The crime of drug trafficking in Turkish Law is an optional mobile crime that is committed by manufacturing, importing, exporting drugs or stimulants, selling them in the country, offering them for sale, giving to others (supplying), shipping, transporting, storing or purchasing for commercial purposes. (TCK art.188).
If the subject of drug trafficking is drugs such as heroin, cocaine, morphine, basemorphine or bonsai, the qualified version of the crime in TCK article 188/4, which requires a heavier penalty, is committed. The trafficking of all other drugs (marijuana, ecstasy, etc.) is punished with the basic form of the crime in TCK article 188/3.
The term " drug smuggling crime " is used in practice for the crimes of importing or exporting drugs .
What are Drug Trafficking Offenses in Turkey?
Crime of Manufacture of Drugs: It refers to the conversion of a substance or a narcotic substance into another drug by processing. The manufacture must change the nature of the substance being treated. If the applied process does not change the quality of the substance or if it aims to preserve its current quality for a long time, then it is not possible to talk about the manufacture of drugs. In addition, the tools and location used for drug production must be suitable for drug production. In particular, whether the tools seized at the crime scene are suitable for production should be asked from the Forensic Medicine Institute.
Crime of Importing Drugs: In the event that narcotic or stimulant substances are brought into the country from abroad without a license or in violation of the license, the crime of importing narcotic or stimulant substances regulated in the 1st paragraph of Article 188 of the TCK No. 5237 will occur. It does not matter whether the narcotic or stimulant substance is transferred to the country through the customs gate or from any part of the land, sea and air borders outside the customs gate, it is sufficient for the crime to be brought into the political borders of Turkey from abroad. If the perpetrator uses Turkey for transit, in order to export the drug from one country to another, the act of transit nature constitutes the crime of transporting drugs, not importing or exporting. According to the settled judicial decisions,
Offense of Exporting Drugs: Exporting drugs is the removal of domestic drugs to another country (abroad) (Article 188/1 of the TCK). Exporting drugs is an act that occurs only when the drug passes through the customs gate. If the drug is caught inside the customs area as a result of the checks carried out, without passing through the customs gate, "attempting to commit the crime of exporting drugs" is in question. If the drug to be exported is caught before it reaches the “customs area” while transporting it towards the border, the crime of transporting or possessing drugs (TCK art.188/3) is not committed, not the crime of exporting drugs. Because the perpetrator can at any time voluntarily give up exporting the drug at any stage before entering the customs area. In this case, TCK art. It is decided that there is no room for punishment by applying the effective repentance voluntary waiver provisions regulated in 192. However, the perpetrator, who is decided not to be punished for the act of expulsion, is punished for possession or transport of drugs.
The Crime of Transferring or Transferring Drugs: Transferring the drug from one place to another in order to transfer or transfer the drug to another place is defined as the crime of "transporting or transferring drugs" (TCK art.188/3). A person who transports drugs for his own needs, not for someone else, commits the crime of possessing drugs for personal use, provided that the amount of use remains within the limits.
Crime of Accepting and Possession of Drugs: To accept; a person's possession of a drug or stimulant belonging to another person for a purpose other than personal use without any remuneration, and the substance must pass into the de facto domination of the perpetrator in order to complete the crime. To have; It can be defined as a person's possession of a narcotic or stimulant substance belonging to himself or another, other than for personal use, without a license or in a way that he can act on it in violation of the license. Defendants who were caught with a substance in an amount above the personal use limits, although it cannot be determined that they sold, offered for sale, given to others, shipped, transported, stored or purchased drugs or stimulant substances, 188/3. They will have carried out the acts of acceptance and possession specified in the article.
Selling, Offering for Sale or Buying Drugs: The crime of selling drugs refers to the transfer of drugs to someone else in return for a price. Offering the drug for sale refers to making some preparatory actions for the sale of the drug, even though it has not yet reached the stage of sale. The crime of buying drugs occurs when the person who buys the drug buys it for commercial purposes, not for personal use. The penalties for the acts of selling, offering for sale or purchasing drugs are the same (Article 188/3 of the TCK).
