Drug Manufacturing Crime

This crime is regulated under Article 188 , within the scope of the Crime of Manufacturing and Trafficking in Narcotic or Stimulant Substances .

Drug and stimulant offenses are among the most severe crimes committed against public health and general morality. Article 188 of the Turkish Penal Code has a multi-layered and complex structure reflecting the seriousness of these acts. The legislator has not limited this crime solely to the manufacture of substances, but has also punished all activities that facilitate the distribution of these substances to the public (import, export, sale, possession, transportation, storage, etc.) under the same article.

1. The Legal Subject of the Crime and the Protected Legal Value

Legal Subject: The subject of the crime narcotic or stimulant substances. These substances are those specified in Law No. 2313 on the Supervision of Narcotic Substances and Law No. 3298 on Narcotic Substances, and which can cause addiction by creating physiological or psychological effects on the central nervous system. Whether a substance is a narcotic or stimulant is determined by the Forensic Medicine Institute or specialized laboratories.

Protected Legal Value: The fundamental legal value protected by this crime is public health. Furthermore, this crime aims to protect the general safety, peace, and morality of society. Given the devastating effects of widespread drug use on individuals, state intervention in this area is considered a necessity.

2. Elements of the Crime

A. Material Elements (Actions)

Article 188 of the Turkish Penal Code lists a wide range of material elements (acts) of the crime, rather than being exhaustive. These acts can be examined under two main headings: manufacturing and trading activities

a. Manufacturing (Production):

• Manufacturing: This refers to obtaining a narcotic or stimulant substance from raw materials by processing or chemical means, or by cultivating it (e.g., growing cannabis). The crime is constituted upon completion of the manufacturing act. The manufacturing of the substance is regulated as a separate type of crime in the first paragraph of Article 188 of the Turkish Penal Code.

  Turkish Penal Code Article 188/1: who manufactures, imports, or exports narcotic or stimulant substances without a license or in violation of a license shall be punished with imprisonment from twenty to thirty years and a judicial fine of up to twenty thousand days.

b. Commercial Activities:

• Import or Export: This refers to bringing narcotic or stimulant substances into a country (import) or taking them out of the country (export). These actions, like manufacturing, carry the most severe penalties.

• Selling, offering for sale, giving to others, shipping, transporting, storing, buying, accepting, or possessing: These actions are regulated in the third paragraph of Article 188 of the Turkish Penal Code and encompass all commercial activities that have the potential to endanger public health.

Turkish Penal Code Article 188/3: Anyone who sells, offers for sale, gives to others, dispatches, transports, stores, buys, accepts, or possesses narcotic or stimulant substances within the country without a license or in violation of a license shall be punished with imprisonment of not less than ten years and a judicial fine of up to twenty thousand days

c. Plant Cultivation:

Article 188/6 of the Turkish Penal Code: Cultivating cannabis for the purpose of obtaining narcotic or stimulant substances is also regulated as a separate crime.

B. Spiritual Element (Caste)

The mental element of the crime is intent . The perpetrator must know and want the act they are committing to be the manufacture or trade of narcotics or stimulants . This crime can only be committed with general intent. It is not possible to commit it through negligence (carelessness).

Purpose (Commercial Purpose): For the acts listed in the third paragraph of Article 188 of the Turkish Penal Code to be punishable, the perpetrator's action a quantity exceeding the limits of personal use and/or an intention to conduct trade . The crime of possessing substances for personal use (Article 191 of the Turkish Penal Code) requires a separate and lighter penalty. The Court of Cassation, in making this distinction, considers concrete evidence such as the quantity of the substance, the location where it was possessed, the packaging method, and other seized tools (precision scales, packaging materials, etc.).

C. Aggravating Circumstances (Reasons that Increase the Penalty)

Aggravating circumstances, which increase the severity of the punishment for a crime, include situations that increase the potential harm the crime causes to society or where the perpetrator's position makes their actions more reprehensible:

1. Organized Crime: If the crime is committed within the framework of an organization formed by three or more people, the penalty is increased by half (Turkish Penal Code Article 188/5).

2. Abuse of Profession or Duty: If the crime is committed by professionals such as physicians, dentists, pharmacists, chemists, veterinarians, or health officers while practicing their profession or art the penalty is increased by half (Turkish Penal Code, Article 188/4).

3. Offences Against Minors: the substance to , sold to, or commercially schools, dormitories, hospitals, barracks, etc., the penalty is increased by half (Turkish Penal Code, Article 188/4).

4. Type of Substance: Trafficking in substances such as heroin, cocaine, and morphine does not warrant a harsher penalty than trafficking in substances such as cannabis, although this may be a factor in the court's discretion. The law does not make this distinction in terms of the basic form of the crime. 

 Personal Impunity and Mitigating Circumstances (Turkish Penal Code Article 192)

Article 192 of the Turkish Penal Code is a significant provision specific to these crimes and one that encourages the perpetrator:

• Effective Repentance (Impunity): A person who has participated in the crime of manufacturing and trading narcotic or stimulant substances shall not be punished if, before the official authorities (police, prosecutor's office) become aware of it, they report their accomplices and the places where the narcotic substances are stored or manufactured (Turkish Penal Code Article 192/1).

• Effective Repentance (Sentence Reduction): If a person voluntarily provides information to the authorities after they have received it, but before the court renders a verdict, leading to the apprehension of other accomplices or the seizure of the substances, the sentence to be given may be reduced by one-third to one-half (Turkish Penal Code Article 192/3).

EXAMPLES

Incident: During a search of A, a total of 20 grams of drugs were seized, each packaged individually in small, ready-to-use doses. A claims that he possessed these substances for his own personal use.

The Court of Cassation's Approach: The Court of Cassation makes its decision based on the quantity and manner in which the drug was possessed . According to the Court of Cassation's established jurisprudence, 20 grams of drugs can generally be considered close to or exceeding the upper limit for a person's annual needs. However, quantity alone is not the determining factor.

• Individual Packaging: Packaging in individual doses, suitable for commercial distribution, is considered conclusive proof of a commercial purpose

• Decision: In this case, the Court of Cassation ruled that A's action of possession for commercial purposes (Turkish Penal Code Article 188/3), and that the limits of personal use had been exceeded.

Incident: B was caught growing 50 cannabis plants in his garden. B claims he intended to use the drugs and stimulants produced from these plants for his own personal use.

The Supreme Court's Approach:

• Manufacturing Crime: Cultivating cannabis plants is regulated as a separate crime under Article 188/6 of the Turkish Penal Code, as a subtype of the act of "manufacturing" narcotic substances.

• Quantity: 50 cannabis plants have the potential to more than meet the amount of drugs needed for personal use. A high number of cannabis plants is considered proof of commercial production

• Decision: The Court of Cassation considers B's actions to be within the scope of manufacturing narcotics . A sentence is imposed in accordance with Article 188/6 of the Turkish Penal Code

Incident: C was caught selling drugs and stimulants to D, a high school student, in a park right next to the schoolyard.

The Supreme Court's Approach:

• Basic Form of the Crime: C's action of selling (Turkish Penal Code Article 188/3).

• Qualified State:

  1. The act in a place near the school (park) (Turkish Penal Code Article 188/4-b).

  2. the substance to a minor (high school student D) (Turkish Penal Code Article 188/4-a).

• Decision: In this case, two different aggravating circumstances have occurred. According to the provisions of the Turkish Penal Code regarding concurrent offenses, the aggravating circumstance requiring the most severe penalty is applied. However, both circumstances Article 188/4 of the Turkish Penal Code . Therefore, C aggravated criminal liability.