T.C.
SUPREME
PENAL GENERAL ASSEMBLY
E. 2011/10-482 K. 2012/1784 T. 25.9.2012
Case: defendant L. on drug trafficking charge H.’s No. 5237 T.C.K.in 188/3, 62, 53 and 63. in accordance with the Articles 4 years 2 months imprisonment and 2.000 Lira judicial fine related to the punishment, Izmir 3. The court of cassation, which examined the file and decided to release the defendant with an interim decision dated 15.6.2009, after the appeal of the sentence No. 119-280 and 28.6.2007 issued by the deciduous Criminal Court, 10. 8.10.2009 days and 3837-15096 number by the Penal Department;

” …1 – according to the content of the arrest, upper examination and Retention Report and the scope of the entire file; the defendant who was acquitted of the same crime is M.E.A.according to the report that cannabis was sold in the coffeehouse they operated with his son, defendant Muzaffer, when the officials came to this place, the upper search conducted because of suspicion of the actions of defendant Lütfi, 6 packets of cannabis wrapped in gelatine and 129 packets of cannabis wrapped in gelatine were seized in the cupboard in the garden; the defendant testified at the public prosecutor’s office that he had been a marijuana smoker for six to seven years.in the face of the fact that he had been convicted of possession of drugs for the purpose of selling, he had no criminal notice of possession of drugs for the purpose of selling.there is no evidence that he was in possession of the 6 packs of cannabis he said he had bought from, without any doubt, legal or sufficient evidence that he was in possession of it for the purpose of selling it.; thus establishing a written provision, without regard to the fact that his act constitutes the offence of possession of drugs for use,

2 -) the other accused M.T. 5237, about the defendant who served and assisted in the emergence of this person’s crime by saying that he had received it fromC.K.of 192/3. failure to observe that effective remorse provisions should be applied in accordance with the article,

3 -) according to acceptance;

A -) in the calculation of the judicial fine by multiplying the number of full days determined by the amount appreciated as equivalent to one day, the law Article 5271 no.M.K.of 232/6. creating a violation of the article,

b -) the criminal fine imposed on the accused; Act No. 5083 1.1 of the decision of the Council of Ministers dated 4.4.2007 and numbered 2007/11963, which came into force on 1.1.2009 after the provision of the article.obligation to be determined in Turkish Lira (tl) according to the article,

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

It has been decided that he should be corrupted by the lack of a hit.

Izmir 3. By the High Criminal Court with the number 473-510 and the day 25.12.2009;

“…At 15.00 on the day of the crime, Eşrefpaşa 456 street no.132 where the marijuana substance is sold in Altınyol Kıraathanesi operating in the backyard of the kıraathanesi and there is a large amount of marijuana substance ready for sale on the notice that the 3954 and 3950 code number of the police officers working in the team Altınyol Kıraathanesi when they came to the Kıraathanede L. H.L. H.6 Oak marijuana items made available for sale in the rough top search were found and confiscated, a notice was made, a drinker had to leave the scene after supplying the drug marijuana from the person who bought it or from the place where it was taken, L. H.over 5 TL each. said to have received from, each of them made available for sale 6 Oak marijuana on sale was found in the kıraathanede, said to have taken the marijuana Altinyol Kıraathane operator’s son Muzaffer’nin was not found at the scene according to L. H.it is understood that he is the seller of cannabis which belongs to Muzaffer in cooperation with Muzaffer, the son of the operator of Altınyol Kıraathanesi with the expression of bingo, and therefore the Supreme Court 10.Criminal Division’s defendant L. H.`ruining it for the defendant to a sentence of L. A H.No. 5237 of the act of T.C.K.nun 188/3. it creates the crime that fits the substance…”

On the grounds of resisting, the defendant has no. 5237.C.K.in 188/3, 192/3, 62, 53 and 63. in accordance with the Articles 2 years 1 month imprisonment and a judicial fine of 1,000 pounds is decided to be punished.

