The Crime Of Trafficking Or Supplying Drugs Or Narcotic Substances
T.C. JUDICIARY
10th Criminal Chamber
Main: 2015/5917
Decision: 2016/2073
Date of Decision: 29.06.2016
THE CRIME OF TRAFFICKING OR SUPPLYING DRUGS OR NARCOTIC SUBSTANCES – THE POSSIBILITY THAT THE CASE WILL BE DISMISSED IF HE COMPLIES WITH THE PROBATION PERIOD AND IF HE COMPLIES – FAILURE TO CONSIDER THAT THE CONVICTION CANNOT BE TAKEN AS A BASIS FOR REPETITION – REVERSAL OF THE VERDICT
SUMMARY: It is necessary to make an adaptation regarding the finalized convictions and to decide to defer the announcement of the verdict, and since there is a possibility that the case will be dismissed if it complies with the supervision period and if it complies, not considering that this conviction cannot be taken as a basis for repetition has required a reversal.
(5237 S. K. art. 53, 191)
Case and Decision: The file was examined.
The Necessary Consideration was made:
Failure to write the date of the crime in the title of the reasoned decision has been accepted as a material error that can be corrected by the Court.
Since it is understood that the reversal decision given by the Criminal General Assembly of the Court of Cassation upon objection was complied with, the procedures in the trial process were carried out in accordance with the law, the evidence was shown and discussed in the reasoned decision, the conscientious opinion was based on precise data in accordance with the documents and information in the file, it was determined that the act was committed by the defendant, the type of crime that fits the action and the sanctions other than those stated below were determined correctly, the other appellate objections that are not deemed relevant are rejected, however;
1- Due to the annulment of some provisions of Article 53 of the Turkish Criminal Code No. 5237 by the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 main and 2015/85 decision, which entered into force by being published in the Official Gazette dated 24.11.2015 and numbered 29542 after the judgment, it is necessary to redetermine the situation of the defendant in terms of the application of this article,
2- It is understood that with the decision of Fatih 2nd Criminal Court of Peace dated 22.04.2011 and numbered 2011/197 and 2011/634 dated 22.04.2011, it was decided to apply treatment and probation together with a judicial fine of 6000 TL converted from 10 months imprisonment for the crime of possession of narcotic substances for use, and that the defendant, who did not comply with his obligations, was decided to execute the judicial fine of 6000 TL with the additional decision dated 07/10/2011 and numbered 2011/197 and 2011/634, and that this decision was executed on 25/05/2012 as a 300-day imprisonment sentence equivalent to 6000 TL. In the provisional Article 2 added to the Law No. 5320 with Article 85 of the Law No. 6545, it is stated that “In the prosecutions carried out due to the crime defined in Article 191 of the Turkish Penal Code as of the date of entry into force of this law, it is decided to defer the announcement of the verdict within the framework of the provisions of Article 191 regarding the persons for whom probation or treatment measures have not been applied before.” Accordingly, it is necessary to make an adaptation regarding the finalized convictions and to decide to defer the announcement of the verdict, and not considering that this conviction cannot be taken as a basis for repetition, since there is a possibility that the case will be dismissed if it complies with the supervision period and if it complies,
Since it has required reversal and the defendant’s objections on appeal have been deemed appropriate for this reason, the verdict is DISMISSED; however, since it is possible to correct this situation in accordance with Article 322 of the Code of Criminal Procedure without a retrial,
1-To remove the section on the application of Article 53 of the TCC from the paragraph of judgment and replace it with the phrase “According to the situation after the annulment decision of the Constitutional Court dated 08.10.2015, paragraphs 1 and 2 and the first sentence of paragraph 3 of Article 53 of the TCC shall be applied to the defendant”,
2- Deletion of the section on recidivism from the paragraph of judgment,
It was unanimously decided on 29.06.2016 to confirm the verdict by correction.