The Crime of Drug Use - Av. Gökhan Akgül

Definition

The crime of drug use is regulated in Articles 191 and following under the section titled “Crimes Against Public Health” in the third part of the Turkish Penal Code, which is titled “Crimes Against Society.”

Article 191- (1) A person who purchases, accepts, or possesses narcotic or stimulant substances for personal use, or uses narcotic or stimulant substances, shall be sentenced to imprisonment from two to five years.

(2) In an investigation initiated for this crime, without applying the conditions stipulated in Article 171 of the Code of Criminal Procedure No. 5271 dated 4/12/2004, a decision may be made to delay the prosecution of the case for a period of five years. In this case, the public prosecutor shall warn the suspect about the potential consequences if they fail to comply with the obligations imposed on them during the delay period or if they violate the prohibitions. The decision to delay the prosecution shall also be communicated to the law enforcement authorities.

(3) During the delay period, a minimum of one year of supervised release shall be applied to the suspect. This period may be extended for a maximum of two additional years, in six-month increments, upon the recommendation of the Directorate of Supervised Release or by the public prosecutor’s decision. If necessary, the person under supervised release may be subjected to treatment during the supervised release period. The public prosecutor shall decide to transfer the suspect to the relevant institution for examination at least twice a year during the delay period to determine whether the suspect has used narcotic or stimulant substances.

(4) If the person, during the delay period:

a) Continues to insist on not complying with the obligations imposed on them or the requirements of the treatment applied,

b) Purchases, accepts, or possesses narcotic or stimulant substances again for use,

c) Uses narcotic or stimulant substances,

a public case shall be initiated.

(5) If, during the delay period, the person purchases, accepts, or possesses narcotic or stimulant substances again for use, or uses narcotic or stimulant substances, this will be considered a violation according to paragraph (4) and shall not be subject to a separate investigation or prosecution.

(6) After the public case is initiated according to paragraph (4), a decision to delay the prosecution of the case cannot be made in investigations opened on the grounds that the crime defined in paragraph (1) was committed again.

(7) If the suspect does not violate the obligations stated in paragraph (4) and does not violate the prohibitions during the delay period, a decision of non-prosecution shall be made.

(8) In the case of prosecutions related to:

a) The production and trade of narcotic or stimulant substances defined in Article 188 of this Law,

b) The facilitation of the use of narcotic or stimulant substances defined in Article 190 of this Law, if it is understood that the crime falls exclusively under the scope of these provisions, a decision to defer the pronouncement of the judgment shall be made in accordance with the provisions of this article.

(9) In cases where there is no contrary regulation in this article, the provisions of Article 171 of the Criminal Procedure Law concerning the deferral of the opening of a public case or Article 231 regarding the deferral of the pronouncement of the judgment shall apply.

(10) If the acts described in the first paragraph are committed within public or open spaces located within a distance of two hundred meters from buildings and facilities such as schools, dormitories, hospitals, barracks, or places of worship, which are used for treatment, education, military, or social purposes, and their surrounding walls, fences, or similar barriers or signs, the penalty to be imposed shall be increased by half.

Purchasing, accepting, or possessing narcotic substances for personal use, or using narcotic substances, is an offense that can be committed with alternative or mandatory actions. In order for these actions to constitute a crime under Article 191 of the Turkish Penal Code, they must be intended for the purpose of personal use.

Is the Offense of Drug Use Subject to Complaint and Reconciliation?

The offense of drug use is not subject to complaint. It can be investigated and prosecuted ex officio. Additionally, the offense of drug use is NOT among the crimes subject to reconciliation.

Can the offense of drug use be committed by negligence?

This offense is one that the perpetrator can commit knowingly and willingly. It cannot be committed through negligence.

The Simple Form of the Offense

According to Article 191 of the Turkish Penal Code (TCK),

“A person who purchases, accepts, or possesses narcotic or stimulant substances for personal use, or uses narcotic or stimulant substances, shall be sentenced to imprisonment from two to five years.”

Circumstances Requiring a Heavier Penalty

According to Article 191/10 of the Turkish Penal Code:

“If the acts in the first paragraph are committed in public or open places within a distance of two hundred meters from buildings and facilities used for treatment, education, military, and social purposes such as schools, dormitories, hospitals, barracks, or places of worship, and their surrounding walls, fences, or similar barriers or markers, the penalty to be imposed is increased by half.”

Circumstances Requiring a Lesser Penalty

The Turkish Penal Code does not provide for any circumstances that would require a lesser penalty for this offense.

Effective Remorse

Article 192 of the Turkish Penal Code contains provisions for effective remorse regarding this crime:

“(1) A person who has participated in the production and trade of narcotic or stimulant substances, if they report their accomplices and the places where narcotic or stimulant substances are stored or produced to the authorities before the authorities are informed, and if the information leads to the capture of the accomplices or the seizure of the narcotic or stimulant substances, they shall not be sentenced to punishment.

