T.C.
SUPREME COURT
CRIMINAL GENERAL ASSEMBLY
E. 2011/10-482 K. 2012/1784 T. 25.9.2012
CASE : Defendant L. for drug trafficking H.in T. No. 5237.C.K.188/3, 62, 53 and 63. regarding the punishment of 4 years and 2 months in prison and a judicial fine of 2,000 pounds in accordance with the articles, Izmir 3. The Supreme Court, which examined the file on the appeal of the judgment of 28.6.2007 and No. 119-280 issued by the Heavy Criminal Court by the defendant’s defense and decided to release the defendant primarily by decision dated 15.6.2009, 10. By the Criminal Department on 8.10.2009 days and by the number 3837-15096;

” …1- According to the content of the minutes of capture, upper polling and custody and the entire scope of the file; The defendant M., who was acquitted of the same crime.E.A.upon a tip that cannabis was sold in a coffee shop owned by the defendant’s son Muzaffer and operated by them, when the officers arrived at this place, during a search of the premises conducted due to suspicion of the defendant Lutfi’s actions, 6 packages of cannabis wrapped in gelatin and 129 packages of cannabis wrapped in gelatin were seized in a closet located in the garden, which is an addition to the coffee shop; in his statement given by the defendant at the Public prosecutor’s office, he said that he had been a cannabis smoker for six to seven years, and that the defendant had used this substance.one of them stated that he bought it for 5 ytl, and in the face of the understanding that he had a previous conviction for possession of drugs for use; there was no criminal notice for possession of drugs for the purpose of selling them, and the defendant M.there is also no legal and sufficient evidence, far from any doubt, that he was in possession of 6 packages of cannabis substances that he stated that he bought from; thus, the establishment of a provision in written form, without regard to the fact that its action constitutes a crime of possession of narcotic substances for use,

2-) The other defendant who caught the marijuana on M.about the defendant who served and helped this person’s crime to be revealed by saying that he received it from T. No. 5237.C.K.of 192/3. failure to observe that the provisions of effective remorse should be applied in accordance with the article,

3-) By admission;

a) determined the number of days during the calculation of the fines applied by multiplying the appraised amount for a day is a provision of that Law No. 5271, because it is not displayed openly in paragraph C.M.K.of 232/6. establishment of a violation of the article,

b-) The judicial fine imposed on the defendant; 1 of Law No. 5083.article 1 of the resolution of the Council of Ministers dated 4.4.2007 and numbered 2007/11963, which entered into force on 1.1.2009 after the provision with the article.in accordance with the article, there is an obligation to determine the Turkish lira (tl),

c-) The defendant’s T.C.K.of 53. paragraph (1) paragraph (C) in this clause, the rights and powers of a lack lineage on its own towards the use of custody, guardianship and kayyimlik in terms of powers `conditional release up to` other people in terms of `prison until the completion of the execution of the sentence` should I decide to continue disregarding 53. violation of paragraph (3) of article…”

It was decided to misses from corruption.

Izmir 3. By the Severe Criminal Court on 25.12.2009 days and with the number 473-510;

” …At about 15:00 on the day of the crime, Ashrafpaşa 456 street No.Where cannabis is sold in numbered 132 altinyol in place and operating kiraathane kiraathane where a large amount of cannabis in a closet in the back yard on a tip from this report and 3950 for sale 3954 field, the code number of police officers on duty in the team when they come to L. altinyol kiraathane kiraathane H.upon realizing that L. was engaged in suspicious behavior, L. H.a rough search of the ‘s top shows that 6 oak cannabis substances that have been made available for sale have been found and confiscated, while a person who is a smoker must leave the scene after obtaining the drug from the person who took the cannabis substance or from the place where he took L. Jul. H.over 5 TL each. according to the fact that Muzaffer, the son of the Altinyol Kiraathane operator, who he said he bought the marijuana from, was not present at the scene, he was in the kiraathane where the sale was made on 6 oaks of marijuana, each of which was ready for sale. H.in cooperation with Muzaffer, the son of the operator of Altınyol Kıraathane, it was understood that he was the seller of the cannabis substance belonging to Muzaffer, and therefore the Court of Cassation 10.The defendant of the Criminal Department L. H.the defendant is L. H.article 5237 of the act of T.C.K.nun 188/3. it constitutes a crime that complies with the article…”

By resisting on the grounds of the defendant’s T. No. 5237.C.K.188/3, 192/3, 62, 53 and 63. according to the articles, he was sentenced to 2 years and 1 month in prison and a judicial fine of 1,000 pounds sterling.

