Crime of possessing drugs for use

The crime of possessing drugs for useis regulated in Article 191 of the Turkish Penal Code. According to the article, crime is an optional type of crime that can be committed by purchasing, accepting or possessing drugs or stimulants for use, or by using drugs or stimulants.

Although the legal value protected by the crime of drug production and trafficking is general public health, the health of the individual is also protected by this crime. With the change in the state's policy against drugs in 2014, the title of the article was also changed and the verb of using stimulants was added to the article.

As we mentioned above, this type of crime aims to protect and rehabilitate the individual who uses drugs. For this reason, with the amendment in 2014, it was envisaged that probation measures would be applied to the perpetrators of the crime.

No specific characteristics were sought regarding the perpetrator of the crime. Anyone can be the perpetrator of this crime. Likewise, there is no specificity required for the victim.

PURCHASING DRUGS

TCK 191/1. In the article, the first optional act of the crime is determined as purchasing. In order for a crime to occur, the perpetrator must obtain a drug or stimulant by paying a price and take it under his own control. Purchasing narcotic drugs for a fee is the first condition for a crime to occur. The price does not necessarily have to be money.

The drug taken must be taken for personal use. In this respect, the amount taken is important. Considering that the drugs purchased in large quantities were purchased for commercial purposes, the trial may be carried out in this direction.

ADMITTING DRUGS

The act of acceptance requires a transfer, just like the act of purchasing. In this respect, the two types of crimes can be confused. Unlike the act of purchasing drugs, there is no payment in the act of acceptance. The transfer is a free transfer. Uyuşturucu maddenin hediye olarak verilmesi bu kapsamda değerlendirilir.

POSSION OF DRUGS

While the crime of drug possession may sometimes involve the act of accepting or purchasing, it may sometimes occur independently of the realization of these actions. That is, a person can possess drugs by stealing them.

For the act of drug possession to occur, the drug does not have to be on the perpetrator. If the perpetrator can access this article whenever he wishes, the crime is deemed to have occurred. Drugs can be found anywhere under the jurisdiction of the perpetrator.

DRUG USE

With this optional action, taking the drug into the body is sanctioned. The nature of the substance or the method of use does not matter. There is no difference between using it once or being addicted.

DIFFERENCE BETWEEN DRUG USE AND TRADE

The crime of possessing drugs for use is a type of crime that can only be committed intentionally. In addition, the legislator stated that for a crime to occur, the perpetrator must have the intention of "using". In this respect, the crime has the feature of being a crime that can be committed with special intent.

Although there is no legal regulation in terms of determining the purpose of the perpetrator, some criteria have been determined by the judiciary in practice. By looking at these criteria, it is concluded that the perpetrator's purpose is use or trade;

1- Actions of the Perpetrator

The perpetrator's behavior is examined to determine why he/she possesses the drug. Here, the principle that the defendant benefits from doubt, which is one of the basic principles of criminal law, finds its application. If the perpetrator does not exhibit any behavior other than personal use after obtaining the drug, it is assumed that the substance was obtained or possessed for personal use. Concrete evidence is needed to accuse the perpetrator of trafficking.

In a decision of the Criminal General Assembly of the Supreme Court of Appeals dated 2011, the local court resisted the decision to overturn the decision regarding the defendant D. for the crime of drug trafficking, on the grounds that "the decision was made by the Criminal Chamber to convict the defendant instead of acquitting him of the crime charged, without taking into consideration the lack of sufficient, definitive and convincing evidence that he participated in the actions of the other defendants." Apart from the defendant D., the other four defendants, consistent with each other in all their statements during the investigation and prosecution phase; They stated that they did not know D and that they remembered him because they were traveling in the same compartment. N., one of the defendants, made a statement confirming defendant D's defense by stating that he told D, whom he met at the station, that he had a bed in the trunk and that D had nothing to do with marijuana, confirming the intelligence information obtained about defendant D. stated in the incident report, and that the fact that he was caught together with defendant N. and other defendants A. and M. led to an opinion that defendant D had committed the crime. Although clear identity information of the defendant N. is included in the intelligence information, "D. and M." do not contain clear identification information or identity information, M.When all the evidence is evaluated together, such as the failure to catch the person named, the lack of clarity as to how this intelligence information was obtained, the compatible and consistent defenses of defendant D, which were also confirmed by the other defendants, the fact that no drugs were found on him, and the absence of fingerprints on the bags in which the drugs were placed; The fact that the defendant committed the crime of trafficking in discarded drugs remains at the level of suspicion and cannot be proven. The fact that the crime was committed remains in doubt. In accordance with the "defendant benefits from doubt" rule, the main condition for punishing the defendant for a crime is to prove the crime with certainty beyond doubt. Events and allegations whose occurrence is questionable and not fully clarified cannot be interpreted against the defendant and a verdict of conviction cannot be established. Punishing the defendant based on a probability, even if it is high, means making a judgment based on assumption without reaching the truth, which is the most important purpose of the criminal trial. Therefore, conviction in criminal proceedings must be based on certainty beyond all doubt. For these reasons, the local court's decision to resist should be overturned."

