Determination Of The Nature Of The Crime According To The Amount Of Narcotic Drugs
T.C.JUDICIARY CRIMINAL GENERAL ASSEMBLY
E. 2011/10-482 K. 2012/1784 T. 25.9.2012
CASE : Upon the appeal of the judgment dated 28.6.2007 and numbered 119-280 rendered by the İzmir 3rd Assize Court on the charge of drug trafficking by the defendant L. H., which was sentenced to 4 years and 2 months imprisonment and a judicial fine of 2.000 Lira pursuant to Articles 188/3, 62, 53 and 63 of the Turkish Criminal Code No. 5237, the 10th Criminal Chamber of the Court of Cassation, which examined the file and firstly decided to release the defendant with an interim decision dated 15.6.2009, on 8.10.2009 and numbered 3837-15096
“ …1- According to the content of the arrest, body search and custody report and the entire file scope; upon a report that marijuana was being sold in the coffee house owned by the defendant M.E.A., who was acquitted of the same offense, and operated by him and his son Muzaffer. Upon a report that marijuana was being sold in the coffeehouse owned by the defendant Lütfi and operated by him and his son, the defendant Muzaffer, when the officers came to this place, 6 packets of marijuana wrapped in gelatin and 129 packets of marijuana wrapped in gelatin in the same way were seized in the cupboard in the garden, which is an annex of the coffeehouse; in the statement given by the defendant at the Public Prosecutor’s Office, the defendant stated that he had been a marijuana smoker for six or seven years, that he had purchased this substance from the defendant M.. In the face of the fact that he stated that he bought from the defendant M. for 5 ytl each and that he had a previous conviction for the offense of possession of narcotic substances for use; there was no criminal complaint against him for the offense of possession of narcotic substances for the purpose of selling, there was no legal and sufficient evidence that he possessed the 6 packets of cannabis seized on him, which he stated that he bought from the defendant M., for the purpose of selling; thus, without considering that his act constituted the offense of possession of narcotic substances for use, the written judgment was established,
2-) Failure to observe that the provisions of effective remorse should be applied to the defendant who served and helped to reveal the crime of this person by saying that he bought the marijuana seized on him from the other defendant M., in accordance with Article 192/3 of the T.C.K. No. 5237,
3-) According to the acceptance;
a-) During the calculation of the judicial fine by multiplying the resultant number of full days determined by multiplying the amount of the judicial fine by multiplying it by the amount appreciated as the equivalent of one day, a violation of Article 232/6 of the Criminal Procedure Code No. 5271 due to the fact that the applicable article of law is not clearly indicated in the paragraph of judgment,
b-) The judicial fine imposed on the defendant must be determined in Turkish Liras (tl) in accordance with Article 1 of the decision of the Council of Ministers dated 4.4.2007 and numbered 2007/11963, which entered into force on 1.1.2009 after the judgment with Article 1 of the Law No. 5083,
c-) Creating a violation of paragraph (3) of Article 53, without considering that it is necessary to decide that the deprivation of the defendant in terms of using the rights and powers in subparagraph (c) of paragraph (1) of Article 53 of the Turkish Penal Code should last “until his conditional release” in terms of his parental, guardianship and trusteeship powers over his own descendants, and “until the execution of the prison sentence is completed” in terms of other persons…”
It was decided to be reversed due to injustice.
İzmir 3rd Assize Court on 25.12.2009 with the number 473-510
“…On the day of the crime, around 15.00, Eşrefpaşa 456 Street No.132 Upon a report that cannabis substances were being sold in the Altınyol Coffee House, which operates in the place numbered Altınyol, and that there was a large amount of ready-to-sell cannabis substances in the cupboard in the backyard of the coffee house, the police officers assigned to the team numbered 3954 and 3950, who received this report, noticed that L. H., who was in the coffee house, showed suspicious behavior when they came to Altınyol Coffee House, and a rough body search of L. H. revealed 6 oak cannabis substances ready for sale and seized them. H., who was in the coffee shop, was found and seized 6 oak cannabis substances ready for sale in a rough body search, the report was made, a smoker should leave the scene after obtaining the narcotic cannabis substance from the person or place where he bought it, while L. H. had 5 TL each on him. According to the fact that H. H. was found in the café where the sale was made on 6 oaks of hashish, each of which was ready for sale, which he said he bought for 5 TL. each, and that Muzaffer, the son of the manager of Altınyol Kıraathane, from whom he said he bought the hashish, was not present at the scene, it was understood that L. H. `s was understood to be the seller of the cannabis substance belonging to Muzaffer in cooperation with Muzaffer, the son of the operator of Altınyol Kıraathan, and for this reason, the 10th Criminal Chamber of the Court of Cassation reversed the decision of the 10th Criminal Chamber of the Court of Cassation against the defendant L. H. The action of the defendant L. H. constitutes the crime that complies with Article 188/3 of the T.C.K.No. 5237…”
It was decided to sentence the defendant to 2 years and 1 month imprisonment and 1.000 Lira judicial fine in accordance with Articles 188/3, 192/3, 62, 53 and 63 of the Turkish Criminal Code No. 5237.
