Republic of Turkey
Supreme
Criminal Chamber
Case No. 2011/10-482, Decision No. 2012/1784, Date: September 25, 2012
CASE: Defendant L., charged with drug trafficking. Case No. 5237 of the Turkish Penal Code (TCK) regarding a sentence of 4 years and 2 months’ imprisonment and a fine of 2,000 lira, pursuant to Article 3 of the Izmir Criminal Court’s decision. Upon appeal of the Criminal Court’s decision dated June 28, 2007, No. 119-280, the Supreme Court, having reviewed the case, first decided to release the defendant pursuant to an interim decision dated June 15, 2009, and rendered a decision on December 10, 2009, in the Criminal Chamber under Case No. 3837-15096;
“…1-Based on the content of the arrest records, the preliminary investigation, and the entire case file; the defendant, who was acquitted of the same offense, was found by police officers who arrived at the scene following a tip that marijuana was being sold at the café owned and operated by his son Muzaffer; in a cabinet in the garden, which served as an annex to the café, 6 packages of marijuana wrapped in cellophane and 129 packages of marijuana wrapped in cellophane were seized.
In his statement to the prosecutor’s office, the defendant stated that he had been using marijuana for six or seven years, purchased it for 5 UAH, and had previously been convicted of drug possession; there is no criminal record for the offenses of drug possession or sale.” Furthermore, there is no legal or sufficient evidence to suggest that M. had any suspicion that the six-packet bundle of marijuana he purchased was intended for sale; therefore, a written judgment should be issued without considering that his action constitutes the crime of drug possession,
2 -) The other defendant, MT 5237, stated that he obtained information from the Criminal Code (C.K.) Article 192/3 regarding the defendant who assisted in establishing this person’s guilt and served in this matter, and noted that the application of the provisions on effective repentance in accordance with the relevant article was overlooked.
3 -) In your opinion;
a) In the calculation of the imposed fines, multiplying the determined daily amount by a provision of Law No. 5271 constitutes a violation of the relevant article of Law No. 232/6, as this is not explicitly stated in that article.
b) The criminal fine imposed on the defendant must be determined in Turkish Lira (TL) pursuant to the relevant provision of Law No. 5083.1, which entered into force on January 1, 2009, pursuant to Council of Ministers Decision No. 2007/11963 dated April 4, 2007.
c -) The defendant, under Article 53(1)(c) of the Turkish Penal Code (TCK), regarding the exercise of custody, guardianship, and trusteeship, continues to violate the provisions of Article 53(3) by failing to make a decision to cease such violations, which would otherwise result in the termination of the sentence…
A decision to dismiss the case was made due to lack of grounds.
Izmir 3rd Criminal Court, Case No. 473-510 dated December 25, 2009;
“…Around 3:00 PM on the day of the incident, at a location on Aşraf Paşa Street No. 132, Altinyol, where marijuana was being sold and a tea house was operated, upon receiving a tip that a large quantity of marijuana was found in a cabinet in the backyard, the on-duty police officers arrived at the Altinyol tea house and noticed the suspect behaving suspiciously.
During the search, six packages of marijuana ready for sale were seized. Following the tip, it was determined that a person had been forced to leave the scene after purchasing marijuana from the seller or the location where it was purchased, with each package costing more than 5 TL. It was established that six packages of marijuana ready for sale were found at the pharmacy, and each of these cost more than 5 TL.” It was found that LHin, who is alleged to be the seller of the marijuana purchased from Den, the son of Altınyol Brewery operator Muzaffer, was not present at the scene; it was understood that LHin was collaborating with Muzaffer, the son of the Altınyol Brewery operator, and was the seller of the marijuana belonging to Muzaffer;
Therefore, the Criminal Chamber of the Supreme Court charged the defendant LHin under the relevant corruption provision as specified in Article 10, and it was stated that the defendant committed a crime in accordance with Article 5237 of Law No. 188/3 of the Turkish Penal Code.
Upon the defendant’s objection on the grounds that he had a criminal record under Articles 188/3, 192/3, 62, 53, and 63 of the Turkish Penal Code No. 5237 in accordance with the company’s articles of association, it was decided to sentence him to 2 years and 1 month in prison and a fine of 1,000 pounds.