Upon appeal of this provision by the defendant, the Court of Cassation C. The file sent to the first president of the Supreme Court with the communiqué dated 17.11.2011 and numbered 133559 with the request of the Attorney General’s office for “approval” has been evaluated by the criminal General Assembly and decided on the reasons explained.:

Decision: the dispute between the special office and the Local Court, which must be resolved by the Penal General Assembly, is related to the determination of whether the defendant’s act of subuta eren constitutes the offence of possession of drugs for the purpose of use or the offence of drug trafficking.

From the contents of the file under review;

At 15.00 on the date of the crime, the police teams conducting a gbt investigation on suspicious persons named Altinyol sold cannabis substance in the backyard cupboard belonging to the crack house and a large amount of cannabis substance ready for sale on the report of the law enforcement forces going to the coffeehouse, the defendant exhibiting suspicious movements L. H.in the search of the top, the right pocket of his coat contained 6 packages of Oak marijuana wrapped in gelatine, and 129 packages of Oak marijuana wrapped in gelatine hidden behind the TV in the wooden cupboard in the back garden of the house were recovered.,

The report dated 2.3.2007 organized by Izmir Criminal Police Laboratory stated that the total 135 packs of drugs recovered in the case were 97 grams 300 milligrams of gross and a net 58 grams 380 milligrams of cannabis, without any distinction being made regarding the 6 packs of drugs recovered in the defendant, and that the ratio of this amount to the 6 packs,

It is understood.

Record editors witnesses B. Z., N. A., R. K., O. Y., Witness N. K. and D. D.“on the day of the incident, we searched the scene as counterterrorism teams upon the verbal notification of the sale of cannabis in Altinyol Rural District of a person aged 30 years. Lütfi, who was at the coffee shop during the search, suspected his actions and searched him myself. I caught what was called Oak wrapped in gelatin in the search. Other friends of the team were searched inside the coffee shop and outbuildings in the garden, cannabis was found stashed inside the TV cupboard with an entrance inside the coffee shop and no other entrance, cannabis substance and perpetrators of the incident were brought to the Eşrefpaşa Police Station, a read-out report was held. L. H. he didn’t say where he got the marijuana from, he said after the search in Altınyol”,

Defense witness Y.T. at the hearing, he said: “I was a cook during Mustafa Enver’s time as an undersecretary in this coffee shop. Lütfi is a child of our neighborhood, he said he wanted to be cured from drinking, so I said I would help.”,

The verdict on the drug trafficking charge has been confirmed by the special Office.A. On 19.2.2007 C.D. A.’s Office Said, “I’m L. H. I know personal called. He’s a greengrocer in our neighborhood. This person comes and goes to the Altınyol farm that my father runs. I’m L. H.I know he smoked marijuana. I knew it before. But I didn’t sell him marijuana. I don’t know who’s selling it, and at trial; “L.I didn’t sell the marijuana found on it. I know Lütfi from smoking pot and coming to our coffee shop and hanging out. I beat him up a couple of times for smoking pot and running wild.”,

They have made statements in the form of.

Defendant L. H. he exercised his right to silence in the defense of the law, C.Prosecutor’s office; ” I went to Altınyol Kıraathanesi, which I knew before at noon on 27.1.2007, the name of which operates here as Muzaffer, M.E.A.I bought six pieces of Oak pot from ‘ s son for 5 pounds each. My aim was to smoke, I have been using cannabis for three days, I bought it for this purpose, I regret it, I do not know who the other cannabis found in the coffee belongs to, ” he said,

The petition dated 10.4.2011 sent by mail to the Local Court in summary; “Caught using marijuana a few times, therefore known by the police, on the day of the incident, Tepecik Harman street name of the person he knows as Engin 250 lira took a bag of marijuana, one of the empty plot to smoke marijuana, came to use the toilet Altınyol Coffee House, bag 5-6 pieces of marijuana in his pocket by putting the rest of the back garden, pocket taken to drink marijuana,A. he said that he was named after her because they had a fight with him and he didn’t want her to come to the coffee shop because she smoked marijuana, but in reality the marijuana was E. he claimed he took it from a Named Person.”,

