The Crime and Punishment of Cultivating Cannabis Without Permission

1. Source of the Prohibition: Article 23/5 of Law No. 2313

Article 23/5 of Law No. 2313 on the Supervision of Narcotic Drugs creates two separate types of offenses:

1. of cultivating cannabis for the purpose of obtaining marijuana : the perpetrator imprisonment from 4 to 12 years and a judicial fine from 500 to 10,000 days .

2. If cannabis is cultivated solely for personal use , the perpetrator shall be sentenced to imprisonment for a period of 1 to 3 years.

Here, the term "planting" encompasses the entire period from sowing the hemp seeds in the soil to harvesting the crop. Unauthorized planting, whether done without a permit or outside the area specified in the permit or in a different location, will result in a minimum 50 days' worth of judicial penalties .

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2. Elements of the Crime: Distinction Based on Purpose and Legal Definition

2.1. Seed Planting Stage

For the act to be considered complete it is sufficient for the perpetrator to plant the cannabis; the crime is deemed complete even if the cannabis is still planted. The article thus covers the entire process, from the beginning of the act to the harvesting stage.

2.2. Determining the Aim of the Crime

• the motive is to obtain marijuana . This motive depends on both the scope of the act and the perpetrator's intent.

• the intention for personal use is obvious, it is subject to a lighter penalty regime.
  The nature of the crime is determined according to the evidence in the specific case (number of roots, statements of the defendant, harvest residues, etc.).

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3. Prison Sentence Range and Judicial Fine

3.1. Cultivating for the Purpose of Harvesting Cannabis

Individuals who cultivate crops illegally or for commercial purposes imprisonment of 4–12 years and a 500–10,000 days' worth of judicial penalties . This penalty is determined according to the degree of danger the individual poses to society.

3.2. Cultivating for Personal Use

A person who plants crops for this purpose imprisonment of 1-3 years . A fine is not imposed in this case.

3.3. Hemp Grown Without a Permit or Outside the Scope of the Permit

Under the crime of "unauthorized cultivation," cultivation carried out without documentation or permission a minimum fine of 50 days' worth of judicial fine . Imprisonment is not foreseen.

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4. Legal Status Regarding Actions After Hemp Harvesting

After the hemp plant is harvested, it can become a narcotic due to its composition. In this case, in addition to the crime of cultivation, the following also apply:

• Turkish Penal Code Article 188: "Manufacturing and trafficking of narcotic substances"

• Article 191/1 of the Turkish Penal Code: Offences such as "possession of narcotic substances for personal use" may also occur.

For example, if the seized plants have been processed into cannabis, the perpetrator may be held responsible separately for both the crime of cultivation and these specific offenses under the Turkish Penal Code. However, concrete evidence (roots, harvest residue, etc.), abstract statements alone are not sufficient for conviction.

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5. Supreme Court Case Law and Precedent Decisions

5.1. Personal Use Limit: Number of Roots

According to the established practice of the Supreme Court of Turkey, up to 20 cannabis plants are considered to be for personal use unless there is other evidence to the contrary. In fact, some Supreme Court decisions have set this limit at 28 plants

5.2. The Crime and Misconception of Cultivating Cannabis for the Purpose of Production

For example, if a high number of planted plants, such as 67 roots, cannot be considered for personal use unless the aim is to produce cannabis, and court did not rule on cultivation for cannabis purposes, the Supreme Court may overturn the decision.

5.3. Other Crimes Related to Harvesting or Uprooting

The scope of the crime expands if the cultivated cannabis is harvested. It can be considered both a cultivation offense and a drug offense under the Turkish Penal Code. In such cases, evaluating concrete evidence is of critical importance.

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6. Defense and Criminal Defense Strategy

6.1. Defining the Objective

The defense attorney's primary task is to create a contradiction with concrete evidence regarding whether the cultivation was for personal use or commercial purposes : the number of roots, the defendant's statements, and the presence or absence of evidence of sales are decisive factors.

6.2. Objection Regarding the Number of Roots

If the total number of cultivated roots is low (e.g., 20–28 roots) and there is no other supporting evidence, this ratio can be used for the personal use defense.

6.3. Statement Regarding Lack of Evidence

In cases involving plants harvested later or a lack of samples, it can be argued that the defendant's intention regarding the cultivation was a matter of personal preference, not an investment. The Supreme Court has also stated that abstract admission alone is not sufficient.

6.4. Effective Repentance or Compensation for Damages

While the principle of effective repentance is not directly applicable in the context of cannabis cultivation, careful evaluation of the evidence may lead to the possibility of a reduction in sentence or postponement of the announcement of the verdict.

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7. Problems Encountered in Practice and Points to Consider

• Permit: Even if the perpetrator has a permit, the criminal liability remains in effect if cultivation takes place outside the area permitted in the contract.

• Plant Gender: Female cannabis plants are criminalized because they contain THC. Male cannabis plants do not contain THC; however, determining gender before the act is committed is difficult.

• Whether the act is complete: If the plant has not yet been harvested, only the crime of planting is punishable. However, the situation after harvesting sets the stage for different crimes.

• The defendant's intent: Whether they were cultivating crops for sale or solely for their own use must be evaluated considering all available data.

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8. Conclusion and Closing Assessment

The crime of cultivating cannabis without permission has a complex legal structure due to both the biological nature of the plant and its legal regulation. This crime, regulated by Article 23/5 of Law No. 2313, has two separate penal regimes:

• Severe penalties for those who cultivate cannabis for the purpose of obtaining it

• Lighter penalties for those who cultivate plants solely for their own use

The number of roots, the purpose, the evidence, and expert reports require specific assessments of the concrete case. Furthermore, depending on the nature of the product obtained after planting, Articles 188 or 191/1 of the Turkish Penal Code .

The defendant's defense strategy, by shedding light on this complex structure, can lead to a reduction in sentence or acquittal based on the nature of intent, insufficient evidence, the limits of the number of roots, and the harvesting situation. Supreme Court decisions provide both criteria and a basis for precedents in this regard.

In short, any unauthorized cannabis cultivation is a crime; the penalty the purpose and conditions of the cultivation . For the defense, clearly defining the purpose, presenting complete evidence, and providing arguments supported by case law are critically important.