Upon the appeal of this verdict by the defendant, the file, which was sent to the First Presidency of the Court of Cassation with the notification of the Chief Public Prosecutor’s Office of the Court of Cassation dated 17.11.2011 and numbered 133559 with the request of “approval”, was evaluated by the Criminal General Assembly and decided for the reasons explained:
DECISION: The dispute between the Special Chamber and the local court, which needs to be resolved by the Criminal General Assembly, concerns the determination of whether the defendant’s act, which has come to light, constitutes the crime of possession of drugs for the purpose of use or the crime of drug trafficking.
From the content of the file examined;
At around 15.00 on the date of the crime, the police teams, who were conducting a GTB examination on suspicious persons, were informed that cannabis substances were sold in the coffee house named Altınyol and that there was a large amount of ready-to-sell cannabis substances in the cabinet in the backyard of the coffee house, and the law enforcement officers went to the coffee house in question, and the defendant L. During the body search of H., 6 packets of oak so-called cannabis substances wrapped in gelatin were found in the right pocket of his coat, and 129 packets of oak so-called cannabis substances wrapped in gelatin hidden behind the television in the wooden cabinet in the backyard of the coffee shop were seized,
In the report dated 2.3.2007 issued by the Izmir Criminal Police Laboratory, it was stated that the total of 135 packages of narcotics seized in the incident without any distinction regarding the 6 packages of narcotics seized from the defendant was gross 97 grams 300 milligrams and net 58 grams 380 milligrams of cannabis, and as a result of the ratio of this amount to the 6 packages seized from the defendant, it will be necessary to accept that the net narcotic seized from the defendant contains 2 grams 59 milligrams of cannabis,
It is understood.
Witnesses B. Z., N. A., R. K., O. Y., Witness N. K. and D. D., the record organizers, in summary, repeated the content of the incident report exactly, and witness Fevzi Keleş, the record organizer, said in court: “On the day of the incident, upon a verbal report that a person in his 30s was selling marijuana in Altınyol Kıraathanesi, we searched the scene as anti-terrorism teams. During the search, I suspected the movements of Lütfi who was in the coffeehouse and searched him myself. During the search, I caught the cannabis substance called oak wrapped in gelatine. The other members of the team searched inside the coffeehouse and the outbuildings of the coffeehouse, the cannabis substance was found stashed inside the television cabinet which has an entrance from inside the coffeehouse and has no other entrance, the cannabis substance and the perpetrators of the incident were brought to Eşrefpaşa Police Station and a report was prepared. L. H. did not tell where and from whom he bought the cannabis substance found on him during the search at Altınyol Kıraathan, but later he did”,
Defense witness Y.T. said at the hearing: “I was the cooker of Mustafa Enver during the time he was the owner of this coffeehouse. Lütfi is a child of our neighborhood, he told me that he wanted to be treated for smoking, and I told him that I would help him”,
M.A., whose conviction for the offense of drug trafficking became final after being approved by the Special Chamber, stated on 19.2.2007 at the Public Prosecutor’s Office: “I know a person named L. H.. He is a greengrocer in our neighborhood. This person comes and goes to the Altınyol Coffee House run by my father. I know that L. H. smokes marijuana, I knew it before. However, I did not sell him marijuana and I do not know who sold it to him”, in the hearing; ”I did not sell the marijuana found on L. H. I know Lütfi because he smokes marijuana and hangs out in our coffee house. I beat him a couple of times because he smoked marijuana and was disorderly”,
They have made such statements.
Defendant L. H. exercised his right to remain silent in the presence of his defense counsel at the police station and said at the Public Prosecutor’s Office: “On 27.1.2007, at noon, I went to the Altınyol Coffee House, which I knew before, and I bought six oak hashish from the son of M.E.A., whose name I knew as Muzaffer. My aim was to smoke it, I have been using hashish for three days, I bought it for this purpose, I regret it, I don’t know who the other hashish in the coffee house belonged to.”
