The Difference Between Possession for Personal Use and Drug Trafficking

One of the most important legal issues in criminal investigations related to narcotics or stimulants whether the seized substance was possessed for personal use or for commercial purposes . This is because two seemingly very similar acts are subject to vastly different legal consequences under the Turkish Penal Code.

The mere presence of drugs on a person, in their vehicle, or in their home does not, by itself, prove that the crime of drug trafficking has been committed. Similarly, the perpetrator's defense of "I am a user, not a dealer" is not sufficient, by itself, to consider the act as possession of drugs for personal use.

In criminal proceedings, the quantity and type of the drug , the location where it was seized, the packaging method, the presence of a precision scale, the suspect's behavior, telephone records, financial transactions, statements from buyers or witnesses, and evidence related to drug use considered together.

Therefore, the difference between possession for personal use and drug traffickingis not a simple distinction that can be determined solely by the quantity of the drug found in grams. The Supreme Court has also accepted for many years that all aspects of the case must be considered when determining the legal nature of a crime.

1. What is the crime of possessing narcotics for personal use?

The crime of purchasing, accepting, possessing, or using narcotic or stimulant substances for personal use in Article 191 of the Turkish Penal Code No. 5237 .

According to Article 191/1 of the Turkish Penal Code;

Anyone who purchases, accepts, possesses, or uses narcotic or stimulant substances for personal use punishable by imprisonment for a period of two to five years .

However, with regard to Article 191 of the Turkish Penal Code, the system is not based solely on imprisonment.

In investigations initiated due to this crime, to postpone the public prosecution of the suspect for a period of five years, . During the postponement period, the suspect is placed under supervised probation for at least one year, this period can be extended under certain conditions, and the individual may be subjected to treatment if necessary. Following the amendments made in 2023, the public prosecutor also decides to refer the individual to the relevant institution at least twice a year during the postponement period to determine whether or not they are using drugs.

Therefore, the legislator has subjected a person who possesses narcotic substances for personal use to a significantly different legal regime than a person who engages in the distribution and marketing of narcotic substances to others.

2. What is the crime of drug trafficking?

The crime of manufacturing and trading narcotic or stimulant substances Article 188 of the Turkish Penal Code .

Within the scope of Article 188/3 of the Turkish Penal Code, the sale of narcotic or stimulant substances without a license or in violation of a license;

• satin,
• offering for sale
• giving to others
• sending,
• transmitting,
• storing,
• buyer,
• accepting or
• containing

If the act is committed for commercial purposes or for the purpose of delivering drugs to another person, the perpetrator with imprisonment for a period of not less than ten years and a judicial fine of between one thousand and twenty thousand days . If the person to whom the drugs are given or sold is a child, the minimum imprisonment sentence is fifteen years.

Therefore, the classification between Article 188 and Article 191 of the Turkish Penal Code is extremely important for the defendant.

On one hand, there is Article 191 of the Turkish Penal Code, which allows for the postponement of public prosecution and the application of supervised release during the investigation phase; on the other hand, there is the crime of drug trafficking, which carries a severe prison sentence starting from ten years.

3. Key Distinction: For what purpose is the drug possessed?

In both cases, "possession" of narcotics may be involved.

Therefore, the mere presence of drugs on a person's person or in their home does not, by itself, guarantee that the crime falls under Article 188 of the Turkish Penal Code.

The fundamental question is this:

Is the drug being possessed for personal use, or for sale, giveaway, transfer, or otherwise for commercial circulation?

The Supreme Court's Criminal General Assembly also emphasizes that the main issue in determining whether possession of narcotics is for personal use or for trafficking purposes is the "intent of possession."

In the established jurisprudence of the General Assembly of Criminal Courts, three fundamental criteria stand out in particular:

1. Whether the suspect or defendant engaged in behavior that involved selling, giving away, or supplying drugs to another person,
2. The location where the drug was found and the manner in which it was possessed
3. The quantity of drugs seized.

These criteria continue to be applied in recent Supreme Court rulings.

4. Does the quantity of the drug alone constitute a drug trafficking offense?

One of the most debated issues in practice is the quantity of drugs.

However, in law, this applies to everyone, for example;

"Amounts below 10 grams are for personal use, amounts above 10 grams are for commercial use."

There is no definitive rule to that effect.

According to Supreme Court precedents, quantity is an important indicator, but it is not the sole determining factor.

The type of substance, the method of use, the individual's drug use habits, the purity of the drug, the manner in which it was seized, and other evidence should all be considered together.

