DRUG TRAFFICKING AND DISTRIBUTION CRIMES

1. Introduction

The production, distribution, sale, and circulation of narcotic or stimulant substances are subject to extremely severe penalties under Turkish criminal law due to the grave danger they pose to public health. While the term "drug trafficking" most often brings to mind the direct act of selling, the Turkish Penal Code No. 5237 also punishes different stages of introducing narcotic substances into circulation, whether for commercial purposes or for non-personal use, as independent alternative actions.

In this context, "transporting" and "delivering" narcotic or stimulant substancesare among the alternative actions constituting the crime of drug trafficking under Article 188/3 of the Turkish Penal Code. Therefore, the fact that a person has not personally sold the drug, earned money from its sale, or owned the drug does not, in itself, eliminate their criminal liability under Article 188 of the Turkish Penal Code.

In practice, the transportation of narcotics from one city to another by bus, car, truck, airplane, cargo, mail, or other means; acting as a lookout for a vehicle carrying narcotics; transporting narcotics for delivery to an individual; or sending narcotics through third parties are frequently considered as drug trafficking or shipment.

However, not every act of carrying narcotics automatically falls under Article 188 of the Turkish Penal Code. Specifically, carrying or transporting narcotics for personal use may, depending on the specific circumstances, constitute the crime of "purchasing, accepting, or possessing narcotics or stimulants for personal use" under Article 191 of the Turkish Penal Code.

Therefore, in drug trafficking and distribution crimes, the fundamental legal debate often focuses not so much on whether the substance was transported at all, but rather on the purpose for which it was transported, whether the defendant knew the substance was a drug, and what their role was within the criminal organization .

2. Legal Basis for the Crime of Transporting and Distributing Narcotic Substances

According to Article 188/3 of the Turkish Penal Code No. 5237, anyone who sells, offers for sale, gives to others, dispatches, transports, stores, buys, accepts, or possesses imprisonment of not less than ten years and a judicial fine of between one thousand and twenty thousand days . The current text of Article 188/3 of the Turkish Penal Code is in effect as follows.

As can be seen, the legislator;

• don't sell
• putting up for sale
• Don't give it to someone else,
• dispatch,
• transfer,
• storage,
• purchasing,
• accept and
• possession

It has classified their actions as different alternative acts of the same crime.

The most important consequence of this regulation is that an actual sale transaction is not necessarily required for the crime of drug trafficking to occur. For example, a person who transports drugs from Istanbul to Ankara for delivery to another person is not absolved of criminal responsibility simply because they did not personally carry out the sale.

The Supreme Court's Criminal General Assembly also accepts that the crime under Article 188/3 of the Turkish Penal Code is a crime with alternative actions , and that the performance of only one of the specified actions is sufficient for the crime to be constituted

3. What is Drug Trafficking?

Drug trafficking generally refers to the movement or transport of drugs or stimulants from one place to another for a purpose other than personal use.

The Supreme Court's Criminal General Assembly defines the act of transporting as a person moving a narcotic or stimulant substance from one place to another, either personally or through persons under their control, for a purpose other than personal use. In transport, the actual carrying of the narcotic substance by the perpetrator or persons connected to the perpetrator is paramount.

Transfer;

• by car,
• by bus,
• by motorcycle,
• by truck,
• by plane,
• by train,
• by sea,
• on the person or in their luggage

realizable.

The type of vehicle used for transportation is not of essential importance in determining whether the crime has been committed.

Similarly, it is not necessary for the distance over which the drug is transported to be long. The Supreme Court's approach, although older, has been referenced in subsequent rulings, emphasizing that the law does not make a distinction between short-distance or long-distance transportation.

For example, transporting drugs from one city to another is a typical act of transportation, but transporting them to another address within the same city or to a person in prison can also be considered transportation if certain conditions are met.

4. What is Drug Trafficking?

While the concepts of "dispatch" and "transfer" seem similar, they are not the same legally.

In transport, the perpetrator primarily carries the drug personally or through individuals under their control, whereas in dispatch, the perpetrator arranges for the drug to be sent to a specific location via another person or transportation system.

For example;

packaging the drugs and putting them on an intercity bus,

sender via cargo company,

handing it over to another person and asking them to take it to a specific address

by establishing a transportation organization that facilitates the movement of drugs

Depending on the specific circumstances of the case, a person's actions may be considered within the scope of "incitement" or "commissioning".