Before the court on 3.5.2007; ” 6-7 years since I have been a smoker of marijuana. I get the marijuana I need from people I don’t know in the hillock district. The last marijuana I had caught was from a person named Engin. The person named Engin, the cannabis substance Tepecik Mah. Hammam Sk. I took it in position. I’m not a pot dealer. I told him I took the marijuana from a man nicknamed Muzo. I know Engin’s name, nicknamed Muzo. I’m M.A.I know him, he’s a drinker. Defendant M.E.A.I know him, he’s a coffee shop owner, I don’t know he’s a salesman. I submitted the petition I sent through ptt. I got the marijuana from a person named Engin, whose name and address I don’t know, who lives in the Tepecik district. After the arrest of one of the defendants, Mustafa Enver, and the public trial against us, a person whose name and address I did not know came to me. ‘The name of Muzaffer I mentioned in my investigative testimony is Engin, known as Muzo, C.The triumphant name mentioned in your testimony at the prosecutor’s office is E. change as, ‘ he said. I signed the petition read in accordance with this”, 28.6.2007 on the first decision was made in the session; ” event day 5-6 gelatine wrapped marijuana substance 30 Liras in exchange for M.A.I bought it from. The cops caught me on suspicion while I was carrying it for a drink. I’ve been a smoker for 3-4 years. I usually get the marijuana I need from the hillock district. On the day of the event, I bought 6 pieces of marijuana, called Oak wrapped in gelatine, from Muzaffer for 30 pounds, and it was on me. On suspicion, the police apprehended and restrained him. The Police Department said that the marijuana substance was M.I said I got it from. Then M.’s friends beat me, pressured me and I had to write and give the petition that I had sent through ptt. I even signed and mailed the petition on the computer without reading it. The petition shown is the one signed and mailed by me. I am not a seller, I am a drinker, I want to see treatment,” he argued.

Defendant L.in the epilogue of, defendant M.A.it was written in handwritten, with no judge’s wire on it, which M. M. had submitted to the court claiming that he had sent it to him by means of a friend hidden in onions while he was in prison.A. in a two-page letter, which gives the impression that it was written by, In summary, the defendant Lütfi was in distress because of his testimony and that he should change his statement.threatening and insulting sentences are included, and the conviction for drug trafficking has been finalised.A. however, he did not accept that this letter was written by him.

Examining the legal regulations related to the dispute;

No. 5237 T.C.K.in 188 entitled “The manufacture and trade of drugs or stimulants”. Articles 3 and 4. jokes; “(3) unlicensed or licensed drug or stimulant substances in violation of selling within the country, the sale of supply, giving to others, referring, transports, stores, purchases, accepts, the person that holds five to fifteen years of imprisonment and fined up to twenty thousand a day.

(4) if the drug or stimulant substance is heroin, cocaine, morphine or bazmorphine, the penalty to be given in accordance with the above paragraphs shall be increased by half” in the form of, as emphasized in the reason of the Article 3. in the paragraph, various acts relating to the trafficking of drugs and stimulants are defined as separate offences. Accordingly, the sale, sale, supply, delivery, transfer, storage or purchase, acceptance or possession of drugs or stimulants within the country without or without a license, for the purpose of profit, One and 2. it constitutes a separate offence according to the jokes.

191 of the same law entitled “to purchase, accept or possess drugs or stimulants for use”. Article 1. “(1) the person who buys, accepts or holds drugs or stimulants for Use shall be punished with a prison sentence of one to two years” and, as stated in its justification, the acts of buying, accepting or possessing drugs or stimulants for use, not using drugs or stimulants, as per the crime policy followed in the text of the article, are defined as

The issue that plays a prominent role in determining whether the act of possession of drugs constitutes the offence of possession of drugs to use or the offence of trafficking of drugs is the purpose of possession. As stated in the resolutions of the General Assembly 6.3.2012 days and 387-75 and 15.6.2004 days and 107-136, there are some criteria that must be taken into consideration in determining the purpose of drug possession for use and which are also accepted in practice and doctrine.