In his petition dated 10.4. In his 2011 dated petition, he summarized; “He was caught for using cannabis several times, for this reason he was known by the police, on the day of the incident he bought a bag of cannabis for 250 Liras from a person whose name he knew as Engin on Tepecik Harman Street, he was going to smoke one cannabis in the empty land, he came to Altınyol Coffee House to use the toilet, He claimed that he put 5-6 pieces of hashish from the bag in his pocket and put the rest in the backyard, that he left to smoke the hashish he put in his pocket, that the police officers caught him on his way to the vacant lot, that after searching him, they asked him about the bag and he told them that he put it in the backyard, that when they asked him from whom he bought the hashish, he gave M. A. because they had a fight with him and he didn’t want him to come and go to the coffee house because he smoked marijuana, but in reality he bought the marijuana from a person named E.”,
On 3.5.2007 before the court, he said: “I have been smoking marijuana for 6-7 years. I buy the cannabis I need from people I don’t know in Tepecik neighborhood. I bought the last cannabis I was caught from a person named Engin. I bought the cannabis from a person named Engin in Tepecik Mah. I am not a marijuana dealer. I said that I bought marijuana from a person nicknamed Muzo. I know Engin’s name as Muzo. I know M.A., he is also a smoker. I know the defendant M.E.A., he is a coffee house owner, I don’t know that he is a dealer. I gave the petition I sent through the post office. I bought the cannabis substance I seized on the date of the crime from a person named Engin, whose name and address I don’t know. After the arrest of Mustafa Enver, one of the defendants, and the opening of a public case against us, a person whose name and address I don’t know came to me. He said, “The name of Muzaffer mentioned in my statement at the investigation stage is Engin, he is known as Muzo, change the name of Muzaffer mentioned in your statement at the C. Prosecutor’s Office to E.”. I complied with this and dictated and signed the petition and sent it via P.T.T.”, on 28.6.2007 at the session where the first verdict was delivered; ”On the day of the incident, I bought the cannabis wrapped in 5-6 gelatine from M.A. for 30 Lira. While I was carrying it on me to smoke it, the police caught me on suspicion. I have been smoking marijuana for 3-4 years. I usually get the cannabis I need from Tepecik neighborhood. On the day of the incident, I bought 6 pieces of cannabis wrapped in gelatin, called oak, from Muzaffer for 30 liras and I had it on me. On suspicion, the police caught and restrained me. At the police station, I told that I bought the cannabis from M. Later, M.’s friends beat me, pressured me and I had to write and submit the petition I sent via ptt. I even signed the petition written on the computer without reading it and sent it to the post. The petition shown is the petition signed by me and sent to the post. I am not a dealer, I am a smoker, I want to be treated”.
In the last statement of the defendant L., he claimed that the defendant M.A. had sent it to him through a friend of his hidden inside an onion while he was in prison and presented it to the court. In the letter consisting of two pages giving the impression that it was written by M.A., in summary, there are statements that the defendant Lütfi was in trouble due to his statement and that he should change his statement and sentences containing threats and insults against the defendant L., and the defendant M.A., whose conviction for the crime of drug trafficking was finalized, did not accept that this letter was written by him.
When the legal regulations related to the dispute are examined;
Paragraphs 3 and 4 of Article 188 titled “Manufacturing and Trafficking in Drugs or Stimulants” of the Turkish Criminal Code No. 5237: “(3) Any person who sells, offers for sale, gives, delivers, transports, stores, purchases, accepts or possesses drugs or stimulants within the country without a license or in violation of a license shall be sentenced to imprisonment from five to fifteen years and a judicial fine up to twenty thousand days.
(4) If the narcotic or stimulant substance is heroin, cocaine, morphine or basmorphine, the penalty to be imposed according to the above paragraphs shall be increased by half.” As emphasized in the preamble of the aforementioned article, in paragraph 3, various acts related to drug and stimulant trafficking are defined as a separate crime. Accordingly; the sale of narcotic drugs or stimulants within the country without a license or in violation of the license, offering them for sale, giving them to others, transporting, storing them or purchasing, accepting or possessing them for profit constitutes a separate crime according to paragraphs 1 and 2.
Paragraph 1 of Article 191 of the same Law titled “Purchase, Acceptance or Possession of Narcotic Drugs or Stimulants for Use” is regulated as follows; “(1) A person who purchases, accepts or possesses narcotic drugs or stimulants for use shall be sentenced to imprisonment from one year to two years” and as stated in the justification, as a requirement of the criminal policy pursued, the acts of purchasing, accepting or possessing narcotic drugs or stimulants for use, not the use of narcotic drugs or stimulants, are defined as a crime in the text of the article.