Indeed, in a decision by the 10th Criminal Chamber of the Supreme Court of Appeals, the conviction for drug trafficking was overturned on the grounds that the 23.67 grams of cannabis seized from the defendant's home was within the limits for personal use and that there was no conclusive evidence beyond reasonable doubt to show that the drug was possessed for any purpose other than personal use.

In other decisions of the Supreme Court's Criminal General Assembly, it has been accepted that, regarding drugs within the limits of personal use, conviction under Article 188 of the Turkish Penal Code cannot be based solely on the substance of the drug itself, unless other evidence demonstrating intent to trade is present.

Therefore, evaluating drug cases solely based on weight is not legally accurate.

5. Why is the packaging method of drugs important?

How the drug is packaged can be a very important piece of evidence in determining the nature of the crime.

For example, drugs found in a single bag or container are not evaluated in the same way as those found in 20-30 separate small packages of similar weight.

Supreme Court Criminal General Assembly;

• preparing the drug in numerous small packages,
• the presence of similar amounts of drugs in the packages,
• careful packaging,
• the drug being ready for sale

He sees this as one of the important indicators in terms of commercial purposes.

However, no automatic conclusion can be drawn here either.

The fact that the drugs are in several separate packages may not, by itself, be conclusive proof of drug trafficking. Indeed, there are Supreme Court rulings that overturned convictions for drug trafficking in cases involving four small packages totaling 0.33 grams of heroin, on the grounds that there was insufficient evidence to overcome reasonable doubt regarding the intention to sell or transfer the drugs.

Therefore, the number of packages should be evaluated along with the other evidence in the file.

6. Is the presence of a precision scale evidence of drug trafficking?

In drug trafficking investigations, one of the most important pieces of evidence is a precision scale.

Since it is common to use precision scales to weigh narcotics before sale, the presence of a precision scale alongside the narcotics can be considered a significant indication supporting the intent to traffic.

Especially;

• Finding drug residue on a precision scale,
• The fact that the drugs were prepared in small packages,
• The presence of numerous empty zip-lock bags,
• packages should be of similar weight

Taken together, this can significantly strengthen the trade claim.

The Supreme Court's Criminal General Assembly also considers the presence of a precision scale and packaging materials used in the packaging of drugs near the drugs themselves as one of the important indicators that may point to a purpose other than personal use.

However, the mere presence of a precision scale at home does not guarantee conviction under Article 188 of the Turkish Penal Code in every case. The intended use of the scale, whether or not drug residue was found on it, and the nature of other evidence must be evaluated separately.

7. Does the Location Where the Drugs Are Found Matter?

Yes.

The location where the drugs were seized is taken into account by the Supreme Court in determining the nature of the crime.

The drugs, intended for personal use, were found to be easily accessible to the perpetrator;

• on,
• at home,
• in his room,
• in his vehicle or
• at work

Its discovery might be considered more consistent with the ordinary course of life.

Conversely, if the drug is stored in a warehouse, hidden compartment, abandoned building, land, or in a location difficult to access, far from the person's daily use, this may be considered as being for commercial purposes.

The Supreme Court's Criminal General Assembly considers the concealment of drugs in warehouses, caves, or similar places far from the home or workplace, where extraction and retrieval would take time, as a criterion that may indicate a purpose other than personal use.

However, here too, it's not just the hiding place that should be considered, but the entire situation.

8. Is it necessary to receive money in order to give drugs to someone else?

No.

The crime of drug trafficking does not necessarily require the drugs to have been sold for money.

Article 188/3 of the Turkish Penal Code explicitly criminalizes not only the act of "selling" but also the act of "giving to another person."

Therefore, if the conditions are met, a person giving drugs to a friend free of charge can also be evaluated under Article 188 of the Turkish Penal Code.

This is quite important in practice.

For example, a person's:

"I didn't take any money; I was going to drink with my friend."

Presenting a defense does not automatically lead to the application of Article 191 of the Turkish Penal Code.

The distinction between obtaining drugs for the purpose of shared use and independently giving drugs to another person is assessed by the court according to the specific circumstances of the case.

9. Are Phone Messages and WhatsApp Records Important in Commercial Crimes?

Digital evidence is extremely important in drug trafficking investigations today.

The following items were found on the suspect's phone:

• Conversations about drug prices,
• Correspondence based on grams or units,
• payment discussions,
• location submissions,
• bank account information,
• repeated similar messages with different people

This could be considered among the evidence supporting the intent to trade.