Upon appeal of this provision by the defendant, the Court of Cassation C. The file sent to the First President of the Supreme Court of Cassation with the communiqué No. 133559 dated 17.11.2011 with the request of the Prosecutor General’s Office for “approval” has been evaluated by the General Assembly of the Punishment and decided on the grounds described:

DECISION: The dispute between the Special Department and the local court, which must be resolved by the General Criminal Council, is related to determining whether the defendant’s decriminalized act constitutes a crime of possession of drugs for the purpose of using them or a crime of drug trafficking.

From the contents of the examined file;

On offense around 15: 00 on suspicious persons named in the police teams, which conducts criminal record check and review where cannabis is sold in my closet altinyol kiraathane kiraathane for sale that is found in cannabis in the backyard of a large amount in question by security forces on the same tip into the café where you go, defendant exhibits suspicious movements L. H.during the search of the top, there were 6 packages of oak cannabis wrapped in gelatin in the right pocket of his coat, as well as another 129 packages of oak cannabis wrapped in gelatin hidden behind the TV in a wooden cabinet located in the backyard of the country house,

Forensic report dated 2.3.2007 laboratuarinca accused held in the last 6 package without making any distinction as to the drug substance the drug substance recovered in the event of 97 grams Gross a total of 135 package is 300 milligrams, milligrams and grams net 58 380 contained marijuana, as stated in the package resulting from this amount as a result of defendants accused of drug recovered in the last 6 net grams of cannabis would require 2 milligrams of the substance contained in the adoption of 59,

It is understood.

Record regulators witnesses B. Z., N. A., R. K., O. Y., Witness N. K. and D. D.“at the time of the incident, a witness who edited the minutes, Fevzi Keleş, repeated the contents of the incident minutes in summary at the trial stage;”On the day of the incident, we searched the crime scene as anti-terrorism teams after an oral report that a person aged 30 was sold marijuana at the Altinyol Kıraathanı as a dec. I deconstructed Lutfi’s movements, who was in the coffee shop during the search, and I searched him. During the search, I caught a cannabis substance called oak wrapped in gelatin. Other friends in the team searched the coffee house and outbuildings in the garden, cannabis was found stashed in the TV cabinet with an entrance from inside the coffee house and no other entrance, cannabis was found and the perpetrators of the incident were brought to the Eşrefpaşa Police Station, the minutes were dec. L. H. he did not say where he got the cannabis substance caught on him from during the search at the Altinyol Decimation, and then he said”,

Defense witness Y.T. at the hearing; “I was a janitor during the time when Mustafa Anwar was an obscenity in this coffee shop. Lutfi is the child of our muhite, he said that he wanted to be treated for drinking, so I said that I would help”,

M., Whose conviction for drug trafficking has been finalized by approval by the Special Department.A. on 19.2.2007 c.In the prosecutor’s office; “I am L. H. i know a man named. He works as a greengrocer in our neighborhood. This person comes and goes to the Altinyol Agricultural Factory that my father runs. I’m L. H.i know that he smokes marijuana. I’ve known this before. But I didn’t sell him marijuana. I also don’t know who sold it”, at the trial; “L.I did not sell the cannabis substance found on the . I know Lutfi from smoking marijuana and coming to our coffee shop and hanging out. I’ve beaten him several times for smoking marijuana and being an outcast”,

They have made statements in the form of.

Defendant L. H. he exercised his right to remain silent in the presence of a defender in law enforcement, C.In his prosecutor’s office; “On 27.1.2007, at noon, I went to the Altinyol Agricultural Plant, which I had known before, and I knew the name of the one who operated this place as Muzaffer, M.E.A.I bought six pieces of oak cannabis from the son of 5 pounds apiece. My goal was to drink, I have been using cannabis for three days, I bought it for this purpose, I regret it, I don’t know who the other cannabis found in the coffee belongs to,” he said,

