T.C.
SUPREME
CRIMINAL GENERAL ASSEMBLY
E. 2011/10-482 K. 2012/1784 T. 25.9.2012
CASE : Defendant L. for drug trafficking. H.No. 5237 of T.C.K.of 188/3, 62, 53 and 63. regarding the punishment of 4 years and 2 months in prison and a judicial fine of 2,000 Lira in accordance with Articles 3 of Izmir. On appeal of the decision No. 119-280 dated 28.6.2007 and issued by the Criminal Court, the Supreme Court, which examined the file and decided to release the accused primarily with an interim decision dated 15.6.2009, decided on Dec 10. With 8.10.2009 days and 3837-15096 numbers during the Criminal Department;
” …1-According to the contents of the minutes of capture, top polling and containment and the entire scope of the file; the defendant who was acquitted of the same crime is M.E.A.upon the notification that cannabis was sold in the coffee house owned and operated by the defendant’s son Muzaffer, when the officers arrived at this place, 6 packages of cannabis wrapped in gelatin and 129 packages of cannabis wrapped in gelatin were seized in the closet in the garden, which is an addition to the coffee house, in the top search conducted due to suspicion of the actions of the defendant’s Grace; in the testimony given by the defendant in the public prosecutor’s office, he said that he had been a marijuana smoker for six or seven years, the defendant M.in the face of the understanding that he stated that he bought them for 5 UAH and had previously been convicted of possession of drugs for use; there was no criminal notice of possession of drugs for the purpose of selling about, and the defendant M.there is also no legal and sufficient evidence that he has any doubts that he has a 6-pack of marijuana that he has purchased for the purpose of selling; thus, the establishment of a provision in writing, without taking into account that its action constitutes the crime of possession of narcotic substances for use,
2 -) The other accused M.T. 5237 about the defendant, who served and helped to establish the guilt of this person, saying that he received it fromC.K.of 192/3. failure to observe that the provisions of effective regret should be applied in accordance with the article,
3 -) According to your acceptance;
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. creating a violation of the article,
b-) Of the judicial fine imposed on the accused; 1 of the Law No. 5083.1 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 of the article.in accordance with the article, there is an obligation to determine the Turkish Lira (tl) in accordance with,
c -) The defendant T.C.K.s 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. creating a violation of paragraph (3) of the article…”
It has been decided to BREAK down due to hitlessness.
Izmir 3rd. With 25.12.2009 days and 473-510 numbers in the Criminal Court;
” …At about 15: 00 on the day of the crime, 456 Ashraf Pasha 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.when it became known that he was engaged in suspicious behavior, L. H.when a rough top search of 6 oak cannabis substances ready for sale was found and confiscated, a tip was made, a person who was a smoker had to leave the scene after obtaining the drug cannabis substance from the person he bought it from or from the place he bought it Jul. H.over 5 TL each ` according to the fact that he was found in the pharmacy where the sale was made on 6 oaks of cannabis, each of which was ready for sale, that he bought from den, the son of the Altinyol brewery operator Muzaffer, who he said bought the marijuana, was not at the scene, L. H.in cooperation with Muzaffer, the son of the operator of the Altınyol Brewery, it was understood that he was the seller of the cannabis substance belonging to Muzaffer, and for this reason the Supreme Court 10.The defendant of the Criminal Department is L. H.according to the article on corruption, the defendant L. H.T. 5237 of the act ofC.K.nun 188/3. he has committed a crime that complies with the article…”
By resisting on the grounds that the defendant has a T. 5237C.K.of 188/3, 192/3, 62, 53 and 63. in accordance with the articles of Association, it was decided to punish him with 2 years and 1 month in prison and a judicial fine of 1,000 pounds.
Upon appeal of this decision by the defendant, the Supreme Court C. The file sent to the First Chairman of the Supreme Court by the communiqué of the Prosecutor General’s Office dated 17.11.2011 and numbered 133559 requesting “approval” was evaluated by the General Assembly of the Criminal Court and decided on the grounds described:
DECISION: The dispute between the Special Department and the local court, which should be resolved by the General Assembly of the Criminal Court, is related to determining whether the defendant’s dec action constitutes the crime of possession of drugs for the purpose of using or the 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.`the gelatin in the right pocket of the jacket, made in top search Oak wrapped in packs of 6 which is also called cannabis, which is also hidden behind the TV, wrapped in a wooden cabinet in the backyard kiraathane 129 of cannabis were seized, which is called Oak gelatin packet,
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.
