Production and Trade of Narcotics and Psychotropic Substances
The crime of drug trafficking is regulated in Article 188 of the Turkish Penal Code No. 5237. Within the scope of the first paragraph of the article, unlicensed or illegal manufacture, import or export of narcotic or stimulant substances is stated a crime. In the third paragraph, it is stated a crime to sell, offer for sale, give to others, ship, transport, store, purchase, accept and keep these substances in the country without a license or contrary to a license. In the law, the drugs and stimulants are not listed one by one. Cannabis, hemp, heroin, cocaine, ecstasy, morphine, bonsai, synthetic cannabinoid, base morphine can be given as examples of drugs.
Punishment for Production and Trade of Narcotics and Psychotropic Substances
- Any person who produces, imports or exports narcotics or psychotropic substances without a license or contrary to an existing license shall be sentenced to a penalty of imprisonment for a term of twenty to thirty years and a judicial fine of up to twenty thousand days.
- Where, as result of the exportation of narcotics or psychotropic substances, a penalty is imposed, after a trial, in a foreign country for the importation of such substances, such penalty shall be deducted from any penalty imposed in Turkish criminal proceedings for the said exportation.
- Any person who offers for sale, sells, supplies, administers the movement of, transports, stores, purchases, receives or possesses narcotics or psychotropic substances, without a license or contrary to an existing license, inside the country, shall be sentenced to a penalty of imprisonment for a term of not less than ten years and a judicial fine of up to twenty thousand days. However, in the event that the person to whom narcotics or psychotropic substances are delivered or sold is a juvenile, the imprisonment sentence to be imposed on the person delivering or selling the substance cannot be less than fifteen years.
- Where the offence concerns heroin, cocaine, morphine or basemorphine, where the acts specified in the third paragraph are performed in collective buildings and facilities used for treatment, educational, military and social purposes such as school, dormitory, hospital, barrack or place of worship and in public places or places open to public at a distance of less than two hundred meters from their boundaries established by the surrounding wall, wire fence or similar barriers or signs, the penalty to be imposed according to aforementioned subparagraphs shall be increased by one half.
- Where the offences in the aforementioned paragraphs are committed together by three or more persons, the penalty to be imposed shall be increased by one half or where committed in the course of the activities of an organization established for the purpose of committing an offence, the penalty to be imposed shall be increased by one fold.
- The aforementioned paragraphs shall also apply to any substance which has the effect of a narcotic or psychotropic substance and of which the production is subject to the permission of the authorities or the sale of such subject to the issuing of a prescription issued by a competent physician. However, the penalty to be imposed may be reduced by one half.
- Any person who imports, produces, sells, purchases, administers the movement of, transports, stores or exports any substance, requiring the permission of the authorities for importation, which, although not having a narcotic or psychotropic effect, is used in the production of narcotics or psychotropic substances, shall be sentenced to a penalty of imprisonment for a term of not less than eight years and a judicial fine of up to twenty thousand days.
- Where an offence under this article is committed by a physician, dentist, pharmacist, chemist, veterinarian, health officer, laboratory technician, midwife, nurse, dentistry technician, patient-care nurse, person providing health services or person engaged in the chemical or pharmaceutical industry, the penalty to be imposed shall be increased by one half.
Difference Between Drug Abuse and Trafficking Offense
In the decision of the Criminal General Assembly of the Supreme Court dated 2017/9-378 E. 2018/618 K. and 6.12.2018; the court has developed the following criteria in order to reveal the difference between the crimes of "using drugs and trafficking":
1- The first criterion is whether the perpetrator has engaged in any behavior in terms of selling, transferring or supplying the narcotic substance in his/her possession.
2- The second criterion is the location and mode of possession of the drug substance. The person in possession of drugs for personal use always has it in an easily accessible place, for example, usually at home or at work. On the other hand, hiding the drug away from home or work, in a place such as a warehouse, cave or barn, which is difficult and time-consuming to remove, may indicate that it is kept for a purpose other than use. In addition, in cases where the drug is in the form of a large number of carefully prepared small packages, the same amount of drugs is placed in each package as a result of precise weighing, there are sensitive scales and packaging materials used in packaging at or near the place where the drug was seized, it means that there is an important indication that the drug is kept for a purpose other than use.
