In our legal system, the crime of drug trafficking, regulated under Article 188 of the Turkish Penal Code, is defined as the unauthorized or unlawful production, import, or export of narcotic or psychotropic substances. The legal interest protected in the crime of drug trafficking is public security, and in a general context, the victims of this crime are the individuals within society. Although it is not a specific (special) crime, anyone can be the perpetrator of this offense.
Article 188/1 of the Turkish Penal Code is regulated as follows:
“Any person who unlawfully or without authorization manufactures, imports, or exports narcotic or psychotropic substances shall be punished with imprisonment from twenty to thirty years and a judicial fine from two thousand to twenty thousand days.”
Article 188/2 continues:
“If the act of exporting narcotic or psychotropic substances is considered as an import by another country, the part of the sentence served in that country as a result of the trial shall be deducted from the sentence to be imposed in Turkey for the export of narcotic or psychotropic substances.”
Article 188/3 states:
“Any person who unlawfully or without authorization sells, offers for sale, gives to others, dispatches, transports, stores, purchases, accepts, or possesses narcotic or psychotropic substances within the country shall be sentenced to imprisonment for no less than ten years and a judicial fine from one thousand to twenty thousand days. However, if the person to whom the narcotic or psychotropic substance is given or sold is a child, the imprisonment imposed on the person who gave or sold the substance shall not be less than fifteen years.”
Article 188/4 of the Turkish Penal Code
a) “If the narcotic or psychotropic substances mentioned in the above paragraphs are heroin, cocaine, morphine, base morphine, synthetic cannabinoids and their derivatives, synthetic cathinones and their derivatives, synthetic opioids and their derivatives, or amphetamines and their derivatives,”
b) “If the acts described in the third paragraph are committed in public or publicly accessible places located within a distance of two hundred meters from buildings and facilities where people are collectively present for purposes such as treatment, education, military service, or worship—such as schools, dormitories, hospitals, barracks, or places of worship—and their surrounding boundaries, if any, marked by walls, wire fences, or similar barriers or signs, the sentence shall be increased by half.”
Article 188/5
“If the offenses indicated in the above paragraphs are committed jointly by three or more persons, the sentence shall be increased by half. If the offense is committed within the framework of the activities of an organization established for the purpose of committing crimes, the sentence shall be doubled.”
Article 188/6 of the Turkish Penal Code:
“The provisions of the above paragraphs shall also apply to any substance that produces narcotic or psychotropic effects and whose production is subject to the authorization of official authorities or whose sale is dependent on a prescription issued by an authorized physician. However, the imposed sentence may be reduced by up to half.”
Article 188/7 of the Turkish Penal Code:
“Any person who imports, manufactures, sells, purchases, dispatches, transports, stores, or exports a substance that does not itself produce narcotic or psychotropic effects but is used in the production of narcotic or psychotropic substances and whose import or manufacture is subject to the authorization of official authorities shall be punished with imprisonment for not less than eight years and a judicial fine ranging from one thousand to twenty thousand days.”
Article 188/8 of the Turkish Penal Code:
“If the offenses defined in this article are committed by a physician, dentist, pharmacist, chemist, veterinarian, health officer, laboratory technician, midwife, nurse, dental technician, caregiver, healthcare provider, or by a person engaged in chemistry or the trade of pharmaceuticals, the sentence shall be increased by half.”
Additionally,
Article 189 of the Turkish Penal Code states:
“If the offenses of production and trafficking of narcotic or psychotropic substances are committed within the framework of the activities of a legal entity, specific security measures applicable to legal entities shall be imposed.”
The offense of Drug Trafficking is one of the crimes that the legislator has emphasized in order to protect public order, and for this reason, it has been subject to strict regulation.
Regarding the offense of drug trafficking regulated under Article 188 of the Turkish Penal Code, the legal subject matter must be divided into two categories. The subject matter of the offenses set forth in Articles 188/1 and 188/3 is narcotic or psychotropic substances, while the offense type regulated under Article 188/7 pertains to substances used in the production of narcotic or psychotropic substances. Although the legislator does not list all types of narcotic or psychotropic substances individually in the relevant articles, it provides a descriptive definition of the subject of the offense as “all substances that have narcotic or psychotropic effects and cause addiction in individuals.”
