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Petition to Appeal the Detention Granted by the Magistrate's Court
As is well known, arrest or judicial control decisions issued by magistrate judges were challenged to a superior magistrate judge. However, with the amendment of the law dated 01.01.2022, appeals against arrest or judicial control decisions issued by magistrate courts will now be heard by the ordinary criminal courts.
On 08/07/2021, Article 24 (b) of the Code of Criminal Procedure and Amendments to Certain Laws (b) against the decisions of the Bendi Magisterial Criminal Court concerning arrest and judicial control is the responsibility of the judge of the Civil Penal Court located around the jurisdiction. In cases where the authorities authorized to examine the appeal differ, the necessary measures are taken by the Magistrate's Court, whose decision is appealed, in order to examine the objections without delay. If the affairs of the Magistrate's Court are seen by the Chief Criminal Court, the authority to examine the appeal rests with the President of the High Criminal Court.” It was shaped.
This amendment entered into force on 01/01/2022. With the relevant amendment of the law, a vertical appeal procedure has been introduced against the arrest and judicial control decisions of the Magistrates Courts, thus ending the practice of examining appeals by other Magistrates Courts against the decisions of the Magistrates Courts. Appeals to the arrest and judicial review were decided to be looked at by the Superior Court of Appeal, the Superior Court of Criminal Appeal.
We present to the court a sample of an appeal petition with the new law amendment;
ISTANBUL () TO THE ORIGINAL COURT
TO BE PRESENTED
ISTANBUL () TO THE MAGISTRATE'S COURT
FILE NO: 2021/ D.Business
SUSPICIOUS:
PROTECTOR: By Ferhat BULUT
THREAD: Our voluntary appeal against the suspension of the Arrest Decision of the Istanbul () Magistrates Court of Istanbul () dated 01/08/2021, 2021/D.IŞ, dated 01/08/2021 against the client.
Explanations
Within the scope of the investigation no. 2021/ conducted by the Public Prosecutor's Office of Istanbul, on 01/08/2021, the client's statement was taken with the crime of “Trading Drugs or Stimulants” and sent to the Istanbul () Magistrate's Court with the request to apply the arrest measure.
Istanbul 2.Magistrates' Court of Criminal Procedure dated 01/08/2021 and 2021/ D.It was decided to apply an arrest measure against the client in accordance with CMK m.100.
First of all, the reasons given in the Arrest Order are not correct, as there is no strong suspicion of crime, no concrete determination to establish the existence of the reasons for the arrest, the mere presence of the drug subject to the crime, the fact that the crime of “trafficking and supplying drugs” does not mean that the crime of “drug trafficking and supply” has occurred and is a disproportionate measure, the arrest decision is unfair and unlawful. It happened, because;
The client resides in Muğla. On 01/08/2021, he bought a used Peugeot Brand car with license plate from Ankara. The client, who intends to go to Istanbul both to buy spare parts of the car and to see his pregnant wife, agreed “in order to celebrate the car together, to have fun” as a result of a telephone conversation with the other suspect. With this intention, they took the client from Kocaeli and went to Topkapi together.
Subsequently, as stated by both the client and the other suspect, they purchased a quantity of narcotics from the individual named in the file to celebrate the vehicle and drink and use for recreational purposes because they had not seen each other for a long time. Shortly after the purchase of the drug, the vehicle in which the client and the other suspect... were turned over by law enforcement and seized as a result of a precautionary search.
On examination of the scope of the file, there is also no concrete evidence that the client committed the crime of 'drug trafficking and supply'. Zira;
According to the established practice of the Supreme Court, in order to mention the crime of drug trafficking in an event, the person has engaged in the conduct of selling, transferring, supplying, as well as the location and form of possession of the drug substance;
the presence of the same amount of drugs in each package, in the form of a large number of carefully prepared packages,
The presence of precision scales and packaging material used in packaging next to the drug,
In terms of quantity, an amount above the limits of use must be seized.
***Within the scope of the file, it is understood that the client did not have any movement to perform any of the above enumerated acts, including the records kept by law enforcement.
GENERAL BOARD OF CRIMINAL PROCEDURE OF THE SUPREME COURT OF JUSTICE E. 2012/10-1335 K. 2013/423 T. 22.10.2013
“... the inability to obtain any concrete, adequate, conclusive and convincing evidence on the way in which the accused has been trafficked in drugs, other than the cannabis plant seized in the bag he carries on a report, such as technical or physical follow-up, witness testimony, detection of communications, etc., etc., which is accepted as a principle in practice Considering the amount of drug use, the 345,510-gram marijuana substance specified in the judicial report is within the annual personal use limits, the defendant's drug When considered together his otherwise unprovable stable defenses that he purchased the substance for the purpose of selling and using it, it cannot go beyond the extent of suspicion that he committed the crime of drug trafficking.”
*** IN THE LIGHT OF THE CASE LAW OF THE SUPREME COURT, IT IS UNDERSTOOD THAT THE AMOUNT OF THE DRUG DOES NOT REVEAL THE AMOUNT OF USE, AND IN THE EXAMINATION OF THE CRIME SCENE MINUTES, THE RELATIONSHIP TO THE SALE DOES NOT MENTION ANY EVIDENCE-BASED INFORMATION, AND THE CLIENT HAS COMMITTED THE CRIME OF SELLING DRUGS IN THE FILE, IN WHICH NO STATEMENT WAS MADE AGAINST THE CLIENT. IT IS KNOWN THAT BEYOND DOUBT, NO DEFINITIVE PROOF CAN BE OBTAINED.