Following the defendant’s appeal of this decision, the case file—submitted to the Chief Justice of the Supreme Court by the Office of the Attorney General on November 17, 2011, under reference number 133559, requesting “approval”—was reviewed by the General Assembly of the Criminal Court and resolved with the following reasoning:
DECISION: The dispute between the Special Division and the local court, which required resolution by the General Assembly of the Criminal Court, concerns whether the act alleged by the defendant constitutes the offense of possession of a narcotic substance for personal use or the offense of drug trafficking.
From the contents of the reviewed file;
Around 3:00 p.m., during a police investigation into suspicious individuals—which included a criminal record check and further examination—a person was identified as selling marijuana from a cabinet, with a large quantity of marijuana found in their backyard. During a raid on a café that security forces had visited following the same tip, a suspect exhibiting suspicious behavior was found to have marijuana (Oak brand) wrapped in packs of six in the right pocket of his jacket during a surface search, as well as 129 pieces of marijuana (Oak brand) hidden behind the television and stored in a wooden cabinet in the backyard.
According to the forensic medical report dated March 2, 2007, the gross weight of the seized narcotic substance—without distinguishing between the last 6 packages—was 97 grams; the total weight across 135 packages was 300 milligrams, and the net weight was 58.380 milligrams. It is stated that the packages contained marijuana. Based on this amount, it was concluded that the net amount of marijuana seized by the defendant in the last 6 packages was 2 milligrams, and the 59-gram package must be accepted.
Understood.
The record editors are witnesses BZ, NA, RK, OY, Witness NK, and DD. “Upon receiving a verbal tip that a 30-year-old individual was selling marijuana at Altınyol Coffeehouse, we arrived at the scene as counter-terrorism units. During the search, we became suspicious of Lütfi’s behavior while he was at the counter and searched him.
During the search, we seized a substance known as marijuana wrapped in cellophane. Other members of our team searched inside the coffeehouse and in the garden of the annex; they found a quantity of marijuana in a TV cabinet that had an entrance from the coffeehouse and no other entrance. The marijuana and the suspects were taken to the Aşrafpaşa Police Station, and a report was prepared. Lütfi did not say where he had obtained the marijuana seized during the search at Altınyol Coffeehouse; later, he stated the following:
Defense witness YT testified at the trial: “I was working as a janitor at this coffeehouse during the time Mustafa Anver was the undersecretary. He’s a kid from our neighborhood; he said he wanted to undergo treatment for alcohol addiction, and I told him I’d help.”
The verdict against him for drug trafficking was finalized on February 19, 2007, with the approval of the Massachusetts Special Court. In the prosecution’s statement: “I am LH; there’s a person I know. He runs a produce stand in our neighborhood. This person comes and goes to the Altinyol Brewery, which my father runs. I, LH, know that he uses marijuana. I knew this before as well. But I didn’t sell him marijuana. I don’t know who sold it to him,” and during the hearing: “Li didn’t sell the marijuana found on him. I know Lutfi from seeing him smoke marijuana and hang out at our coffee shop. Im beat him a few times because he was smoking marijuana and going overboard,”
they made the following statements.
Defendant LH exercised his right to remain silent in the weapons storage room in the presence of his defense attorney. “On January 27, 2007, around noon, I went to the Altinyol Brewery, which I had known before and whose owner I knew as Muzaffer MEA. I bought six pieces of oak-leaf marijuana for 5 pounds; one of them belonged to his son. My intention was to smoke it; I’ve been using marijuana for three days, and I bought it for that purpose. I regret it. I don’t know who the other marijuana found at the café belonged to,” he said.
In a petition dated April 10, 2011, which he mailed to the local court, he wrote the following in summary: “I have been arrested several times for using cannabis and am therefore known to the police. On the day of the incident, as someone I always knew, I found a bag of cannabis on the large hill on Harman Street. I bought 250 pounds of cannabis on an empty lot.
After having a drink, I went to the restroom at Altinyol Café. I put the remainder of the bag in the backyard and put 5–6 mysterious pieces of marijuana in my pocket. Im put them in my pocket after drinking. I was caught by the police while heading to the vacant lot. They also searched the bag I had placed in the backyard. When asked who it was from, he said he had argued with MA and didn’t want him to come to the coffeehouse because he was smoking marijuana. But in reality, he said he got it from someone named E.”