3- The third criterion is the type and amount of the drug substance. A person who uses drugs usually has one or two different drugs with similar effects. For this reason, it can be accepted that the accused, who has the tablets containing heroin, cocaine, cannabis and amphetamine of different qualities and effects, kept them with the aim of selling them. Although the amount that can be accepted for personal use varies according to the physical and mental structure of the person and the nature, type and quality of the drug or stimulant, it is reported that those who use cannabis can consume cannabis three times a day, 1-1.5 grams each time, in the opinions of the Forensic Medicine Institute. It is a well-known issue that is reflected in the judicial files that those who have the habit of using cannabis can keep enough cannabis with them or in a place where they can reach them, as a precaution. Accordingly, if the perpetrators of cannabis have more than the amount they can use and consume personally during this period(which is considered normal), it should be accepted that the possession is not for personal use.
Supreme Court Decisions On Drug Trafficking Crime
Absence of Concrete Evidence Regarding Drug Trafficking Crime
In the decision of the Assembly of Criminal-Law Chambers of the Court of Cassation(Supreme Court), dated E. 2017/9-380, K. 2019/43, T. 22.1.2019, the court decided as follows: "The case is about the crime of drug trafficking. Contrary to the defense of the accused, in which there is no evidence other than the abstract statement of the said person at the prosecution phase regarding that he is related to cannabis, which is the subject of the crime, or that he has participated in the crime, it must be accepted that there is no definite and sufficient evidence free from any doubt that he has committed the imputed crime. For the reasons explained, the decision is not appropriate."
In the decision of the Assembly of Criminal-Law Chambers of the Court of Cassation(Supreme Court), dated E. 2005/10-62, K. 2005/94, T. 12.7.2005; the court decided as follows: "The only evidence available that the accused Tokcan was selling the drug substance, which is the subject of the crime, is the direct statements of the accused Muammer, and the accused Tokçan's narrations from Muammer. The fact that the accused Tokcan and Muammer had argued on the same day before the incident and therefore they were hostile, considering that witness Metin's statements are confirmed, it is necessary not to accept the accusations seriously enough, considering that the accused Muammer said in order to receive less or no punishment. The content of the file reveals that, contrary to the defense of the accused Tokcan, there is no definitive and convincing and sufficient evidence(free from any doubt) to punish him. This interpretation is the result of the basic principle that "doubt shall be interpreted in favor of the accused."
In the judgment of the 20th Penal Chamber of the Supreme Court of Appeals(Supreme Court) 2017/1671 E., 2019/4811 K.; the court decided as follows: "According to the scope of the entire file, during the road application (they were stopped by the law enforcement officers on the road) on 02.08.2013, a net 525.1 gr cannabis substance was seized during the search carried out in the vehicle where the defendants were together; the defendants declared in their defenses at all stages that they had the narcotic substance for their own use, and that there is no notice or intelligence information about drug trafficking about them, it is understood that there is no definite and concrete evidence free from all kinds of doubts contrary to the defenses of the defendants regarding the possession of the seized cannabis for the purpose of selling or procuring it to someone else other than for the purpose of using it..."
In the decision of the 20th Penal Chamber of the Supreme Court of Appeals(Supreme Court) 2017/5618 E., 2019/4163 K.; the court decided as follows: "According to the scope of the entire file, a net 507.2 g of cannabis substance was seized during the search made in the vehicle where the defendants were together during the road application on 28.12.2013; THC, the active substance of cannabis, was found in the urine analyzes of both defendants, and the file about the defendants In order to use the drug within the scope of the crime of possession of drugs, a decision of treatment and probation was given; the defendants, in their defense at all stages, declared that they had the drug seized for their own use, and that they did not have any notice or intelligence about drug trafficking, except for the purpose of using the seized cannabis. It is understood that there is no definite and concrete evidence free from all kinds of doubt, contrary to their defense that they have kept them to sell or procure..."
In the decision of the 20th Penal Chamber of the Supreme Court of Appeals(Supreme Court) 2017/5658 E., 2019/5996 K.; the court decided as follows: "Considering the minutes of the communication with the defendant's defenses, it is not possible to obtain definitive evidence that exceeds the limits of suspicion that the cannabis, which was seized and remained within the limits of use, was kept for the purpose of selling it or giving it to someone else, contrary to their defense and the conviction of the defendants for the crime of drug trafficking, without considering that the action of the defendants constitutes the crime of possession of drugs for use as specified in Article 191 of the Turkish Penal Code..."
