What is the crime of drug trafficking? (Turkish Penal Code Article 188)

Drug use and trafficking are among the most significant types of crime, threatening not only individuals but also the general health and safety of society. The Turkish Penal Code ("TCK") severely punishes such crimes, prescribing highly deterrent sanctions. In particular, the "Crime of Manufacturing and Trafficking of Narcotic or Stimulant Substances," regulated by Article 188 of the TCK , is one of the most frequently encountered types of crime in practice.

This article will conceptually explain the crime of drug trafficking , and will discuss in detail its elements, penal sanctions, Supreme Court decisions, problems encountered in practice, and defense strategies

Definition of the Crime of Drug Trafficking

According to Article 188 of the Turkish Penal Code:
"A person who manufactures or trades in narcotic or stimulant substances without a license or authorization shall be punished."

The crucial point here is that the perpetrator exceeding the limits of personal use. The distinction between possessing drugs for personal use (Turkish Penal Code Article 191) and possessing drugs for the purpose of trade is a matter of debate in most cases.

Elements of the Crime of Drug Trafficking

1. Material Elements

Perpetrator: Anyone could be the culprit. This crime is not unique to any crime.
The victim is the entire society. Because drug crimes cause harm to society, not just to individuals.
Verbs: Actions such as manufacturing, importing, exporting, selling, facilitating the sale, transferring, distributing, transporting, storing, and procuring.
Subject: Any substance that is classified as a narcotic or stimulant.

2. Spiritual Element

Crimes intent .
The perpetrator must knowingly and willingly possess the drug for the purpose of trafficking.
It is not possible to commit this through negligence.

3. Element of Illegality

Without legal permission or license, the act is unlawful.
For example, the legitimate activities of pharmaceutical warehouses do not constitute this crime.

The Difference Between Drug Trafficking and Possession for Personal Use

In numerous criminal cases, "possession for personal use" (Turkish Penal Code, Article 191) and "trading" (Turkish Penal Code, Article 188) .

Quantity: The presence of a substance in an amount exceeding that for personal use may be considered evidence of commercial activity.
Evidence: A precision scale, numerous packages, phone calls, and cash transactions may indicate intent to trade.
The 10th Criminal Chamber of the Supreme Court of Appeals, in its decision numbered 2017/4358 E., 2019/2211 K., stated: "The packaging method and quantity of the narcotic substance indicate that it was possessed for trade purposes, not for personal use."

Criminal Sanctions (Turkish Penal Code Article 188)

1. Basic Punishment

The penalty for the crime of manufacturing and trafficking narcotic substances:

Imprisonment of not less than 10 years and
The judicial fineranges from one thousand to twenty thousand days.

2. Qualifying Circumstances

the crime is committed in a place such as a school, dormitory, barracks, or place of worship, the penalty is increased by half.
the crime is committed against children .
the crime is committed in an organized manner (related to Article 220 of the Turkish Penal Code).

3. Effective Repentance

If the perpetrator provides information about the drugs and other perpetrators before being caught, their sentence may be reduced (Turkish Penal Code Article 192).

Supreme Court Decisions

Decision 1: Court of Cassation, 10th Criminal Chamber, Case No. 2019/2211.

The presence of numerous small packets of marijuana and a precision scale in the perpetrator's vehicle was accepted as evidence of intent to traffic

Decision 2: Court of Cassation, 20th Criminal Chamber, Case No. 2021/5660.

The defendant was convicted under Article 188 of the Turkish Penal Code because the amount of substance seized from his home exceeded the limits for personal use , and his telephone conversations contained statements regarding drug sales .

Decision 3: Supreme Court of Appeals, Grand Chamber, Case No. 2015/13-40, Decision No. 2016/120.

Despite the defendant's claim that the drug was for his own personal use, the large quantity and packaging method led the charge of drug trafficking .

Problems Encountered in Practice

Quantity Ambiguity: The legal definition of "amount for personal use" is not clearly defined; expert reports and Supreme Court precedents are important.
Insufficient Evidence: Quantity alone does not always prove trade; additional evidence is required.
Wiretapping: Tape recordings not obtained in accordance with the Code of Criminal Procedure are considered illegally obtained evidence.
The Effective Repentance Procedure: Whether the information provided by the perpetrator is "true and useful" is a matter for the court to discuss.

Defense Strategies

Claim of Intended Use: It can be argued that the defendant possessed the drugs solely for his own use.
Objection to Illegally Obtained Evidence: Unlawful searches and illegally obtained tape recordings cannot be used for conviction.
Effective Repentance: If the defendant reveals the source of the drugs, they may receive significant sentence reductions.
Turkish Penal Code Article 62 Discretionary Reduction: The defendant's lack of a criminal record, remorse, and contribution to the trial are grounds for reduction.

Social and Legal Significance

Drug trafficking not only leads individuals to addiction; it is a source of income for organized crime groups. Therefore, to protect society, legislators have classified this crime "serious offense .

The duty of justice officials is to ensure that innocent individuals are not wrongfully punished for drug trafficking offenses, and that those who genuinely engage in drug trafficking receive deterrent punishments.

Conclusion

Drug trafficking is one of the most severely punished crimes under the Turkish Penal Code. Article 188 of the Turkish Penal Code covers not only trafficking but also manufacturing, importing, and exporting. The Supreme Court's practice distinguishes between personal use and trafficking by examining the quantity of drugs in the defendant's possession, the packaging method, and other evidence

Therefore, when a person faces drug trafficking charges, it is vital to thoroughly examine the case file, challenge any illegally obtained evidence, and, if necessary, take advantage of the provisions for effective repentance

Law Faculty Student Ada Ceren KENDİGELEN

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