Acquittal for “Personal Use” in Smuggled-Cigarette Cases- in Turkey

yazarı lawyerfbc

açık Ekim 27, 2025

Concrete Case Scenario (Adapted to Practice)

File: Istanbul (Küçükçekmece) Chief Public Prosecutor, 2025/…, transferred to … Criminal Court of First Instance (Asliye Ceza).
Client: M.K., 34, private sector employee with a clean record.
Facts as Recorded in the Seizure Minutes:

Date: 17 October 2025, 09:45, in front of a small market near a bus stop.
Police notice one black nylon bag in M.K.’s hand.
On “suspicion of smuggled cigarettes,” they search the bag and count 100 packs (mixed brands).
No other items discovered: no price stickers, no cash bundle, no notebook, no secondary packaging (no carton, no shrink-wrap), no delivery list.
M.K. immediately states: “I bought them cheap from a peddler at the bus terminal to stock up for home; I do not sell.”
No home search is conducted; no prior surveillance; no controlled purchase.
The prosecutor indicts M.K. under Law No. 5607, arguing that 100 packs is inherently commercial.

Strategic Relevance of the Facts:

Quantity alone is not determinative; Yargıtay asks for objective signs of commerce.
Consistency of the statement from first contact to trial matters; here, the client never deviated.
Absence of sale paraphernalia + no corroborating intelligence + no prior conviction strongly supports personal use.

Legal Framework in Short

1) The Norm: Law No. 5607 (Anti-Smuggling)

Prosecutors typically rely on provisions penalizing acquiring, carrying, keeping, or making available smuggled tobacco products for commercial purposes. The statute’s language and Yargıtay’s construction require commercial purpose to be proven, not assumed. Where the factual context shows personal consumption (or at least leaves doubt), criminal liability collapses.

2) Burden and Standard of Proof

CMK 217: The judge bases the verdict on lawfully obtained, trial-tested evidence.
CMK 230: The judgment must reason why commercial purpose is established with definite and convincing evidence.
Şüpheden sanık yararlanır: If objective uncertainty persists regarding commerce vs. personal use, acquittal is mandatory.

3) The Yargıtay Lens on “Commercial Purpose”

Across smuggling jurisprudence, Yargıtay looks at qualitative factors: how the goods are packaged, how they are carried, the presence of sale tools, communication about sales, repetition, storage, witness statements of buying/selling, financial flows, and context (bus terminal vs. warehouse). Quantity is a factor, not a substitute for proof.

The Commercial-Purpose Checklist (Prosecution Must Prove)

Use this list to pressure-test the indictment. If most boxes are unchecked, the case is weak:

Packaging for distribution: cartons, shrink-wraps, bundles marked for retail.
Sale tools: price labels, POS slips, barcode readers, scales, rubber bands, small change bundles.
Business documentation: ledgers, order books, customer lists, WhatsApp orders, courier receipts.
Storage/distribution venue: depot, trunk full of sealed cartons, hidden compartments.
Prior surveillance/intelligence: monitored sales, informant tips, controlled buys.
Repetition pattern: past similar seizures, prior convictions, regular supply routes.
Statements from buyers or co-suspects: people who claim to have purchased.
Cashflow indicators: large, unexplained cash, transfers linked to trade.
Defendant admissions: any confession to selling, price quotes, bargaining.
Quantity beyond personal consumption with trade context: sheer volume plus trade indicators.

In our scenario, none of these are present—only 100 packs in a bag and a consistent personal-use explanation. That is textbook acquittal territory under the 7th Chamber’s approach.

Applying the Precedent to the Concrete File

A. Factual Alignment with Yargıtay

Quantity: Approximately 100 packs—the same order as in the precedent.
Manner of possession: Single nylon bag, not a depot or car trunk of cartons.
Statements: From seizure through court, consistent claim of personal use.
Corroboration against trade: Absent (no ledgers, cash bundles, buyer statements).
Investigative depth: Minimal (no home search results, no surveillance).

Conclusion: The factual matrix matches the Yargıtay case; the differences (if any) are immaterial to the core rule. Therefore, acquittal is the legally correct outcome.

B. Legal Reasoning You Will Use in Court

Element analysis: The actus reus (possession) is admitted, but the mens rea (commercial purpose) lacks proof.
Standard: The law requires definitive, convincing evidence—not conjecture from quantity.
Burden: The prosecution carries the burden; the defense need not prove personal use, only raise reasonable doubt.
Principle: Under şüpheden sanık yararlanır, unresolved doubt commands acquittal.
Yargıtay authority: The 7th Chamber’s ruling (E. 2013/9499, K. 2014/5879) is directly on point; lower courts should conform, absent distinguishing facts.

