Drug Trafficking (TCK Article 188/3) – Judgment of Acquittal and Deferral of the Announcement of the Verdict (HAGB) for Possession for Personal Use

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

Although defendant *** stated that the narcotic substances belonged to defendant ***, the officers who signed the record clearly stated that defendant *** left the apartment building long after defendant *** and that they did not leave side by side. A substance different from the narcotic substances seized from defendant *** was found in defendant ***’s home. During the immediate search upon apprehension after leaving the building, no narcotic substance was found on defendant *** or in the vehicle. The apartment was entered with defendant ***’s key, and the forensic examinations of all materials seized from the residence and sacks did not reveal defendant ***’s fingerprints. Assessed as a whole, defendant ***’s statement that the narcotics belonged to *** was considered aimed at avoiding punishment or obtaining a lesser sentence. Since there was no evidence beyond the uncorroborated allegation and the other defendant’s statement capable of disproving defendant ***’s account, defendant *** was acquitted in relation to this incident, and the seized cannabis was found to belong to defendant ***.

Indeed, in view of the signing officers’ statements, the apprehension record and the expert report, some of the narcotics were found on the defendant and the remainder in an apartment entered using the key taken from defendant ***. It was therefore concluded that all of the seized cannabis belonged to defendant ***. Considering the quantity, the cannabis fell within TCK Article 188/3, and punishment was imposed under that provision.

According to the expert report, the net amount of cannabis was 68 kilograms and 600 grams. In view of this large quantity, the sentence was set above the statutory minimum.

Good conduct at the hearing was treated as a mitigating factor.

Considering the ultimate sentence and the period already spent in detention, continued detention was ordered.

Although punishment for drug trafficking was sought in respect of the 13.4 grams of heroin seized from defendant ***’s home, Court of Cassation and regional appellate decisions recognize that this amount falls within personal-use limits. Taking the defense into account, the precision scale found in the home could not by itself constitute evidence of trafficking; there was no other supporting evidence; the narcotics and scale were found not on the defendant but in the home; and settled regional appellate precedent holds that a precision scale alone is insufficient for conviction. Considering also the net amount, the substances found in the home were within personal-use limits. It was therefore concluded that the defendant possessed narcotics for personal use; punishment was imposed pursuant to TCK Article 191/1; and, in view of TCK Articles 191/8-9, the announcement of the verdict was deferred.

Considering the time spent in detention and the ultimate sentence, the defendant was ordered released, and judgment was rendered as follows.

JUDGMENT

B-1–Although a criminal action was brought seeking punishment of defendant *** for drug trafficking, since no definite and convincing evidence, beyond all doubt and sufficient for conviction, was obtained and the charged offense was not established, the defendant is ACQUITTED pursuant to CMK Article 223/2-e.

D-1–Although, in relation to the incident in the joined file, a criminal action was brought seeking punishment of defendant *** for trafficking in or supplying narcotic substances, the defendant’s act is assessed as possession of narcotic substances for personal use. For the offense falling under TCK Article 191/1, and considering the manner and characteristics of the offense and the amount of the substance, a sentence at the statutory minimum is deemed appropriate and the defendant is SENTENCED TO 2 YEARS’ IMPRISONMENT (by majority, over the dissent of member ***).

2–As the defendant’s conduct during the trial is accepted as a discretionary mitigating factor, the sentence is reduced by one sixth pursuant to TCK Article 62 and the defendant is SENTENCED TO 1 YEAR AND 8 MONTHS’ IMPRISONMENT.

4–As the defendants were convicted of possession of narcotic substances for personal use, and as a statutory requirement under TCK Articles 191/8-9 as amended by Law no. 6545, THE ANNOUNCEMENT OF THE VERDICT against each defendant *** IS DEFERRED pursuant to CMK Article 231/5; each is SUBJECT TO A 5-YEAR SUPERVISION PERIOD pursuant to CMK Article 231/8; no specific obligation is imposed as a matter of discretion; and the warning required by CMK Article 231/11 is given (WARNING GIVEN).

5–Considering the amount of the prison sentence, the conditions have not arisen and THERE IS NO GROUND to apply TCK Articles 50 and 51 of Law no. 5237 or CMK Article 231 of Law no. 5271.