The first of these is that the perpetrator cannot be determined to have engaged in any conduct in selling, transferring or supplying drugs to someone else.

The second criterion is the location and form of possession; whoever has drugs for personal use always has them in a place with easy access, for example, usually at home or at work. The presence of sensitive scales and packaging materials used in packaging at or near the place where the drug was seized is an important indication that it was kept for a purpose other than use.

The third criterion is the amount in possession. Although the amount acceptable for personal use varies according to the person’s physical and mental structure and the nature, type and quality of the drug or stimulant, it is reported that cannabis users can consume cannabis three times a day, 1-1.5 grams each time,in the opinion of the Forensic Medicine Institution. Taking these into account, it is also known in the Forensic Files that those who have the habit of using cannabis can discreetly keep the amount of cannabis they need for a few months with them or in a place where they can reach it. Accordingly, if perpetrators who use cannabis have possession of cannabis substance above their personal needs during that time, which is considered to be ordinary, it should be considered that possession is not intended for personal use.

In the light of these explanations, the concrete event is evaluated;

The fact that the amount of a net 2 grams of 59 milligrams of drugs specified in the expert’s report is within the limits of one day’s personal use, considering the amount of daily requirement stated in the opinions of the coroner’s office, considering the evidence that the defendant was in possession of the drugs found at all stages, not to sell, but to use, , the defendant is suspected of committing the crime of drug trafficking. However, on the one hand, there were no allegations against him at the beginning of the incident and he was not present at the scene of the crime.the declaration of the Republic of Turkey and the conviction for drug trafficking, which is included in the investigation, have been finalized by the special Office. A.the defendant, whose statements on ‘ A ‘ are respected, is L.on the other hand, the fact that he was in possession of the seized drugs for the purpose of use is a contradiction that cannot be explained by the fact that he is not being respected and that he has expressed stable in stages.

In accordance with the principle of “in dubio pro reo”, which is one of the most important principles of criminal proceedings, “the defendant benefits from suspicion”, the basic condition for the defendant to be punished for a crime is to prove the crime with no doubt. Events and allegations that are suspicious and not fully elucidated cannot be interpreted against the defendant and a conviction sentence can be established. This rule, which has a wide range of applications, applies to determine the nature of the crime, as well as to apply if there is any doubt about whether a crime was actually committed or, if it was committed, the manner in which it was carried out. A criminal conviction must be based on a definite and clear proof, not on an opinion of the possibility reached by relying on some of the evidence gathered during the trial and ignoring the other part. This proof must be in no doubt or clarity that would allow any other kind of occurrence.

Therefore, it is inconceivable by the Local Court to determine the nature of the crime incorrectly by deciding that the defendant should be punished for the crime of drug trafficking, based on evidence that is far from conclusive, regardless of whether the act constituted the offence of possession of drugs for use.

Therefore, the decision to break the Special Chamber is in place and the Local Court must decide whether to break the resistance provision.

However, although the Local Court has complied with the other reasons for corruption of the private chamber, there is no benefit in sending the provision to the private chamber for examination in terms of the parts complied with, as a new provision will be established by the Local Court in line with the corruption due to the fact that the resistance provision has been impaired.

The seven members of the General Assembly, who disagreed with the majority opinion, voted against the idea that the Local Court provision should be upheld.

Conclusion: for the reasons described;

1 -) Izmir 3. To the deterioration of the resistance provision of the Heavy Criminal Court No. 473-510 and day 25.2009 from the lack of hit to the erroneous determination of the nature of the crime,

2 -) to be sent to the location of the file Supreme Court C. His appointment to the Office of attorney general was decided by a majority of votes in the negotiation held on 25.09.2012.