What is the crime of drug trafficking?

Drug Trafficking Crime and Punishment | Turkish Penal Code Article 188 Drug Trafficking

 

The crime of drug trafficking is regulated in Article 188 of the Turkish Penal Code under the heading "manufacturing and trading of narcotic or stimulant substances." This crime is one of those that carries serious criminal responsibility, affecting not only individual health but also public health and public order. The legislator has set very severe penalties for this crime in order to prevent the spread of narcotic or stimulant substances within society.

According to Article 188 of the Turkish Penal Code, manufacturing, importing, exporting, selling, offering for sale, giving to others, dispatching, transporting, storing, purchasing, accepting, or possessing narcotic or stimulant substances without a license or in violation of a license may be considered a crime of drug trafficking. Manufacturing, importing, and exporting carry a prison sentence of twenty to thirty years and a judicial fine of two thousand to twenty thousand days; while selling, offering for sale, dispatching, transporting, storing, purchasing, accepting, or possessing within the country carries a prison sentence of not less than ten years and a judicial fine of one thousand to twenty thousand days.

Elements of the Crime of Drug Trafficking under Article 188 of the Turkish Penal Code

For the crime of drug trafficking to occur, the substance in question must first be a narcotic or stimulant. This determination is usually made through forensic laboratory reports. The type and quantity of the seized substance, its packaging method, its location, the suspect's defense, telephone records, text messages, camera footage, physical surveillance reports, and witness statements are all evaluated together.

Drug trafficking is a crime with alternative actions. Therefore, the commission of any one of the actions listed in the law may be sufficient for the crime to occur. For example, it is not necessary to simply sell the drug; storing, shipping, or transporting the drug for commercial purposes can also be considered under Article 188 of the Turkish Penal Code. However, not every instance of possessing drugs automatically constitutes drug trafficking. The most important distinction here is whether the substance is possessed for personal use or for commercial purposes.

What is the penalty for drug trafficking?

The penalty for drug trafficking varies depending on the manner in which the crime was committed, the type of drug, the location of the crime, the number of perpetrators, and whether the victim is a child. Under Article 188/1 of the Turkish Penal Code, for acts of manufacturing, importing, or exporting, the penalty is imprisonment for twenty to thirty years and a judicial fine of two thousand to twenty thousand days. Under Article 188/3 of the Turkish Penal Code, for acts of selling, offering for sale, giving to another person, shipping, transporting, storing, purchasing, accepting, or possessing drugs within the country, the penalty is imprisonment for a period of not less than ten years and a judicial fine of one thousand to twenty thousand days. If the person to whom the drug or stimulant is given or sold is a child, the imprisonment sentence cannot be less than fifteen years.

The penalty is even more severe for certain types of drugs. The penalty is increased by half when dealing with substances such as heroin, cocaine, morphine, basmorphine, synthetic cannabinoids and their derivatives, synthetic cathinones and their derivatives, synthetic opioids and their derivatives, or amphetamines and their derivatives. Furthermore, committing the crime in buildings or facilities where people gather for treatment, education, military, or social purposes, such as schools, dormitories, hospitals, barracks, or places of worship, or in public or publicly accessible places within two hundred meters of the boundaries of such places, also constitutes grounds for a 50% increase in the penalty.

If the crime of drug trafficking is committed jointly by three or more people, the penalty is increased by half. If the crime is committed within the framework of an organization established for the purpose of committing crimes, the penalty is doubled. Therefore, in drug trafficking cases, not only the seized substance but also the number of perpetrators, communication traffic, allegations of organizational ties, and whether the actions are continuous are of great importance.

The Difference Between Drug Use and Drug Trafficking

The most frequently debated issue in drug cases is whether the act falls under drug trafficking as defined in Article 188 of the Turkish Penal Code (TCK) or possession of drugs for personal use as defined in Article 191. According to Article 191, a person who purchases, accepts, possesses, or uses drugs or stimulants for personal use is punishable by imprisonment for two to five years. However, in this type of crime, the postponement of the public prosecution and the application of supervised release may be considered.

In distinguishing between trade and personal use, the quantity of the substance alone is not always the determining factor. In the practice of the Supreme Court of Appeals, the quantity and variety of the substance, the method of packaging, the presence of a precision scale, fingerprints, communication records, observation of the sale, whether the tip-off is verified, and the socio-economic status of the defendant are all considered together. Indeed, in a 2024 decision of the 8th Criminal Chamber of the Supreme Court of Appeals, the type and quantity of the drug, the presence of a precision scale, witness statements, criminal reports, and evidence in the case file were all evaluated together to determine the nature of the crime.