Offense of Supplying (Giving, Supplying) Drugs: The act of supplying drugs, that is, giving to someone else, providing drugs; it is the giving of a narcotic or stimulant substance that a person has or obtained in any way, to another without the purpose of sale and without receiving any price. The key point in the crime of supplying drugs is that the perpetrator transfers the drug to others other than for the purpose of selling or offering for sale. It does not matter for what purpose the person who takes the drug takes the drug. The recipient may have taken the drug to use, sell, give to a friend, or for any other purpose. In all these cases, the “giving to others” element of the crime of drug trafficking is realized. As a result, we should especially point out that the act of supplying drugs and stimulants to a drug user,
Difference Between Drug Use and Trafficking
The crime of drug trafficking should not be confused with the crime of possessing drugs for use . Whether the crime is a drug trafficking crime or not is determined according to the following criteria:
The most important criterion in terms of possession of drugs for use and drug trafficking is the amount of drugs seized. The defendant's possession of drugs in excess of the personal need is an indication that he or she has the drug outside of personal use (eg, selling, transporting, etc.). The amount acceptable 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, for example, in the opinions of the Forensic Medicine Institute, cannabis users can consume cannabis three times a day, 1-1.5 grams each is reported. According to this, it is accepted that the accused, who has drugs over the annual amount of use, has drugs outside of the purpose of using drugs.
It is investigated whether the accused has engaged in any behavior in terms of selling, transferring or supplying the drugs in his possession to someone else. For example, if there is a witness or other defendant's statement saying that he bought drugs from the accused, the act is qualified as a drug trafficking crime.
Considering the place where the drug or stimulant substance is kept by the accused, it should be determined whether the drug is kept for use or for commerce. A person who has drugs for his personal needs always keeps it in a place where he can easily reach (For example, home, workplace, etc.). The fact that the drug is stashed in a place that cannot be easily reached (for example, in a warehouse) is an indication of drug trafficking (buying and selling).
The mode of possession of drugs or stimulants is also one of the important criteria for the determination of crime. Presence of the drug in large numbers and carefully prepared small packages, the same amount of drugs being placed in each package as a result of precise weighing, the seizure of sensitive scales and packaging materials used in packaging at or near the place where the drug was seized, the presence of drugs for a purpose other than use. will be an important indication.
What is the Penalty for Drug Trafficking Offenses in Turkey?
The crime of manufacturing and trading drugs or stimulants is regulated as an optional mobile crime in Article 188 of the TCK. Accordingly, the penalty for drug trafficking (buying, selling, procuring, transporting, etc.) is as follows:
A person who manufactures, imports or exports drugs or stimulants without a license or against the license is sentenced to imprisonment from 20 years to 30 years and a judicial fine up to twenty thousand days . Due to the fact that the export of drugs or stimulants is considered as an import in terms of the other country, the part of the sentence that is executed as a result of the trial held in this country is deducted from the sentence imposed as a result of the trial to be held in Turkey for the export of drugs or stimulants (Article 188/1-2) of the TCK. .
A person who sells, offers for sale, gives (provides) to others (supplies), sends, transports, stores, purchases, accepts, and possesses drugs or stimulants in the country without a license or against the license, shall be imprisoned for not less than 10 years and up to twenty thousand days. punishable by a fine. However, 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 fifteen years (Article 188/3 of the TCK).
In case the above-mentioned narcotic or stimulant substances are heroin, cocaine, morphine, synthetic cannabinoids and derivatives or basic morphine, the penalty to be imposed is increased by half (TCk art.188/4).
Acts of selling, offering for sale, giving to others (providing), sending, transporting, storing, purchasing, accepting, keeping drugs; Processing of buildings and facilities such as schools, dormitories, hospitals, barracks or places of worship for treatment, education, military and social purposes, and in public or public places within two hundred meters of their boundaries, if any, determined by perimeter walls, wire mesh or similar obstacles or signs. , the penalty is imprisonment for not less than 15 years and a judicial fine up to 30 thousand days (Art. 188/4 of the TCK).
If all the above drug crimes are committed by three or more people together, the penalty to be imposed is half, and if committed within the framework of the activities of an organization formed to commit a crime, the penalty to be imposed is increased by one fold (TCK art.188/5).
The provisions of the above paragraphs are also applied for any substance that is produced depending on the permission of the official authorities or the sale of which depends on the prescription issued by the authorized physician, and which has the effect of narcotic or stimulant substances. However, the penalty to be imposed can be reduced to half (Article 188/6 of the TCK).
A person who imports, manufactures, sells, purchases, transports, transports, stores or exports a substance 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, not less than eight years shall be punished with imprisonment and a judicial fine up to twenty thousand days (Article 188/7 of the TCK).
In case the crimes defined in this article are committed by a doctor, dentist, pharmacist, chemist, veterinarian, health officer, laboratory assistant, nurse, dental technician, nurse, health care provider, person engaged in chemistry or pharmaceutical trade, the penalty to be imposed is increased by half. (TCK art.188/8).
Drug Trafficking and Effective Penalty Reduction
Effective repentance is a criminal law institution that ensures the application of attribution provisions if the person regrets his crime later with his free will, eliminates the negativities caused by the criminal act, and contributes to the criminal justice with his positive behaviors.
