Narco-Trafficking Offense and Punishment
The crime of narco-trafficking is regulated in the Third Part of our Turkish Penal Code, “Crimes Against Society”.
It is regulated in the 13th article of our Turkish Penal Code that Turkish laws will be applied even if the crimes of manufacturing and trading of drugs or stimulants and facilitating the use of drugs or stimulants are committed by people who are Turkish citizens in a foreign country.
In addition, in Article 34 of our Turkish Penal Code, it is regulated that people who are under the influence of drugs against their will or for a temporary reason and who cannot perceive the legal meaning and consequences of the act they have committed, or whose ability to direct their behavior in relation to this act has significantly decreased, will not be punished.
In the 7th paragraph of the 57th article of our Law, it is also regulated that if the offender is addicted to alcohol or drugs, it will be decided to be treated in a health institution specific to alcohol or drug or stimulant drug addicts as a safety precaution.
In paragraph 4 of article 58 of our Law, it is regulated that the sentence of conviction in a foreign country for drug offense will be based on the repetition of the conviction to be given as a result of the trial of another case file to be held in the Republic of Turkey.
It is regulated in paragraph 3 of article 179 of our Turkish Penal Code that a person who drives a vehicle despite being unable to drive and manage a vehicle safely under the influence of drugs will be punished with imprisonment from 3 months to 2 years.
The crime of manufacturing and trading drugs or stimulants is regulated in Article 188 of the Turkish Penal Code. The law regulates that persons who manufacture, import or export, sell, ship, transport, store, give to others, purchase, accept or possess narcotic or stimulant substances without permission or against the license shall be punished with imprisonment from twenty years to thirty years. In addition, it is regulated that these people will be punished with a judicial fine from two thousand to twenty thousand days.
However, drugs or stimulants are not defined in Article 188, nor are they shown as restrictions.
3 of Article 188 of the Turkish Penal Code. It is seen that the type of crime defined in the paragraph comes to the fore in practice. In order for one of the crimes listed in this paragraph to occur, it is sufficient to perform any of the elective actions listed in the article.
The act element of the crime regulated in the 3rd paragraph of Article 188 is to sell, offer for sale, give to others, send or transport the drug without a license or contrary to the license.
What are Narco-Trafficking Offenses?
Crime of manufacturing, importing or exporting drugs: The authority to manufacture, import or export drugs or stimulant drugs has been granted to institutions determined under very strict rules in our country, and carrying out these actions without a license has been deemed a crime. It is stipulated that persons who produce drugs or stimulants without this license, enable people to enter the country illegally from abroad, or make drugs out of the country illegally, will be sentenced to imprisonment from 20 to 30 years in accordance with Article 188/1 of the TPC.
Crime of selling, offering for sale or buying drugs: The legislator has criminalized the sale of narcotic or stimulant substances to other persons without a license, making preparations to sell them, or purchasing them for commercial purposes, not for personal use. It is envisaged that those who commit these acts will be punished with imprisonment not less than 10 years and a judicial fine from one thousand days to twenty thousand days in accordance with Article 188/3 of the TPC. However, if the person who is given or sold drugs is a child, it has been decided that the prison sentence to be given cannot be less than 15 years.
Crime of shipping, transporting or storing narcotic substances: This offense occurs when the narcotic or stimulant substance is shipped or transported from one place to another for commercial purposes, not for personal use, or stored for sale, without a license.
Transport is the transport of the narcotic or stimulant substance that a person owns or possesses from one place to another for a purpose other than use, in person or by persons affiliated with him. For this reason, it is not necessary for the transported item to reach the recipient in order to complete the crime.
It is envisaged that those who commit these acts will be punished with imprisonment not less than 10 years and a judicial fine from one thousand days to twenty thousand days in accordance with Article 188/3 of the TPC.
Giving the drug to someone else: If the drug or stimulant substance is given to someone else without the purpose of selling, this crime is committed. In other words, in this case, the perpetrator gives the drug in his possession or possession to another person without being considered a sale and without any price. Another important point here is that the will of the person who takes the drug and the person who delivers it must match.
Acceptance of drug substance: It is the taking of possession of a drug belonging to another person without any remuneration.
Possession of narcotic substance: In order to be punished for possession of narcotic substance, it is the perpetrator's possession of the narcotic or stimulant substance belonging to himself or someone else, contrary to the license or unlicensed, under his actual sovereignty and in such a way that he can dispose of that substance.
In order for the crime of possession of drugs, defined in paragraph 3 of Article 188 of the Turkish Penal Code, to be deemed to have taken place, the drug must be outside the limits of personal use.
In other words, those who give or sell the amount of drugs that are within the personal use limit for free will be punished within the scope of the crime.