Therefore, it is not necessary for the person sending the drugs to travel with them.

This distinction is particularly important in practice for determining criminal liability between the person organizing the drug trafficking and the "courier" who actually transports it. One person may be in the position of dispatcher and the other in the position of transporter, and both may be held liable under Article 188/3 of the Turkish Penal Code if the conditions are met.

5. Does it matter who owns the drug?

For the crime of transporting drugs to occur, it is not necessary for the drug to belong to the person transporting it.

A "courier" who transports narcotics belonging to another person for a fee may also be held liable under Article 188 of the Turkish Penal Code if they are aware of the nature of the narcotics and the purpose of transporting them.

Furthermore, transportation doesn't necessarily have to be done for a fee.

A person who transports drugs without receiving any payment, whether due to friendship, kinship, debt relationship, or any other reason, may also commit the crime of drug trafficking if they know that the act is aimed at circulating the drug for a purpose other than personal use.

Therefore, making a profit is not a necessary element in the crime of transporting narcotics .

6. Mental Element: The Perpetrator Must Know That They Are Carrying Drugs

The crime of transporting or shipping narcotics is a crime that can only be committed intentionally.

Therefore, the person needs to know whether the substance they are carrying or sending is a narcotic or stimulant.

In practice, especially in drug trafficking cases;

"I didn't know what was in the bag."

"I was told this was medicine."

"My friend asked me to deliver the package."

"Someone else loaded the vehicle."

"I had no idea there were drugs in the suitcase."

Defenses like these are frequently encountered.

In this case, the court assesses the perpetrator's knowledge and intent based on the entirety of the specific circumstances of the event, rather than on a direct confession.

The method of concealing the drugs, the quantity, the money received for transportation, the unusual nature of the trip, telephone conversations between the defendants, HTS records, previous and subsequent behavior, the defendant's contradictory statements, the way the drugs were packaged, and the defendant's actions to prevent the seizure of the drugs are all considered together.

Indeed, in a decision by the Criminal General Assembly of the Supreme Court of Appeals, it was concluded that the defendant knowingly transported the drug, taking into account the fact that he was caught with the drug wrapped around his body, the quantity and nature of the drug, the defendant's behavior, and the fact that his defense was not in line with the ordinary course of life.

However, according to the fundamental principles of criminal law, a conviction cannot be based solely on suspicion or assumption. It must be proven with conclusive and convincing evidence, beyond any reasonable doubt, that the defendant was aware of the package's contents.

7. The Distinction Between Transport and Possession for Use

One of the most important legal issues in drug-related cases is the distinction between Article 188 and Article 191 of the Turkish Penal Code.

The act of a person transporting drugs from one place to another does not always constitute drug trafficking.

For example, when a drug user takes a substance home for their own use, this is also a form of "transportation" in a physical sense. However, in this case, the perpetrator's intention is not to put the drug into commercial circulation or distribute it to someone else, but to use it themselves.

For this reason, the Criminal General Assembly of the Supreme Court of Appeals places special emphasis on the intent of the perpetrator with regard to the acts of sending, transporting, purchasing, accepting, and possessing, and requires that the act a purpose other than personal use .

When making this distinction, it is not sufficient to look at the quantity of the drug alone.

In this specific case;

the amount of substance,

type,

how many packages it is in,

whether the packages are of similar weight,

whether or not a precision balance is available,

packaging materials,

whether the defendant is a drug user

the location where the drugs were found,

the defendant's economic and social status,

phone messages,

whether there is contact with customers or sellers,

money movements,

witness testimonies,

physical and technical surveillance records

It should be evaluated as a whole.

According to the Supreme Court's approach, if the perpetrator transported the drug from one place to another for personal use, and the circumstances of the case are consistent with personal use, the matter may be evaluated under Article 191 of the Turkish Penal Code, rather than drug trafficking by transportation.

Therefore, especially from a defense perspective, it is necessary to distinguish between the fact that "drugs were found" and the conclusion that "drug trafficking took place.".

8. When is the crime of transporting narcotics considered complete?

In the crime of trafficking, it is not a requirement that the drug be delivered to the final recipient.

