Possession of Narcotic Drugs for Personal Use in Proceedings Initially Brought for Drug Trafficking (TCK Article 191/1) – Deferral of the Announcement of the Verdict (HAGB)

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

In assessing the responsibility of the other defendant *** ***, narcotic substances were found in a backpack taken from the other defendant’s vehicle during the law-enforcement intervention, and further narcotic substances were found in a cupboard during the search of that defendant’s home. Nevertheless, the defendant maintained throughout the proceedings that the large quantity of narcotics did not belong to him/her; the other defendant *** stated that the large quantity of methamphetamine belonged to that defendant; and, although the precision scales belonged to defendant ***, defendant *** admitted using those scales to weigh substances. Evaluated together, these matters did not yield definite and clear evidence, free from doubt and sufficient for conviction, that defendant *** acted in unity of thought and action with the other defendant *** in trafficking. Defendant *** was therefore not punished under TCK Article 188/3.

However, defendant *** stated that the opium gum found in the cupboard at the home, recorded in the expert report as having a net weight of 80 grams and capable of yielding 3.2 grams of morphine, had been acquired for personal use. The other defendant did not claim that substance, and its amount remained within personal-use limits. The Court therefore found it established that defendant *** possessed the substance for personal use within the scope of TCK Article 191/1 and decided to impose punishment.

Defendant *** was sentenced to two years’ imprisonment pursuant to TCK Article 191/1, taking into account the manner of the offense, that the danger arising from the amount of narcotics seized was not substantial, and the defendant’s reasons and motives. Considering the defendant’s respectful attitude toward the panel at the hearings, background and social relations, conduct after the act and the possible effects of the sentence on the defendant, the sentence was reduced by one sixth pursuant to TCK Article 62/1, and the defendant was ultimately sentenced to one year and eight months’ imprisonment.

Research concerning defendant *** *** showed that no previous decision to defer the filing of a criminal action had been issued. TCK Article 191/8 provides:

‘Where, during proceedings for the offenses of:

a) manufacture or trafficking of narcotic or stimulant substances defined in Article 188 of this Code, or

b) facilitating the use of narcotic or stimulant substances defined in Article 190,

it is understood that the offense falls exclusively within the scope of this Article, a decision to defer the announcement of the verdict shall be issued against the defendant ***.’

In view of this mandatory provision, and taking account of TCK Article 191/8 as amended by Law no. 6545, the Court decided, without requiring the statutory conditions in CMK Article 231/6, to defer for five years the announcement of the verdict rendered against defendant *** pursuant to CMK Article 231/5.

JUDGMENT

C)1–Although a criminal action was brought against defendant *** seeking punishment under TCK Articles 188/3-4 of Law no. 5237 for drug trafficking, it was understood at the conclusion of the trial that the proven act constituted possession of narcotic drugs for personal use. For the proven act falling under TCK Article 191/1 as amended by Law no. 6545, the defendant is SENTENCED TO 2 YEARS’ IMPRISONMENT, taking into account the manner of the offense, that the danger arising from the amount of narcotics seized was not substantial, and the defendant’s reasons and motives.

2–Considering the defendant’s respectful attitude toward the panel at the hearings, background and social relations, conduct after the act and the possible effects of the sentence on the defendant, the sentence is reduced by one sixth pursuant to TCK Article 62/1, and the defendant is ultimately SENTENCED TO 1 YEAR AND 8 MONTHS’ IMPRISONMENT.

3–As a statutory consequence of the defendant’s conviction and imprisonment for an intentional offense, TCK Articles 53/1-2-3, as amended by Article 10 of Law no. 7242, shall be applied, taking into account the Constitutional Court’s decision dated 08.10.2015 and numbered *** and ***.

4–The time spent by the defendant in police custody and pretrial detention shall be DEDUCTED from the sentence pursuant to TCK Article 63.

5–Taking account of TCK Article 191/8 as amended by Law no. 6545, and without requiring the statutory conditions in CMK Article 231/6, THE ANNOUNCEMENT OF THE VERDICT rendered against the defendant IS DEFERRED FOR 5 YEARS pursuant to CMK Article 231/5.

6–Pursuant to TCK Article 191/3 as amended by Law no. 6545, a probation measure shall be applied to the defendant for one year, and the defendant shall undergo treatment during the supervision period.

7–If, during the deferral period, the defendant persists in failing to comply with the imposed obligations or treatment requirements, again purchases, accepts or possesses narcotic or stimulant substances for personal use, or uses narcotic or stimulant substances, the criminal action shall be reopened pursuant to TCK Article 191/3 as amended by Law no. 6545.

8–If the defendant does not breach the specified obligations or prohibitions during the period in which announcement of the verdict is deferred, the criminal action brought against the defendant shall be dismissed.