It is regulated that those who commit the acts listed in Article 188/3 of the TPC will be punished with imprisonment not less than 10 years and a judicial fine from a thousand days to twenty thousand days.
However, in the last sentence of the paragraph, it is regulated that if the person who is given or sold drugs or stimulants is a child, the prison sentence to be given to the person who gives or sells cannot be less than 15 years.
Qualified Situations of Narco-Trafficking Offense
It has been regulated that the conditions of the perpetrator specified in the first, second and third paragraphs of Article 188 of the Turkish Penal Code will require a further sentence of conviction in the presence of certain conditions.
In the 4th paragraph of Article 188 of the Law, the following is regulated. :
- In case of heroin, cocaine, morphine, synthetic cannabinoids and derivatives or base morphine, the penalty is increased by half.
- The boundaries of the acts specified in Article 188/3 of the TPC, such as schools, dormitories, hospitals, barracks or places of worship, where people are gathered for treatment, education, military and social purposes, and their borders, if any, determined by the surrounding wall, wire mesh or similar barriers or signs, The penalty to be imposed is increased by half in case it is committed in public or public places within a distance of less than 1 meter.
- If the drug trafficking is committed by three or more persons together, the penalty to be imposed is increased by half. It is also regulated in the 5th paragraph of the 185th article of the Turkish Penal Code that the punishment to be imposed will be increased by one-fold in case of committing a crime within the framework of the activity of an organization formed to commit a crime.
- It is stipulated that the provisions of paragraph 5 of Article 188 of the Turkish Penal Code will be applied for any substance that is produced depending on the permission of the official authorities or the sale of which is dependent on the prescription issued by the authorized doctor, but that the penalty to be imposed can be reduced by up to half. .(Turkish Penal Code article 188/ f.6)
For the implementation of this article, the drug or substance alleged to have a stimulant effect should be sent to the 5th Specialization Board of the Forensic Medicine Institute and a report should be obtained in this regard. In addition, it is necessary to ask the Ministry of Health, General Directorate of Pharmaceuticals and Pharmacy, whether its production depends on the permission of the official authorities or whether its sale depends on the prescription issued by the authorized physician.
- In paragraph 7 of Article 188 of our Turkish Penal Code, the following is regulated; A person who imports, manufactures, sells, buys, transports or exports a substance that is used in the production of narcotic or stimulant substances and whose import or manufacture depends on the permission of the official authorities, although it does not have a narcotic or stimulant effect, is sentenced to a prison sentence of not less than eight years. In addition, he is punished with a judicial fine from one thousand days to twenty thousand days.
- In the last paragraph of Article 188/8 of the TPC, the crimes are committed by physicians, dentists, pharmacists, chemists, veterinarians, health officers, laboratory assistants, midwives, nurses, dental technicians, nurses, health care providers, those who are engaged in chemistry or pharmaceutical trade. In this case, it was decided that the penalty to be imposed would be increased by half.
In practice, it is seen that mistakes related to the characterization of the crime are frequently encountered.
One of the hesitations frequently encountered in practice is what the legal status of the defendants in the lead vehicle should be. In this case, the records of the phone conversations with the accused until the moment of arrest, and the content of the conversations, if any, should be evaluated. In addition, issues such as the distance between the trailing and leading vehicles, whether it is possible to transport the vehicle carrying drugs to the desired location without guidance, should be discussed and evaluated at the place of decision. According to the result, it is necessary to decide whether it is possible to apply the 37th and 39th articles of our Turkish Penal Code.
Offense of Using and Possession of Drugs
The criteria to be used in determining whether the action constitutes the crime of possession of drugs for the purpose of use or the crime of possession for the purpose of drug trafficking regulated in article 188/3 of the Turkish Penal Code is as follows; The decision of the Criminal General Assembly of the Court of Cassation, dated 06/03/2012, 387-75 and 15/06/2004 and numbered 107-136.
These criteria, which are also accepted in teaching and practice, are:
1- It has not been determined that the perpetrator has engaged in any behavior in order to sell, transfer or supply the narcotic or stimulant substance in his possession.
2- The second criterion is the place where the narcotic or stimulant substance is kept and the way it is kept. It is stated that anyone who has drugs or stimulants for personal use will always keep it in an easily accessible place. In addition, the drug should be available in large numbers and in carefully prepared small packages. The presence of a similar amount of narcotic or stimulant substance in each package, which can be calculated with precise measurement, and the seizure of sensitive scales and packaging materials used in packaging at or near the place where the drug was seized are considered important indications that the drug or stimulant substance has been kept for a purpose other than its intended use.
