Criminal Liability in the Crime of Using Narcotic and Stimulant Substances
1. INTRODUCTION
The illicit use of narcotics and stimulants is a multifaceted problem with serious consequences for both individuals and society, requiring intervention not only from criminal law but also from health and social policies. In this context, in Turkish Criminal Law, drug use a specific type of crime and its boundaries are defined according to the principles of criminal responsibility.
However, the nature of the penal sanction in this type of crime differs from classical criminal law in that it is rehabilitation-oriented. Therefore, when evaluating the criminal responsibility of the perpetrator in the crime of using narcotics and stimulants, not only the objective act but also the perpetrator's personal circumstances, motive, and societal benefit should be taken into consideration.
2. AMENDMENT IN THE TURKISH PENAL CODE: ARTICLE 191
Article 191 of the Turkish Penal Code states the following:
"Anyone who purchases, accepts, or possesses narcotic or stimulant substances for personal use shall be punished with imprisonment from two to five years."
Article 191 applies to perpetrators who come into contact with drugs for personal consumption. This provision applies unless the act involves selling, supplying, or giving drugs to another person. The aim of the article is not so much to punish the user as to combat addiction and facilitate their rehabilitation.
3. CONDITIONS FOR CRIMINAL LIABILITY
For criminal liability to arise, both the material and moral elements of the crime must be present.
3.1. Material Element
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Perpetrator: Natural persons can be the perpetrators of this crime. Legal entities cannot be held responsible.
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The act of buying, accepting, or possessing. These acts must be performed solely for the purpose of use
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Subject: Narcotic or stimulant substances (marijuana, heroin, cocaine, synthetic cannabinoids, etc.).
3.2. Spiritual Element
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Intent: A crime can only be committed intentionally. It cannot be committed negligently.
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The perpetrator must not have the intention of selling, distributing, or supplying the substance to others.
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The possession for the purpose of use must be personal and temporary in nature.
4. SUSPENSION OF SENTENCE AND TREATMENT
The legislator has stipulated that for this type of crime, instead of direct imprisonment, the perpetrator should first treatment and supervised release methods. This ensures that criminal responsibility is addressed more effectively, both legally and socially.
4.1. Postponement of Public Prosecution (PPP)
According to Article 171/2 of the Code of Criminal Procedure;
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If the perpetrator has not previously been convicted of a similar crime,
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The initiation of public prosecution can be postponed for a period of 5 years.
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Probation will be applied for a period of 1 year.
4.2. Probation Process
The offender undergoes treatment within a specified period, takes tests to confirm drug use, and participates in social education and support programs.
If these obligations are fulfilled, the court "there is no need to impose a penalty" (Turkish Penal Code, Article 191/5).
5. LIMITATIONS AND DISTINCTIONS IN CRIMINAL RESPONSIBILITY
5.1. Distinction Between Use and Commerce
The most important limitation is that the perpetrator's actions should not be confused with Article 188 of the Turkish Penal Code (commercial offenses). This distinction is made based on:
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Quantity of substance,
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Packaging method,
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The perpetrator's social circle and contacts,
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Sales preparation tools (scales, resealable bags, etc.) are taken into consideration.
5.2. Recurrence and Non-Application of Postponement
If the offender has failed to comply with the terms of their probation or has committed a second crime;
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KDAE provisions do not apply.
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A direct prison sentence can be imposed.
6. CRIMINAL APPROACH IN INTERNATIONAL LAW
The United Nations Office on Drugs and Crime (UNODC) and the Council of Europe advocate for a focus on punishment rather than punishment in the fight against drug use;
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Improvement,
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Education and information,
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for access to healthcare .
The European Court of Human Rights also considers that treatment and support obligations should be preferred over punishment for individuals with substance abuse problems, as this is a requirement of human dignity and the right to health
7. PROPOSED SOLUTIONS
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The treatment referral system should be strengthened, and the healthcare infrastructure should be supported.
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A standardized approach should be established between penalty and disciplinary mechanisms .
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Public awareness campaigns should be conducted, and substance abuse should cease to be a reason for social exclusion.
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Judicial and law enforcement officers should be reminded of the purpose of punishment through training programs.
8. CONCLUSION
While the crime of using narcotics and stimulants is a legally punishable act, rehabilitative and socially beneficial methods should be preferred in determining criminal responsibility. Article 191 of the Turkish Penal Code is consistent with the principles of contemporary criminal law in this respect.
However, for this system to function correctly, judicial authorities must strike the right balance between criminal sanctions and alternative solutions , ensure uniformity in application, and support the fight against addiction not only with legal measures but also with social, psychological, and health-focused policies .
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