Crime of Attempting to Export Narcotic Substances
Entrance
Drug and stimulant offenses are among the most severely punished crimes under the Turkish Penal Code. These crimes, which pose a direct threat to public health and order, include not only the manufacture and trade of drugs within the domestic market, but also export from the country, which is defined as a serious offense. Article 188/3 of the Turkish Penal Code specifically criminalizes the act of "exporting" drugs or stimulants, prescribing very severe penalties. However, in practice, in cases where the drugs are seized before being completely exported, regarding attempted crimes come into play.
The crime of attempted drug export occurs when the perpetrator attempts to smuggle drugs out of the country but is apprehended before crossing the border. This article will discuss the elements of the crime, the penal sanctions, how the attempt is evaluated, Supreme Court decisions, and defense strategies.
Crime of Exporting Narcotic Substances
According to Article 188/3 of the Turkish Penal Code, a person who exports narcotic or stimulant substances imprisonment of not less than 20 years and a judicial fine of up to twenty thousand days . This regulation emphasizes the social harm caused by exports and aims to prevent international drug trafficking.
For export to be considered a crime, the drug must be physically removed from the country by crossing customs borders. However, in most cases, the perpetrator is apprehended and the drug is seized at the border crossing, airport, or port. In this situation, it is considered an attempted crime, not a completed crime
Legal Framework of the Undertaking
Article 35 of the Turkish Penal Code , if a person begins to directly execute the crime they intended to commit with suitable actions, but is unable to complete it due to reasons beyond their control, they are liable for attempted crime.
In the case of drug exporting crimes:
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The perpetrator must have had the intention of exporting the goods
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They should initiate direct enforcement actions (such as placing the drugs in their luggage, arriving at the border crossing, and boarding the plane),
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But they must be caught before they cross the border.
Elements of an Attempted Export of Narcotic Substances
Several essential elements are required for the crime of attempting to export drugs to occur:
Perpetrator: Anyone could be the culprit. This is not a crime unique to a specific group.
Subject: Any substance that qualifies as a narcotic or stimulant.
The act: The intention must be to export the substance. Whether the seized substance is intended for export is often determined through travel documents, customs procedures, and declarations.
Attempt Requirement: The perpetrator must have been apprehended before they could smuggle the drugs across the border. For example, if the drugs are seized during airport baggage checks, the export has not taken place; it has only remained at the attempt stage.
Supreme Court Decisions
📌 Supreme Court 10th Criminal Chamber – Case No. 2017/2719 E.
The defendant was apprehended at the airport with heroin in his luggage. The Supreme Court stated that the drug had not yet been taken out of the country's borders, therefore the crime was not complete, but since the perpetrator acted with the intent of export, the provisions regarding attempted should be applied.
📌 Supreme Court of Appeals, 20th Criminal Chamber – Case No. 2019/3312 E., Decision No. 2020/1453 K.
The defendant was apprehended at a land border crossing while attempting to enter Georgia. The Supreme Court of Appeals accepted that the defendant had the intention of "expelling" the defendant from the country, that the execution of the act had begun, but that the act remained at the attempted stage because the defendant was unable to cross the border.
Criminal Consequences
A person who attempts to export narcotic substances with a reduced sentence based on the penalty for the intended crime . According to Article 35/2 of the Turkish Penal Code, this reduction is determined according to the proximity of the act committed.
For example:
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If the perpetrator has placed the drugs in the bag but has not yet reached the border crossing, the penalty will be greater because the act of execution is considered to be further away.
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If the perpetrator is caught at customs control at the airport, the sentence reduction is less severe because the crime is very close to being completed.
The Supreme Court grants judges broad discretionary power in determining the reduction rate in specific cases.
Defense Strategies
In cases of attempted drug trafficking, the defense strategy generally focuses on the following points:
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there was no intention to export the drugs . The perpetrator may have possessed the drugs for other purposes.
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Illegally obtained evidence can be challenged. In particular, evidence obtained through irregular searches and customs controls can be argued to be invalid.
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The provisions regarding effective repentance (Turkish Penal Code Article 192) may come into play. If the perpetrator reveals the source of the drugs, a significant reduction in sentence may be granted.
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Request for reduced sentence: It should be emphasized that since the crime remained at the attempt stage, it should not be punished as if it were a completed crime.
Conclusion
The crime of exporting narcotics is one of the most severely punished offenses under Article 188/3 of the Turkish Penal Code. If the perpetrator attempts to export the drugs abroad but is apprehended before crossing the border, the crime remains at the attempted stage. In this case, Article 35 of the Turkish Penal Code applies, and the sentence is reduced.
The Supreme Court's practice is consistent in this direction. The perpetrator's intent, whether the execution of the act has begun, and how close the crime is to completion are carefully examined. In the defense, it can be emphasized that there was no intent, that the evidence is unlawful, or that the attempt stage is far off. Thus, it may be possible for the defendant to receive a lower sentence.
Law Faculty Student Ada Ceren KENDİGELEN
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