The Form of Presence of the Narcotic Substance
In the decision of the Assembly of Criminal-Law Chambers of the Court of Cassation(Supreme Court) no. 2016/1095 E., 2019/579 K.; the court decided as follows: "In the face of the body search carried out after the defendant, who was arrested for another crime, was handed over to the prison, 49 mg of heroin, 1 injector and 1 small bottle cap were found in two packages, and in his defense he declared that he used drugs and was addicted, and that he could not leave his clothes anywhere after he was arrested; According to Article 38/5 of the Constitution, which states that no one can be compelled to make a statement incriminating him or to show evidence in this way, the accused cannot be expected to confess his crime by saying that he has drugs on him. Considering both the fact that the materials seized together with the drugs reveal the habit of using drugs, and the court's decision to notify the Office of the Chief Public Prosecutor in order to apply the necessary treatment measures in order to get rid of the accused's addiction, it cannot be concluded that the accused did not consciously hand over the drugs he was on during the arrest to the officials with the motive of bringing them into prison; considering the principle that the accused benefits from suspicion, which is one of the basic principles of criminal law, a written verdict is established without considering that the act of the accused will constitute the crime of possession of drugs for the purpose of use as defined in Article 191 of the Turkish Penal Code..."
In the decision of the 10th Penal Chamber of the Court of Cassation(Supreme Court), dated 20/10/2015 and 2015/4313 E., 2015/32606 K., the court decided as follows: “The defendant, who was stopped on suspicion and asked if there was any criminal element on him, he delivered 61 tablets containing MDMA and 4 grams containing THJ-2201, which he took out of his pocket, to law enforcement officials. Contrary to his defense that he had taken these substances to use from a person he did not know about an hour before his arrest, and that he was caught on his way to the bus station to go to Balıkesir, where he resided, establishing a conviction for the crime of dealing in drugs and stimulants, without considering that there is no sufficient and conclusive evidence beyond the suspicion that he will sell or give these substances within the limits of use, and that the act of the accused constitutes the crime of possession of drugs for use..."
In the decision of the 10th Penal Chamber of the Court of Cassation(Supreme Court) 2015/5537 E. - 2015/33109 K. and dated 30/11/2015; the court decided as follows: “As stated in the report dated 16.01.2015, the vehicle was stopped after receiving the information that drugs would be brought with a vehicle with license plate 45 ACF 85 from Akhisar district to Manisa province, and the suspects E. İ. and B. D. were in it, a total of 250.95 grams of cannabis and 40 synthetic narcotic pills were seized, wrapped in 5 separate newsprints in a bag on the floor mat on the right front passenger side of the vehicle, since the blood and urine report of the accused was found to be positive for cannabis use and there was no evidence that the accused would sell or give away the seized substances to someone else, his action constituted the crime of possession of drugs for use.''
Defendant Confessing - Statements containing charges in connection with the crimes charged against him/her
In the decision of the 16th Criminal Chamber of the Supreme Court dated 12.09.2108, numbered 2018/2944 E., 2018/2741 K.; the court decided as follows: ''Since the statement of the person named A, who is a confessor accused and heard as a witness, and who has a legal interest in making a statement against the accused in order to benefit from effective remorse, cannot be taken as a basis for the judgment alone; As the objections of the defendant's defense counsel were deemed appropriate in this respect, it was unanimously decided on 12.09.2018 to reverse the verdict of the local court...'' by emphasizing that the statement of a person who benefits from effective remorse and has an interest in making a statement against the accused cannot be taken as a basis for the judgment alone.
Article 192/3 of the Turkish Penal Code regulates effective remorse in terms of drug offences. Turkish Penal Code Article 192/3 is as follows: "Where a person voluntarily serves and assists (in the investigation of an offence which leads to) the arrest of the offender, or other parties to the offence, or to the illumination of the offence, after such offence has been communicated to the authorities, the penalty shall be reduced from one fourth to one half according to nature of the assistance."
In the decision of the 20th Penal Chamber of the Supreme Court, numbered 2018/1173 E., 2019/2027 K.; the court decided as follows: "The defendant ... served and helped the accomplices to come to light, by declaring that the drug substance subject to the crime ... belonged to the defendants in the vehicle with the license plate ... at the stage when the connection between the two vehicles could not be determined definitively. .. on the other hand, at the stage where there is not enough evidence for the conviction against them, except for the abstract statement of the accused, it is understood that they helped to reveal his own crime with their confession, and the effective repentance provision in Article 192/3 of the TPC should be applied to the...''