The record editors are witnesses B. Z., N. A., R. K., O. Y., Witness N. K. and D. D.”on the day of the verbal notification that a person aged 30 was selling marijuana at Altınyol Kırathane, we searched the scene as anti-terrorist teams dec I suspected the movements of Lutfi, who was in the decanter during the search, and I searched him. During the search, I caught an oak substance called marijuana wrapped in gelatin. Other friends in the team searched inside the coffee house and in the outbuildings garden, found a stash of marijuana in the TV cabinet with an entrance from the coffee house and no other entrance, the marijuana substance and the perpetrators of the incident were brought to the Ashrafpaşa Police Station, the decal report was edited. L. H. he did not say where he got the marijuana substance caught on it from, during the search at the Alt Decyol Kiraathan, then he said”,
Defense witness Y.T. at the hearing; “I was a janitor during Mustafa Anver’s time as undersecretary at this coffee house. He is a child of our neighborhood, he said he wanted to be treated for drinking, and I said I would help”,
The verdict established on him for the crime of drug trafficking has been finalized by means of approval by the Special Department of M.A. on 19.2.2007, c.In the prosecutor’s office; “I am L. H. i know a person by name. He’s a greengrocer in our neighborhood. This person comes and goes to the Altinyol Brewery, which my father runs. I’m L. H.i know that you smoke the substance of marijuana. I’ve known it before. But I didn’t sell him marijuana. I also don’t know who sold it”, at the hearing; “L.i did not sell the marijuana substance found on the. I know Lutfi from smoking marijuana and coming to our coffee shop and hanging out. I beat him up a few times for smoking marijuana and overindulging”,
They have made statements in the form of.
The defendant is L. H. he exercised his right to remain silent in the presence of his defense counsel in the armory, c.”At noon on 27.1.2007, I went to the Altinyol Brewery, which I had known before, where I knew the name of the person who runs this place as Muzaffer, M.E.A.i bought six pieces of oak cannabis for 5 pounds, one of which was from the son of. My goal was to smoke, I’ve been using cannabis for three days, I bought it for this purpose, I regret it, I don’t know who owns the other cannabis found in coffee,” he said,
In his petition dated 10.4.2011, which he sent to the local court by mail, 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 had a fight with her and that she named him because she smoked marijuana and didn’t want him to come and go to coffee, but in reality he was E. he suggested that he got it from a person named” ,
On 3.5.2007, before the court; ” I have been a marijuana smoker since 6-7 years. I’m getting the marijuana I need from people I don’t know in the Hillock neighborhood. The last time I got a marijuana substance, I got it from a person named Engin. From a person named Engin, the substance of marijuana is Tepecik Mah. Hamam Sk. i got it on the spot. I’m not a marijuana dealer. I told him I got the marijuana substance from a person nicknamed Muzo. I know Engin’s name as Muzo. I’m M.A.i know him, he's a drinker too. The defendant is M.E.A.i know him, he’s the coffee shop manager, I don’t know that he’s a salesman. i submitted the petition I sent through ptt. I got the marijuana substance that I was 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 Mustafa Enver, one of the defendants, and a public case was opened against us, a person came to me whose name and address I did not know came to me. The name of the Muzaffer I mentioned in my statement during the investigation phase is Engin, he is known as Muzo, C.In the statement of the prosecutor's office, the named Muzaffer gave his name as E. change it to, he said. Accordingly, I printed and signed the petition and sent it through ptt”, at the session where the first decision was made on 28.6.2007; “5-6 on the day of the incident, I sold cannabis wrapped in gelatin for 30 pounds M.A.i bought it from. The cops caught me on suspicion when I was carrying it on me for a drink. I have been a cannabis drinker for 3-4 years. I usually get the jul I need from the Hillock neighborhood. On the day of the incident, I bought 6 cannabis substances called gelatin-wrapped oak from Muzaffer for 30 pounds, it was on me. On suspicion, the police caught and captured him. M. The substance of marijuana in the police station.i said I got it from ` Later, M.’s friends beat me, pressured me, and I had to write and submit the petition that I sent through ptt. I even signed and mailed the petition written on the computer without reading it. The petition shown is a petition signed by me and sent to the mail. I am not a seller, I am a drinker, I want to be treated,” he argued.