In his petition dated 10.4.2011, which he sent by mail to the local court, he summarized; “A couple of times been arrested for using marijuana, and for this reason is known by the police, on the day of the event name as the person I always knew a bag of marijuana on the vast hillock Harman Street after he got 250 pounds, of marijuana at the vacant lot one drink, Coffeehouse Altinyol to use the bathroom, coming from the bag he put the rest in the backyard of putting it into the pocket of 5-6 mystery, the pot is left to drink it receives into his pocket, caught by the police on the way to the empty lot, they sweep up after the guy planted in the backyard of the bag that said, when they ask who it’s from, M.A. he said that he gave his name because they had a fight with him and he didn’t want him to come to the coffee shop because he smoked marijuana, but he actually smoked marijuana. he claimed that he “got it from a named person,

On 3.5.2007 before the court; “I have been a cannabis smoker for 6-7 years. I buy the cannabis I need from people I don’t know in the Tepecik district. I bought the last cannabis substance I caught from a person named Engin. Tepecik Mah obtained the cannabis substance from a person named Engin. Hamam Sk. I took it from your position. I’m not a marijuana dealer. I said that I took the cannabis substance from the person nicknamed Muzo. I know Engin’s name by the nickname Muzo. I M.A.`I know him, and he’s a drinker. Defendant M.E.A.`I know him, he’s a coffee shop clerk, I don’t know that he’s a salesman. i submitted the petition I sent via ptt. I got the cannabis substance I caught in the history of the crime from a person named Engin, whose open name and address I don’t know, who lives in the Tepecik district. After the arrest of one of the defendants, Mustafa Anwar, and a public lawsuit was filed against us, a person came to me whose name and address I did not know. ‘The name of the Muzaffer I mentioned in my statement at the investigation stage is Engin, known as Muzo, C.The name of the Triumphant mentioned in your statement at the prosecutor’s office is E. change it to,’ he said. I also printed out and signed the petition that was read in accordance with this and sent it through ptt”, at the session where the first decision was made on 28.6.2007; “5-6 gelatin-wrapped cannabis substance on the day of the incident for 30 pounds M.A.I bought it from ` The cops caught me on suspicion while I was carrying it over to drink. I have been a smoker of cannabis for 3-4 years. I usually get the cannabis I need from the Hillock area. Jul. On the day of the incident, I bought 6 cannabis substances called oaks wrapped in gelatin for 30 pounds from Muzaffer, it was on me. Upon suspicion, the police caught and restrained him. M. The substance of marijuana in the police station.I said I got it from ` Later, M.’s friends beat me up, pressured me and I had to write and submit the petition I sent via ptt. I even signed and mailed the petition written on the computer without reading it. The petition shown is the one signed by me and sent to the mail. I’m not a salesman, I’m a drinker, I want to be treated,” he argued.

Defendant L.at the last word of the, the accused M.A.’s submission to the court claiming that he sent it to him through a friend hidden in an onion while he was in prison, with no judge’s order on it, was written in handwriting, M.A. in a summary of the two-page letter, which gives the impression that it was written by the defendant L, with statements that the defendant was in trouble because of Lutfi’s statement and that he should change his statement.there are threatening and insulting sentences against the accused, and the conviction for drug trafficking has been finalized against the accused M.A. however, he did not accept that this letter was written by him.

When the legal regulations related to the dispute are examined;

T. No. 5237.C.K.188 entitled “Manufacture and Trade of Drugs or Stimulants”. article 3 and 4. jokes; “(3) the drug or stimulant substances within the country selling unlicensed or license in violation of, the sale of supply, giving to others, referring, transports, stores, purchases, accepts the person that holds five to fifteen years of imprisonment and fines of up to twenty thousand a day.

(4) If the drug or stimulant is heroin, cocaine, morphine or bazmorfin, the punishment to be given in accordance with the above paragraphs shall be increased by half” in the form of, as highlighted in the justification of the said article 3. in the paragraph, various acts related to the trade in drugs and stimulants are defined as a separate crime. Accordingly, the sale, supply for sale, delivery to others, transportation, storage or purchase, acceptance or possession of drugs or stimulants in the country without a license or in violation of a license, and one and 2. according to the paragraphs, it constitutes a separate crime.

191 of the Same Law “On the Purchase, Acceptance or Possession of Drugs or Stimulants for Use”. article 1. in the paragraph; “(1) use of narcotic or psychotropic substances for the purchase, acceptance, shall be punished with imprisonment from one to two years, or a person who holds” are arranged in the form of, and the reason, as stated in the text of the article tracked in crime as a matter of policy, the use of drugs or stimulants, narcotic or psychotropic substances for use in the purchase, accept, or is defined as the crime of actual possession.