(2) A person who purchases, accepts, or possesses narcotic or stimulant substances for personal use, if they report to the authorities the person from whom, where, and when they obtained the substance before the authorities are informed, and if this facilitates the capture of the criminals or the seizure of the narcotic or stimulant substances, they shall not be sentenced to punishment.

(3) After the crime has been reported, a person who voluntarily helps and assists in the revelation of the crime and the capture of the perpetrator or other accomplices, the punishment to be imposed on them will be reduced by a quarter to half, depending on the nature of the assistance.

(4) A person who uses narcotic or stimulant substances, if they voluntarily seek treatment from official authorities or healthcare institutions before an investigation is launched for purchasing, accepting, or possessing narcotic or stimulant substances for personal use, will not be sentenced to punishment. In this case, public officials and healthcare professionals are not obligated to report the crime according to Articles 279 and 280.”

Attempt

The crime of purchasing, accepting, or possessing drugs or stimulants for personal use, or using drugs or stimulants, is not a crime suitable for attempt.

The Execution Regime Applicable to the Crime of Drug Use

As stated in Article 191 of the Turkish Penal Code (TCK), if the crime of drug use is committed, a prison sentence is imposed. It is not possible to convert the prison sentence into a judicial fine.

For the decision of postponement of the announcement of the judgment (HAGB) to be made:

a) The defendant must not have been convicted of a deliberate crime before,

b) The court must be convinced that, considering the defendant’s personality traits and behavior in the trial, the defendant will not commit a crime again,

c) The damage caused to the victim or the public by the commission of the crime must be fully remedied either by return of the property, restoring the previous situation, or compensation,

d) The defendant must accept the postponement of the announcement of the judgment.

For a decision of postponement of the announcement of the judgment (HAGB) to be made, if the imposed sentence is a prison sentence, it must be a sentence of 2 years or less. However, according to Article 191/9 of the TCK, HAGB may be granted regardless of the length of the sentence.

“In cases where there is no contrary provision in this article, the provisions of Article 171 of the Code of Criminal Procedure regarding the postponement of the public prosecution or Article 231 regarding the postponement of the announcement of the judgment shall apply.”

A person sentenced to imprisonment for two years or less for a crime may have their sentence postponed (TCK Art. 51). The upper limit for this period is three years for individuals who were under eighteen or over sixty-five years old at the time of committing the offense.

In order for a postponement decision to be made, the person must…

The person must not have been sentenced to more than three months of imprisonment for a deliberate crime in the past.
Additionally, due to the remorse shown during the trial process after committing the crime, the court must form an opinion that the person will not commit a crime again.

The suspension provisions for this crime are also regulated in Article 191 of the Turkish Penal Code:

“(2) In investigations initiated for this crime, without requiring the conditions specified in Article 171 of the Code of Criminal Procedure No. 5271 dated 4/12/2004, a decision is made to suspend the initiation of a public prosecution for a period of five years. In this case, the public prosecutor warns the suspect that if they fail to comply with the obligations imposed on them or violate the prohibitions during the suspension period, they will be informed of the possible consequences. The suspension decision is also communicated to the law enforcement authorities.

(3) During the suspension period, the suspect is subjected to a minimum of one year of probationary supervision. This period may be extended by up to two more years, in six-month periods, based on the proposal of the probation office or the decision of the public prosecutor. A person under probation may, if necessary, be subjected to treatment during the probation period. The public prosecutor will decide to refer the suspect to the relevant institution at least twice a year to determine whether they have used drugs or stimulants during the suspension period.”

(4) If the person, during the suspension period:

a) Continues to refuse to comply with the obligations imposed on them or the requirements of the treatment,

b) Purchases, accepts, or possesses drugs or stimulants for the purpose of use again,

c) Uses drugs or stimulants,

A public prosecution will be initiated against them.

(5) If, during the suspension period, the person purchases, accepts, or possesses drugs or stimulants for the purpose of use again or uses drugs or stimulants, these actions are considered violations under paragraph four and will not be subject to a separate investigation or prosecution.

(6) After the initiation of a public prosecution pursuant to paragraph four, a decision to delay the initiation of a public prosecution cannot be made in investigations where the crime described in paragraph one is alleged to have been committed again.

(7) If the suspect does not act in violation of the obligations mentioned in paragraph four and does not violate the prohibitions during the suspension period, a decision of non-prosecution will be issued.

(8) In cases related to the following crimes under this Law:

a) The manufacturing and trafficking of drugs or stimulants as defined in Article 188,

b) Facilitating the use of drugs or stimulants as defined in Article 190,

If it is understood that the crime falls exclusively under these provisions during the prosecution phase, a decision to defer the announcement of the judgment will be made regarding the defendant in accordance with the provisions of this article.

(9) In cases where there is no contrary provision in this article, the provisions of Article 171 of the Criminal Procedure Code, which pertains to the suspension of the initiation of public prosecution, or the provisions of Article 231, which pertains to the deferral of the announcement of the judgment, will apply.