On May 3, 2007, in court: “I’ve been using marijuana for 6–7 years. I get the marijuana I need from people I don’t know in the Hillock neighborhood. I got my last batch of marijuana from someone named Engin. The marijuana I got from the person named Engin was in Tepecik Neighborhood, Hamam Street. I got it right away. I’m not a marijuana dealer. I told him I got the marijuana from someone nicknamed Muzo. I know Engin’s nickname is Muzo. I’m a marijuana dealer; I know him—he’s a drinker too.
The defendant is M.E.A. I know him; he’s a coffee shop manager, but I don’t know if he’s a dealer. I submitted the petition I sent via PTT. The marijuana I was caught with in my criminal record was obtained from a person named Engin, who lives in the Tepecik area, whose name and address I don’t know. After the arrest of the defendant Mustafa Enver and the filing of a public prosecution against us, a person whose name and address I do not know came to me.” “I did not know he had come 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 prosecutor’s office statement, the named Muzaffer gave his name as
“Accordingly, I printed out and signed the petition and sent it via PTT on June 28, 2007, during the session in which the initial decision was made.” “On the day of the incident, I sold 30 pounds of marijuana wrapped in plastic to 5–6 people. The police caught me on suspicion while I was carrying marijuana on my person to use. I have been using marijuana for 3–4 years. I usually get the marijuana I need from the Hillock neighborhood.
On the day of the incident, I bought 6 packets of marijuana wrapped in cellophane from Muzaffer for 30 pounds; I had them on me. The police caught me on suspicion. I was caught with the marijuana at the police station. I told them I had bought it from him. Later, M.’s friends beat me, pressured me, and forced me to write and submit a petition I sent via PTT. I even signed the petition typed on the computer without reading it and mailed it. The petition presented is the one I signed and mailed. “I am not a dealer; I am a user. I want to be treated fairly,” he argued.
Defendant L., in a two-page handwritten letter submitted to the court—which he claims was sent to him while in prison by a friend disguised as an onion—and regarding which the judge issued no rejection order, contains a statement that gives the impression of having been written by Defendant L., summarizing that stating that defendant MA was in trouble due to the Honorable Judge’s statement and needed to change his testimony, and containing threatening and insulting statements directed at defendant M., whose conviction for drug trafficking has been finalized. However, defendant A. has not admitted to writing this letter.
Upon reviewing the relevant legal provisions regarding the dispute;
Article 188, titled “Production and Trafficking of Narcotic or Psychotropic Substances,” of the Turkish Penal Code No. 5237, paragraphs 3 and 4; “(3) Any person who, within the country, sells, gives, sends, transfers, stores, purchases, accepts, or possesses narcotic or psychotropic substances without a license or in violation of a license shall be punished by imprisonment for a term of five to fifteen years and a fine of up to twenty days.
(4) If the narcotic or psychotropic substance is heroin, cocaine, morphine, or bazomorphine, the penalty to be imposed pursuant to the preceding paragraphs shall be increased by half,” as emphasized in the rationale for the aforementioned Article 188, paragraph 3, various acts related to the trade of narcotic and psychotropic substances are defined as separate offenses in the paragraph. Accordingly, the sale, procurement, delivery, transfer, storage, purchase, acceptance, or possession of narcotic or psychotropic substances within the country without a license or in violation of a license, for the purpose of profit, constitutes a separate offense under paragraphs 1 and 2.
Under the first paragraph of Article 191 of the same Law, titled “Purchase, Acceptance, or Possession of Narcotic or Psychotropic Substances”: “(1) The purchase, acceptance, or possession of narcotic or psychotropic substances is punishable by imprisonment for one to two years; or, as stated in the text of the provision, the act of possessing such substances is defined as the offense of purchasing, accepting, or possessing narcotic or psychotropic substances.”
The key factor in determining whether the act of possessing narcotics constitutes the offense of possessing narcotics for personal use or the offense of narcotics trafficking is the purpose of possession. As noted in the daily decisions of the General Assembly of the Supreme Court and in Decision No. 107-136 dated June 15, 2004, the possession of narcotics for personal use is a matter that must be considered when determining the specific criteria accepted in doctrine and practice.