The purpose of possession is the issue that plays an important role in determining whether the act of drug possession constitutes a crime of possession of drugs for use or a crime of drug trafficking. Day and day of the General Assembly of punishment and as stated in the decision of 107-136 6.3.2012 387-75 with 15.6.2004, drug possession, for the purpose of use that should be considered in determining whether there are certain criteria that are accepted in doctrine and practice.

The first of these is that it cannot be determined that the perpetrator has engaged in any behavior related to the sale, transfer or supply of drugs to someone else.

The second criterion is the place of possession and the form of possession; a person who has a drug for personal use always has it in an easily accessible place, for example, usually at home or at work. Numerous small pockets into the weighing result attentive drugs prepared as precisely the same amount of the drug substance made in every paketcig the introduction of drugs seized in place of, or close to, a precision scale and packaging materials used in packaging and kept in use for any other purpose than finding is an important symptom.

The third criterion is also the amount held. Although the amount acceptable for personal use varies depending on the physical and mental structure of the person and the nature, type and quality of the drug or stimulant, in the opinions of the Forensic Medical Institution, it is reported that cannabis users can consume cannabis three times a day, 1-1.5 grams each time. It is a well-known fact that those who have a habit of using cannabis, taking into account them, can keep the amount of cannabis substances that will meet their needs for several months with their needs or where they can reach, which is also reflected in the forensic files. Accordingly, if the perpetrators who use cannabis have cannabis substances above their personal needs during this period, which is considered normal, it should be recognized that the possession is not intended for personal use.

When the concrete event is evaluated in the light of these explanations;

Except for drugs that are obtained as a result of the search, the defendant was a drug substance in the way of selling the inability to obtain any other evidence, the Forensic Medicine Institution in the opinion of the daily requirement as specified considering the amount of drug substance the amount of the expert’s report specified a log of 59 milligrams 2 grams net to be within the limits of personal use, to sell drugs to use in the direction of the defendant on all stages are considered together when not possessing defenses otherwise unprovable, it remains in the dimension of suspicion that the accused committed the crime of drug trafficking. Moreover, on the one hand, although there were no allegations about him at the beginning of the incident and he was not at the scene of the incident, the defendant was L.M., who was included in the investigation with the statements of the and whose conviction for drug trafficking was finalized by approval by the Special Department. A.the accused, whose statements about L.on the other hand, the fact that he was in possession of the seized drug for the purpose of using it, which cannot be proven otherwise, and that his defense, which he has consistently expressed at stages, is not respected, also constitutes a contradiction that cannot be explained.

According to the principle of “in dubio pro reo”, that is, “the accused benefits from suspicion”, which is one of the most important principles of criminal proceedings, the main condition for punishing the accused for a crime is that the crime is proven with certainty that does not give rise to suspicion. Suspicious and not fully clarified events and allegations that occurred cannot be interpreted against the defendant and a conviction cannot be established. This rule, which has a fairly wide range of applications, applies if there is doubt about whether a crime has actually been committed or, if it has been committed, the way it was committed, as well as in terms of determining the nature of the crime. A criminal conviction should be based on decisively and unambiguous evidence, not on probable cause, which is reached by relying on some of the evidence collected during the trial process and ignoring another part. This proof must be in such a clear way that there is no doubt and it will not allow any other kind of occurrence.

Therefore, it is incorrect to determine the nature of the crime by deciding that the defendant will be sentenced for drug trafficking based on evidence that is far from conclusive, without regard to the fact that the act committed by the local court constitutes a crime of possession of narcotic substances for use, it is incorrect.

As of this moment, the decision to overturn the Private Apartment is in place and the local court should decide whether to OVERTURN the provision of resistance.

However, even if the local court has complied with other reasons for the violation of the Special Chamber, there is no benefit in sending the provision to the Special Chamber for review in terms of the parts complying with the violation, since a new provision will be established in accordance with the violation by the local court due to the fact that the provision of resistance has been violated.

Seven members of the General Assembly who did not agree with the majority opinion voted against the decision of the local court, which was correct, in the opinion that it should be upheld.

CONCLUSION : For the reasons described;

1-) Izmir 3. 25.12.2009 days and 473-510 of the resistance provision of the Criminal Court of the Heavy Criminal Court from incorrect determination of the nature of the crime to its failure to DETERIORATE,

2-) C of the Supreme Court for sending the file to the scene. The transfer to the Prosecutor General’s Office was decided by a majority vote at the meeting held on 25.09.2012.

 

 

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