2-Drug History of the Perpetrator

Another criterion considered in terms of separating trade and personal use is whether the perpetrator has used drugs before. In this context, it is believed that it is for personal use by people who have an addiction, are receiving treatment, or have a previous criminal conviction.

3- Economic Status of the Perpetrator

If a connection can be established between the improvement in the economic situation of the perpetrator and the drugs, it is concluded that the perpetrator acted with commercial motives.

4- Where the Drugs Are Found and How They Are Possessedi

People who use drugs usually keep the drug in places they can easily access. Such as storing at home or workplace. However, storing the drug in a place such as a warehouse or packaging it in equal weights using regular packaging methods called precision scales reveals its commercial purpose. In a decision of the Supreme Court on the subject, "Upon the notice that he was selling drugs, they went to the place subject to the notice based on the search warrant, and when the defendant was asked whether he had any incriminating substance on him or not, he handed over eight packets of marijuana that he had taken out of his right foot sock to the officers and it was understood that the incriminating drug was seized; since the seized drug was in the form of packets prepared to be offered for sale, it should be taken into consideration that the defendant's action constitutes the crime of possessing drugs for the purpose of selling." The provision was made as follows. If the perpetrator is in possession of more than one type of drug, it is concluded that he is dealing. As a matter of fact, in a Supreme Court decision, this situation was stated as follows: "Therefore, it can be accepted that the defendant, who possesses tablets containing heroin, cocaine, marijuana and amphetamine of different nature and different effects, possesses them for the purpose of selling them." It is expressed as follows.

5-Amount of Narcotic Substance

This criterion appears to be the most questioned and emphasized criterion in practice. The amount of the drug is used as a determining criterion by the judicial authorities in determining the purpose for which the perpetrator obtained or possessed the drug. A detailed explanation on the subject will be given under a separate heading below.

As a matter of fact, in a decision of the General Criminal Assembly of the Supreme Court of Appeals dated 2020, "The issue that plays a significant role in determining whether the act of possessing drugs constitutes the crime of possessing drugs for use or the crime of drug trafficking is the purpose of possession. It is also stated in many decisions of the General Criminal Assembly, especially its decisions dated 15.06.2004 and numbered 107-136 and dated 06.03.2012 and numbered 387-75." There are some criteria that should be taken into consideration and accepted in doctrine and practice in determining whether the possession of drugs is for the purpose of using drugs.

The first of these; Whether the perpetrator engages in any behavior to sell, transfer or supply the drugs he possesses to someone else.

The second criterion is the place where the drug is kept and the way it is kept. A person who possesses drugs for personal use always keeps them in a place that is easily accessible, for example, usually at home or at work. On the other hand, hiding the drug in a place such as a warehouse, cave, or hayloft that is far from the home or workplace, where it is difficult and time-consuming to remove, may indicate that it is kept for a purpose other than use. Again, the fact that the drug is in many carefully prepared small packets, the same amount of drug has been placed in each packet as a result of precise weighing, and the presence of sensitive scales and packaging materials used in packaging at or near the place where the drug was seized are important indications that it is kept for a purpose other than use.

