The Rule Providing That The Trial Cannot Be Postponed In The Case Of Recurrence Of The Same Offence After The Public Prosecution In Certain Drug-Related Offences Is Not Contrary To The Constitution
Rule Subject to Objection
In the investigations opened with the allegation that the aforementioned offence has been committed again after the public case has been opened against the person who has been decided to postpone the opening of the public case for the offence of purchasing, accepting or possessing drugs or stimulants for use or using drugs or stimulants, insisting on not acting in accordance with the obligations imposed on him or the requirements of the treatment applied during the postponement period, purchasing, accepting or possessing drugs or stimulants for use again, or using drugs or stimulants, the decision to postpone the opening of the public case cannot be made in accordance with the rule subject to objection.
Grounds for Application
In summary in the application decision; it has been argued that the rule subject to the objection prevents the decision to postpone the opening of the case for the second offence, this situation is incompatible with the presumption of innocence, in fact, a decision other than conviction can be made in the case filed against the defendant for the first offence, and the rule is based on the assumption that a conviction decision will be made by ignoring this issue, and that the rule is contrary to the Constitution.
Evaluation of the Court
The fourth paragraph of Article 38 of the Constitution states that “No one shall be presumed guilty until his/her guilt is established by a final judgement.” The presumption of innocence, which is one of the fundamental principles of criminal law, states that a person who is accused of a criminal offence should be presumed innocent until a final judgement of guilt is established at the end of a fair trial and constitutes a requirement of the rule of law. Pursuant to the presumption of innocence, the characterisation of a person as guilty and the imposition of sanctions falling within the scope of criminal law on him/her depends on his/her conviction with a final judgement.
In the investigations opened with the allegation that the aforementioned offence has been committed again after the public case has been opened against a person who has been decided to postpone the filing of a public case for the offence of purchasing, accepting or possessing drugs or stimulants for use or using drugs or stimulants because the person insists on not acting in accordance with the obligations imposed on him or the requirements of the treatment applied during the postponement period, buying, accepting or possessing drugs or stimulants for use again, or using drugs or stimulants, the decision to postpone the filing of a public case cannot be made in accordance with the rule subject to objection.
It is understood from the reasoning of the rule that it is intended that the person may benefit from the postponement of the opening of the public prosecution only once. The rules regarding the postponement of the opening of the public prosecution should be evaluated by considering the entire institution. In investigations carried out for the offence of purchasing, accepting or possessing drugs or stimulants for use, or using drugs or stimulants, a period of five years is foreseen after the decision to postpone the opening of the public case and the imposition of certain obligations as a probation measure for a certain period of time is a system adopted by the legislator within the scope of discretionary authority in order to combat crime and criminality, deterrence and prevention of crime.
In this context, the rule subject to objection, which stipulates that the decision to postpone the opening of the public case cannot be made in the investigations opened with the allegation that the same crime has been committed again after the public case has been opened due to insistence on not acting in accordance with the obligations imposed on him or the requirements of the treatment applied within the postponement period, purchasing, accepting, possessing or using drugs or stimulants for reuse, is also a part of this system.
With the institution of postponement of the opening of the public case, in the investigations carried out for the offence of purchasing, accepting or possessing drugs or stimulants for use or using drugs or stimulants, even if the public prosecutor concludes that there is sufficient suspicion that the offence has been committed with the evidence obtained as a result of the investigation phase, instead of issuing the indictment, the prosecution of the suspect is postponed so that the suspect can get rid of the substance he is addicted to and continue his life and contribute to his family and society, and the person is allowed to be subjected to a period of supervision and, if deemed necessary, treatment during this period.
Nevertheless, for the person who insists on not acting in accordance with the obligations imposed on him/her or the requirements of the treatment applied within the postponement period, who buys, accepts, possesses or uses drugs or stimulants to use again, the existing postponement decision will be lifted and a public case will be opened for the offence subject to the postponement decision.
The rule subject to the objection becomes effective after this stage and stipulates that in case the same offence is committed again after the public case is opened, the decision to postpone the public case cannot be made. The fact that the decision on postponement of the public prosecution cannot be made pursuant to the rule is not of a penal nature and is a consequence of the fact that the conditions for benefiting from the said institution for this offence are not fulfilled. In other words, the rule establishes the condition of not having previously benefited from the said institution as one of the conditions to benefit from the postponement of the opening of the public prosecution.
In this respect, the rule only prevents the suspect from benefiting from the postponement of the initiation of the public prosecution once again, and does not foresee that he/she is considered guilty in advance or subjected to a penalty. As a matter of fact, it is possible to decide not to prosecute the person who cannot benefit from the postponement of the initiation of the public prosecution once again, if there is insufficient suspicion that the offence in question has been committed, and it is also possible for the person to be acquitted in the case to be opened in the presence of sufficient suspicion.
In this respect, the rule stipulated by the legislature within the scope of its discretionary power to determine the criminal policy tools and the conditions for these tools does not violate the rule of law and the presumption of innocence.
For the reasons explained above, the Constitutional Court decided that the rules are not contrary to the Constitution.
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