The offense of drug trafficking set forth in Article 188 of the Turkish Penal Code is classified as a crime with optional acts. This offense can be committed by carrying out any one of two groups of actions. These two groups of actions are:
- The first group: Importing, producing, or exporting narcotic or psychotropic substances without a license or in violation of a license.
- The second group: Selling, distributing, dispatching, transporting, storing, purchasing, receiving, or possessing narcotic or psychotropic substances within the country without a license or in violation of a license.
Whether the Offense is Subject to Complaint
Since this offense is not specifically mentioned in the law, its prosecution is not dependent on a complaint. The investigation and prosecution are carried out ex officio. The public prosecutor can initiate an investigation and inquiry as soon as they become aware of the offense.
Whether the Offense is Subject to Reconciliation
The Turkish Penal Code does not provide for reconciliation in cases of narcotic drug trafficking. Therefore, reconciliation is not possible in relation to this offense.
In Terms of the Manner of Commission of the Crime of Narcotic Drug Trafficking
The crime of narcotic drug trafficking is an intentional crime. The intent mentioned here is general intent. The perpetrator must know that the substance is a narcotic drug and must perform the actions specified in the law deliberately. The crime of narcotic drug trafficking does not have a negligent form as regulated in the law. Therefore, it is not possible to commit the crime of narcotic drug trafficking negligently.
Attempt is possible under Article 188/1 of the Turkish Penal Code. The important point here is that the result and the action can be distinguished from one another. However, in the actions listed in Articles 188/3 and 188/7 of the Turkish Penal Code, the action itself is considered to result in the outcome, so an attempt would not be possible.
Aggravating Circumstances
In a crime type, circumstances that are added to the basic form of the crime and require an increase or decrease in the penalty are called qualified forms of the crime. Aggravating factors for the crime of narcotic drug trafficking are regulated in Articles 188/3 and following of the Turkish Penal Code. These circumstances are:
- The commission of the crime of narcotic drug trafficking within the framework of an organization’s activity
- The narcotic or stimulant substances being heroin, cocaine, morphine, basomorphine, synthetic cannabinoids and their derivatives, synthetic cathinones and their derivatives, synthetic opioids and their derivatives, or amphetamines and their derivatives.
- The person to whom the narcotic or stimulant substance is given or sold being a child.
- The acts related to narcotic drug trafficking being committed in public or publicly accessible places within two hundred meters of buildings and facilities used for treatment, education, military, and social purposes, including their boundaries.
- The commission of narcotic drug manufacturing and trafficking crimes by three or more people together.
- The commission of narcotic drug manufacturing and trafficking crimes by persons providing healthcare services, dealing with chemistry, or engaging in pharmaceutical trade.
Circumstances Requiring a Lesser Penalty
According to Article 188/6 of the Turkish Penal Code, “The provisions of the above paragraphs also apply to all substances that cause narcotic or stimulant effects, the production of which is subject to the permission of official authorities or the sale of which is dependent on a prescription issued by an authorized physician. However, the penalty to be imposed may be reduced by up to half.”
Effective Remorse Mechanism
The effective remorse mechanism is not a provision regulated for every type of crime in the law. It can only be applied to crimes where such a regulation exists. Drug trafficking is a crime where the effective remorse mechanism can be applied. If remorse is expressed before the crime is known to the official authorities, and if reporting the crime leads to the capture of the accomplices, no penalty shall be imposed. However, if effective remorse occurs after the authorities have learned of the crime and leads to the identification of other accomplices, the penalty can be reduced by one-quarter to one-half.
The Enforcement Regime of the Crime
The investigation and prosecution of the crime of drug trafficking is not subject to any conditions, and the prosecution of the crime will be carried out ex officio. The competent and authorized court under Article 188 of the Turkish Penal Code is the Heavy Penal Court where the crime was committed.
If Article 188/1 of the Turkish Penal Code is applied, the penalty to be imposed will be imprisonment from twenty to thirty years and judicial fines from two thousand to twenty thousand days.
If Article 188/3 of the Turkish Penal Code is applied, the penalty to be imposed will be imprisonment for no less than ten years and judicial fines from one thousand to twenty thousand days.
If Article 188/7 of the Turkish Penal Code is applied, the penalty to be imposed will be imprisonment for no less than eight years and judicial fines from one thousand to twenty thousand days.