Defense Roadmap: Step-by-Step

Step 1: Early Case Management

Fix the narrative immediately. Ensure your client’s first statement clearly asserts personal use and rejects any sale intent.
Preserve legality objections. If the search was without proper grounds or consent and outside CMK 116–119 limits, record and later argue unlawfulness/exclusion.
Request disclosure. Ask for all CCTV, body-cam, radio logs, inventory sheets, forensic photos, and chain-of-custody documents.

Step 2: Evidence Development for “Personal Use”

Lifestyle evidence: Smoking habits (brand preference, daily pack rate), household smokers, social consumption (weddings, gatherings).
Temporal logic: Show that 100 packs could be several months’ supply for a heavy smoker household.
Absence of commerce: Employment records, bank statements, no spike in cash, no delivery activity.
Character: Clean criminal record, stable employment undermining trade theory.

Step 3: Formal Motions

Motion to Exclude unlawfully obtained evidence (if search/seizure violates CMK).
Motion for Acquittal at the close of the prosecution case for failure of proof on commercial purpose.
Motion to Return Property (iade) or to avoid disproportionate confiscation if acquitted (argue proportionality under TCK 54 principles by analogy, where relevant).

Step 4: Trial Tactics

Cross-examine the officers on:
- Why no surveillance or controlled buy preceded the stop,
- The absence of sale paraphernalia,
- Exact packaging (loose packs, mixed brands),
- No buyer statements or price negotiation.
Expert testimony (optional): A tobacco retail expert can explain why 100 packs alone is not indicative of retail distribution without cartonization or SKU-consistent stock.
Client testimony (carefully prepared): Consistent, humble, logical.

Step 5: Judgment Anatomy (What the Court Must Write)

Push the court—by written submissions citing CMK 230—to expressly state:

Which evidence proves commercial purpose, and why it is definite and convincing;
Or, failing that, to apply the doubt rule and acquit as in the 7th Chamber’s judgment.
If convicted without such reasoning, you have a ready-made appellate ground.

Model Pleading Paragraphs (Copy-Ready)

1) On the Elements of the Offense

Commercial purpose is a constitutive element of the offense charged under Law No. 5607. The indictment relies exclusively on the number of packs found in a single nylon bag, devoid of any sale paraphernalia, logistics, or business structure. Quantity alone does not meet the “definite and convincing evidence” threshold required by CMK 217 and CMK 230 for a criminal conviction.

2) On Yargıtay’s Binding Guidance

The Court of Cassation, 7th Criminal Chamber (19.03.2014, E. 2013/9499, K. 2014/5879), quashed a conviction where approximately 100 packs were seized, the accused consistently claimed personal use, and no persuasive indicia of trade existed. The Court held that in the absence of conclusive evidence of commercial activity, the rule şüpheden sanık yararlanır mandates acquittal. The instant case is on all fours with that precedent.

3) On the Doubt Rule (Şüpheden Sanık Yararlanır)

The prosecution has not eliminated reasonable doubt regarding personal use. Where two explanations compete—personal consumption versus commercial sale—and the evidentiary record supports neither conclusively, the criminal court is obliged to acquit.

4) On Search Legality (If Applicable)

The search was conducted without warrant and without individualized suspicion satisfying CMK 116–119. The items were obtained in violation of procedural safeguards, rendering the evidence inadmissible or at minimum unreliable when weighed under CMK 217.

5) On Confiscation (If Acquitted)

If the Court returns a verdict of acquittal, it should also return the property not subject to mandatory destruction and avoid disproportionate confiscation, considering the absence of commercial activity and the personal-use context.

Rebutting the Prosecution’s Likely Arguments

“But 100 packs cannot be for personal use.”

Response: Yargıtay has explicitly rejected a per-se quantity rule. Context matters. Mixed brands, no cartonization, no sale tools, and a single bag weigh decisively against trade. If the prosecution wanted a numbers-only rule, they should have brought regulatory/administrative proceedings, not a crime.

“He was near a market / bus terminal—he must be selling.”

Response: Location merely triggers the stop; it does not prove the purpose. Without intel, controlled buys, or buyer statements, inferring commerce from location is speculation, not proof.

“He had no invoice; that shows illegality.”

Response: Illegality of origin is not equal to commercial purpose. Law No. 5607 penalizes commercial smuggling; to transform possession into criminal trade, the State must show the commercial element—which is missing here.

“We found cash.”

Response: Ordinary personal cash carries no probative value for trade absent linkage to sales (denominations, logs, customer notes). If there is no chain between cash and sales, the argument fails.

The Appellate Posture (If Needed)

If the first-instance court convicts by relying on quantity and assumptions, file a temyiz (or istinaf, depending on stage) that:

Recites the 7th Chamber precedent and shows factual congruence (single bag, ~100 packs, consistent personal-use statement).
Points to CMK 230 non-compliance: lack of reasoned analysis of commercial intent.
Invokes CMK 217 and şüpheden sanık yararlanır.
Requests reversal pursuant to CMUK 321 (by virtue of transitional rules referenced in the precedent) or the applicable modern procedural route.