The first of these is the inability to establish that the offender engaged in any conduct aimed at selling, transferring, or supplying the narcotic substance in their possession to another person.
Th e second criterion is the location and manner of possession; a person possessing narcotics for personal use typically keeps them in a place where they can easily access them at any time, such as at home or at work. The presence of numerous small packets used in the weighing process indicates that each packet contains exactly the same amount of the narcotic substance; the fact that the seized narcotics were placed on or near a precision scale, along with the presence of packaging materials, and the discovery of materials used for packaging that were also stored for another purpose, constitutes a significant indication.
The third criterion is the quantity possessed. While the acceptable amount for personal use varies depending on the individual’s physical and mental constitution, as well as the nature, type, and quality of the narcotic or stimulant, the Forensic Medicine Institute states that cannabis users can consume 1–1.5 grams of cannabis three times a day. Furthermore, it is a well-known fact that individuals with a habit of using cannabis can safely store an amount sufficient to meet their needs for several months either on their person or in accessible locations, and this is reflected in criminal case files. Accordingly, if cannabis users possess an amount exceeding their personal needs but within the range considered normal during this period, it must be presumed that such possession is not for personal use.
In light of these explanations, the specific case is evaluated;
Since no other evidence was obtained to suggest that the defendant possessed the narcotic substance with the intent to sell it, excluding the narcotics seized during the search, The Forensic Medicine Institute, noting that the specified daily requirement amount and the 59 milligrams (2 grams net) of the narcotic substance mentioned in the expert report fall within the limits of personal use, and considering all stages of the defendant’s actions regarding the sale and use of the narcotic substance together, since there are no defenses that cannot be refuted, suspicions that the defendant committed the crime of drug trafficking persist.
Furthermore, despite the fact that there were no charges against him at the outset of the incident and he was not present at the scene, the situation of defendant LM—who was included in the investigation and whose conviction for the crime of drug trafficking was finalized with the approval of the Special Chamber—is also suspicious. The defendant’s statements that he possessed the seized drugs for personal use create a contradiction that cannot be otherwise substantiated, while his assertion that his defense has remained consistent throughout the proceedings is also an inexplicable situation.
According to the principle of “benefit of the doubt,” one of the most important principles of criminal proceedings, the fundamental condition for convicting a defendant of a crime is that the crime must be proven beyond a reasonable doubt. Events and allegations that remain unclear and whose exact circumstances have not been fully established cannot be interpreted against the defendant, nor can a conviction be issued.
This rule, which has a very broad scope of application, applies not only to determining the nature of the crime but also to establishing whether the crime was actually committed or whether there is any doubt regarding the manner in which it was committed. A criminal conviction must be based on conclusive and clear proof; it must not be based on a mere possibility reached by relying on some of the evidence gathered during the trial while disregarding the rest. The dismissal of a charge as not constituting a crime must also be based on solid and clear proof. This proof must be so clear as to leave no room for doubt or alternative interpretations.
Therefore, it is not possible to misidentify the nature of the crime by the local court’s decision—made without considering that the alleged act constituted the offense of possessing narcotics for the purpose of use, and based on evidence that is far from conclusive—that the defendant should be punished for narcotics trafficking.
Consequently, the decision regarding the annulment of the Special Chamber’s ruling has taken effect, and the local court must decide whether to overturn the appeal ruling.
However, even though the local court considered the Special Chamber’s other grounds for violation, since the local court will issue a new ruling in accordance with the violation due to the overturning of the original ruling, there is no benefit in referring the portions of the ruling related to the violation to the Special Chamber for review.
Seven members of the General Assembly, who did not concur with the majority opinion, voted against the idea that the successful local court decision should be affirmed.
CONCLUSION: For the reasons stated above;
1 -) The decisions of the İzmir 3rd Criminal Court dated December 25, 2009, and numbered 473-510, due to the violation of the ruling on resistance, ranging from the failure to strike to the incorrect determination of the nature of the crime,
2 -) For the case file to be sent to the Supreme Court (C). The appointment of the Chief Prosecutor was decided by a majority vote at the meeting held on September 25, 2012.