The Crime of Facilitating the Use of Narcotic or Stimulant Substances

In this case, for the crime of facilitating the use of narcotics and stimulants through any action, the actions in question must actually constitute this crime. The analysis of the evidence regarding this crime should be a matter of debate in court. The court should discuss the issue and explain why the act in question falls within the scope of the crime or not. In the introductory section of its decision dated March 4, 2020, numbered E. 2017/6284 K. 2020/1507, the 20th Criminal Chamber of the Court of Cassation stated: "It has been determined that the proceedings in the trial process were conducted in accordance with the law, the evidence was presented and discussed in the reasoned judgment, the act was found to have been committed by the defendant, the conscientious conviction was based on definitive data consistent with the documents and information in the file, and the type of crime and sanctions corresponding to the act were correctly determined, except for those stated below…" This statement emphasizes that the court must clarify whether the act constitutes a crime and discuss the scope of the act for the crime in question, in order to determine the legality of the sentence imposed as a result of the judgment. This point is highlighted both in legal doctrine and in relevant Court of Cassation decisions.

Objective Elements of Typicity

The relevant law criminalizes acts that involve solely facilitating drug use, making it easier to access the substance, accelerating its use, or making its use safe. Therefore, to punish actions aimed at facilitating the sale, shipment, or export of drugs, rather than the use itself, we will need to rely on other relevant provisions.

When evaluating the scope of the crime, we must first examine the actions taken to provide the location, equipment, and materials. Providing a suitable environment for use, such as organizing a 'Cocaine Party' in one's own home, supplying syringes and similar products, or facilitating use by providing heated platinum plates for preparing cannabis, undermines the legal interests protected by this crime, and the commission of these actions is subject to criminal penalties.

Secondly , it involves taking measures to make it difficult for users to be caught . This includes actions that reduce the physiological symptoms that occur after the substance is ingested, attempts to conceal traces of use, and the destruction of evidence. Furthermore, providing a safe, secure area of ​​one's own property, for example, for drug users, without fear of being caught, are also actions that undermine the legal merit of this crime.

According to the decision of the 10th Criminal Chamber of the Supreme Court of Appeals, dated May 22, 2019, case number E. 2017/357 K. 2019/3196, 'In the examination of the conviction for the crime of facilitating the use of narcotic substances:'

In light of the defendant's defense, the incident and arrest report, and the statements of ... and ... whose investigation files were separated regarding the crime of possessing drugs for personal use, it was determined that the defendant did not provide a special place, equipment, or materials to facilitate the use of drugs; that the defendant's intention was to use the drugs he possessed for personal use with the other defendants using the device known as a "bucket," which was previously found at the scene; that no other drugs were seized at the scene; and that a separate judgment was rendered for the crime of possessing drugs for personal use in the same incident, the decision to convict the defendant for facilitating the use of drugs instead of acquitting him was unanimously overturned on May 22, 2019. ... The court stated that the preparation of certain apparatus and devices for the collective use of drugs, the suitability of drugs for collective use due to the nature of the drug itself, not only the device referred to as a "bucket," but also the passing of cannabis from hand to hand, does not fall within the scope of the crime of facilitating or providing a place for the use of drugs .

A person who explains how to use or inject a drug will also be committing the crime of facilitating drug use. However, providing information on where to obtain the substance or how to manufacture it does not fall under this article.

It is also worth mentioning the crime of incitement mentioned in Article 190/2 of the Turkish Penal Code. Encouraging individuals, evoking positive feelings, and declaring that the drug is beneficial or at least harmless falls within the scope of this article's sanctions. Publishing information on this subject is also subject to sanctions, even as a form of publication. It is not necessary for the publication to reach individuals. Initiating the process, preparing for publication, and creating the possibility of learning about it are sufficient for the crime to be completed. The fact that the publication did not reach anyone does not change the fact that the crime has been committed. As an example, the Antalya Public Prosecutor's Office, upon the application of the narcotics police, banned the playing of two songs – DJ Tieasto's remixed "Ecstasy" and "F… on Cocaine" – in entertainment venues and on radio stations, on the grounds that they incited the use of stimulants and narcotics and were therefore referred to as "drug addict songs" on social media.

According to the same article and paragraph, for example, a columnist or singer stating in their song that they used drugs or that they had a lot of fun because of it does not constitute the crime of inciting drug use. On the other hand, mentioning or describing the positive effects of drugs in a publication, or giving opinions that encourage their use, can be said to constitute intent.

Attempt

For the crime of facilitating drug use, it is not necessary for the person being encouraged to actually use the substance. The crime is considered committed and completed once the encouragement has taken place. For example, giving someone a 'cannabis cocktail' or providing instructions about it constitutes an act of commission, and from that moment on, the crime is considered complete and committed.

According to Article 190/2 of the Turkish Penal Code, the crime of publishing material that encourages the use of narcotics is completed when the opportunity for the public to learn about it is created. If the publication is seized and confiscated before it reaches the public, for example, upon the tip-off of a printer, it is considered an attempted crime.

Assembly

If, while facilitating the crime, multiple individuals provide a location for a 'Cocaine Party', the crime constitutes a chain of offenses due to its nature, and the punishment is determined according to the provisions of Article 43/2 of the Turkish Penal Code regarding chain of offenses.

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STJ. AV. Hamdi Berk Can