Supreme Court Decision Concerning the Amount of Substances in Drug Trafficking or Use
In this article, the decision of the Supreme Court Criminal General Assembly on whether the crime will constitute drug trafficking or drug use according to the amount of drugs seized and other evidence is made as follows. Whether the seized substance will be guilty of drug trafficking or drug use has been established by several criteria stated in many Supreme Court decisions before proceeding to the decision in question. If we briefly refer to these criteria;
· In order to determine whether the act committed is for use or for its trade, the defendant's claim must be evaluated in the light of the evidence collected.
· The most important criterion in the distinction between possession of drugs (marijuana, heroin, cocaine, bonzai, etc.) for use and drug trafficking is the amount of drug substance seized. The possession of the drug substance seized on the defendant, in his residence or vehicle in an amount exceeding the limit of personal need is an obvious indication that the drug is in possession of the drug other than for personal use (e.g. sale trade, transportation, etc.). The amount that can be accepted for personal use varies according to the state and conditions in which the person is, that is, his physical and spiritual structure, as well as the type and variety of drug or stimulant substance. In addition, it is reported in the regulars of the Institute of Forensic Medicine that cannabis users can consume cannabis three times a day, 1-1.5 grams each time. Accordingly, it is generally accepted that a defendant who possesses a drug substance in excess of the amount of annual use, for example, taking into account the daily use account, possesses the drug for the purpose of using the drug other than for the purpose of using it.
- It should also be investigated on a case-by-case basis whether the defendant was involved in selling or transporting the drug substance in his hands to someone else. For example, in the case of technical or physical follow-up, eyewitnesses or even more than one defendant, the basis of the relationship between the accused should be the case of sale or transfer.
- Taking into account the place where the drug or stimulant substance is possessed by the defendant, it must be established whether the drug substance is possessed for use or for trade. Anyone who has drugs for his personal need always has it in a place within easy reach (for example, home, workplace, car, etc.). The fact that the drug is stashed in a place that is not easily accessible (for example, a warehouse, or hidden compartments) is an indication that drugs are being trafficked. In some cases, the distance or nature of the location between the seized substance and the defendant is even important. For example, it must be ascertained whether a drug substance seized in an unowned building belongs to the defendant only with the support of other evidence.
- Another important criterion is the manner in which the drug or stimulant is seized is also one of the important criteria for determining the type of crime. For example, if the drug is more than one, small packages or gelatinized in the form of identical sizes (usually the packages are the same gram) or gelatinized, precision scales for weighing at or near the place where the drug is seized, and packaging materials used in the preparation of packages, etc., are important in that the drug is kept for a purpose other than use will be symptomatic.
In the light of the specified criteria, in the following Supreme Court decision in the Supreme Court decision, any concrete, sufficient, sufficient, clear of any suspicion, clear of any suspicion, certain and credible violations, except for 811 g of cannabis plants seized in the bag carried on the part of the defendant who was caught on notice on the basis of the specified criteria He decided that he could not be punished for drug trafficking due to the inability to obtain it. In our opinion, this decision, which is also correct, has provided an opportunity to look at the sheer amount of the seized substance, to close the possibility of punishment for drug trafficking, and to evaluate it together with other criteria.
T.C.
SUPREME COURT
CRIMINAL GENERAL ASSEMBLY
E. 2012/10-1335
AS OF 2013/423
T OCTOBER 22, 2013
• DRUG TRAFFICKING OFFENSE (where no conclusive and convincing evidence can be obtained that is clear of all kinds of concretely sufficient suspicion that the accused has trafficked drugs other than the Hemp Plant seized in the bag he carried on him)
• CRIME OF POSSESSION OF DRUG FOR THE PURPOSE OF USE (Where the amount of Cannabis Substance specified in the Judicial Report is within the Annual Personal Use Limits - where the offense occurs when evaluating the defendant's defenses that he purchased for the purpose of using, and not for sale)
• ANNUAL PERSONAL DRUG USE LIMIT (Assessed by the Forensic Medicine Agency that cannabis users can consume cannabis three times a day, one to one and a half grams each time - The amount of cannabis substances specified in the judicial report is within the annual personal use limits/the offense of drug possession for the purpose of using drugs occurs)
5237/M.188
SUMMARY: The inability to obtain any concrete, adequate, conclusive and convincing evidence, such as technical or physical follow-up, witness testimony, detection of communications, etc., on the way in which the accused was caught on a report, except for the cannabis plant seized in the bag he carried on the transport of drugs, etc., which is considered as a principle in practice Considering the amount of annual drug use, the amount of cannabis substance specified in the judicial report is within the annual personal use limits, the defendant's drug substance When considered together his otherwise unprovable stable defenses that he bought for the purpose of selling, not to sell, he cannot go beyond the extent of suspicion that he committed the crime of drug trafficking. In this regard, it must be recognized that the defendant's negligent act constitutes a crime of possession of drugs for the purpose of using drugs.