This is extremely important in practice.

For example, if drugs are loaded onto a vehicle in Diyarbakır to be transported to Istanbul, and the vehicle is seized during a road check, the crime cannot be said to have remained at the attempted stage simply because the drugs have not yet reached the final recipient.

In its decision dated February 23, 2021, the 10th Criminal Chamber of the Court of Cassation ruled that when drugs are seized in a vehicle carrying them, the defendants' actions are completed with the alternative act of "transporting" the drugs, and therefore, applying a reduction for attempted crime under Article 35 of the Turkish Penal Code is unlawful.

Similarly, in Supreme Court rulings, it is accepted that the act of transporting drugs within the country can be completed during the process of shipping them or sending them to another location.

Therefore, the perpetrator's defense that "the drugs have not yet been delivered" does not, by itself, warrant the application of the provisions regarding attempted crimes.

9. The Relationship Between Transportation and the Crime of Importing or Exporting

While the transportation of drugs within the borders of Türkiye is evaluated under Article 188/3 of the Turkish Penal Code, the importation or exportation of drugs into or out of the country constitutes the crime of import or exportation under Article 188/1 of the Turkish Penal Code.

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 with imprisonment from twenty to thirty years and a judicial fine from two thousand to twenty thousand days .

Particularly in airport and cargo cases, the act of transporting goods and the attempt to export can be discussed within the same event.

In a Supreme Court ruling, it was determined that if drugs delivered to a cargo company for export are seized before reaching customs, the execution of the export crime has not yet begun, but the completed act of transportation has been deemed to have occurred.

In another case, the actions of a person caught with drugs at the airport were assessed as both attempted export and completed transportation, and it was stated that the more severe penalty should be determined under Article 44 of the Turkish Penal Code.

Therefore, determining the nature of the crime is of particular importance, especially in border crossing, airport, and international cargo cases.

10. Leading a Vehicle Carrying Drugs

One of the key points of contention in drug trafficking cases is the liability of the person who does not drive the vehicle carrying the drugs but performs road checks in a lead vehicle.

For example, in situations where two vehicles are traveling together and the vehicle in front detects a police or gendarmerie checkpoint and informs the vehicle behind that is carrying drugs, it should be assessed whether the individuals in the leading vehicle are joint perpetrators or accomplices.

In its decision regarding the defendants who conducted a road check by driving ahead of a vehicle loaded with drugs, the Supreme Court's Criminal General Assembly, after evaluating the prior agreement between the individuals, the manner in which the vehicles moved, and the telephone conversations, accepted that the actions of some defendants in this specific case exceeded the limits of aiding and abetting and fell within the scope of joint perpetration. The decision discussed in detail the boundary between joint perpetration and aiding and abetting under Article 39 of the Turkish Penal Code.

Therefore, it is incorrect to automatically impose the same penalty when a lead vehicle is used.

With regard to each defendant;

when he became involved in the criminal plot

whether he/she knew about the existence of the drug,

whether or not they participated in the procurement or loading of drugs

control over the transportation organization,

whether there was a joint decision to commit the crime with the other defendants

They should be evaluated separately.

11. Performing Multiple Optional Actions

Article 188/3 of the Turkish Penal Code is a crime with alternative actions.

Therefore, if the perpetrator first purchased the same drug, then stored it, then transported it, and finally sold it, as a rule, a separate drug trafficking crime does not occur for each action.

Multiple offenses involving the same drug can be considered as a single crime.

The Supreme Court's Criminal General Assembly also accepts that, as a rule, performing more than one alternative act on the same drug does not constitute multiple crimes. However, when different drugs or independent criminal decisions are involved at different times, the application of the provisions on continuous crime or real concurrence of offenses may come into question.

12. Increased Penalty Based on the Type of Narcotic Substance

Within the scope of Article 188/4-a of the Turkish Penal Code, the narcotic or stimulant substance;

• heroin,
• cocaine,
• morphine,
• base morphine,
• synthetic cannabinoids and their derivatives,
• synthetic cathinone and its derivatives,
• synthetic opioids and derivatives or
• amphetamine and its derivatives

If this occurs, the penalty is increased by half.

This regulation was expanded in 2023 with Law No. 7445, and the regulation concerning synthetic cathinones, synthetic opioids, and amphetamine derivatives has taken its current form.