The third criterion is the type and amount of the drug possessed. A person who uses drugs usually possesses one or two different drugs that have similar effects. For this reason, it can be accepted that the defendant, who possessed tablets containing heroin, cocaine, marijuana and amphetamine of different nature and different effects, possessed them for the purpose of selling them. Although the amount acceptable for personal use varies depending on the person's physical and mental structure and the nature, type and quality of the drug or stimulant, the Forensic Medicine Institute reports that marijuana users can consume marijuana three times a day, 1-1.5 grams each time. It is a well-known fact reflected in the judicial files that those who have a habit of using marijuana can keep enough marijuana to meet their needs for a few months with them or in a place they can reach as a precaution. Accordingly, if the perpetrators of marijuana use possess more than the amount of marijuana they can personally use and consume within this period, which is considered normal, it should be accepted that the possession is not for personal use.

On the other hand, in accordance with the principle of "in dubio pro reo", that is, "the defendant benefits from doubt", which is one of the most important principles of criminal justice, the basic condition for punishing the defendant for a crime depends on proving the crime with certainty beyond doubt. Events and allegations that are questionable and not fully clarified cannot be interpreted against the defendant and a conviction cannot be established. This rule, which has a very wide field of application, can be applied in case of doubt as to whether a crime has actually been committed or, if so, the manner in which it was committed, and is also valid for determining the nature of the crime. Criminal conviction must be based on clear and definitive proof. This proof must be clear enough not to allow any doubt or any other possibility. Punishing the defendant based on a probability, even if it is high, means making a judgment based on assumption without reaching the truth, which is the most important purpose of the criminal trial. Therefore, conviction in criminal proceedings should not be based on a large or small probability, but on a certainty free of any doubt. "There is no other way to prevent judicial errors." expressions were used.

None of the criteria we have listed above are sufficient on their own to determine the purpose of the perpetrator. When judging, the incident should be considered as a whole and all criteria should be evaluated.

DRUG SUBSTANCE PERSONAL USE LIMIT

We have stated above that the most important criterion to be considered in determining whether the perpetrator possesses drugs for personal use or commercial purposes is the amount of the substance. In order to determine the intent of the perpetrator, it is checked whether the amount of drug is reasonable enough to meet personal needs. The determination of the amount of personal use is made by an expert. According to judicial decisions, the determination of this amount is made on an annual basis. In other words, the issue to be determined by the experts will be the person's one-year drug requirement. In a decision of the 10th Criminal Chamber of the Supreme Court of Appeals, "In the opinions of the Forensic Medicine Institute, it is stated that those who use marijuana can consume marijuana three times a day, 1-1.5 grams each time. It is a known issue reflected in the judicial files that those who have a habit of using marijuana, taking these into consideration, can keep the amount of marijuana with them or in a place they can reach to meet their needs for a few months. Accordingly, it is a known issue reflected in the judicial files that the perpetrators of marijuana use exceed the amount they can personally use and consume within this period, which is considered normal." "If they are kept, it should be assumed that their possession is not for personal use." He stated as follows.

Whether or not the amount of seized drugs remained within the usage limit was evaluated differently by the Supreme Court, depending on the type of drug.

As a matter of fact, the Council of Judges and Prosecutors, formerly known as HSYK, expressed its opinion as follows regarding the annual usage amount in 2013;

"According to common practice criteria, although possession of 1 kg of marijuana per year is known in the courts as the amount needed for personal needs, it has been observed that the Supreme Court has recently adopted the Supreme Court's decision to consider possession of marijuana for the purpose of commerce in excess of 600-700 grams of marijuana per year, as this crime has been committed by carrying smaller amounts in drug transportation and trafficking crimes.

It has been shared that, if there is no other collateral evidence in the case of heroin and cocaine, 20 grams or more of the substance seized from the person, and 50 grams or more of the synthetic pills containing narcotic substances, were kept for the purpose of trade, not for use, and it was also adopted by the Supreme Court. Studies have shown that the daily use amount for marijuana is 2 grams, for heroin 150 milligrams, for cocaine 60 milligrams, for cocaine 60 milligrams, and for pills 3-4 milligrams.