3- The third criterion is the amount of drugs or stimulants seized. In the opinions of the Forensic Medicine Institute, it is stated that daily use of cannabis can be 1-1.5 grams 3 times a day, each time. The amount limit differs for each drug substance. However, depending on the habit of using cannabis, a person's possession of cannabis within a few months of use is considered to be within the limits of personal use. It is also accepted that the drug or stimulant substance within the limits of personal use can be kept in the person's own home or on them or in the place where they can reach.
It is stipulated in TPC article 191/1 that a person who buys, accepts, possesses or uses drugs or stimulants for use will be punished with imprisonment from 2 years to 5 years.
For personal use, the Court of Cassation accepts the limit for the purchase or possession of drugs as an average of 3-4 grams per day in the absence of any other evidence.
If an investigation is initiated due to this crime, it is decided to postpone the opening of the public case for 5 years. In this process, obligations such as receiving treatment may be imposed on the person by the Public Prosecutor and he must not buy, use or possess drugs or stimulants again during the postponement period. In case of violation of these obligations, public action will be taken against the person.
Considering the provision in subparagraph a of paragraph 4 of Article 191 of the Turkish Penal Code, there are decisions of the Court of Cassation stating that the defendant's failure to comply with the warning invitation sent to him is not sufficient to accept that he insisted on not acting in accordance with the obligations. The Court of Cassation rules that if the accused does not apply within the legal time limit after the first invitation sent to the accused, a warning should be sent to the accused to apply for the second time and again by giving time to apply, otherwise the accused cannot be deemed to have insisted. ( Court of Cassation 20 Criminal Chamber 14/02/2017, 5705/1055)
Multiple Purchases of Drugs from the Defendant by the Undercover Investigator
In practice, it is seen that drugs are purchased from the perpetrator more than once by the secret investigators appointed during the investigation phase. However, in this case, the Court of Cassation decisions that the chain crime provisions will not be applied have become stable. In other words, chain crime provisions cannot be applied against the perpetrator who sells drugs or stimulants to the undercover investigator more than once.
Sentencing Based on Listening Records Only
It is wrong to give a verdict of conviction against the accused based only on the recordings. In the decisions of the Court of Cassation, which have become case law, it is ruled that the recordings of the wiretaps should be supported by concrete evidence.
Effective Repentance in Drug Offenses
It should be kept in mind that people who report a crime after 08/02/2008 cannot keep their identities secret, except for crimes committed within the framework of the activities of an organization, and they can be heard as witnesses when necessary without seeking their consent.
The perpetrator, who wants to benefit from the effective repentance provisions, must provide services and assistance to the emergence of the crime of drug trafficking with his statements.
The fact that he helped the other defendants to be caught and their crimes were revealed, at the stage where the identity of the accused and their relation to the crime is not known yet, requires the application of effective repentance provisions.
Again, it should be observed that effective repentance provisions should be applied to the accused who helped to reveal his own crime with his own confession, in accordance with the third paragraph of Article 192 of the Turkish Penal Code, and that his sentence should be reduced.
The Court of Cassation Decisions on Narco-Trafficking and Drug Use
Court of Cassation 10th Criminal Chamber Case No: 2020/13558, Decision No: 2020/9487
“1-According to the scope of the entire file, communication determination and resolution minutes and the defendant's statement, the address of the accused has been determined. A net 0.5 gram of cannabis was seized as a result of the search, for which a search warrant was issued for this address. In the incident, it was understood that the defendant came after the search and said that the house and the seized marijuana belonged to him, and there was no sufficient evidence for his conviction for the crime of drug trafficking and that no drugs were seized. At this stage, 192/3 of the TPC on the accused who helped and served in the emergence of his own crime with his confession. Failure to observe that the effective repentance provision in the article should be implemented requires reversal.
Court of Cassation 20th Criminal Chamber Case No: 2019/968, Decision No: 2020/3272
“According to the scope of the entire file; During the search carried out in the vehicle in which the accused was driving, 7 pills containing MDMA, 1.4 grams of cannabis plates, 50.8 grams of cannabis powder and 27.1 grams of 5-Fluoro ADB were seized. Amphetamine, THC, bonsai k2 and MDMA were detected as positive in the tests of the accused. The file was separated for the crime of possession of drugs for the defendants to use; declared that the accused had possessed the seized narcotic substance for his own use in his defenses at all stages. Although there is diversity in the substances used, it has been determined in the analyzes of all of them. Contrary to the defendant's defense that he kept the seized substances for the purpose of selling or procuring them to someone else other than for the purpose of using them, it was understood that there was no definite and concrete evidence free from any doubt other than the denunciation, and his conviction rather than his acquittal of the crime of drug trafficking necessitated quashing.