Drug Offences as a Social Threat
One of the most important problems threatening public health in Turkey and in the world is undoubtedly the use and trafficking of drugs or stimulants. This type of crime, which frequently appears in the media with headlines such as “operation against poison dealers” and “narcotics raid”, deeply affects not only the health of individuals, but also public order, family structure and the national economy. So, what stance does the Turkish Penal Code (TCK) take against this serious offence? In this article, we will discuss the offence of drug trafficking in detail in terms of Article 188 of the TPC, the elements of the offence, penalties, qualified forms and important points in the trial process.
What is the Offence of Drug or Stimulant Substance Trafficking (Article 188 of the TPC)?
Article 188 of the Turkish Criminal Code No. 5237 regulates this offence under the title of “Manufacturing and Trafficking in Drugs or Stimulants”. The law defines a wide range of actions that constitute the offence. These actions are as follows:
- Manufacturing: Producing substances with narcotic or stimulant properties.
- Importing: Bringing these substances from abroad to Turkey.
- Exporting: Taking these substances from Turkey to abroad.
- Selling: Transferring the substances to another person for a price.
- Offering for Sale: Exhibiting, promoting or making preparations for the purpose of selling the substance.
- Giving to others (Supplying): Making the substance available to someone else, even for free.
- Dispatching: To ensure that the substance is sent from one place to another.
- Transporting: To physically transport the substance from one place to another.
- Storage: Storing substances for future use or distribution.
- Purchase, Acceptance, Possession: Acquiring or keeping in possession of these substances for a commercial purpose (other than for use).
Performing any of these actions without a licence or in violation of the licence is sufficient for the offence to occur within the scope of TCK 188.
What is the punishment for drug trafficking offence?
Considering the destructive effect of this offence on society, the legislator has envisaged quite severe penalties.
- Basic State (TCK 188/3): The person who sells, offers for sale, gives to others, transports, transports, stores, purchases, accepts or possesses drugs or stimulants shall be sentenced to imprisonment for a term of not less than ten years and a judicial fine from one thousand days to twenty thousand days.
- Manufacture, Import and Export (TPC 188/1): If the offence is committed through manufacturing, importing or exporting, the penalty is even more severe: imprisonment from twenty to thirty years and a judicial fine from two thousand days to twenty thousand days.
Qualified Conditions Increasing the Penalty: When is the offence punished more severely?
Article 188 of the TPC stipulates that the penalty to be imposed is increased in the presence of certain circumstances. These “qualified circumstances” include situations where the danger posed by the offence is greater.
- Increase according to the type of substance (TCK 188/4-a): If the substance subject to the offence is a more dangerous and addictive substance such as heroin, cocaine, morphine, basmorphine or synthetic cannabinoid (bonzai), the penalty to be imposed is increased by half.
- Increase according to the place where the offence was committed (TPC 188/4-b): If the offence is committed within a radius of 200 metres of a public place such as a school, dormitory, hospital, barracks or place of worship, the penalty shall be increased by half. The purpose of this provision is to protect young people and vulnerable groups.
- Increase According to the Title of the Perpetrator (TPC 188/8): If the offence is committed by a person who has a profession such as a physician, pharmacist, chemist, health officer, the penalty is increased by half since the convenience provided by the profession is utilised.
- Organised Crime (TPC 188/5): If the crime is committed by three or more persons together, the penalty is increased by half, and if it is committed within the framework of the activities of an organisation established to commit a crime, the penalty is increased by one times.
How to Distinguish between Possession for Use and Trafficking?
One of the most common problems encountered in practice is the determination of whether the seized substance was possessed for “personal use” or for “trade”. This distinction is of vital importance in terms of the penalty to be imposed. This is because the offence of possession of drugs for personal use (TCK 191) carries much lighter sanctions, whereas the offence of trafficking (TCK 188) requires very heavy prison sentences. According to the established case law of the Court of Cassation, the following criteria are taken into consideration in this distinction
- Quantity of Substance: Drugs above the amount that can be considered reasonable for the person’s own use generally indicate the purpose of trafficking.
- Mode of Possession: The possession of the substance in small packets ready for sale, the presence of devices such as precision scales strengthens the suspicion of trafficking.
- Behaviour of the Accused: Evidence (witness statements, telephone records, etc.) regarding the defendant’s economic status, lifestyle, and whether he/she has supplied substances to others are evaluated.
The offence of trafficking in narcotic drugs or stimulants is one of the most severe offences under the Turkish Penal Code. Article 188 of the Turkish Penal Code clearly sets out the acts constituting the offence, the basic penalties and the qualified circumstances aggravating the penalty. Factors such as the place where the crime was committed, the type of substance, the title of the perpetrator and whether the crime was committed in an organised manner directly affect the amount of the penalty to be imposed. In the judicial process, the distinction between whether the offence is “trade” or “personal use” is of great importance and this distinction is meticulously made by the courts according to the characteristics of the concrete case. It is critically important for people facing such a serious accusation to seek legal support from an expert criminal lawyer from the very beginning of the process in order to avoid any loss of rights.