However, the context of the conversations must be examined.

Instead of directly concluding that a message is related to drug trafficking based on its content alone, it should be investigated who sent the message, when it was sent, its connection to the incident, and whether it is supported by other evidence.

In criminal proceedings, conviction must be based not on probability, but on conclusive and convincing evidence beyond any reasonable doubt .

10. Does Detecting Drug Use Eliminate the Crime of Drug Trafficking?

No.

Just because someone uses drugs doesn't mean they can't also deal drugs.

A person can be both a drug user and a drug dealer.

Therefore, while the detection of drugs in blood, urine, or hair samples may indicate that a person is a user, this finding alone does not rule out drug trafficking charges.

However, especially in cases where the amount of drugs involved is within the limits of personal use and there is no other strong evidence of drug trafficking, a person's medical and forensic records regarding drug use can become important for the defense.

11. Can the Presence of a Large Amount of Cash Be Considered Evidence of Trading?

The presence of large amounts of cash along with drugs, especially if the money consists of small denominations, can be taken into account when assessing drug trafficking.

However, the mere presence of money on a person does not, by itself, prove drug trafficking.

Money;

• source,
• person's income level,
• why the money is with him,
• bank records,
• whether it can be linked to drug sales

It should be investigated.

In criminal proceedings, the defendant cannot be expected to prove the legitimacy of their money. The burden of proof that the crime was committed rests with the prosecution.

12. Is a tip-off alone sufficient for a drug trafficking conviction?

A significant portion of drug investigations begin as a result of tip-offs.

"This person is selling drugs."

An abstract tip of this nature may trigger an investigation by law enforcement; however, the mere existence of such a tip should not be considered sufficient grounds for conviction.

The content of the report;

• physical surveillance,
• monitoring drug trafficking,
• Buyer statements,
• phone records,
• the way the drug is packaged,
• precision balance
• money movements or
• with other material evidence

It needs to be supported.

Indeed, there are Supreme Court insufficient and conclusive evidence to prove , thus exceeding a reasonable doubt.

13. Does the Type of Substance Affect the Punishment in Drug Trafficking?

Yes.

According to Article 188/4-a of the Turkish Penal Code, the substance that is the subject of the crime;

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

If this occurs, the penalty is increased by half.

Synthetic cathinone, synthetic opioids, and amphetamine derivatives were included in this aggravating circumstance category with the law amendment made in 2023.

Furthermore, according to Article 188/4-b of the Turkish Penal Code, committing the crime in public or publicly accessible areas near buildings and facilities used for educational, health, military, social, or religious purposes may also lead to an increased penalty.

Therefore, in drug trafficking cases, not only the basic crime but also whether aggravating circumstances are present should be examined.

14. Probation in the Crime of Possession for the Purpose of Using Drugs

One of the most important features of Article 191 of the Turkish Penal Code is that instead of directly incorporating drug users into the classic penal system, a system of supervised release and, if necessary, treatment is applied.

During the investigation phase, a decision is typically made to postpone the initiation of a public prosecution for five years.

During this period, the person;

• compliance with obligations
• participation in treatment programs when needed,
• complying with probation rules

is expected.

If a person persists in failing to comply with obligations or treatment requirements during the deferment period, or purchases, accepts, possesses, or uses drugs with the intention of reuse, this may result in the consequences stipulated by law.

Therefore, in cases under Article 191 of the Turkish Penal Code, notifications and obligations related to supervised release must be carefully monitored.

15. Key Differences Between Possession for Use and Trade

The main differences between the two crimes can be summarized as follows:

In the crime of possession for personal use, the drug is purchased, acquired, or possessed for the purpose of the person's own consumption.

In drug trafficking , the options include selling, offering for sale, giving to another person, shipping, transporting, storing, or other alternative actions aimed at bringing the substance into commercial circulation.

Possession for personal use is evaluated under Article 191 of the Turkish Penal Code, while drug trafficking is evaluated under Article 188 of the Turkish Penal Code.

Although Article 191 of the Turkish Penal Code stipulates a prison sentence of two to five years, there is also a system of postponement of the public prosecution and supervised release during the investigation phase.

According to Article 188/3 of the Turkish Penal Code, the penalty for the basic form of drug trafficking is imprisonment for a period of not less than ten years, in addition to a judicial fine.

Therefore, classifying the two crimes can fundamentally alter the outcome of a criminal trial.

