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THE CRIME OF SEAL BREAKING ON UTILITY COUNTERS

THE CRIME OF SEAL BREAKING ON UTILITY COUNTERS

The crime of seal breaking has been regulated under the provisions of Article 203 of the Turkish Criminal Code Numbered 5237, as the following:

Any person who removes, or acts contrary to the aim of, a seal designed to secure the protection of an object in its original form or to maintain its secrecy, as required by law or order of the authorities, shall be sentenced to a penalty of imprisonment for a term of six months to three years or a judicial fine.”

The seal reveals the will of the public that something should not be done or how it should be done.[1] The definition and application of seal is regulated under the Official Seal Regulation (Official Gazette, 12.09.1984-18513). Accordingly, the following regulation has been made in Article 2 of the Regulation:

 “Official seal; is an instrument that is decided by the authorities as specified in Article 3, manufactured and registered by the General Directorate of Mint and Stamp Printing House, and can be used with an official seal certificate.”

In Article 3 of the Regulation; The following provision is included;

“Official Seals can only be used by institutions or organizations that have been given a public duty under the founding laws and Presidential Decrees.”

Accordingly, the bodies that can implement seals are only institutions and organizations that have been given public duty by law per the principle of legality of the administration.

Removing the seal means partly or completely breaking the seal. This act is in the form of being removed from the place where the seal was placed or made unrecognizable; it can take place in the form of removing the possibility of controlling the preservation or presence of the sealed thing.[2] Apart from these, acting contrary to the purpose of the seal, may also constitute a crime. Continuing activities in the sealed workplace without removing the seal is an example of this.

For these actions to take place, the seal must also be in order with the law.[3] First of all, to understand that the seal has put into effect, a duly prepared report should be prepared regarding the execution of the transaction.[4] It is also necessary to put the actual seal, physically, after the report.[5] This report should be prepared to contain the signature of both the accused and the officers and a document proving that the accused is notified about the seal.[6] In other words, a judge cannot punish because of the seal that is not put under the law and the judge must investigate this issue ex officio.

In terms of the moral element of the crime, it is sufficient for the accused to be aware of the seal process, official notification is not required.[7]

According to the Successive Offences provisions, a single stamping offense will occur for the accused who has been prosecuted more than one lawsuit from the same break-the-seal report, if more than one seal-breaking report has been issued for the same defendant,[8] the chain-offense provisions should be applied.[9]

In case of a seal of electricity, water, and natural gas meters, which is the subject of this paper, is broken, the issue of whether a crime occurs within the scope of Article 203 of the Turkish Criminal Code should also be examined. According to the provision of Article 37/a of Law Numbered 4046 on Privatization Practices, it is regulated that privatized institutions are subject to private law provisions.

Until 30 September 2013, all electricity distribution institutions in our country were privatized. While all of the water[10] distribution organizations are public institutions, some of the natural gas distribution companies are privatized and some are still public institutions. A crime will occur if the seals duly placed by the qualified public institutions are removed.

First of all, the deterioration of the seals on the water and natural gas meters belonging to the public administrations, due to the failure to pay the debt constitutes the crime in question; the deterioration of the explanatory seals placed on the meters during factory production will not be subject to crime.[11] It is understood from here that the Court of Cassation; does not consider the disruption of the seals placed by private persons due to economic reasons or by considering the product liability, which are not based on public order, as to the crime of breaking the seal.

The Court of Cassations Criminal Chambers stated that the seals put by the privatized companies will cause a crime in cases where a seal break is issued before the company is privatized[12]; It decides that the reports issued after privatization will not be subject to crime.[13] The determination of when the institutions were privatized is determined by the warrants written to the Privatization Administration. Since private companies are not authorized to seal in the relevant laws and there is no provision stating that the provisions of Article 203 of the Turkish Criminal Code will be applied to those who act contrary to this, majority opinion is that if the seals put by the privatized companies are broken, the crime will not occur.

However, the opinion of the General Assembly of Criminal Chambers was that according to the reports issued by the institutions that were privatized until 2017, the crime would occur in the presence of other elements[14]. Finally, the General Assembly of Criminal Chambers changed this view and decided that the reports designated by the privatized institutions would not cause the crime[15].

Some views in the doctrine do not agree with the final case law of the General Assembly of Criminal Chambers. It is stated that the phrase "law" in the letter of Article 203 of the Turkish Criminal Code should be understood not as a formally but materially and that the authority given to the institution by regulations should also be sufficient[16]. Due to Article 43/4 of the Electricity Market Consumer Services Regulation (Official Gazette, 30.05.2018-30438) it is provisioned that: “The legal entity holding a distribution license, will make a criminal complaint to the Public Prosecutor's Office regarding the real or legal persons whose illegal electricity consumption is detected as a result of the leak detection process.. This regulation also shows that the legislator accepts that the institution providing the infrastructure service with the license provides a public service.

Finally, if the use of water, electricity, and natural gas services continues despite the seals imposed due to improper use, it is accepted that the crime of unrequited use has been committed due to provision of Article 163 of the Turkish Criminal Code.[17]. In this case, there are opinions in the doctrine that the conceptual aggregation should be applied.[18]

References:

[1] Özbek Veli Özer, Ekonomik Ceza Hukuku İkinci Kitap: Özel Hükümler, 1. Bası, Ankara 2021, s. 477

[2] Önder Ayhan, Türk Ceza Hukuku Özel Hükümler, 4. Bası, İstanbul 1994, s. 248

[3] Yargıtay 17. Ceza Dairesi, 21.03.2018 T. 2016/3062 E., 2018/3570 K.

[4] Yargıtay 11. Ceza Dairesi, 05.04.2017 T., 2016/844 E., 2017/2563 K.

[5] Artuk/Gökcen/Alşahin/Çakır, Ceza Hukuku Özel Hükümler, s. 701

[6] Yargıtay 5. Ceza Dairesi, 15.05.2014 T., 2014/1415 E., 2014/5477 K.

[7] Yargıtay Ceza Genel Kurulu, 17.01.2019 T., 2017/11-129 E., 2019/21 K.

[8] Yargıtay 11. Ceza Dairesi, 22.06.2017 T., 2016/1430 E, 2017/4934 K.

[9] Yargıtay 11. Ceza Dairesi, 30.09.2019 T., 2019/1245 E., 2019/6803 K.

[10] Yargıtay 23. Ceza Dairesi, 2015/9953 E., 2015/1304 K.

[11] Yargıtay 11. Ceza Dairesi, 27.12.2016 T., 2015/7363 E., 2016/8815 K.

[12] Yargıtay 21. Ceza Dairesi, 05.05.2015 T. 2015/9967 E., 2015/713 K.

[13] Yargıtay 21. Ceza Dairesi, 2016/9967 E., 2017/616 K.

[14] Yargıtay Ceza Genel Kurulu, 31.10.2017 T. 2017/11-23 E., 2017/452 K.

[15] Yargıtay Ceza Genel Kurulu, 16.10.2018 T., 2017/11-483 E., 2018/427 K.

[16] Özbek Veli Özer, Ekonomik Ceza Hukuku İkinci Kitap: Özel Hükümler, 1. Bası, Ankara 2021, s. 483-484

[17] Barkır Kamil, Mühür Bozma Suçu (TCK m. 203), İstanbul 2019

[18] Özbek Veli Özer, Ekonomik Ceza Hukuku İkinci Kitap: Özel Hükümler, 1. Bası, Ankara 2021, s. 484


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seal, sealbreaking, penalty, law
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