According to the Turkish Penal Code, judicial fines are imposed for prison sentences of one year or less and are a conversion of the prison sentence into a monetary penalty. In the case of drug trafficking, it is possible for the defendant’s sentence to be converted into a judicial fine in terms of the penalty limit.
Conditional Release in Case of Imprisonment
If a person sentenced to imprisonment is considered to have behaved well during their time in prison and is deemed likely to adapt to social life, the remaining sentence may be served outside the prison under conditional release. Another term for this is parole. In the case of the crime of drug trafficking, conditional release, or parole, is possible, but the convicted person must have served approximately three-quarters of their sentence in a correctional institution. For minors, this ratio is two-thirds.
According to the Enforcement Law No. 5275, for crimes committed after March 30, 2020, in order for a convict to benefit from supervised release, they must be in an open penal institution or have earned the right to be transferred to such an institution and must have behaved well. The crime of drug trafficking is a crime type suitable for the application of supervised release. For those with one year or less remaining in their sentence, supervised release will be applied. The legislator has also determined some exceptions for this period. Female convicts with children between the ages of 0-6, for crimes committed after March 30, 2020, will be subject to a two-year period of supervised release. If the convict is over the age of 65 and is unable to live independently due to illness, disability, or frailty, the required duration for supervised release is set at 3 years.
Suspension of Imprisonment Sentence under Turkish Penal Code
According to the Turkish Penal Code, the decision to suspend a prison sentence is a conditional decision to forgo the execution of the sentence in a prison. Since the penalty for the crime of drug trafficking exceeds two years, the suspension of the prison sentence is not possible.
The decision to postpone the announcement of the verdict, regulated under the Turkish Penal Code, is given for prison sentences of two years or less. However, due to the severity of the punishment for drug trafficking, the decision to postpone the announcement of the verdict cannot be applied.
Examples of Court of Cassation Decisions on the Crime of Drug Trafficking
- Based on the case file, following a tip received on 06.10.2015 that a person named … was waiting at the corner of … Primary School in Alaşehir District on a red-colored, motorized motorcycle with a large quantity of narcotic pills on their person, law enforcement officials conducted an investigation at the specified location. During the investigation, the defendant was seen traveling on a motorcycle near the mentioned primary school, and upon being stopped and searched, 42 narcotic pills and a net weight of 0.162 grams of marijuana were seized. It was determined that the defendant was stopped while traveling on their motorcycle within 200 meters of the mentioned school on 06.10.2015, against their will. There was no evidence that the defendant engaged in actions such as selling, offering for sale, giving drugs to others, or stopping and waiting with the narcotic substances on their person at the mentioned location. Additionally, in the event on 15.10.2015, no sufficient or definitive evidence was found to confirm the defendant’s participation in the crime committed by another individual named …, and therefore, considering that no voluntary action was detected within the scope of Article 188/3 of the Turkish Penal Code near the locations specified in Article 188/4(b), the defendant’s sentence should not have been increased with a heavier punishment under Article 188/4(b) of the Turkish Penal Code.
The defendant’s lawyer’s appeal objections, being in accordance with the law, are found to be valid. Therefore, the judgment, which is also subject to appeal ex officio, is REVOKED. The decision was made unanimously on 15.03.2018. (Court of Cassation 10th Criminal Chamber – Decision: 2018/2658)
2- Based on the facts and the content of the file, on the date of the crime, the defendants …, who were brought to Karabük Education and Research Hospital in a semi-conscious state and were being tried for the crime of possession of narcotics for personal use, and …, while in the house belonging to …, drank the narcotic brought by the defendant who arrived later, by mixing it together. During the incident, where the other defendants … and … were taken to the hospital, it was established that the defendant’s fixed act was to use a quantity of narcotics obtained and use it together with the other defendants in the house belonging to …, and the fact that the narcotic brought by the defendant was not transferred to the other defendants for possession or use independently, led to the conclusion that the defendant’s action constituted the crime of possession of narcotics for personal use. Considering that the decision of deferred pronouncement was made for the defendant regarding the crime of “possession of narcotics for personal use,” the defendant should have been convicted in writing instead of acquittal.
In accordance with the law, the defendant’s lawyer’s appeal objections were found to be valid. Therefore, the judgment is REVOKED. The decision was made unanimously on 21.10.2020. (Court of Cassation 10th Criminal Chamber – Decision: 2020/6042)
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