CASE: Sentenced by the 1st Heavy Penal Court of Kocaeli, regarding the punishment of the accused of drug trafficking with five years imprisonment and a fine of 4,000Lira in accordance with Articles 188/3, 62/1, 52/2, 53/1, 54 and 63 of the TCK, on 06.11.2007 and days examining the file on appeal of the provision No. 25-369 by the defendant on the day of 07.12.2011 of the 10th Criminal Chamber of the Supreme Court and number 2008/5259-58263;
“... Upon the announcement that he would be bringing cannabis from Istanbul, no evidence could be obtained that the defendant, who was caught disembarking from the ferry at the pier and coming to pick him up, possessed the net amount of 345,510 grams in the bag in his hand for any purpose other than selling cannabis, selling it or giving it to someone else, in fact the defendant Conviction of a drug trafficking offense without supervision that it constitutes a crime of possession of drugs to use... “,
It was decided to deteriorate from his incompetence.
The Prosecutor General's Office of the Supreme Court of the Republic with the date of 04.01.2012 and the number 17878;
“... The notice made about the defendant is detailed and includes his identity information, his location at the time of the report, as well as the purpose of selling the cannabis he procured.
Looking at his past convictions, it will be seen that he has committed the same crime before and has made it a habit. Given the location and manner of seizure of the cannabis specified in the expert report issued immediately after the incident, the marijuana is above the limits of possession for use and confirms the content of the report. His action constituted the crime of possession of drugs for commercial purposes... “,
In his opinion, the appeal applied to the law and asked for the approval of the decision of the local court.
The file was sent to the Private Chamber, which carried out the examination in accordance with article 308/1 of the CMK on 02.10.2012 and the number 19376-14671, with the number 19376-14671, the file was sent to the First Presidency of the Supreme Court, and the decision was made by the Criminal General Assembly of the Supreme Court and decided on the grounds explained:
DECISION: The dispute between the Special Chamber and the Prosecutor General's Office of the Supreme Court of the Republic in the case of which the defendant was decided to be punished for the crime of drug trafficking relates to the determination of whether the defendant's act constitutes drug trafficking or possession of drugs for the purpose of using it.
From the scope of the studied file;
The report, incident and arrest report issued by Police Department officers said: “A male person who called the Police Department by telephone and did not wish to reveal his identity, presumed to be middle-aged, forty-five and fifty years old, of medium height, with light hair, cloth pants on, blue coat, brought marijuana by contacting the ferry dock with the team formed to investigate the accuracy of the notification, upon informing him that he will sell it to the market, that he is on the ferry, that he does not have a vehicle, that someone will take him from the pier. The equipment was taken, the work on the collected tambourine began, a person who was fitted with the tambourine was seen disembarking from the ferry with a black, full, closed bag in his hand, physical monitoring was conducted to find out where he was going, who he was meeting with, where he was waiting at the minibus stop at the ferry exit and a white van was taken. was seen to have come to a stop, was caught in the event that he was trying to escape while he was moving towards the van, no criminal elements were found in the top searches of those present in the vehicle, with the consent of the black bag in the hand of the suspect When opened, in two separate sachets, green plant particles estimated to be cannabis in colour, smell and appearance were captured, weighing a total of one thousand three hundred and eighty grams in the black bag and eight hundred and eight hundred and eighty grams in the white bag”,
According to the report issued by the Bureau of Criminal Police Laboratories of the Directorate General of Police, the green-colored plant parts contain tetrahydrocannabinol from the narcotic substances, which are suitable for obtaining cannabis,
The report issued by the Forensic Medical Institution states that the substance with a total net weight of 1.335 grams, including all quantities, is a cannabis plant, and 345,510 grams of powdered cannabis can be obtained by sifting,
The accused; that he used drugs, went to Istanbul to buy marijuana for the purpose of using it on the day of the incident, that he called his brother-in-law and asked him to pick him up from the pier on return, that his brother-in-law sent his brother-in-law because he was sick, that the police arrested him while he was getting into the van at the pier, the other people in the vehicle were interested in the drug claiming that he did not exist, that he bought the drug for the purpose of using it, and not for the purpose of selling it,
It is understood that Ertan Uplat, who was in the van where the defendant was riding on the night of the incident and whose rights were decided that there was no place for prosecution for the crime of drug trafficking, and whose acquittal on the drug trafficking offense was finalized without appeal, declared that they had no interest in the cannabis substance seized on the defendant.