The issue that plays a significant role in determining whether the act of possession of drugs constitutes the offense of possession of drugs for use or the offense of drug trafficking is the purpose of possession. As stated in the decisions of the Criminal General Assembly dated 6.3.2012 and numbered 387-75 and dated 15.6.2004 and numbered 107-136, there are some criteria that should be taken into consideration in determining that the possession of narcotic drugs is for the purpose of use and which are accepted in the doctrine and practice.
The first of these is that it cannot be determined that the perpetrator has engaged in any behavior to sell, transfer or supply the narcotic substance to another person.
The second criterion is the place of possession and the manner of possession; a person who possesses drugs for personal use keeps them in a place where they are easily accessible at all times, for example, usually at home or at work. The fact that the drugs are in a large number of carefully prepared small packets, that each packet contains the same amount of drugs after precise weighing, and that there are precision scales and packaging materials used for packaging at or near the place where the drugs were seized are important indicators of possession for purposes other than personal use.
The third criterion is the quantity possessed. Although the amount that can be accepted for personal use varies according to the physical and mental structure of the person and the nature, type and quality of the drug or stimulant substance, it is reported in the opinions of the Forensic Medicine Institute that cannabis users can consume cannabis three times a day, 1-1.5 grams each time. It is also a well-known fact reflected in the judicial files that those who have the habit of using cannabis, taking this into consideration, may keep a quantity of cannabis substance that will meet their needs for a few months with them or in a place where they can reach it, as a precautionary measure. Accordingly, if the perpetrators who use cannabis possess cannabis substances above their personal needs during this period, which is considered ordinary, it should be accepted that the possession is not for personal use.
When the concrete case is evaluated in the light of these explanations;
Considering the fact that no other evidence could be obtained that the defendant sold the drugs other than the drugs seized as a result of the search conducted on him, considering the daily requirement amount stated in the opinions of the Forensic Medicine Institution, the fact that the net amount of 2 grams 59 milligrams of narcotic substance stated in the expert report is within the limits of one day’s personal use, and the defendant’s unproven defenses that he kept the narcotic substance on his person at all stages not to sell it but to use it, it is beyond doubt that the defendant committed the crime of drug trafficking. Moreover, on the one hand, it is an unexplainable contradiction that the defendant L., whose statements about M. A., who was included in the investigation with the statements of the defendant L., although there was no allegation against him at the beginning of the incident and he was not present at the scene of the incident, and whose conviction for the crime of drug trafficking was finalized by the Special Chamber, is not taken into consideration, and on the other hand, his defense, which cannot be proved otherwise and which he consistently expressed at the stages, that he kept the drugs seized for use, is not taken into consideration.
In accordance with the principle of “in dubio pro reo”, i.e. “the accused benefits from the doubt”, which is one of the most important principles of criminal proceedings, the basic condition for the defendant to be punished for a crime is to prove the crime with a certainty that leaves no room for doubt. Events and allegations, the occurrence of which is doubtful and not fully clarified, cannot be interpreted against the defendant and a verdict of conviction cannot be established. This rule, which has a very wide application area, is applicable in cases where there is doubt as to whether a crime has actually been committed or, if it has been committed, the manner in which it was committed, as well as in terms of determining the nature of the crime. A criminal conviction must be based on clear and unequivocal proof, not on a probabilistic opinion reached by relying on a part of the evidence collected during the trial and ignoring another part. This proof must be clear enough not to allow any doubt and any other kind of occurrence.
For this reason, it is inappropriate for the local court to erroneously determine the nature of the offense by deciding to punish the defendant for the crime of drug trafficking based on evidence that is far from giving a definite opinion, without considering that the act that has been established constitutes the crime of possession of drugs for use.
In this respect, the Special Chamber’s decision of reversal is appropriate and the local court’s judgment of resistance should be reversed.
However, even if the local court complied with the other reasons for reversal of the Special Chamber, since the local court will establish a new judgment in line with the reversal due to the reversal of the judgment of resistance, there is no benefit in sending the judgment to the Special Chamber for review in terms of the parts complied with the reversal.
The seven members of the General Assembly who disagreed with the majority opinion voted against with the opinion that the judgment of the local court should be upheld.
CONCLUSION : For the reasons explained;
1-) The judgment of Izmir 3rd Assize Court dated 25.12.2009 and numbered 473-510 on the grounds of incorrect determination of the nature of the offense is DISMISSED,
2-) It was decided by majority of votes in the discussion held on 25.09.2012 to send the file to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to its neighborhood.