An Offence Not Listed In The Indictment Cannot Be Prosecuted
20th Criminal Chamber 2016/3009 E. , 2017/4251 K.
“Case Law Text”
Court : 16th Assize Court
Offence : Drug trafficking
Conviction : Conviction
The file was analysed.
NECESSITY WAS DISCUSSED AND CONSIDERED:
The request of the defence of the defendants … and … for the appeal examination to be conducted with a hearing was rejected in accordance with Article 8/1 of the Law No. 5320, Article 318 of the Code of Criminal Procedure No. 1412 and Article 299 of the Code of Criminal Procedure, according to the duration of the sentence imposed, and the examination was conducted without a hearing for all defendants.
It has been seen that it is always possible for the court to rule on the confiscation of the value of the vehicle with … licence plate belonging to the defendant … and used in the offence,
1- In the examination of the convictions of the defendants … and … for the offence of drug trafficking ;
After the appeal of the verdict, since the petition dated 26.11.2014 sent by the defendant … from Silivri Penal Execution Institution and the declaration “I want the verdict to be approved” in the petitions dated 26.11.2014 and the subsequent petitions are in the nature of waiving the appeal request; With the petition dated 19.09.2016 sent by the defendant … from Silivri Penal Execution Institution and the declaration “I waive the appeal” in the subsequent petitions,
Due to the withdrawal of the appeal against the defendants … and …, the judgements are not subject to review,
2- In the examination of the acquittal verdicts against the defendants …, … for the offence of trafficking in narcotic substances ;
According to the trial, the evidence collected and shown in the decision, the court’s belief and appreciation formed in accordance with the results of the prosecution, the content of the file examined, the objections of the public prosecutor to the appeals that are not deemed appropriate are rejected and the judgements are APPROVED,
3- In the examination of the convictions of the defendants …, …, …, …, …, …, …, …, …, …, …, …, …, …, …, for the offence of trafficking in narcotic substances in a chain:
Contrary to the defendant …’s defence that he participated in the incident dated 14.03.2012, it has been understood that there is no conclusive and convincing evidence free from any kind of doubt, but since the defendant’s actions dated 12.07.2011 – 13.07.2011 are fixed, there is no inconsistency in the court’s acceptance and application of Article 43 of the TCC.
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the actions were carried out by the defendants, the conscientious opinion was based on precise data in accordance with the documents and information in the file, the type of crime and sanctions appropriate to the actions were correctly determined; the public prosecutor’s
4-… in the examination of the conviction verdict established against him for the offence of trafficking in narcotic substances in a chain due to the acts of 30.09.2012, 01.10.2012 and 03.10.2012:
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, and the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
Although it is fixed that the defendant gave drugs to the person named … on 03.10.2012;
a- Within the scope of the file, it is understood that there is no speciality report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the substance seized on 30.09. 2012, it is understood that there is no speciality report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the seized substance, it should be investigated whether there is a speciality report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the seized substance; if found, the certified copy should be placed in the file; if there is no such report, the substance in question should be obtained from the judicial custody and a report on the nature of the substance should be obtained and a decision should be made according to the result,
b- 30.09.2012 and 01.10. 2012 from the defendant …, who was heard as a witness at the prosecution stage, who was stated to have taken drugs from the defendant … on 30.09.2012 and 01.10.2012, declared in his statement taken by instruction that he was not the person who was processed, that he had nothing to do with the incident, and that the defendant defended that the drugs seized at all stages were not given by him; … ‘s testimony again, comparing the fingerprints of … taken in the preparatory investigation with the fingerprints of … listened to, taking a picture when necessary, calling the witnesses whose signatures are in the incident minutes, asking them whether they can identify …, taking their statements about the incident and determining the legal status of the defendant according to the result,
c- Although it was accepted that the substance seized on 05.02.2012 in the justification about the other defendant … was given by the defendant …, the judgement was established without evaluating the defendant … due to this incident,
Establishing a judgement by applying Article 43 of the Turkish Penal Code to the defendant with insufficient justification and incomplete research,
Since it is contrary to the law and the appeals of the defendant and his defence counsel are therefore appropriate, the judgement is hereby DISMISSED,
5-… in the examination of the conviction verdict established against him for the offence of trafficking in narcotic substances in a chain due to his actions dated 04.08.2011, 04.02.2012 and 05.10.2012:
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, and the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
