Unauthorised Use of Services (Turkish Penal Code Art. 163): Elements, Case Law and Active Repentance

The offence of unauthorised use of services without payment (karşılıksız yararlanma) is regulated in Article 163 of the Turkish Penal Code (TPC), among offences against property. The article contains three separate offence types, each with its own subject, penalty and practical issues. This article gives a general overview and does not replace an assessment of your specific case.

1. The statutory provision

Under TPC Art. 163:

• Paragraph 1 (vending machines): a person who uses, without paying, a service offered through machines that is available upon payment is punished with imprisonment from two to six months or a judicial fine.
• Paragraph 2 (lines, frequencies and broadcasts): a person who uses telephone lines and frequencies, or encrypted or unencrypted broadcasts made by electromagnetic waves, without the consent of the owner or possessor is punished with imprisonment from six months to two years or a judicial fine.
• Paragraph 3 (subscription-based energy and water): where electricity, water or natural gas available on a subscription basis is consumed without the owner's consent and in a way that prevents measurement of consumption, imprisonment from one to three years is imposed. This paragraph was added by Law No. 6352 in 2012.

Unlike the first two paragraphs, the third provides only imprisonment, with no alternative judicial fine.

2. Protected interest and subject

The offence protects the economic interest in the property of the person or institution supplying the service. The subject differs by paragraph: a machine-based service, a telephone line or frequency and broadcasts, or subscription-based electricity, water or gas. The absence of a lawful subscription or payment is a common element of all three.

3. Examples from Court of Cassation practice

• Showing encrypted broadcasts without authorisation: showing football broadcasts in a cafe or similar business without a subscription, by tampering with the decoder or decrypting over the internet, has been treated by the Court of Cassation under TPC Art. 163/2 (17th Criminal Chamber, 2019/4452, 2019/14550; 6th, 2012/5824, 2014/11720; 19th, 2015/3818 and 2015/9233).
• Making encrypted broadcasts available to others: sharing material online that enables encrypted broadcasts to be watched unencrypted has been treated under the same paragraph (19th Criminal Chamber, 2017/1875, 2017/2559).
• Continuing to watch after the subscription ended: continuing to watch a broadcast through an internet-connected decoder after the subscription ended was treated as falling under Art. 163 (7th Criminal Chamber, 2013/8265, 2014/20905).
• Unauthorised use of a telephone line: making calls from another person's landline was treated under Art. 163/2 (2nd Criminal Chamber, 2013/7813, 2014/1062); continuing to use a telephone and ADSL line that the owner asked to be closed was also treated under Art. 163/2 instead of unlawful access to an information system (Art. 243) (13th Criminal Chamber, 2014/34290, 2015/6590).
• Illegal electricity use: in one decision, referring to the General Criminal Assembly decision of 3 April 2018 (2017/1125, 2018/131), the 2nd Criminal Chamber stated that drawing a line off the lines of subscribed end users without their consent and to their detriment constitutes the offence (2nd Criminal Chamber, 2019/7679, 2019/17546).

These decisions are examples only. Which paragraph applies depends on the form of the act, the status of the subscription and the evidence.

4. Relationship with other offences

In practice the boundary between unauthorised use and offences such as unlawful access to an information system (Art. 243) or theft may be debated. The 13th Criminal Chamber decision above indicated that Art. 163/2, not Art. 243, applied to a case about line use. Because the classification directly affects the penalty and procedural conditions, it must be made carefully.

5. Kinship-based non-punishment and active repentance

• Personal grounds for non-punishment (Art. 167): where offences in the chapter on property offences are committed to the detriment of a spouse not subject to a separation decision, an ascendant or descendant, or a sibling living in the same home, no penalty is imposed on the relative; for some other kinship relations, the penalty on complaint is reduced by half.
• Active repentance (Art. 168/5): where the offender, instigator or accomplice shows repentance and fully compensates the loss before the investigation is complete, no public prosecution is brought. If the loss is fully compensated until judgment is given, the penalty is reduced by up to one third. A person cannot benefit from this provision more than twice.

Active repentance is among the most frequently raised provisions; when and to what extent the loss is compensated directly affects the outcome.

6. What to do

If an investigation or prosecution has been started against you, seek legal advice before giving a statement. Compensating the loss, not missing time limits and the correct classification of the offence matter for the course of the process. You can create an appointment or reach us via the contact page.

This article is for general information only and is not legal advice.