of the thing taken. Six years reduced by half is three; halved again under TCK 168/3 is eighteen months; a further sixth is fifteen. That is inside the range where suspension and deferral of the judgment become arguable. Both reductions are discretionary, and both the decision to apply them and the figure chosen inside each band belong to the court.

From TCK 149 nothing of the kind is available. The qualified range begins at ten years; halved and then reduced by a sixth it is four years and two months. That is a large difference and no route to a non-custodial sentence.

This is a decision rather than a formality because payment is evidence, and it is evidence about the very thing most robbery files are fought over.

Almost every contested yagma file is an argument about characterisation. Snatching a thing carried in the hand or on the person is qualified theft under TCK 142/2-b, at five to ten years. Compelling a person by force or threat to hand it over is robbery under TCK 148, at six to ten. Paying the full sum claimed, in a file where you are contesting that anyone was compelled, is not a confession in law and TCK 168 requires no admission — but a court reads the file as a whole, and the two positions sit badly together.

• Where the defence is TCK 150/1. Where force or threat was used to collect a debt arising from a legal relationship, the robbery article does not apply at all and only the provisions on threat or intentional injury do. Compensating a complainant for property you say was yours to recover undercuts that argument before it is made.
• Where the figure is not the evidenced loss. The reduction attaches to the loss actually suffered. Complaint statements routinely carry a value for a phone or a watch that no receipt supports. Paying the number in the complaint rather than the number the evidence supports costs money and buys no larger reduction.

So the sequence is: establish which article and which paragraph you are actually facing, establish the evidenced loss, then decide the payment and its date. The characterisation question underneath it — theft or robbery, basic or qualified, which court hears it and how long remand can run — is set out on the page on robbery charges under TCK 148 and 149.