There are two types of active remorse in the crime of drug or stimulant production and trafficking:
1. In case of active remorse before the official authorities are informed that the crime has been committed (TCK art.192/1-2);
If the person who has participated in the crimes of manufacturing and trafficking in drugs or stimulants informs the authority of other accomplices and the places where narcotic or stimulant substances are stored or manufactured, before being informed by the official authorities, the information provided ensures that the accomplices are caught or the drugs or stimulant substances are seized. in which case, no penalty shall be imposed.
2. In case of active remorse after being informed by the official authorities that the crime was committed (TCK art.192/3);
After hearing about these crimes, the penalty to be imposed on the person who voluntarily serves and assists in the emergence of the crime and catching the perpetrator or other accomplices is reduced from one quarter to half, depending on the nature of the aid.
The concept of “accomplices” mentioned in the article should be interpreted broadly. Not only those who participated in the crime within the meaning of Articles 37, 38 and 39 of the TPC, but also other persons related to the crime, such as other persons to whom the perpetrator bought, accepted, sold or given drugs, should be evaluated within this concept. In order for the perpetrator to benefit from effective repentance provisions, there is no need to notify both the other accomplices and the place where drugs or stimulants are stored or manufactured. One of these is sufficient. The conjunction “and” in the article should be understood as “or”. This is the doctrine and the established acceptance of the Supreme Court (CGK-K.2020/73).
The word “arrest” should also be accepted as “the arrest or identification of accomplices”. In order for the perpetrator to benefit from the discount; In addition to contributing to the arrest and identification of the accomplice or the person who bought or sold the drug or the person who committed another drug offense, the crime uncovered must be equivalent to or more severe than the crime committed by the perpetrator (CGK-K.2020/72) ).
192/3 of the TCK No. 5237. According to the article, the following conditions must be met together in order for the provisions of effective remorse to be applied in case of effective remorse after being informed by the official authorities that the crime was committed:
- The perpetrator must have committed one of the offenses regulated in Article 188 (trafficking, manufacturing, exporting, importing, selling or giving away -supplying- etc.) of TPC numbered 5237 or Article 191 (using, accepting, possessing etc.) of TPC.
- Contribution to criminal proceedings, ie service and assistance, must be made by the perpetrator himself.
- The services and assistance that ensures the discovery of crime or accomplices should be made to the investigating and prosecuting authorities.
- The service and assistance that contributes to the criminal proceedings should take place after the crime becomes known by the official authorities, but before the court gives a verdict. Judicial and administrative authorities, Ministries of Justice and Interior, prosecutors' offices, police and gendarmerie organizations, which are authorized to investigate a crime, as indicated in Article 158 of CMK numbered 5271, and governors and district governorships, embassies and consulates, which are responsible for reporting crimes to prosecutors' offices, should be considered within the scope of official authorities. .
- The perpetrator should contribute significantly to the emergence of his own or someone else's crime, serve and assist in the emergence of the crime by transferring information or in the capture of other accomplices.
- The information provided by the perpetrator must be correct, and the service and assistance rendered must be effective and beneficial to the result.
The Criminal General Assembly of the Supreme Court of Appeals emphasizes that it is necessary to carefully evaluate whether the accused is sincere about effective repentance and whether the information he gives is useful or not (CGK - 2012/226 decision, 2014/270 decision, 2015/28 decision). According to this;
If the arrested person says that he bought the drug from a person whose clear identity he does not know, or gives fictitious names or gives the name of the person he knows to have been involved in the drug business before, it should not be considered sufficient for the implementation of the provisions of effective remorse, if the perpetrator has been caught, he has been convicted or if he has not been caught, his identity and presence must be determined, In cases where it is understood that there is no reason for the perpetrator to blame the person he/she reports, the available evidence is found to be sufficient to admit the guilt of that person, and the information given has not been learned by the officials before, effective repentance provisions should be applied. Apart from the aforementioned cases,
On the other hand, if the perpetrator, who wants to benefit from effective remorse, declares that a person whose clear identity and address is unknown, whose existence is not known, is related to drugs, there is no need to conduct research on such a person, if research is being done, there is no need to wait for the result, and no discount should be made due to active remorse. If the perpetrator has learned about the persons he has reported and the information he has given about them, the disclosure of already known information should not be considered within the scope of assistance and service. Likewise, even if the information given is not known by the officials, it should be accepted that the conditions for effective remorse are not fulfilled if the information given does not affect the emergence of the crime or the arrest or identification of the accomplice.
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Istanbul - Attorney Baran Doğan Law Firm