Although it is fixed that the defendant …, together with the other defendant …, gave a narcotic substance to …, who was heard as a witness on 04.02.2012, it cannot be accepted as a narcotic or stimulant substance because the substance that …, who said that he took drugs from the defendant on 04.08.2011, said that he took drugs from the defendant on 04.08.2011, was not seized, 05. 10.2012, 35 pills alleged to be drugs or stimulants seized during the search at the defendant’s house on 05.05.2012 were not considered to be drugs or stimulants according to the report of the Istanbul Police Criminal Laboratory Directorate dated 03.12.2012 and numbered 2012/35180,
Since it is contrary to the law and the appeals of the defendant and his defence counsel are therefore appropriate, the judgement is hereby DISMISSED,
6- In the examination of the conviction verdict established against … for the offence of trafficking in narcotic substances in a chain due to the acts dated 13.02.2012 and 03.10.2012 :
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, and the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
According to the information and documents in the file, even though Serdar’s act of trafficking in narcotic substances on 13.02.2012 is fixed; the substances that the witness …, who was heard as a witness who was prosecuted for the offence of possession of narcotic substances for use, said that he bought from the defendant on 03.10.2012 could not be considered as narcotic or stimulant substances because they were not seized, and the defendant should be convicted of drug trafficking only because of the cannabis that he gave to … on 13.02.2012 and was seized on him, but the sentence should be increased in accordance with Article 43 of the TPC,
Since it is contrary to the law and the appeals of the defendant and his defence counsel are therefore deemed appropriate, the judgement is hereby DISMISSED,
7-… on the examination of the judgement of conviction for the offence of trafficking in narcotic substances in a chain:
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
Although the defendant’s action was found to be fixed by being a partner in the cannabis seized in the vehicle belonging to … in Diyarbakır province on 10.04.2012; increasing the sentence in accordance with Article 43 of the Turkish Penal Code on the basis of the physical surveillance minutes dated 18.03.2012 and 30.03.2012, which did not result in the seizure of narcotic drugs, and telephone conversations, the content of which may have different meanings,
Since the appeal objections of the defendant’s defence counsel are therefore deemed appropriate, the judgement shall be DISMISSED, the defendant shall be RELEASED according to the nature of the reversal against the defendant and the period of detention, and a letter shall be written to the relevant Chief Public Prosecutor’s Office to ensure his release if he is not convicted or detained for another offence,
8-… in the examination of the conviction of the defendant for the offence of trafficking in narcotic substances in a chain:
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, and the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
While the defendant should be convicted of drug trafficking only because of the cannabis he gave to … on 13.02.2012 and seized in his vehicle, the sentence was increased in accordance with Article 43 of the Turkish Penal Code by justifying the phone calls, the content of which can be attributed different meanings and as a result of which no drugs were caught, for the offence of trafficking in other drugs,
Since the appeal objections of the defendant and his defence counsel are deemed appropriate for this reason, the judgement is hereby DISMISSED,
9-… in the examination of the judgement of conviction for the offence of trafficking in narcotic substances in a chain:
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, and the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
The other defendants …, … and … said that the substances that they bought from the defendant … cannot be considered as drugs or stimulants because they were not seized, and the defendant should be convicted of drug trafficking only for the cannabis that he gave to Ersin Toklusöz on 14.03.2012 and was seized on him, but the sentence should be increased in accordance with Article 43 of the Turkish Penal Code,
Since the appeal objections of the Public Prosecutor in favour and the defendant’s appeal objections are therefore deemed appropriate, the judgement is hereby DISMISSED,
10-… in the examination of the conviction of the defendant for the offence of trafficking in narcotic substances in a chain:
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, and the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
The witness …, who was prosecuted for the offence of possession of drugs for use, said that the substances he bought from the defendant could not be considered as drugs or stimulants because they were not seized, and the defendant should be convicted of drug trafficking only because of the cannabis he gave to … on 15.02.2012 and seized on him, but the sentence should be increased in accordance with Article 43 of the Turkish Penal Code,
Since it is contrary to the law and the appeals of the defendant’s defence are therefore deemed appropriate, the judgement is hereby DISMISSED,
11- In the examination of the judgement of conviction established against …. for the offence of trafficking in narcotic substances in a chain:
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, and the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