The defendant is L.at the last mention of, the defendant M.A.’s submission to the court claiming that he sent it to him through a friend disguised as an onion while in prison, on which there was no transfer from the judge, written in handwriting, m.A. in a letter consisting of two pages giving the impression that it was written by, in summary, the accused L. With statements that he was in trouble because of the statement of His Grace and that he should change his statement.there are sentences containing threats and insults directed at, and the defendant M, whose conviction for drug trafficking has been finalized, has been sentenced.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. 5237C.K.article 188 entitled “Manufacture and Trade of Drugs or Stimulants”. 3 and 4 of the article. paragraphs; “(3) A person who sells, sells, gives, sends, transfers, stores, buys, accepts, stores drugs or stimulants in the country without a license or in violation of a license is punished with imprisonment from five to fifteen years and a judicial fine of up to twenty days.
(4) If the drug or stimulant substance is heroin, cocaine, morphine or basmorphine, the penalty to be imposed in accordance with the above paragraphs shall be increased by half”, as emphasized in the justification of the mentioned 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, delivery, transfer, storage, or purchase, acceptance, or possession of drugs or stimulants without a license or in violation of a license within the country for the purpose of profit, one and 2. according to the paragraphs, it constitutes a separate crime.
191 Of the same Law entitled “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 point that plays a significant role in determining whether the act of drug possession constitutes the crime of possession of drugs for use or the crime of drug trafficking is the purpose of possession. 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 in terms of selling, transferring or supplying the narcotic substance he has to someone else.
The second criterion is the place and form of possession; a person who has a drug for personal use always has it in a place where it is easily accessible, 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 the amount in possession. 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, it is reported that those who use marijuana in the opinions of the Forensic Medical Institution can consume marijuana three times a day, 1-1.5 grams each time. It is also a known fact that those who are in the habit of using marijuana, taking into account them, can safely store the amount of cannabis substance that will meet their needs for several months with them or within their reach, which is reflected in the forensic files. Accordingly, if the perpetrators who use cannabis have a cannabis substance above their personal requirements during this period, which is considered normal, it should be recognized that the possession is not intended for personal use.
In the light of these explanations, the concrete event is evaluated;
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 doubtful that the defendant committed the crime of drug trafficking. Moreover, despite the fact that there were no allegations about him at the beginning of the incident on the one hand and he was not at the scene, the defendant L.M., who was included in the investigation with the statements of and whose conviction for drug trafficking was established was finalized by the approval of the Special Department. A.L. The defendant, whose statements about theit is also a contradiction that cannot be proved otherwise that he is in possession of the seized drug for the purpose of using it, on the other hand, and the lack of reputation for his defense, which he expressed as stable at stages, is also impossible to explain.
In accordance with the principle of “in dubio pro reo”, that is, “the accused benefits from suspicion”, one of the most important principles of criminal proceedings, the main condition for punishing the accused for a crime is that the crime is proved with a certainty that does not give rise to suspicion. Events and allegations that are suspicious and have not been fully clarified in the way they took place cannot be interpreted against the defendant and a conviction cannot be established. This rule, which has a fairly wide range of applications, applies to determining the nature of the crime, as well as to determining if the crime has actually been committed, or if there is doubt about the way it was committed, if it has been committed. A criminal conviction should be based on a definite and clear proof, and not on the possibility that it has been reached by relying on some of the evidence collected during the trial process, and ignoring another part.Decriminalization should be based on a firm and clear proof. This proof should be clear that it will not allow any doubts and other kinds of occurrence.
Therefore, it is impossible to determine the criminal nature incorrectly by deciding that the accused should be punished for drug trafficking, based on evidence that is far from conclusive, without taking into account that the alleged act constitutes a crime of possession of drugs for use, by the local court.
As such, the decision to demolish the Private Apartment is in place, and the local court should decide whether to OVERTURN the decision to resist.
However, although the local court has complied with other reasons for the violation of the Special Department, there is no benefit in sending the provision to the Special Department for examination in terms of the parts that comply with the violation, since a new provision will be established by the local court in accordance with the violation due to the fact that the resistance provision has been violated.
Seven members of the General Assembly, who disagreed with the majority opinion, voted against the idea that the decision of the local court, which was successful, should be upheld.
CONCLUSION : For the reasons described;
1 -) Izmir 3. 25.12.2009 Days of the Criminal Court and 473-510 for VIOLATION of the provision of resistance from failure to hit to incorrect determination of the criminal nature,
2 -) For sending the file to the Court of Cassation C. The appointment of the Prosecutor General’s office was decided by a majority vote at the negotiation held on 25.09.2012.