16. What criteria does the Supreme Court consider when distinguishing between drug trafficking and drug use?

When the established practice of the Supreme Court is evaluated collectively, the following criteria stand out:

Firstly, there is the act of selling or giving away drugs. The presence of concrete behavior showing that the defendant sold or gave drugs to another person is one of the strongest indicators for a drug trafficking crime.

Secondly, there is the quantity of the drug. While the suspicion of drug trafficking can increase with quantity, quantity alone is not the determining factor.

Thirdly, there is the packaging method. Ready-to-sell, separate packages with similar grammages are important from a commercial intent perspective.

Fourth, there are precision scales and packaging materials.

Fifth, it's where the drugs are hidden.

Sixth, there are communication and financial records.

The seventh point is whether the defendant is a drug user and their drug use habits.

The Supreme Court's Criminal General Assembly decisions numbered 2018/208 E., 2020/522 K. and 2020/104 E., 2022/444 K. essentially adopt this holistic approach.

17. How is the principle that the accused benefits from the doubt applied in drug cases?

In a crime carrying a severe penalty, such as drug trafficking, conviction requires that the defendant's intent to trade be proven with legally admissible evidence.

If a person is found to be in possession of drugs, but there is a serious doubt that cannot be resolved as to whether the drugs are for personal use or for sale, then "the benefit of the doubt goes to the accused," a , comes into play.

In Supreme Court rulings, this issue is often expressed as "there is insufficient and conclusive evidence to overcome reasonable doubt, contrary to the defense.".

For example, the 10th Criminal Chamber of the Supreme Court of Appeals overturned a drug trafficking conviction on the grounds that there was insufficient and conclusive evidence of commercial intent regarding 23.67 grams of cannabis, which is within the limits for personal use.

Similarly, in many decisions of the Supreme Court's Criminal General Assembly and criminal chambers, it is seen that commercial intent cannot be based solely on assumption or abstract suspicion.

18. The Importance of Accurately Determining the Nature of the Crime in Drug Cases

The distinction between possession for personal use and drug trafficking is one of the most important criminal classification debates in Turkish criminal law.

Because, in the same factual situation, if the possession of drugs is evaluated under Article 191 of the Turkish Penal Code, the system of supervised release and postponement of the public prosecution may come into play, whereas if it is evaluated under Article 188 of the Turkish Penal Code, the defendant may face a severe prison sentence starting from ten years.

Therefore, in drug cases;

The legality of the search and seizure operations, the exact quantity and type of drug, forensic investigation reports, packaging method, precision scales or packaging materials, telephone examinations, bank transactions, witness and recipient statements, physical surveillance records, the individual's drug use history, and the manner in which the incident occurred should all be examined separately.

In particular, "the amount of drugs is high, therefore it's drug trafficking" is insufficient.

Similarly, the defendant's defense that they are merely a "user" does not, by itself, change the nature of the crime.

The task of criminal justice is to evaluate all the evidence in a case and determine, beyond any reasonable doubt, the purpose for which the drugs were possessed.

Conclusion

The fundamental difference between possessing drugs for personal use and drug trafficking lies in the purpose for which the drug is possessed.

If a person possesses drugs solely for their own use, Article 191 of the Turkish Penal Code applies; however, if they intend to sell, offer for sale, give to another person, dispatch, transport, store, or put the drugs into commercial circulation, then Article 188 of the Turkish Penal Code applies, depending on the circumstances.

However, this purpose is determined not only by the person's statement but also by the specific characteristics of the case and the evidence.

In the practice of the Supreme Court, while the quantity of the drug is important, it is not considered sufficient on its own; the method of packaging, the location where it was seized, the presence of a sensitive scale and packaging materials, communication records related to the sale, financial transactions, evidence indicating that the drug was given to someone else, and the person's usage habits are all evaluated together.

Therefore, accurately determining the nature of the crime is of paramount importance in investigations and prosecutions related to drug trafficking. The mere seizure of drugs or the presence of a certain quantity is not sufficient for conviction under Article 188 of the Turkish Penal Code in all cases, without conclusive and convincing evidence that goes beyond a reasonable doubt regarding the purpose of trafficking.

Each specific case must be evaluated within the context of its own evidence; in particular, due to the significant difference in penalties between Article 188 and Article 191 of the Turkish Penal Code, the principles of legality, culpability, presumption of innocence, and the benefit of the doubt for the accused must be meticulously applied.