Importation of Narcotic Drugs (TCK Articles 188/1 and 188/4-a) – Judgment of Conviction

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

As a result of the research and analytical work conducted:

It was established that *** was a Colombian national born on 19.09.1988, holding passport no. ***; that this person entered Türkiye through Istanbul Airport at 10:04 on 28.05.2024; and that the person stayed at the *** address between 28.05.2024 and 05.06.***. The identity of the foreign national known as *** and using GSM line no. *** could not be established. Pursuant to the search-and-seizure order of the Istanbul *** Criminal Judgeship of Peace dated 08.07.2024 and numbered Misc. ***, a search was conducted at the relevant address to apprehend the persons.

Pursuant to the Chief Public Prosecutor’s Office request no. *** and the search-and-seizure order of the Istanbul *** Criminal Judgeship of Peace dated 08.07.2024 and numbered Misc. ***, officers of the Istanbul Provincial Gendarmerie Command Narcotics Branch conducted operations at approximately 15:00 on 08.07.2024 at the *** address. At approximately 21:06 that day, when the Colombian national *** and the person later identified as *** left the residence and walked on the street, officers announced themselves as ‘Gendarmerie’ and conducted body searches. A passport issued in the name of *** and an iPhone 13 Pro Max, IMEI ***, containing GSM line no. ***, were found and seized. On the other person, a passport issued in that person’s name, a Tecno Spark 10C telephone, IMEI1 *** and IMEI2 ***, containing GSM line no. ***, and the key to room 401 specified in the search order were found. The residence was entered, but no offense or evidence of an offense was found in the search.

A preliminary examination, pursuant to the decision of the Istanbul *** Criminal Judgeship of Peace dated 08.07.2024 and numbered Misc. ***, of the iPhone 13 Pro Max, IMEI ***, containing GSM line no. ***, belonging to the Colombian national born on 19.09.1988, showed that in WhatsApp communications with the line saved as *** (***) there was a photograph dated 8/07/24 at 8:02 a.m. showing the departure time 3:45 and the flight information THY189 and TK189.

According to the expert report of the Gendarmerie Criminal Laboratory Directorate dated 23/08/2024 and numbered İST-KMY-2024-4712, the seized substance, with a net weight of 31,107 grams, contained 85.8% cocaine; the total net substance contained 26,689.806 grams of cocaine; and cocaine is among the substances governed by Law no. 2313 on the Control of Narcotic Substances.

According to the expert report dated 11/12/2024, a photograph of a green substance inside a pot was found on the telephone belonging to defendant ***.

According to the entire case file, the confidential witness informed law enforcement that on 06 July 2024 cocaine would be placed in a bag or suitcase in the cargo/baggage hold of a Turkish Airlines passenger aircraft traveling from Mexico City Airport in Mexico to Istanbul, Türkiye; that the suspect or suspects removed the baggage tag from the suitcase of a passenger named *** or copied an identical tag and attached it to the suitcase containing narcotics; that the cargo barcode was ***; that the passenger had no connection with the narcotics-trafficking event; that the true owners of the narcotics were the Colombian national *** and another foreign national acting together with that person, known as *** and using GSM line no. ***; and that these two persons came to Istanbul intending to traffic narcotics and jointly rented a residence there. Acting on this information, law-enforcement officers waited to search and inspect Turkish Airlines passenger flight TK0189 on the Mexico–Cancún–Istanbul route. A black suitcase bearing the wording ‘startravel’ and a label numbered *** TK *** and *** was not collected from the baggage-delivery area; it was understood that, as stated in the report, the label had been removed from the suitcase of passenger *** and attached to it; and cocaine was found in the suitcase. Officers subsequently established that the defendants were staying at the same hotel and apprehended them together. On defendant ***’s telephone, officers found the photograph dated 8/07/24 at 8:02 a.m. showing departure time 3:45 and flight information THY189 and TK189. Examination of the defendants’ telephones further established that line no. ***, used by defendant ***, was the same number given in the report.

Although the defendants denied the charges, upon joint evaluation of the report concerning them, the confidential witness’s statement, the recovery of the narcotics in the manner specified in the report, their apprehension together, the flight information on defendant ***’s telephone, the fact that the telephone number stated in the report belonged to defendant ***, and all other evidence, their defenses were considered aimed at avoiding punishment. It was concluded that, acting in unity of thought and action, the defendants brought narcotic substances exceeding personal-use limits from a foreign country into Türkiye and thereby committed importation of narcotic drugs.