In the decision of the 20th Penal Chamber of the Supreme Court no. 2017/1407 E. , 2019/4440 K.; the court decided as follows: "According to the scope of the entire file and the incident, custody, arrest and detention report dated 21/12/2013, the defendant ... along with the other defendants who were acquitted ... He admitted that the cannabis substance, which was found in a white bag on the top of it, belonged to him, and helped the act and the perpetrator to come to light. Therefore, the effective repentance provisions regulated in Article 192/3 of the Turkish Penal Code should be applied...."
In the decision of the 20th Penal Chamber of the Supreme Court, numbered 2018/5015 E. , 2019/4942 K.; the court decided as follows: "It is understood that the accused, at the stage where the persons who escaped from the vehicle with the license plate could not be determined definitively, served and helped to reveal the accomplices by declaring that the substance subject to the crime belonged to the accused ..., it is necessary to apply the effective repentance provision in Article 192/3 of the Turkish Penal Code for the accused...''
In the decision of the 20th Penal Chamber of the Supreme Court, numbered 2015/13530 E., 2019/1368 K.; the court decided as follows: "According to the full scope of the file and the arrest report dated 26.03.2013, when the defendant was together with the other defendants of the case ... and ..., only ... about 3 meters away, in a black bag, 42 pieces of newspaper wrapped in a so-called firecracker, the cannabis substance of unknown origin was seized, the accused immediately admitted that the drug found at the crime scene belonged to him and helped to reveal the act and the perpetrator. It was decided that the effective repentance provisions regulated in Article 192/3 of the Turkish Criminal Code should be applied..."
Places Specified in Article 188/4 of Turkish Penal Code
In the decision of the 20th Penal Chamber of the Supreme Court dated 2018/1375 E. , 2019/1610 K., 28.03.2019; the court decided as follows: "Although it is understood that the defendant ... is in possession of drugs for commercial purposes at the address “... Mah. ... Street. No: 55 Kat:3 .../Eskişehir”, where they reside with the other defendant ... Since the place in question is “residence”, in accordance with TCK 188/4-b, it cannot be qualified as a “public or public place”, and “Beşevler Park”, which is stated to be less than 200 meters from the residence, cannot be classified as “school, dormitory, hospital, an additional penalty was determined by applying an increase by ½ in accordance with Article 188/4-b of the TPC, although the conditions are not met, without considering that it is not within the scope of "buildings and facilities for treatment, education, military and social purposes such as barracks or places of worship..."
In the decision of the 20th Penal Chamber of the Court of Cassation(Supreme Court), 2018/73 E., 2018/3924 K., dated 2.10.2018 the court decided as follows: ''in sub-paragraph (b) of paragraph 4 of Article 188 of the TCK No. 5237, "The acts in the third paragraph are defined as: Schools, dormitories, hospitals, barracks or places of worship, buildings and facilities for treatment, education, military and social purposes, and their perimeter wall, wire fence, if any. The penalty to be imposed is increased by half if it is committed in public or open places within two hundred meters of the borders determined by braids or similar obstacles or signs, the investigation was started based on the intelligence received on the date of the incident, the defendants .... and .. It is understood that the witness ... got into the vehicle that .. was in, and that he bought drugs for 40 TL from the suspects in the vehicle; In the face of the fact that the sale of drugs took place inside the vehicle belonging to the accused ... and the vehicle is not from the public or public places specified in subparagraph (b) of the 4th paragraph of Article 188 of the Turkish Penal Code, subparagraph (b) of paragraph 4 of Article 188 of the TCK cannot be applied to the accused..."
In the decision of the 10th Penal Chamber of the Supreme Court of Appeals(Supreme Court), 2017/7431 E., 2017/6391 K., dated 6.12.2017 the court decided as follows: Although no determination was made in the report of Ankara Criminal Police Laboratory dated 16/03/2016 that the drug subject to the crime, which was determined to be methamphetamine, is "synthetic cannabinoids and derivatives", increasing the sentence of the accused in accordance with paragraph 4/a of Article 188 of the Turkish Penal Code is against the law, and since the objections of the accused and his defense counsel are valid for this reason, the verdict is overturned..."
NOTE: This information paper was not written as a recommendation or with the promise of a definitive conclusion and is only aimed at providing background information. Since the relevant laws may have changed and/or your problem may present a special circumstance, it is advisable to contact the author( Atty. Enes Teker ) of the paper for possible solutions and legal aid.