The crime of trafficking in drugs or stimulant substances in the third paragraph of Article 188 of the TCK means “a person who sells, offers for sale within the country, offers for sale, gives to others, transmits, transports, stores, buys, accepts, possesses drugs or stimulants without a license or without a license, imprisonment for from five years to fifteen years and twenty years of imprisonment and twenty years. ruled as punishable by a judicial fine until the day”, it is stated in the grounds of the article, in the third paragraph, that the actions related to the trafficking of drugs and stimulants are defined as a separate crime. Accordingly, the unlicensed or unlicensed sale of drugs or stimulants within the country, the supply for sale, supply, supply, transfer, storage or possession of drugs or stimulants for the purpose of profit constitutes a separate offence under paragraphs 1 and 2, which regulate the offences of manufacturing, importing or exporting drugs.
Paragraph 1 of Article 191 states that “a person who purchases, accepts or possesses drugs or stimulants for use shall be punished with imprisonment from one year to two years” and, for the purposes of this paragraph, in accordance with the criminal policy pursued, not to use drugs or stimulants, but to buy, accept drugs or stimulants for the purpose of using drugs or stimulants, or Possession acts are considered a crime.
It is the defendant's intent that plays an active role in determining whether the act constitutes a crime of possession of drugs for use or a crime of drug trafficking.
There are some criteria that must be taken into account in determining whether drug possession is intended for the purpose of use and that have also been accepted in teaching and practice.
The first of these criteria is whether the offender engages in any conduct in transferring or supplying the drug substance in his possession to another person, and the second is the location and form of possession of the drug or stimulant. Anyone who has a drug for personal use always has it in a place where they are easily accessible, for example, at home or at work. The presence of the drug in large numbers and carefully prepared small packages, the presence of the same quantity of narcotic substances as a result of precise weighing in each package, the presence of delicate scales at or near the place of seizure of the drug and the packaging materials used in the packaging will be an important indication that it is stored for a purpose other than use. The third criterion that is accepted is the amount of drugs or stimulants present. The amount that can be accepted for personal use may vary according to the physical and spiritual nature of the person, as well as the nature, sex and quality of the drug or stimulant, as well as the characteristics of the concrete event.
It is assessed by the Forensic Medicine Agency that cannabis users can consume cannabis three times a day, one to one and a half grams each time. It is also a well-known aspect that is reflected in judicial files, where those who have the habit of using cannabis can have a quantity of cannabis that can meet the needs of several months with them discreetly or in an easily accessible place. Accordingly, in the event that cannabis users possess cannabis substances in excess of the quantity they can use and consume them personally within a reasonable period of time, the possession is not intended for personal use, but if there is no other concrete evidence that the drug is being possessed for commercial purposes, there is a personal need or a lesser quantity of the drug to be possessed. must.
One of the most important and universal principles of criminal procedure, the purpose of which is to achieve justice by reaching the material truth in the concrete case, to punish the perpetrator who committed the crime, to prevent the deterioration of public order and to restore the broken public order, is in the teaching and practice that must be found in the legal systems of countries governed by democratic regimes based on human rights, governed by a democratic regime, which must be found in the legal systems of countries governed by a democratic regime based on human rights; in the form of “presumption of innocence” or “presumption of innocence”, in Latin it is the principle that “the accused takes advantage of the doubt”, which is expressed in Latin as “in dubio pro reo”. The essence of this principle is that the suspicion of any issue that must be considered in a criminal case in order to decide on the conviction of the defendant is considered in absolute terms in favor of the defendant. This rule, which has a wide scope of application, is applicable in determining the nature of the crime, as well as in determining the nature of the crime, if it was committed by the accused, or if there is any doubt as to the manner in which it was committed.
When the concrete event is assessed in the light of these statements;
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., is an annual drug that is accepted as a principle in practice Considering the amount of substance use, the 345,510 grams of marijuana substance specified in the judicial report is within the annual personal use limits, the defendant's drug substance When considered together his otherwise unprovable stable defenses that he bought for the purpose of selling, not to sell, he cannot go beyond the extent of suspicion that he committed the crime of drug trafficking.
Accordingly, since there is no inaccuracy in the notice of violation of the Special Office, which states that the action of the accused constitutes a crime of possession of drugs for the purpose of using the suspect constitutes a crime of possession of drugs for the purpose of using it, the decision must be dismissed.
Eleven members of the General Assembly, who did not agree with the majority opinion, voted against the opinion that “the defendant's action constitutes a crime of drug trafficking, and therefore a decision must be made on the acceptance of the appeal”.
CONCLUSION: For the reasons described;
1- REJECTION OF THE APPEAL OF THE GENERAL PROSECUTOR'S OFFICE OF THE SUPREME COURT,
2- The Supreme Court of Appeal of the Republic Prosecutor's Office to send the file to the district, was decided by a plurality of votes in the second hearing held on October 22, 2013, as a sufficient majority was not obtained in the deliberation held on 08.10.2013.