Result sought: Reversal and acquittal.

Evidence You Should Actively Seek (Practical Checklist)

All photographs of the seized items as found (if the police “re-arranged” packs for photos, expose that).
Body-cam/CCTV to show there was no buying/selling scene.
Call data to show absence of buyer communications.
Home/work search results (ideally negative).
Employment and income records, bank statements to negate unexplained cashflows.
Character references from employer/neighbors about non-involvement in trade.
(Optional) Expert report on typical retail packaging and why this seizure does not match distribution patterns.

Risk Assessment & Client Counseling

Be candid with the client:

Best case: Full acquittal with property handling aligned to law.
Middle risk: Court tries to re-qualify the conduct administratively (outside criminal scope) or considers technical confiscation.
Worst case (appealable): Court convicts on quantity inference—you will rely on Yargıtay to correct it.

Emphasize consistency: any post-facto statements suggesting intent to sell will destroy the defense; instruct the client to avoid loose talk or social media posts.

Frequently Asked Questions

1) Is possessing smuggled cigarettes always a crime in Turkey?

No. Criminal liability under Law No. 5607 generally turns on commercial purpose. Personal possession without credible trade indicators often does not meet the criminal threshold, particularly where doubt remains.

2) How many cigarette packs count as “personal use”?

There is no fixed number. Yargıtay warns against a per-se rule. Around 100 packs, without trade indicia, has been deemed compatible with personal use in case law—context rules.

3) What proves “commercial purpose”?

Cartonized stock, distribution tools, customer messages, cash and ledgers, storage depots, surveillance of sales, prior similar acts—not mere possession.

4) Can the court confiscate the cigarettes even if it acquits?

Confiscation rules are nuanced. In personal-use acquittals, courts should avoid disproportionate measures and follow the strict legality of confiscation provisions. Always address this in your submissions.

5) Which core principles help the defense?

CMK 217 (verdict based on lawful, trial-tested evidence),
CMK 230 (reasoned judgment),
Şüpheden sanık yararlanır (benefit of the doubt),
The Yargıtay line quashing convictions without definitive proof of commerce.

Website-Ready Client Explanation

“Under Turkish anti-smuggling law, simply holding a number of cigarette packs is not enough to convict someone of trading in smuggled goods. The prosecution must show clear, convincing evidence of commercial intent—like stock prepared for sale, customer lists, money trails, or recorded sales. If the facts only show possession and the person consistently says the cigarettes were for personal use, courts—guided by the Court of Cassation—must acquit because doubt favors the accused.”

You can adapt this for your FAQ page, service page, or consultation scripts.

Putting It All Together: A Sample Defense Outline for M.K.

Intro & Relief Sought: “Acquittal due to lack of proof of commercial purpose; return of property; costs to Treasury.”
Facts: Single bag, 100 packs, mixed brands, consistent personal-use statement, no paraphernalia, no surveillance/buyers, no prior.
Law: Elements of 5607 offense; commercial purpose required; standard of proof; CMK 217 / CMK 230; doubt rule.
Case Law: Yargıtay 7th Chamber (19.03.2014, E. 2013/9499, K. 2014/5879) – indistinguishable facts; conviction quashed for lack of convincing proof.
Application: Prosecution evidence falls short on every commercial indicator; quantity alone insufficient; personal-use explanation plausible.
Procedure: Any search defects; request to exclude unlawfully obtained evidence; demand reasoned judgment.
Conclusion: Acquittal and return orders; alternatively, minimum intervention consistent with proportionality.

Advanced Notes for Practitioners

Consistency is king. If your client ever said “I planned to sell some to friends,” the case changes drastically. Prepare the client thoroughly.
Photograph everything. In many files, the only “distribution” look comes from police-arranged photos; cross-examine on who repacked the goods.
Avoid quantity traps. Courts sometimes cite municipal fines or administrative ranges as if they import criminal thresholds. They don’t. Push back: the criminal statute and Yargıtay define the test.
Don’t skip confiscation analysis. Even after acquittal, prosecutors may press for confiscation; meet it head-on with legality and proportionality.
Appellate framing. If convicted, make commercial purpose the sole spotlight—force the appellate bench to confront the absence of definite and convincing proof.

Conclusion

When a client is found with around 100 packs of cigarettes in simple, non-retail packaging, and all the commercial indicators are missing, Yargıtay’s guidance requires acquittal. The quantity may appear large, but size without context does not equal commerce. Apply the checklist, lock in consistency, challenge procedural flaws, and insist on the doubt rule. If necessary, take the fight to appeal, standing squarely on the 7th Criminal Chamber’s ruling that lack of conclusive proof of trade means the accused must walk free.

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Genel

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smuggled