Therefore, the claim of "personal use" should not be put forward abstractly in the defense. The usage habit, quantity of the substance, method of acquisition, number of packages, the perpetrator's economic status, the location of the substance, and all evidence of the incident must be explained together. Otherwise, the circumstantial evidence in the file may be interpreted as pointing to commercial intent.

Is a precision scale sufficient evidence for drug trafficking?

In drug trafficking cases, precision scales frequently come up. The presence of drug residue on a precision scale can be considered strong evidence that the crime was committed for commercial purposes. However, the mere existence of a precision scale is not sufficient for conviction in every case. The ownership of the scale, its location, the type of substance residue found on it, the suspect's connection to the scale, the packaging method of the drug, and other evidence must all be considered together.

Therefore, in defenses related to drug trafficking, a general statement such as "the scales don't belong to me" is often insufficient. The ownership of the location where the scales were found, the connection between the crime scene and the suspect, the legality of the search, the results of the forensic investigation, and fingerprint analysis must all be considered separately.

Arrest for Drug Trafficking Crime

The crime of manufacturing and trafficking narcotics or stimulants is listed among the catalog of offenses under Article 100 of the Code of Criminal Procedure (CMK). However, being a catalog of offenses does not automatically mean that an arrest warrant will be issued. For an arrest to be justified, there must be concrete evidence demonstrating strong suspicion of guilt, and the arrest measure must be proportionate. Article 100 of the CMK lists the crime of manufacturing and trafficking narcotics or stimulants among the catalog of offenses.

In evaluating an arrest warrant, factors such as the risk of flight, the possibility of tampering with evidence, the nature and characteristics of the crime, whether evidence has been collected, and whether judicial control measures would be sufficient should be considered. Therefore, when preparing appeals against detention or requests for release in drug trafficking cases, general statements alone should not suffice; it should be explained, based on concrete evidence, that there is no strong suspicion of guilt, that the intent to traffic has not been proven, or that judicial control would be sufficient.

Effective Repentance in Drug Trafficking Crimes

The principle of effective repentance in drug offenses is regulated in Article 192 of the Turkish Penal Code. According to this article, if a person participating in the manufacture or trade of narcotics informs the authorities of their accomplices and the locations where the narcotics or stimulants are stored or manufactured before the authorities become aware of the crime, and this information leads to the apprehension of the accomplices or the seizure of the narcotics, they may not be sentenced. Voluntary assistance provided after the crime has been discovered by the authorities may result in a reduction in sentence, depending on the nature of the assistance.

However, the provisions on effective repentance do not apply automatically. The information provided must be accurate, concrete, useful, and effective in influencing the outcome. Repeating previously known information or making abstract statements about arrested individuals may not be considered sufficient for effective repentance. Therefore, before making a statement of effective repentance, the scope of the case, the existing evidence, and the legal consequences of the statement should be carefully evaluated.

The Importance of Evidence in Drug Trafficking Cases

In drug trafficking cases, conviction requires conclusive and convincing evidence beyond any reasonable doubt. It is crucial that searches and seizures are conducted lawfully, that the search warrant or written order is properly executed, that the supply chain of the seized substances is maintained, that forensic reports are included in the file, that communication interceptions are carried out lawfully, and that witness statements are consistent.

Unlawful searches, irregular seizures, incomplete forensic investigations, failure to conduct fingerprint analysis, failure to collect camera recordings, lack of concrete evidence of commercial activity in telephone examinations, or contradictory witness statements are critical points for the defense. According to the principle that the defendant benefits from the doubt in criminal proceedings, a conviction under Article 188 of the Turkish Penal Code without definitive proof of commercial intent becomes legally questionable.

Why is legal support important in a drug trafficking case?

Drug trafficking is one of the most serious types of crimes in criminal justice due to the severe prison sentences and the risk of arrest. In such cases, the initial statement, search warrant, police report, call records, physical surveillance records, criminal reports, and witness statements directly influence the course of the trial.

For a defense to be effective in a drug case, the nature of the crime must be correctly determined, it must be debated whether the act falls under Article 188 or Article 191 of the Turkish Penal Code, illegally obtained evidence must be identified, objections to detention measures must be raised with concrete grounds, and evidence in favor of the defendant must be presented to the file in a timely manner. Especially in cases where there is no intent to trade, supporting the defense of personal use with evidence is of great importance.

Conclusion

Drug trafficking is a serious crime punishable by severe penalties under the Turkish Penal Code, aiming to protect public health. However, not every act of possessing drugs constitutes drug trafficking. In determining the nature of the crime, the quantity of the substance, packaging, communication records, witness testimonies, the use of precision scales, financial transactions, and the suspect's connection to the act must all be considered together.