Relevant Court of Cassation Decisions

“Considering the provisions in Articles 288 and 294 of the Code of Criminal Procedure No. 5271, and the situations of definite legal violations listed in Article 289 of the same Code, in the appeal petition:

The defense attorneys of the defendant stated that “there was no definitive determination regarding the date of the offense and the nature of the substance obtained, there was a contradiction between the video footage and the witness statements, and a decision cannot be made based on contradictory witness testimonies. Although the date of the offense is 05.05.2017, blood and tissue samples were taken on 08.05.2017, and during the time between, it was possible for the witnesses to have used drugs again. The court decision is not based on sufficient and qualified evidence,” and also stated that “The decision of the 3rd Criminal Chamber of the İzmir Regional Court of Appeals is contrary to the law.”

In response, it was determined that the appeal request falls within the scope of Article 294/2 of the Code of Criminal Procedure and concerns the legal aspect of the judgment. Upon review, the following conclusions were reached:

1- Contrary to the defendant’s defense, there was no drug or stimulant substance found on him. However, considering the statements of the witnesses, there was sufficient and definite evidence beyond the boundaries of doubt that the defendant sold drugs to minor witnesses … and …, and the defendant was convicted of drug trafficking instead of being acquitted.

2- Even with the acceptance of the facts:

a) Although synthetic cannabinoids were found in the biological samples of witnesses … and … taken on 08.05.2015, it was not taken into account that the witness … had used drugs again on 07.05.2017 and was taken to the hospital according to the report prepared by the teacher Özgür Keskinkılıç, who worked at the Children’s Education and Support Center where the witnesses were staying, and the forensic examination report of the same date. The biological samples were taken on 08.05.2017. It was not clearly determined whether the substance the defendant gave to the witnesses was a synthetic cannabinoid, and the application of Article 188/4-a of the Turkish Penal Code (TCK) was incorrect.

b) Without taking into account that the population records of the witnesses … and … who are claimed to have purchased drugs from the defendant should have been included in the case file, the application of the second sentence of Article 188/3 of the TCK regarding the defendant was incorrect.

Due to the violation of the law, the appeal objections of the defendant’s lawyers and their oral defense at the trial were upheld, and it was decided to overturn the decision of the 3rd Criminal Chamber of the İzmir Regional Court of Appeals dated 18.05.2018, with case number 2017/3783 and decision number 2018/846, in accordance with Article 302/2 of the Code of Criminal Procedure No. 5271. According to the nature of the appeal, the defendant was to be released, and if not already convicted or detained for another crime, the relevant Chief Public Prosecutor’s Office was to be notified to ensure the defendant’s release. The decision was made on 24.10.2018 unanimously.” (Court of Cassation 20th Criminal Chamber, 2018/5035 E., 2018/4568 K., 24.10.2018)

“1- In the examination of the judgments concerning the offense of violating the inviolability of the home:

It is claimed that after the defendants entered the complainant …’s house with the consent and knowledge of the complainant’s son, the defendant … (who is not subject to the appeal), they used narcotics in the house, which would constitute the offense of violating the inviolability of the home. However, it was understood that the defendants entered and stayed in the house of the complainant with the valid consent of Anılcan, who was residing in the same house and was over the age of 15 at the time of the offense, and then used narcotics together. Since it was clear that the defendants did not act with the intent to violate the inviolability of the home, the conviction for the offense of violating the inviolability of the home, which did not occur based on the elements, was wrongly made instead of acquitting the defendants.

Due to the violation of the law, the appeal objections of the defendants were found to be valid, and therefore, the judgments were OVERTURNED.

2- In the examination of the judgments concerning the offense of possessing narcotics for personal use:

First, it should be determined whether there is another case concerning the offense of possessing narcotics for personal use against the defendants, and if there is, whether the defendants committed this offense during the execution of the treatment and/or probation measures imposed for the other offense.

a) If there is no other case concerning the same offense against the defendants, or if the defendants did not commit the offense during the execution of the treatment and/or probation measures imposed for the previous offense, the defendants, for whom no treatment and/or probation measure has been applied for this offense, should be subject to “postponement of the announcement of the judgment” in accordance with Article 191 of the Turkish Penal Code (TCK), amended by Article 68 of Law No. 6545 published in the Official Gazette on 28.06.2014, and Article 85 of the same Law, and Temporary Article 7, Paragraph 2, added to Law No. 5320.

b) If the defendants committed this offense during the execution of the treatment and/or probation measures imposed during the prosecution of a previous offense, the provision in Article 5 of the amended Article 191 of the TCK, under Law No. 6545, which states that “if the person purchases, accepts, or possesses narcotics or stimulants for use, or uses narcotics or stimulants during the probation period, it will be considered a violation according to Article 4, and no separate investigation or prosecution will be conducted” should be considered. In this case, the prosecution condition of the second case should be considered null and void, and in accordance with Article 223, Paragraph 8 of the Code of Criminal Procedure (CMK), a decision of “dismissal of the case” should have been made.

Due to the violation of the law, the appeal objections of the defendants were upheld, and therefore, without examining other aspects, the judgments were OVERTURNED. This decision was made unanimously on 16.01.2020.” (Court of Cassation 20th Criminal Chamber, 2017/1875 E., 2020/571 K., 16.01.2020)