The witnesses … and …, who were charged with the offence of possession of drugs for use, said that the substances they bought from the defendant could not be considered as drugs or stimulants because they were not seized, and the defendant should be convicted of drug trafficking only for the cannabis that he gave to … on 14.02.2012 and delivered with his consent, but the sentence should be increased in accordance with Article 43 of the Turkish Penal Code,
Since it is contrary to the law and the appeals of the defendant’s defence are therefore deemed appropriate, the judgement is hereby DISMISSED,
12- In the examination of the judgement of conviction established against …. for the offence of trafficking in narcotic substances in a chain:
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on accurate data in accordance with the documents and information in the file, and the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
Although the defendant’s action dated 06.02.2012 is fixed; the fact that the substances that … and …, who are accepted to have taken drugs from the defendant, said that they had taken from the defendant were not seized, and that there was no evidence that the defendant possessed 0.22 g of cannabis according to the criminal report seized in the search conducted at the defendant’s house on 05.10.2012, contrary to the defence of the defendant, for the purpose of selling the cannabis other than for use, increasing the sentence for the defendant in accordance with Article 43 of the Turkish Penal Code,
Since it is contrary to the law and the defendant’s appeal objections are therefore deemed appropriate, the judgement is hereby DISMISSED,
13- In the examination of the judgement of conviction established against …. for the offence of trafficking in narcotic substances in a chain;
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
Although the defendant’s act dated 16.03.2012 is fixed; it is understood that there is no expert report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the substance about the 4 pills alleged to be of narcotic or stimulant nature seized from … who was processed for the crime of possession of narcotic substances for use on 14.03.2012,
Investigating whether there is an expertise report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the seized substance; if there is, putting the certified copy into the file; if there is no such report, obtaining the substance in question from the forensic depository and obtaining a report on the nature of the substance and deciding according to the result, without considering that the sentence should be increased in accordance with Article 43 of the TPC, although there are no conditions for the application of the provisions of the chain crime due to this incident,
Since it is against the law, the appellate objections of the Public Prosecutor in favour and the appellate objections of the defendant and his defence counsel are therefore appropriate, the judgement is hereby VACATED,
14-…., …. in the examination of the conviction sentences for the offence of trafficking in narcotic substances :
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
Although the acts of trafficking in narcotic substances dated 21.01.2012 carried out by the defendants … and …. together are fixed;
a- Investigating whether a lawsuit has been filed against … … … who, according to the physical surveillance report dated 29.04.2012, is accepted to have given drugs to … and … and to have acted together with the defendants, and whose trial is understood to have been held separately due to his minority, and if the lawsuit has been filed and the file is pending, it should be examined and merged with this case, and if the judgement has been rendered and finalised, the file should be brought and placed in this file and the legal status of the defendants should be evaluated in terms of this incident,
b- It is understood that there is no expert report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the substance about the substances alleged to be of narcotic nature, some of which are stated to be heroin within the scope of Article 188/4 of the Turkish Penal Code, seized from … and …, who were processed for the crime of possession of narcotic substances for use on 29.04.2012,
Investigating whether there is an expertise report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the seized substance; if there is, putting the certified copy into the file; if there is no such report, obtaining the substance in question from the forensic depository and obtaining a report on the nature of the substance and deciding according to the result, without considering that the sentence should be increased in accordance with Article 43 of the TPC, although there are no conditions for the application of the provisions of the chain crime in this case,
Since it is contrary to the law and the objections of the defendants’ defence counsels are therefore appropriate, the judgement is hereby DISMISSED,
15- In the examination of the conviction of … for the offence of trafficking in narcotic substances in a chain;
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
Although the defendant’s act of trafficking in narcotic substances dated 16.01.2012 is fixed; the fact that the drugs or stimulants that the defendant is accepted to have given for commercial purposes in the phone calls have not been seized, the 19 pills alleged to be narcotic pills seized during the search conducted at the defendant’s house on 05.10.2012 were found by the Istanbul Police Criminal Laboratory Directorate on 03.12.2012.