For example, in a case of transporting methamphetamine where the basic sentence is set at 10 years, the sentence can reach 15 years solely due to the 50% increase under Article 188/4-a of the Turkish Penal Code.

Therefore, it is extremely important that the nature of the seized substance is definitively determined through examination by the Forensic Medicine Institute or a criminal laboratory.

13. Committing the crime near schools, dormitories, hospitals, barracks, and places of worship

According to Article 188/4-b of the Turkish Penal Code, if the acts specified in the third paragraph are committed in public or publicly accessible places within two hundred meters of the designated boundaries of buildings and facilities where people gather collectively, such as schools, dormitories, hospitals, barracks, or places of worship , the penalty is increased by half.

Therefore, the proximity of the drug trafficking route or the location where the criminal act occurred to such places may be of particular importance in the specific case.

However, proximity alone is not sufficient. The legal requirement of being a "public or publicly accessible place" must also be met.

Indeed, in a 2025 decision by the Criminal General Assembly of the Supreme Court of Appeals, the question of whether an act committed inside a private vehicle could be considered within the scope of a public or publicly accessible place was debated; and, referring to previous precedents of the Criminal General Assembly, the approach that private vehicles do not fall within this scope was brought to the forefront.

Therefore, when applying the 200-meter increase, it is not sufficient to simply measure the distance; the legal nature of the location where the act occurred must also be investigated.

14. Crime Committed by Three or More Persons and Organized Crime

When the crime of transporting or distributing narcotic substances is committed jointly by three or more persons, the penalty to be imposed in accordance with Article 188/5 of the Turkish Penal Code shall be increased by half.

If the crime is committed within the scope of an organization established for the purpose of committing crimes, the penalty is increased by one-fold.

However, the fact that three people are defendants in the same case does not, by itself, warrant this increase in punishment.

It is necessary to determine whether the individuals acted as joint perpetrators by jointly exercising control over the commission of the crime.

The roles of those transporting the drugs, determining the route, ensuring security, and organizing the delivery are crucial in this context as part of the overall criminal plan.

15. Increase for Healthcare Professionals and Certain Occupational Groups

According to Article 188/8 of the Turkish Penal Code, the crime is:

doctor,

dentist,

pharmacist,

chemist,

vet,

health officer,

lab technician,

midwife,

nurse,

dental technician,

nurse,

those providing healthcare services or engaged in the chemical or pharmaceutical trade

If the crime is committed by individuals, the penalty will be increased by half.

Therefore, whether the person transporting the drug belongs to one of the occupational groups specified in the law is also important in determining the punishment.

16. Transportation and Shipment of Prerequisites Used in Drug Production

Article 188 of the Turkish Penal Code does not only regulate the direct transportation of narcotic substances.

The seventh paragraph of the article also stipulates that the unauthorized importation, manufacture, sale, purchase, shipment, transportation, storage, or export of substances that, while not themselves producing narcotic or stimulant effects, are used in the production of narcotics and whose importation or manufacture , constitutes a separate crime.

The law prescribes imprisonment for this crime period of not less than eight years and a fine ranging from one thousand to twenty thousand days .

Therefore, the fact that the seized substance is not directly a narcotic does not mean that Article 188 of the Turkish Penal Code will not be applied in every case.

17. Effective Repentance

In crimes involving the transportation and distribution of narcotics, the provisions on effective repentance regulated in Article 192 of the Turkish Penal Code are extremely important.

A person who has participated in the crime of drug trafficking shall not be sentenced if, before the crime becomes known to the official authorities, he/she reveals the accomplices and the places where the drugs are stored or manufactured, and if the information provided leads to the arrest of the accomplices or the seizure of the drugs.

If a person voluntarily assists in uncovering the crime or apprehending other perpetrators after the crime has been learned by official authorities, their sentence reduced by one-quarter to one-half, .

However, merely stating the name of an accomplice is not sufficient in every case for the application of the principle of effective repentance. It is important that the information provided makes a real and tangible contribution to the progress of the investigation.

18. Evaluation of Evidence in Drug Trafficking Cases

In drug trafficking cases, the mere seizure of drugs should not be considered sufficient grounds for conviction.