For the proven act of importation of narcotic drugs, defendant *** was sentenced, pursuant to TCK Article 188/1 through Article 37/1, to 22 years’ imprisonment and a judicial fine of 3,000 days, above the statutory minimum, because the minimum would be insufficient in view of the manner of the offense, the importance and value of its subject matter, the resulting harm and the intensity of intent. Because the substance was cocaine, the sentence was increased by one half pursuant to TCK Article 188/4-a to 33 years’ imprisonment and a judicial fine of 4,500 days. Considering the possible effects of the sentence on the defendant’s future, it was reduced by one sixth pursuant to TCK Article 62/1 to 27 years and 6 months’ imprisonment and a judicial fine of 3,750 days. Considering the defendant’s economic and social circumstances, the daily amount was fixed at TRY 100 pursuant to TCK Article 52/2, resulting in a judicial fine of TRY 375,000. The defendant was ultimately sentenced to 27 years and 6 months’ imprisonment and a judicial fine of TRY 375,000, with no ground for any further statutory or discretionary increase or reduction.

For the proven act of importation of narcotic drugs, defendant *** was likewise sentenced pursuant to TCK Article 188/1 through Article 37/1 to 22 years’ imprisonment and a judicial fine of 3,000 days; the sentence was increased by one half under Article 188/4-a because the substance was cocaine, to 33 years’ imprisonment and 4,500 days; reduced by one sixth under Article 62/1 to 27 years and 6 months’ imprisonment and 3,750 days; and, at TRY 100 per day under Article 52/2, converted into a judicial fine of TRY 375,000. The ultimate sentence was 27 years and 6 months’ imprisonment and a judicial fine of TRY 375,000, with no further increase or reduction.

JUDGMENT

2–For defendant ***’s proven act of importation of narcotic drugs, pursuant to TCK Article 188/1 through Article 37/1, and because the statutory minimum would be insufficient in view of the manner of the offense, the importance and value of its subject matter, the resulting harm and the intensity of intent, the defendant is SENTENCED TO 22 YEARS’ IMPRISONMENT AND A JUDICIAL FINE OF 3,000 DAYS.

Because the narcotic substance was cocaine, the sentence is increased by one half pursuant to TCK Article 188/4-a, and the defendant is SENTENCED TO 33 YEARS’ IMPRISONMENT AND A JUDICIAL FINE OF 4,500 DAYS.

Considering the possible effects of the sentence on the defendant’s future, the sentence is reduced by one sixth pursuant to TCK Article 62/1, and the defendant is SENTENCED TO 27 YEARS AND 6 MONTHS’ IMPRISONMENT AND A JUDICIAL FINE OF 3,750 DAYS.

Considering the defendant’s economic and social circumstances, the daily amount of the judicial fine is fixed at TRY 100 pursuant to TCK Article 52/2, and the defendant is SENTENCED TO A JUDICIAL FINE OF TRY 375,000.

The defendant is ultimately SENTENCED TO 27 YEARS AND 6 MONTHS’ IMPRISONMENT AND A JUDICIAL FINE OF TRY 375,000.

There is no discretionary ground for any further statutory or discretionary increase or reduction.

Considering the amount of the fine and the defendant’s social and economic circumstances, the judicial fine shall be collected in 24 equal monthly installments pursuant to TCK Article 52/4. The defendant is warned that if any installment is not paid on time, the entire remaining balance will be collected and the unpaid judicial fine will be converted into imprisonment (warning given).

The periods spent in police custody and pretrial detention shall be DEDUCTED in execution from the sentence pursuant to TCK Article 63/1.

As a statutory consequence of imprisonment, taking account of the provisions annulled by the Constitutional Court’s decision dated 08/10/2015 and numbered *** E., *** K., published in the Official Gazette dated 24/11/2015 and no. ***, the security measures depriving the defendant of certain rights shall be applied pursuant to paragraphs 1(a), (b), (d), 2 and 3 of TCK Article 53. Pursuant to TCK Article 53(3), there is no ground to apply to the defendant whose long-term prison sentence has been suspended the prohibition in paragraph 1(c) concerning the exercise of custody, guardianship and trusteeship authority over the defendant’s descendants.

Considering the sentence imposed, the period spent in detention, the defendant’s foreign nationality and risk of flight, judicial-control measures would be insufficient and continued detention would not be manifestly disproportionate. The request for release is therefore denied; the defendant’s POST-JUDGMENT DETENTION SHALL CONTINUE; and a summary of the judgment shall be SENT TO THE CHIEF PUBLIC PROSECUTOR’S OFFICE.

The defendant is informed of the right to object to continued detention before the Istanbul *** High Criminal Court within two weeks from today, by submitting a petition to this Court or making a statement to the court clerk to be entered in the record (notification given).