2012 dated 03.12.2012 and numbered 2012/35180 of the Istanbul Police Criminal Laboratory Directorate, it is accepted that 45 pills seized from another defendant were seized from the defendant, and according to the same criminal report, there is no evidence that the defendant possessed the cannabis, which was determined to be 0.99 gr according to the same criminal report, for sale other than for use contrary to the defence of the defendant, and the sentence was increased in accordance with Article 43 of the Turkish Penal Code,
Since it is contrary to the law and the appeals of the defendant’s defence are therefore deemed appropriate, the judgement is hereby DISMISSED,
16- In the examination of the conviction of the defendant … for the offence of trafficking in narcotic substances in a chain;
Writing the surname of the defendant as “…” in the justification section of the judgement was accepted as a material error that can be corrected by the court.
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, and the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
According to the physical surveillance and surveillance reports, arrest reports, defence of the accused and the entire file scope; although it is fixed that the defendant sold the cannabis subject to the crime seized on 26.01.2012 from the defendant …, whose case file was separated from the crime of possession of narcotic drugs for use; 05.10. 2012 in the search conducted at the residence of the defendant on 05.10.2012, a net 8 grams of cannabis was seized;
it is understood that the substances that the defendant previously sold in the phone calls of the defendant cannot be considered as drugs or stimulants because they were not seized, and the drugs subject to the crime found as a result of the search conducted at his residence on 05.10.2012 will constitute a single offence due to the continuity, therefore, without considering that the chain offence did not occur, increasing the sentence in accordance with Article 43 of the Turkish Penal Code without any conditions,
Since it is contrary to the law and the defendant’s appeal objections are therefore deemed appropriate, the judgement is hereby DISMISSED,
17- In the examination of the convictions of the defendants … and … for the offence of trafficking in narcotic substances in a chain:
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendants, the conscientious opinion was based on precise data in accordance with the documents and information in the file, the type of crime and sanctions appropriate to the action were determined correctly, except for the following, the other appellate objections are rejected, however;
a-In terms of the defendant …, the substances that the witness …, who was prosecuted for the offence of possession of drugs for use, said that he took from the defendant could not be considered as drugs or stimulants because they were not seized, and the defendant should be convicted of drug trafficking only for the pills that he gave to … on 17.03.2012 and which were seized on him, but the sentence should be increased in accordance with Article 43 of the Turkish Penal Code,
b- For the defendant …, the substances that the other defendant … said that he helped the defendant to buy cannot be considered as drugs or stimulants since they were not seized, and the defendant should be convicted of drug trafficking only for the cannabis that he gave to … on 11.01.2012 and which was seized in his vehicle, while the sentence should be increased in accordance with Article 43 of the Turkish Penal Code,
c-Despite the seizure of 1760 TL and 1 USD from the defendant … and 1100 TL from the defendant …, it was decided to “return 3565.00 TL to the defendant … and 1 USD to the defendant …”,
Since the appellate objections of the public prosecutor on confiscation and the appellate objections of the defendant … and the defence counsels of the defendants are therefore deemed appropriate, the judgements are hereby DISMISSED,
18- In the examination of the judgement of conviction established against … for the offence of trafficking in narcotic substances in a chain ;
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
a-Determination of excessive punishment by not applying Article 31/3 of the Turkish Penal Code, without considering that the defendant, who was born on 15.03.1994, was in the age group of 15-18 at the time of the act of giving pills to … on 04.02.2012,
b-Since it is understood that the defendant … was charged with the offence of possession of drugs for use due to the substances seized on 05.02.2012, it is necessary to investigate whether a lawsuit has been filed against the defendant for the offence of possession of drugs for use, if the lawsuit has been filed and the file is pending, it should be examined and merged with this case, if the judgement has been rendered and finalised, the file should be brought and placed in this file and the legal status of the defendant should be evaluated in terms of this incident,