Therefore, for individuals facing drug trafficking charges, an early legal review of the case, verification of the legality of evidence, and the development of an effective defense strategy are of paramount importance. Every assessment under Article 188 of the Turkish Penal Code must be considered on a case-by-case basis, taking into account the specific characteristics of the concrete situation.

Frequently Asked Questions About the Crime of Manufacturing and Trafficking in Narcotic Substances

1. What does it mean to manufacture narcotic substances?

Manufacturing narcotics means producing, preparing, processing, or making a narcotic or stimulant substance suitable for use/sale. The act of manufacturing is one of the most serious forms of the crime of drug trafficking. Therefore, the law prescribes a higher penalty range for the acts of manufacturing, importing, and exporting. According to Article 188/1 of the Turkish Penal Code, a person who manufactures, imports, or exports narcotic or stimulant substances without a license or in violation of a license may be sentenced to imprisonment for twenty to thirty years and a judicial fine.

2. What is the difference between the crime of drug trafficking and the crime of possessing drugs for personal use?

The crime of drug trafficking is regulated in Article 188 of the Turkish Penal Code (TCK), while the crime of possessing drugs for personal use is regulated in Article 191. Article 191 applies when a person purchases, accepts, possesses, or uses drugs for their own personal use. The penalty range under Article 191 is lower than under Article 188, and special measures such as probation may be considered. In contrast, Article 188 applies when the act is for commercial purposes and includes much harsher penalties.

3. How do you differentiate between personal use and commercial use?

The distinction between personal use and drug trafficking is made according to the specifics of each concrete case. The court considers the quantity of the seized drug, its packaging method, its location, whether a precision scale was present, communication records, witness statements, physical surveillance reports, and the defendant's defense. The quantity of the substance alone is not always sufficient. However, evidence such as the substance being found in numerous small packages, the presence of a precision scale, messages related to sales, or monetary transactions may be taken into account regarding intent to traffic.

4. Under what circumstances is the penalty for drug trafficking increased?

Certain aggravating circumstances in drug trafficking offenses lead to increased penalties. Increased penalties may apply to substances such as heroin, cocaine, morphine, synthetic cannabinoids and their derivatives, synthetic opioids and their derivatives, and amphetamines and their derivatives. Furthermore, the penalty is increased if the crime is committed in places such as schools, dormitories, hospitals, barracks, places of worship, or in public areas within a certain distance of such places. The commission of the crime by three or more individuals acting together or as part of an organized crime group are also factors that increase the penalty.

5. Is there an arrest in drug trafficking cases?

The crime of manufacturing and trafficking narcotics or stimulants is among the catalog of offenses under Article 100 of the Code of Criminal Procedure. Therefore, detention may be considered during the investigation or prosecution phase. However, being a catalog of offenses does not automatically mean detention. For detention to be justified, there must be concrete evidence demonstrating a strong suspicion of guilt, a valid reason for detention must exist, and the principle of proportionality must be observed.

6. Is the possession of a precision scale sufficient grounds for drug trafficking charges?

The presence of a precision scale can be considered significant evidence in drug trafficking charges. Specifically, the presence of drug residue on the scale, or the scale being seized along with drugs, can be interpreted as evidence of intent to traffic. However, a precision scale alone is not always sufficient for conviction. The ownership of the scale, its location, the presence of drug residue, fingerprint analysis, and its connection to other evidence must also be considered.

7. Can text messages be used as evidence in drug trafficking cases?

Phone messages, WhatsApp conversations, call logs, and HTS data can be considered as evidence in drug trafficking cases. However, these records must have been obtained legally. Message content, the context of conversations, coded language, money transfers, and physical surveillance records are all examined together. Conviction based solely on abstract, ambiguous, or out-of-context messages may be legally questionable.

8. Why is legal support important in drug trafficking cases?

The crime of manufacturing and trafficking narcotics is one of the most serious types of crimes in criminal law due to the high prison sentence and risk of arrest. In such cases, search warrants, forensic reports, call records, message contents, physical surveillance records, witness statements, and the defendant's defense are all evaluated together. With the support of an effective criminal defense lawyer, the legality of the evidence can be examined, the nature of the crime can be debated, objections to detention can be raised, and evidence in favor of the defendant can be added to the case.

9. How should a defense be prepared in a case of manufacturing and trafficking narcotics?

In this type of crime, the defense must be prepared by examining all the evidence in the case file. First, the legality of the search and seizure procedures must be checked, and the quantity and nature of the seized substance must be evaluated. Then, the evidence alleged to demonstrate commercial intent must be examined one by one; text messages, HTS records, witness statements, camera footage, forensic reports, and the defendant's connection to the incident must be concretely discussed. The main goal of the defense is to ensure the correct determination of the nature of the crime and the application of the principle that the defendant benefits from the doubt.