Decisions of the Supreme Court of 10 Algeria dated 11.10.2013, 2012/13522 E. and 2013/8959 K. and of the 10th Chamber of the Supreme Court dated 08.12.2010, 2008/2872 E. and 2010/26366 K.
In its judgment of 11.10.2013, the Supreme Court of Justice of the 10th Penitentiary ruled that “the defendant and the client had a friendship relationship between them, that the defendant smoked the marijuana cigarette he brought with him on the day of the incident, and that he did not intend to supply the same cigarette together because they had no intention of supplying the same cigarette together”, “drugs The grounds for annulment were made for the establishment of a conviction for the crime of trafficking in substances”.
As explained above, the arrest of the client on suspicion of drug trafficking is an extremely heavy sanction and there is no concrete evidence of drug trafficking within the scope of the present dossier.According to Article 101;
“In decisions relating to arrest;
a) Strong suspicion of crime,
b) the existence of reasons for arrest,
c) that the arrest measure is moderate,
The evidence is clearly demonstrated by substantiating concrete facts.”
Thus, if an arrest warrant is issued, it is necessary to show the EVIDENCE, REASONS AND CIRCUMSTANCES JUSTIFIED BY SUBSTANTIVE, CONCRETE FACTS IN THE DECISION.
No facts showing strong suspicion of crime have been revealed
In order for the suspect to be arrested, it is necessary to have a strong suspicion that the person has committed a crime, as stated in paragraph 3 of Article 19 of the Constitution and Article 100 of the CMK.
Since arrest is a very severe measure that takes away a person's freedom, the legislator here, especially when considering the evidence at hand, has sought the suspicion that is “strong”, not “sufficient”.
“Strong suspicion”, which is expressed in the law, is that there is a high probability that the person committed a crime as a perpetrator or accomplice. The reasons, cases that arouse the opinion that strong suspicion exists in the decision to arrest should be indicated.
However, the arrest decision does not reveal what the facts that indicate a strong suspicion of a crime are.
The Existence of Reasons for Arrest Must Be Revealed
A strong suspicion of one's guilt alone is not enough. It is also necessary to investigate whether the reasons for the arrest are found, which are enumerated individually in the law.
Only the seizure of a drug substance in the vehicle in which the client and the other suspect are present, especially the seizure of a drug substance that is within the limits of use cannot prove that drugs are trafficking, as we have mentioned above in detail, they bought the substance with the client for drinking. As evidenced by criminal reports, the seized substance remains within the limits of use.
The Presence of Suspicion of Escape Must Be Revealed
The presence of facts that arouse the suspicion that the suspect or accused will flee, hide or flee is a reason for arrest. If there is such a determination or assessment regarding the client, this should clearly be included in the decision.
The client is married, has children and is also fixed in the residence address and work document that we present in the file. He is a person with a regular life and family life. In addition, the client does not even have any criminal record to date.
Suspicion of Obfuscation of Evidence Must Be Raised
Whether the suspicion of darkening of the evidence is found, but with the specifics of the concrete event, should be the reason for the arrest, taking into account the personality, attitudes, living conditions of the defendant. It is stated that the decision to arrest on the basis of a prejudice that the person suspected of any crime necessarily wants to hide the material truth will seriously undermine the freedom of the person guaranteed by the Constitution.
There is no evidence that will be darkened or concealed within the scope of the investigation carried out about the client. All evidence, including telephones, has been obtained by law enforcement agencies and is kept in judicial custody. Therefore, it would not be correct to mention the existence of suspicion of evidence blackout.
Arrest Must Be Proportional
Article 100 of the Code of Criminal Procedure, which regulates arrest, clearly states that the arrest must be 'proportionate'. The importance of the act under investigation must be given, taking into account the punishment or security measure that will be given to the suspect or the criminal in return, if the arrest decision to be issued will not cause injustice from the person's point of view. The principle of proportionality sought in the law requires this. Also, arrest should be the last resort resorted to as a precaution. In accordance with the principle of 'proportionality', measures must first be resorted to which fewer rights are restricted on the person.
The client has yet to have a one-month-old baby, a wife, parents and parents. Unfortunately, the client's family has been punished along with the arrest measures. The client has not been involved in any crime to date. It is not legally correct to not apply a judicial control measure against such a person and go directly to arrest him, nor is it conscientiously correct.
Finally, in the light of the reasons we have discussed in detail above, the client, who has been detained and who has drugs to use, has arisen to request his release under any conditions of judicial control that may be deemed appropriate.
Consequence and Demand: In light of the above supply and reasons explained
the objectionable lifting of the DETENTION granted on the client,
In accordance with Articles 104 et seq of the Criminal Procedure Code, we respectfully request the application of any judicial control provisions that the judge may deem appropriate if the judge deems appropriate to the contrary.
Suspected Guardsman
By Ferhat BULUT