c- The fact that Article 43 of the TCC was applied to the defendant on the basis of …’s abstract statement that he had previously taken drugs from the defendant,
Since it is contrary to the law and the defendant’s appeal objections are therefore deemed appropriate, the judgement is hereby DISMISSED,
19- In the examination of the conviction of … for the offence of trafficking in narcotic substances ;
Since it is understood that the procedures in the trial process were carried out in accordance with the law, the claims and defences put forward at the stages were shown and discussed in the reasoned decision together with all the evidence collected, it was determined that the action was carried out by the defendant, the conscientious opinion was based on precise data in accordance with the documents and information in the file, the type of crime and sanctions appropriate to the action were determined correctly, except as stated below, the other appellate objections are rejected, however;
On 05.10.2012, the substances seized during the search at the defendant’s house were different from the narcotic substances given by the defendant on 03.05.2012, and some of them were heroin within the scope of Article 188/4 of the TCC; however, in the reasoned decision, it was not discussed whether Article 43 of the TCC should be applied due to the substances seized at the house, and the judgement was established with insufficient justification,
Since the appeal objections of the Public Prosecutor and the appeals of the defendant and his defence counsel are deemed appropriate for this reason, the verdict is hereby DISMISSED,
21- In the examination of the convictions of …, …, …, …, …, …, … and … for the offence of trafficking in narcotic substances:
Contrary to the defences of the defendants who did not have any drugs or stimulants seized from them, there is no sufficient and conclusive evidence beyond the limits of doubt that they were involved in the drugs seized from the other defendants or that they participated in the crimes of these defendants, except for the telephone conversations that do not coincide with the concrete events and facts and are not supported by material findings, and it was also taken into consideration that the substances mentioned in some telephone conversations cannot be accepted as drugs or stimulants because they were not obtained, and it was decided to convict the defendants instead of acquitting them of the offence of trafficking in narcotic substances,
Since it is contrary to the law, the appellate objections of the public prosecutor in favour of the defendants …, … and … and the appellate objections of the defendants …, …, …, …, …, …, …, …, … defence counsels and the defendant … are therefore appropriate, the judgements are hereby VACATED, the defendant … to release the defendant according to the nature of the reversal, and to write to the relevant Chief Public Prosecutor’s Office to ensure his release if he is not convicted or detained for another offence,
22- In the examination of the convictions of …, … for the offence of trafficking in narcotic substances in a chain :
a-As it is understood that there is no expert report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the substance about the pills alleged to be drugs or stimulants seized from the defendant … on 08.04.2012 and from … on 19.05.2012,
Investigating whether there is an expertise report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the seized substance; if there is, putting the certified copy into the file; If there is no such report, the substance in question should be obtained from the forensic depository and a report on the nature of the substance should be obtained and a decision should be taken according to the result,
b- As it is understood that the defendant … was charged with the offence of possession of drugs for use due to the substances seized on 08.04.2012, it is necessary to investigate whether a lawsuit has been filed against the defendant for the offence of possession of drugs for use, if the lawsuit has been filed and the file is pending, it should be examined and merged with this case, if the judgement has been rendered and finalised, the file should be brought and placed in this file and the legal status of the defendants should be evaluated in terms of this incident,
Since the appellate objections of the Public Prosecutor in favour of the defendant … and the appellate objections of the defendant … and the defence counsels of the defendants are therefore deemed appropriate, the judgements are hereby DISMISSED,
23- In the examination of the conviction of … for the offence of trafficking in narcotic substances in a chain ;
a-As it is understood that there is no expert report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the substance alleged to be of narcotic or stimulant nature seized from … who was processed for the crime of possession of narcotic substance for use on 20.09.2011,
