T.C. SUPREME COURT

10.Criminal Department
Base: 2015/5917
Decision: 2016/2073
Date of Decision: 29.06.2016

OFFENCE OF TRAFFICKING OR SUPPLYING DRUGS OR STIMULANTS – FAILURE TO COMPLY WITH THE SUPERVISION PERIOD AND, IF COMPLIED WITH, THE CASE IS LIKELY TO BE DISMISSED – FAILURE TO OBSERVE THAT THE CONVICTION CANNOT BE BASED ON A REPETITION – VIOLATION OF THE PROVISION

ABSTRACT: It is necessary to adapt the finalized provisions and decide whether to release the disclosure of the provision, and since there is a possibility that the case will be dropped if it complies with the audit period and complies, failure to observe that this conviction cannot be based on repetition required a reversal.

(5237 P. K. m. 53, 191)

Case and Verdict: The file has been reviewed.

It was Discussed and Considered as Necessary:

Failure to write the date of the crime in the title of the reasoned decision was considered a material error that could be corrected by the court.

On appeal, the court of Criminal Appeals issued by the General Assembly of reversal abide by the decision of the trial of transactions in accordance with the law in the process where the evidence is discussed and shown in the reasoned decision of conscientious certain documents and data in accordance with the information in the file of blood on which it is based, it has been detected that is performed by action of the defendant, the action that fits with the type of crime other than those specified below correctly determined it is understood that because of sanctions, appeals the denial of Appeal that are not seen in any other place, however,;

1-The decision of the Constitutional Court dated 08.10.2015 No. 2014/140 and decision No. 2015 No. 85 dated 2015 dated 24.11.2015 and published in the Official Gazette No. 29542 and entered into force after the judgment, 53 of the Turkish Commercial Code No. 5237. due to the cancellation of some provisions of the article, from the point of view of the application of this article, there is an obligation to re-determine the defendant’s condition,

2- The Conqueror, based on the repetition of the accused 2. Magistrates ‘ Court on the charge of drug possession for use by Decision dated 22.04.2011 2011/197 2011/634 principles and 10 months in prison, fines, probation, and treatment with 6000 TL translated from Named where the decision is made on the implementation of the obligations and principles and for failing to meet the defendant’s date of decision Decision No. 6000 TL 07/10/2011 2011/197 additional execution 2011/634 just decided to criminal fines and a prison sentence of as the equivalent of 6000 TL 300 days of this decision is understood to have been executed on 25/05/2012. Article 85 of the Law No. 6545. provisional article 2, which was added to the Law No. 5320. article 191 of the Turkish Penal Code as of the date of entry into force of this law, in prosecutions carried out for the crime defined in Article 191 of the Turkish Penal Code, it is decided to withdraw the disclosure of the provision in accordance with the provisions of Article 191 in relation to persons who have not previously been placed on probation or treatment measures. it has been said that “. Accordingly, it is necessary to adapt the finalized provisions and decide whether to release the disclosure of the provision, and since there is a possibility that the case will be dropped if it complies with the audit period and complies, it is not observed that this conviction cannot be based on repetition,

It required a reversal, since the defendant’s appeals were therefore considered on the spot, causing the provision to be OVERTURNED; however, this situation could not be resolved without a retrial under Article 322 of the CMUK. since it is possible to correct it in accordance with the article,

1-TCK’s 53. according to the situation that occurred after the decision of the Constitutional Court of 08.10.2015 to cancel, the 53rd Amendment of the TCC is applied to the defendant. article 1 and 2. with paragraphs 3. writing the phrase “to the application of the first sentence of the paragraph,

2- Removal of the section on the application of repetition from the provision paragraph,

Thus, the correction and APPROVAL of the provision was decided unanimously on 29.06.2016.