Crime of Manufacturing and Trafficking of Narcotic or Stimulant Substances

Verb

Since manufacturing, exporting, or importing are specified as alternative acts of the same crime, the occurrence of only one of these acts is sufficient for the crime to be constituted. For example, if the perpetrator manufactures the narcotic substance in Turkey or abroad and simultaneously imports it into Turkey or exports it from Turkey, it is sufficient to apply Article 188/1 of the Turkish Penal Code only once .

Manufacture

The 10th Criminal Chamber of the Court of Cassation, in its decision dated November 22, 2007, with case number 15034/13545, "...activities that, outside of production, make substances, whether natural or synthetic, with or without narcotic properties, suitable for use by revealing their narcotic properties." According to this definition, processes that do not alter the nature of the narcotic substance do not fall under the concept of manufacturing.

• The process of combining two non-narcotic substances to produce a narcotic substance
• The conversion of one drug into another
• Purification of the existing narcotic substance

It has been assessed as a manufacturing defect and has been incorporated into the precedents of the Supreme Court.

While processes aimed at preserving the natural form of the substance are not considered manufacturing, the Supreme Court's jurisprudence has indeed ruled that drying, sifting, and heating cannabis to form a paste, pill, or plate has not been considered 'manufacturing'.

According to the decision of the 5th Criminal Chamber of the Court of Cassation dated April 20, 1983, with case number 557/1351 , 'Drying and crushing the stalks and leaves of the hemp plant into powder is a simple process that does not require a technical method and does not alter the chemical structure of the substance; therefore, it does not constitute the manufacture of marijuana. The fact that the defendant's action was the supply of marijuana, a narcotic substance, was not taken into consideration when rendering the judgment… necessitates reversal.' Thus, for a crime to be attributed within the concept of manufacture, it is necessary to include processes requiring more technical methods (crushing, drying, etc.) instead of simple technical processes, which would warrant a much harsher sentence under the scope of manufacture.

Furthermore, to clarify this issue, a useful Supreme Court decision "...it is CONTRARY TO LAW to convict the defendant, who was proven to have manufactured narcotics by converting base morphine into heroin, of the crime of possession of narcotics on the grounds that the crime of manufacturing did not occur due to the simplicity of the process, instead of considering the defendant's punishment for manufacturing." Thus, the Supreme Court's opinion regarding the simplicity and technicality of the process guides us in drawing the line of crime. Of course, it is also useful to note in the previous decision that the Supreme Court ruled that simple technical processes do not constitute sufficient technical knowledge and effort within the scope of narcotics manufacturing; however, it is very important to state that the processes carried out on cannabis still constitute the crime of possession or use of narcotics in any case. As in the next decision, since the process of obtaining heroin from morphine undoubtedly requires some technical knowledge, arguing that the process is simple and finding the judgment erroneous would be contrary to law and practice.

Imported

It is useful to explain this concept in two ways. Without deviating from the context of the relevant agreements, let us state the following: We define the concept of 'import' as bringing drugs from a foreign country into Türkiye, and the relevant agreements are consistent with this definition up to this point. However, it would be more appropriate to describe the movement of drugs within the country as 'transfer' instead of 'import'. We also believe that the movement of drugs within the country constitutes 'transfer'.

Exportation

More precisely, this concept refers to the attempt to smuggle narcotics illegally from Turkey to foreign countries. We can undoubtedly say that narcotics seized across Turkey's borders for transport to another country are in the process of being exported. Furthermore, at this point, it is irrelevant whether the seized narcotics were produced in Turkey or came to Turkey from a third country and were then destined for the foreign country in question. In this regard, according to the decision of the 9th Criminal Chamber of the Supreme Court of Appeals, case number 6719/4473, the act of sending cannabis from Turkey by cargo to M. for delivery to his brother Ö., who was serving in the military in Cyprus at the time of the crime, constitutes the crime of exporting narcotics… The Supreme Court of Appeals, without even entering into a discussion of where the narcotics came from or how they were transported, ruled that the mere act of sending the narcotics by cargo to Cyprus constitutes the crime of exporting narcotics.

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STJ. AV. Hamdi Berk CAN