Article 188 of the Turkish Penal Code: Drug Trafficking Crime

The crime of manufacturing and trafficking narcotics or stimulants is one of the most severe offenses under Turkish Criminal Law, targeting not only individual health but also the general safety, peace, and moral fabric of society. In this article, we will examine the legal basis, scope, penalties, and key issues of public interest in light of Supreme Court rulings on this crime.

1. Legal Framework of the Crime and the Protected Legal Value

A. Basic Regulation

This crime is regulated in Article 188 of the Turkish Penal Code (Law No. 5237) . With this article, the legislator has subjected all processes, from the production (manufacturing) of narcotic substances to their distribution to the public (trading, selling, transporting, storing), to separate and severe penalties.

Protected Legal Value: The fundamental value protected by Article 188 of the Turkish Penal Code is, first and foremost, Public Health. A person becoming a drug user negatively impacts not only their own life but also their family and environment. The reason for the severe punishment of this crime is the state's obligation to protect society from this great threat.

B. What are narcotic substances?

Legally, narcotics or stimulants are defined by Law No. 2313 and international conventions as all substances that can cause addiction by creating physiological or psychological effects on the central nervous system. Whether a substance qualifies as a narcotic is definitively determined in each specific case by the Forensic Medicine Institute or authorized laboratories.

"Do newly introduced 'synthetic' substances on the market also fall under this category?"

Answer: Yes. According to Article 188/8 of the Turkish Penal Code, synthetic substances (e.g., bonzai, synthetic cannabinoids) are also punishable under the provisions of Article 188 of the Turkish Penal Code.

2. Material Elements of the Crime: Manufacturing and Trading

Article 188 of the Turkish Penal Code divides actions into two main categories: Manufacturing (Production) and Trading (Marketing/Supply).

A. Manufacturing (Production Stage)

The act defined in the first paragraph of Article 188 is to produce or process narcotic substances through chemical means, or to obtain them by cultivating plants without a license.

• Manufacturing: Producing narcotic substances using chemical substances in a laboratory environment.

• Import/Export: Bringing drugs into Turkey (import) or taking them out of the country (export). These acts the most severe penalty (imprisonment from twenty to thirty years).

B. Trading Activities (Supply Phase)

The third paragraph of Article 188 covers all commercial activities that facilitate the supply of drugs to the public and imprisonment for a period of not less than ten years . The acts listed in this paragraph are as follows:

• Selling: The act of giving something to someone else in exchange for a price.

• Offering for Sale: Preparing the item to be sold (advertising, negotiating, packaging).

• Giving to others: To give something to someone for commercial purposes, even without payment.

• Transport/Share: To move drugs from one place to another (courier services).

• To store: To keep or stockpile for commercial purposes.

• Purchase/Accept/Possess: Obtaining and holding an item for commercial purposes

Case Study (Transportation): Individual A was apprehended while transporting 10 kilograms of cannabis by bus from eastern to western provinces in exchange for a large sum of money. under Article 188/3 of the Turkish Penal Code of transporting narcotics . The act of transportation is considered the completed form of the crime, and the minimum sentence is 10 years.

3. Distinguishing Between Commercial and Personal Use: The Key Point

The most critical distinction in drug offenses is whether the perpetrator possessed the substance for the purpose of trafficking or for personal use .

• Possession for Commercial Purposes (Turkish Penal Code Article 188): Punishes severe penalties.

• Possession for Personal Use (Turkish Penal Code Article 191): This is a less serious offense (imprisonment from two to five years) and offers the possibility of treatment and supervised release during the legal process

How to Differentiate Them? (Supreme Court Criteria)

The Supreme Court, when determining whether a person is engaged in commercial activity or personal use, considers the following specific criteria:

Criterion	A situation indicating a commercial purpose	Condition indicating personal use
Amount	A large amount that exceeds a person's annual needs.	A small amount, enough to meet needs for a few days or weeks.
Packaging	The substance is individually packaged in small, ready-to-sell doses	The substance being in a single large piece or package.
Storage Location	Hidden compartments in the house, storage room, commercial vehicles.	Personal spaces such as the person's body, wallet, and bedroom.
Other Tools	A precision scale, packing materials (ziplock bags), and a large amount of cash.	There are none, or only materials specific to the use (cigarette paper, etc.).