Investigating whether there is an expertise report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the seized substance; if there is, putting the certified copy into the file; If there is no such report, the substance in question should be obtained from the forensic depository and a report on the nature of the substance should be obtained and a decision should be taken according to the result,
According to the acceptance ;
b- Although the defendant was convicted of the offence of selling narcotic substances in a chain based on the statement that he sold narcotic substances to a person in 2011, the substance cannot be considered as narcotic or stimulant substance because it was not seized and the sentence was increased by applying Article 43 of the TPC to the defendant based on the abstract statement,
Since it is contrary to the law, the appeal objections of the Public Prosecutor in favour and the defendant’s defence counsel are therefore deemed appropriate, the judgement is hereby DISMISSED,
24-… in the examination of the judgement of conviction for the offence of trafficking in narcotic substances in a chain ;
a- Pursuant to Articles 141/3 of the Constitution and 230/1 of the Code of Criminal Procedure, in the justification section of the verdict, the evidence in favour of and against the defendant should be stated, in this context, all the evidence should be discussed and evaluated separately, the ones taken as basis for the verdict and the ones rejected should be determined, the acts of the defendant, which are considered fixed, should be explained and qualified according to the conclusion reached, and the legal status of the defendant should be determined according to the result,
According to the acceptance;
b- Determination of excessive punishment by applying Article 43 of the TPC against the defendant, although no other substance other than the substance allegedly given to the person named … was seized from the defendant on 01.07.2011 and the defendant had no contact with the substances seized from the other defendants,
Since it is contrary to the law and the appeals of the defendant and his defence counsel are therefore deemed appropriate, the judgement is hereby DISMISSED,
25- In the examination of the convictions of … and … for the offence of trafficking in narcotic substances ;
On 25.06.2012, it is understood that there is no expert report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the substance alleged to be a drug or stimulant substance seized from …, who was processed for the crime of possession of drugs for use,
Investigating whether there is an expertise report obtained from the police criminal laboratory or forensic medicine institution regarding the analysis of the seized substance; if there is, putting the certified copy into the file; If there is no such report, the substance in question should be obtained from the forensic depository and a report on the nature of the substance should be obtained and a decision should be taken according to the result,
Since the appeal objections of the public prosecutor against the defendants … and … and the appeal objections of the defendant … and the defence counsels of the defendants are therefore deemed appropriate, the judgements are hereby DISMISSED,
26- In the examination of the conviction of … for the offence of trafficking in narcotic substances in a chain:
a- Contrary to the provisions of Article 170, paragraph 4 of the Code of Criminal Procedure which states “The events constituting the offence charged in the indictment shall be explained in relation to the available evidence” and Article 225, paragraph 1 of the same Code which states “The judgement shall be given only for the act and perpetrator of the offence whose elements are shown in the indictment”, it was understood that the actions of the defendant were not shown in the indictment of the Istanbul Chief Public Prosecutor’s Office dated 08. 01.01.2013 dated, 2011/1087 investigation and 2013/28 numbered indictment of the Istanbul Chief Public Prosecutor’s Office; to continue the trial without having a new indictment issued against the defendant and to establish a verdict,
According to the acceptance ;
b- The application of Article 43 of the TPC without considering that the substances allegedly sold by the defendant İbrahim cannot be accepted as drugs or stimulants since the substances allegedly sold by the defendant İbrahim were not seized from Sadık Güler, who was heard as a witness who stated that he bought drugs from the defendant on 20.02.2012 and who was also charged with the offence of possession of drugs for use,
Since it is contrary to the law and the appeals of the defendant’s defence are therefore deemed appropriate, the judgement is hereby DISMISSED,
It was unanimously decided on 07.07.2017.
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