It has been evaluated that the act will constitute a trafficking crime if more than one type of drug is seized from the person in amounts lower than the amounts shared above. For example, participants stated that if 50 grams of marijuana, 2 grams of heroin, and 8 pills were seized from the person, the Supreme Court had ruled that the act constituted a drug trafficking crime.

Even if these criteria are fundamentally observed, each file and each defendant must be evaluated on their own unique terms."

In cases where there is more than one perpetrator, a practice such as dividing the weight of the drug by the number of perpetrators when determining the annual amount of use would be erroneous. As a matter of fact, the Supreme Court of Appeals considered such a practice as a reason for reversal in one of its decisions.

PUNISHMENT FOR POSSESSION OF DRUGS FOR USE

The penalty for the crime of drug use is 2 to 5 years in prison.

Verbs; If it is committed in public or public places, such as schools, dormitories, hospitals, barracks or places of worship, where people gather for treatment, education, military and social purposes, and within a distance of less than two hundred meters from their borders, if any, determined by perimeter walls, wire fences or similar obstacles or signs, the penalty to be imposed is increased by half.

However, the law stipulates that a decision will be made to postpone the filing of a public case against a person who possesses drugs for use during the investigation phase. It is envisaged that control measures will be applied to the perpetrator during the postponement period. In order to impose punishment, the decision to postpone the public trial must be lifted. The details of the subject will be examined under separate headings below.

POSTING DRUGS FOR USE ACTIVE REGRET

TCK 192/2. Article "If a person who purchases, accepts or possesses narcotic or stimulant substances for use facilitates the capture of criminals or the seizure of narcotic or stimulant substances by informing the authority from whom, where and when he obtained this substance, before being notified by the official authorities, he will not be punished." It is shaped like.

In order for the article to be applied, the perpetrator must be subject to Article 191/1. He/she must have committed one of the acts mentioned in the article, must have reported from whom, where and when he/she obtained the drug without the official authorities being informed, and this notification must be made so that the criminals are caught and the drug is seized. As can be seen, this reason for impunity is subject to strict conditions.

Law 192/3. Paragraph: "After being informed of these crimes, the penalty to be imposed on the person who voluntarily serves and helps to reveal the crime and to catch the perpetrator or other accomplices is reduced by one quarter to one half, depending on the nature of the assistance." It is in the form.

Finally, article 192/4 of the law. The article states: "If a person who uses drugs or stimulants requests treatment by applying to official authorities "or health institutions" before an investigation is initiated for purchasing, accepting or possessing drugs or stimulants for use, no penalty will be imposed." In this case, public officials and healthcare professionals do not have the obligation to report the crime in accordance with Articles 279 and 280."

The opinion of the Constitutional Court regarding the above regulations is as follows:

"Within the framework of the fight against drugs, the legislator has envisaged the special application of the institution of postponement of the filing of a public lawsuit in the investigations initiated due to the crime falling within the scope of Article 191, and if it is understood that the crime falls within the scope of this article during the prosecution phase, due to the nature of the case, the provision will be made within the framework of the provisions of this article. It is understood from the justification of the Law and the rules subject to objection that the decision to postpone the announcement of the verdict at the prosecution stage will be implemented within the framework of the special provisions regarding the postponement of the filing of a public lawsuit stipulated in the article, and in cases where there is no regulation to the contrary, general provisions will be applied. In other words, except for technical differences, two different criminal law institutions must be implemented within the framework of the same principles for the crime within the scope of Article 191. "There is no violation of the principle of "equality before the law" since the legal institutions intended to be applied in prosecutions are prevented from creating different legal consequences in the field of people's rights and freedoms."

SUBTAINED RELEASE FOR DRUG USE

TCK 191/2. According to the article, it is decided to postpone the filing of a public lawsuit against the suspect who purchased, accepted, used or possessed drugs for five years, without seeking the conditions in Article 171 of the Criminal Procedure Code No. 5271 dated 4/12/2004. In this case, the public prosecutor warns the suspect about the consequences that may arise for him if he does not comply with the obligations imposed on him or violates the prohibitions during the postponement period.

During the postponement period, a probation measure is imposed on the suspect for a minimum of one year. This period can be extended for a period of three months for a maximum of one year by the decision of the public prosecutor. The person for whom a probation order is issued may be subjected to treatment during the probation period, if deemed necessary.