Specifically regarding the defendant;

whether he/she was aware of the drug,

the amount of substance,

method of moving,

who the drugs belong to,

who put it in the vehicle,

to whom it will be delivered,

What was the defendant's purpose for traveling?

whether the phone and HTS records show any connection with other suspects,

whether or not there are any money transfers

Criminal investigations on the vehicle and phone,

fingerprint and biological findings,

camera footage,

legality of search and seizure operations

It should be examined in detail.

The Supreme Court's Criminal General Assembly, in a case where narcotics were seized from the luggage compartment of a bus, concluded that the defendants were aware of the drugs and guilty of transporting them, based on several factors: the defendants jointly handing over the items to the bus attendant, the seat numbers being written on the packages, inconsistencies in the defendant's statements, and other evidence.

This approach demonstrates that in drug trafficking offenses, the assessment of proof should be based on the entire case file, not just a single piece of evidence.

19. Important Considerations from a Defense Perspective

In an investigation or prosecution related to the charge of transporting or distributing narcotics, relying solely on the defense's claim that "the drugs did not belong to me" is often insufficient. This is because ownership of the drugs is not a necessary element of the crime.

The first questions that need to be answered in the defense are:

Did the defendant know that the substance was a narcotic?

Did the defendant have actual control over the drugs?

Was the purpose of the transportation personal use, or a non-personal purpose?

Did the package or luggage containing the drugs belong to the suspect?

What was the nature of his contact with the other defendants?

Were the contents of the phone calls related to the crime?

What was the quantity of the drugs and how were they packaged?

Was there any medical or forensic evidence indicating that the defendant was a drug user?

Were the search, seizure, and digital examination procedures carried out in accordance with the law?

Was any fingerprint or DNA analysis performed on the drug substance?

Was it possible that the defendant was merely in the role of an accomplice?

Each of these questions can directly alter the nature of the crime, the degree of complicity, and the resulting sentence.

20. Conclusion

The crimes of transporting and distributing narcotic substances are two of the most important alternative actions of the crime of trafficking in narcotic or stimulant substances, as regulated in Article 188 of the Turkish Penal Code No. 5237.

Transport essentially refers to the physical movement of a narcotic or stimulant substance from one place to another for a purpose other than personal use; consignment, on the other hand, refers to the arrangement of sending the substance to a specific location via other persons or means of transport.

For the crime to occur, it is not necessary for the perpetrator to possess the drugs, sell them, or obtain economic gain from transporting them. However, it is necessary for the perpetrator to know that what they are transporting or sending is a narcotic or stimulant substance and to act for a purpose other than personal use.

At this point, the distinction between drug trafficking under Article 188 of the Turkish Penal Code and possession for personal use under Article 191is central to drug trafficking cases. While the quantity of the substance is an important indicator, it is not the sole determining factor. The packaging method, the location where it was seized, the use of a precision scale, telephone records, connections between the defendants, drug use habits, and all other aspects of the incident must be considered together.

In the practice of the Supreme Court of Appeals, the failure to deliver the drug to the final recipient does not prevent the crime of transporting the drug from occurring. If the drug is actually put into the transportation process, depending on the specific circumstances of the case, it can be considered a completed crime of transporting the drug, and the application of a reduction for attempted crime solely on the grounds that delivery did not take place is not accepted.

Furthermore, the provisions regarding joint perpetration and aiding and abetting must be evaluated separately for individuals who lead the vehicle carrying drugs, conduct road checks, or assume different roles in organizing the transport. Assuming all defendants have the same legal status without establishing each defendant's position within the organization with concrete evidence would be incompatible with the principle of the individuality of criminal responsibility.

In conclusion, correctly determining the legal nature of the crime in drug trafficking and distribution cases requires the simultaneous evaluation of numerous elements, ranging from the nature and quantity of the seized substance to the perpetrator's intent, the purpose of use, the relationship of complicity, the legality of the search and seizure, and the provisions regarding effective repentance. Given the extremely severe penalties prescribed under Article 188 of the Turkish Penal Code, meticulously distinguishing between trafficking-personal use, distribution-aiding, completed crime-attempted crime, and joint perpetration-accessory complicity, according to the specific characteristics of the case, is essential both for uncovering the material truth and for ensuring fair punishment.