Case Study (Personal Use): During a search of individual B, a total of 5 grams of drugs were found scattered in a plastic bag. B stated that he had obtained the substance a week prior and intended to use it with a friend.

Legal Assessment: The quantity is low and the packaging is not suitable for commercial use. The Supreme Court considers this act as the crime of possessing narcotic substances for personal use (Turkish Penal Code Article 191)

4. Aggravating Circumstances (Reasons) that Increase the Punishment

The legislator has made it necessary to increase the basic penalty for certain situations that amplify the harm the crime causes to society (Turkish Penal Code, Article 188/4 and 5).

A. Aggravating Circumstances Related to Location and Victimization

In these cases, penalties by half :

1. Crimes Against Children: Selling or giving drugs to a child (under 18 years of age)

2. Proximity to Institution: The crime must have been committed within 200 meters of a place such as a school, dormitory, barracks, hospital, or place of worship

3. Professional Misuse: This refers to professionals, such as physicians, pharmacists, health officers, or chemists, using their profession to commit a crime.

Case Study (Proximity to School): Person C sold drugs to high school students while waiting right next to the elementary school's garden wall.

Legal Consequences: In addition to the basic penalty for drug dealing, C will face a 50% increase in penalty because the act near a school (the 200-meter rule) and possibly against a child . This means the penalty will be cumulatively severe.

B. Organized Crime

the crime within the framework of an organization established for the purpose of committing crimes as defined in the Law (three or more people uniting in a hierarchical structure to commit a crime), the penalty by half . This is based on the assumption that the societal danger is much greater when the crime is committed by an organized structure.

5. Effective Repentance (Informant and Reduction of Sentence) – Turkish Penal Code Article 192

In the fight against drug crimes, the state has introduced a special regulation that encourages perpetrators to reveal other accomplices or the location of drugs: Effective Repentance.

A. Personal Immunity from Punishment (Complete Repentance)

• Condition: The person involved in the crime must report the crime and reveal other accomplices or the locations where the drugs are located/manufactured before the authorities (police, prosecutor's office) are notified

• Conclusion: A person who fulfills these conditions will not be punished for the crime of drug trafficking.

B. Sentence Reduction (Partial Repentance)

• Condition: Even if the authorities are aware of the crime, the individual must voluntarily provide information leading to the arrest of accomplices or the seizure of the drugs before a court ruling

• Result: The sentence will by one-third to one-half .

"If a drug user decides to seek treatment, will they be punished?"

Answer: According to Article 191/2 of the Turkish Penal Code, a person who reports the possession of drugs for personal use to the authorities and agrees to receive treatment before the investigation begins will not be punished. This shows that the state prioritizes treatment over punishment in cases of drug use.

6. Trial Process and Severe Sanctions

The crime of manufacturing and trafficking narcotics is among the most serious crimes in the Turkish Penal Code.

• Competent Court: These crimes by the High Criminal Courts .

• Judicial Fine: In addition to imprisonment, the perpetrator fined up to twenty thousand days' worth of daily wages . The minimum fine is calculated at 20 TL, and the maximum at 100 TL.

• Suspension of the Announcement of the Verdict (HAGB): Due to the high minimum penalties, it is not possible to issue a HAGB decision in these crimes.

• Postponement: Similarly, since the minimum sentence is high, postponement of the sentence is not possible.

A person convicted of this crime must spend many years in a correctional facility (prison).

Conclusion

The crime of manufacturing and trafficking narcotics or stimulants is one of the strictest and least lenient provisions of the Turkish Penal Code. Legislators view these actions as a public health disaster and continue their fight against them with harsh penalties. The key to combating drugs lies in citizens being vigilant and helping to dismantle these illegal networks by utilizing mechanisms such as the "Effective Repentance" program. This crime darkens the future not only of the individual but of the entire society.