Arms Trafficking Committed by More Than One Person (Law no. 6136, Article 12) – Judgment of Acquittal

The court decisions published in this section were obtained in cases in which Attorney Mert Sönmez personally acted as counsel and defense counsel.

REPUBLIC OF TÜRKİYE

*** COURT

CASE NO: ***

DECISION NO: ***

REASONING

REASONING:

By the indictment of the Istanbul Anatolian Chief Public Prosecutor’s Office dated 06/03/2024 and numbered Investigation ***, *** and Indictment ***, a criminal action was brought before this Court against defendants ***, *** and ***, seeking their punishment pursuant to Article 12/1 of the Law on Firearms, Knives and Other Instruments and TCK Articles 37/1, 53, 54 and 63 on the allegation that they had committed the offense of ‘unauthorized importation into the country, manufacture, transportation or sale of firearms and ammunition.’

By the indictment of the Istanbul Anatolian Chief Public Prosecutor’s Office dated 13/12/2023 and numbered Investigation ***, *** and Indictment ***, a criminal action was brought before the Istanbul Anatolian Juvenile High Criminal Court against juvenile defendant ***, seeking punishment pursuant to Article 12/2 of the Law on Firearms, Knives and Other Instruments and TCK Articles 31/3, 54 and 63 on the allegation of ‘joint commission by two or more persons of the acts set out in paragraph one.’ That court ordered joinder and transmitted the file to this Court.

On the date of the incident, law-enforcement officers obtained information that arms were being traded through a social-media application. An indictment was issued seeking punishment of the defendants for arms trafficking by more than one person, and an opinion consistent with the indictment was submitted seeking punishment of the defendants and the juvenile defendant. Nevertheless, upon assessment of the entire case file as a whole:

Article 139 of the Code of Criminal Procedure, governing the appointment of an undercover investigator, provides: ‘Where there are strong grounds for suspicion, based on concrete evidence, that the offense under investigation has been committed, and evidence cannot be obtained by any other means, public officials may be appointed as undercover investigators. The appointment under this Article shall be made by a judge ***.’

Accordingly, under Article 139 of the Code of Criminal Procedure, an undercover investigator may be appointed only by a judge, and the decision must be included in the investigation file.

As stated in the precedent of the *** Criminal Chamber of the Court of Cassation dated 10/11/2022 and numbered *** ***, CMK Article 217(2) provides that ‘The charged offense may be proven by any evidence obtained lawfully.’ The reply to the writ sent to the Istanbul Anatolian Courthouse Chief Public Prosecutor’s Office established that the undercover-investigator authorization in the file had not been lawfully issued, and no lawful document concerning an instruction obtained from the Public Prosecutor during the investigation was present in the file. Both the European Court of Human Rights and the Criminal Chambers of the Court of Cassation have expressly held that unlawfully obtained evidence may not be considered in criminal proceedings. The Criminal General Assembly of the Court of Cassation likewise explained in its precedent dated 26.10.2010, case no. ***-134 and decision no. ***, the universal principle in dubio pro reo, an extension of the presumption of innocence: conviction requires proof of the offense with certainty beyond doubt; doubtful and unresolved facts and allegations may not be interpreted against the defendant; a criminal conviction must rest on definite and clear proof rather than probability; and punishment based even on a high probability would amount to judgment without establishing the material truth, the principal aim of criminal proceedings. Evaluating these principles together, no definite, concrete and convincing evidence was obtained that defendants ***, *** and *** and juvenile defendant *** committed the offense of unauthorized importation, manufacture, transportation or sale of firearms and ammunition, jointly by two or more persons. They were therefore acquitted pursuant to CMK Article 223/2-e, and judgment was rendered as follows.

JUDGMENT

A)1–In the criminal action brought seeking separate punishment of defendants ***, ***, ***, and juvenile defendant *** for arms trafficking together with more than one person, since it was not established that the defendants and juvenile defendant committed the charged offense, EACH IS ACQUITTED pursuant to CMK Article 223/2-e.

2–As defendant *** was represented by defense counsel, the fixed attorney’s fee of TRY 48,000, determined according to the Minimum Attorney Fee Tariff in force on the date of judgment, shall be paid to the defendant from the Treasury.

As defendant *** was represented by defense counsel, the fixed attorney’s fee of TRY 48,000, determined according to the Minimum Attorney Fee Tariff in force on the date of judgment, shall be paid to the defendant from the Treasury.

As juvenile defendant *** was represented by defense counsel, the fixed attorney’s fee of TRY 48,000, determined according to the Minimum Attorney Fee Tariff in force on the date of judgment, shall be paid to the defendant from the Treasury.

3–The trial costs incurred in relation to the case shall remain with the Treasury.

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