During the postponement period, the person;

a) Insisting on not complying with the obligations imposed on him or the requirements of the treatment applied,

b) Purchasing, accepting or possessing drugs or stimulants for reuse,

c) If he uses drugs or stimulants, a public lawsuit will be filed against him.

If the suspect does not violate the obligations specified in the fourth paragraph and does not violate the prohibitions during the postponement period, it is decided that there is no need for prosecution.

DRUG USE CRIME VIOLATION OF SUPERVISED FREEDOM

In case of violation of probation for the crime of drug use, a public lawsuit is not filed immediately. The legislator sought the condition of insisting on not complying with the audit obligation. The persistence requirement means at least 2 violations of control measures.

As a matter of fact, in a decision of the 20th Criminal Chamber of the Supreme Court of Appeals dated 2018, it was stated that "According to the scope of the file, the obliged party must insist on not acting in accordance with the obligations imposed on him or the requirements of the treatment applied during the postponement period, at least 2 warnings must be made for the obliged party's action to be considered as insistence, and the obliged party must not accept the invitation despite 2 duly justified warnings or persistently fail to comply with the supervision despite being informed in any other way."

USE OF DRUGS AGAIN DURING THE POSTPONEMENT PERIOD

During the postponement period, if the person purchases, accepts or possesses drugs or stimulants again, or uses drugs or stimulants, it is considered a reason for violation in accordance with the fourth paragraph and is not subject to a separate investigation and prosecution. TCK 191/5

As can be understood from the above provisions, a new investigation will not be opened against the person who commits the crime of drug possession again during the postponement period. This action only causes the suspension to be lifted and a public lawsuit to be filed. Therefore, the perpetrator is punished only for his initial action.

But if the same crime is committed again after the postponement decision is lifted, a new investigation will be initiated. In terms of this investigation, a decision cannot be made to postpone the opening of a public lawsuit. The decision to initiate a public lawsuit can only be implemented once. As a matter of fact, TCK 191/6 "After the opening of a public case according to the fourth paragraph, a decision cannot be made to postpone the opening of a public case in accordance with the second paragraph, in investigations opened on the allegation that the crime defined in the first paragraph has been committed again." It is shaped like.

On the subject, the Supreme Court said, "The case is about the crime of possession of drugs for use. It was decided to postpone the opening of a public lawsuit due to the act of possessing drugs for use by the Child Driven to Crime on 04/03/2015, the postponement decision was lifted due to the act of possessing drugs for use on 02/03/2016, the decision on the judicial fine imposed as a result of the public case was finalized, and for the act of possessing drugs for use on 22/05/2016." "The judicial fine decision given in the public case filed against him has become final, and although it was necessary to file a public lawsuit for the act of possessing drugs for use dated 03/11/2016, it was decided to postpone the opening of the public lawsuit. However, since there was a legal interruption with the issuance of two separate indictments, the decision to postpone the re-filing of a lawsuit cannot be given as it constitutes a new crime in terms of the crime committed. It is against the law for the court to decide that there is no need to impose a penalty without considering the need to continue the trial and establish a verdict." There is a decision as follows.

DRUG USE HAGB

As we stated above, first of all, a decision is made to postpone the opening of a public case against the suspect who is in possession of drugs for use. However, in cases where the decision to postpone the opening of a public lawsuit is lifted for the reasons we have mentioned, a HAGB decision may be issued against the perpetrator.

In a decision of the 10th Criminal Chamber of the Supreme Court of Appeals dated 2019, this situation was stated as follows: "As a result of the investigation carried out for the crime of possession of drugs for use, it was decided to postpone the opening of a public case and apply treatment and probation measures in accordance with Article 191/2 of the Turkish Penal Code, as amended by Law No. 6545, but after the trial was held against the defendant, for whom a public case was filed upon his behavior contrary to the requirements of the measure, and after the decision was made to convict the defendant, at the discretion of the Court." According to the general provisions, there is no legal obstacle to the decision to postpone the announcement of the verdict within the scope of the conditions regulated in Article 231 of the Criminal Code.

Criminal courts of first instance are responsible for the trial of the crime.