Drug Cases – TCK Regulations and Penal Sanctions

Drug Cases – TCK Regulations and Penal Sanctions. The production, trafficking, and abuse of narcotics continue to be a global problem that fundamentally threatens individual health, disrupts social order, and requires a sustained international fight. Turkish Penal Law has introduced strict and detailed regulations under the Turkish Penal Code No. 5237 (TCK) to counter this major threat. The fundamental legal benefit in this area is undoubtedly the protection of public health and individuals’ right to a healthy life.

However, in combating these crimes, the Turkish Penal Code has adopted a comprehensive legal policy based on two main axes, rather than a one-dimensional approach to punishment.

The first and most severe axis is represented by the crime of manufacturing and trafficking in narcotic or stimulant substances (TCK Article 188). These crimes, which pose the greatest threat to society, target organized criminal networks and are punished with heavy prison sentences ranging from 20 to 30 years for deterrent purposes.

The second axis targets drug addicts through the crime of purchasing, accepting, or possessing narcotic or stimulant substances for personal use (TCK Article 191). The legislator, in this regard, has placed secondary emphasis on punishment, prioritizing the individual’s treatment and reintegration into society. This approach mandates the mandatory implementation of measures such as the Deferral of Public Prosecution (KDAE) and probation for suspects who commit this crime for the first time.

Our article examines this dual struggle of the TCK in detail, particularly examining how the crucial distinction between TCK Article 191 (Use) and TCK Article 188 (Trade) is made in judicial practice, and the quantitative and qualitative criteria established by the Court of Cassation, such as “personal use limits.” It will also analyze in detail the special protective measures implemented in drug crimes, the critical role of the institution of effective repentance (TCK Article 192) in impunity or reduced sentences, and the legal validity of evidence collection processes.

I. Introduction and Legal Framework: The Dual Legal Policy of Drug Offenses

A. Social and Legal Significance of Drug Offenses

The misuse of narcotics continues to be a global problem that seriously threatens human health across ages. This threat not only affects the individual’s physical and mental health but also causes significant damage to public health, economic structure, and cultural order. Therefore, the fight against drug offenses has consistently maintained its importance at both national and international levels. This subject, regulated by international conventions, is strictly governed in Turkish law by special laws and, fundamentally, by the provisions of the Turkish Penal Code No. 5237 (TCK).

The TCK, which came into force on June 1, 2005, addresses drug offenses as a primary law. The main legal interest protected in this context is public health and the right of individuals to a healthy life.

B. General Assessment of Offense Types within the Scope of the Turkish Penal Code

Drug or stimulant offenses, regulated in the Tenth Chapter of the Turkish Penal Code (TCK), are examined under three main headings in terms of the sanctions applied and their legal consequences:

Offense of Manufacturing and Trafficking Narcotics or Stimulants (TCK Art. 188): This offense targets organized criminal activities that cause direct and systemic harm to public health.
Offense of Facilitating the Use of Narcotics or Stimulants (TCK Art. 190): This penalizes actions that encourage and spread drug use.
Offense of Purchasing, Accepting, or Possessing Narcotics or Stimulants for Personal Use (TCK Art. 191):This article specifically targets the user and is treated separately from the manufacturing and trafficking offenses.

C. Main Legal Policy: Dualism of Directing to Treatment and Punishment

In the context of drug offenses, Turkish Law has defined its combat strategy through two different approaches. On one hand, hard and deterrent, heavy sanctions are applied against those who manufacture and traffic drugs (TCK 188). The severity of these penalties reflects the societal harm and danger dimension of the crime.

On the other hand, a different policy is followed for substance users. In offenses related to personal use regulated under TCK Art. 191, the primary goal is not punishment but the arrangement of special measures aimed at treating the user and readapting them to society. This distinction demonstrates that the legislator views the drug problem not only from a penal perspective but also from a public health and social rehabilitation standpoint.

II. Offense of Manufacturing and Trafficking Narcotics or Stimulants (TCK Article 188)

A. Material Elements of the Offense and Alternative Actions

TCK 188 defines the offense of manufacturing and trafficking narcotics or stimulants quite broadly. This is an offense with alternative actions, encompassing many acts carried out without a license or contrary to a license. The alternative actions include: manufacturing, importing, exporting, selling within the country, offering for sale, giving to others (supplying), shipping, transporting, storing, purchasing, accepting, and possessing.

Especially regarding purchasing, accepting, and possessing, for the perpetrator’s intent to be evaluated within the scope of TCK 188, it must be established that they acted for a purpose other than personal use (trafficking, supplying, etc.). This distinction is of great importance in the judicial process as it fundamentally changes the nature of the crime and the penalty to be applied. Furthermore, individuals who import, manufacture, ship, transport, or export substances used in the production of narcotics or stimulants, even if they are not themselves narcotics, are also penalized under this law.

B. Penal Sanctions and Aggravating Circumstances

The penalties imposed for drug manufacturing and trafficking offenses are quite severe. According to TCK Art. 188/1, a person who manufactures, imports, or exports narcotics or stimulants without a license or contrary to a license shall be punished with imprisonment from 20 to 30 years and a judicial fine from two thousand to twenty thousand days.The prosecution of these offenses falls under the jurisdiction of the High Criminal Courts (Ağır Ceza Mahkemesi). The statute of limitations for prosecution in crimes requiring a sentence of imprisonment of not less than twenty years is twenty years.

1. Qualified Circumstances (Reasons Increasing the Penalty)

There are primary qualified circumstances that necessitate increasing the penalty by half:

Type of Substance: If the subject of the offense is heavy drugs such as heroin, cocaine, morphine, synthetic cannabinoids and their derivatives (e.g., Methamphetamine), or basemorphine, the penalty is increased by half.Methamphetamine, as a synthetic type, is evaluated under TCK 188/4.
Professional Status: If the offense is committed by a physician, dentist, pharmacist, chemist, veterinarian, health officer, laboratory technician, midwife, nurse, dental technician, orderly, or a person engaged in pharmaceutical trade, the penalty imposed shall be increased by half. This provision emphasizes the importance given to public trust and the sensitivity of these professions.
Offense Against a Child: If the narcotic or stimulant is given or sold to a child, the term of imprisonment imposed on the perpetrator shall not be less than fifteen years.

2. Mitigating Circumstance

Pursuant to TCK Art. 188/6, where the substances concerned are narcotics or stimulants whose production is subject to authorization from official authorities or whose sale is subject to a prescription issued by an authorized physician, the penalty that would normally be applied may be reduced by up to half. This provision provides flexibility due to the lower societal danger posed by the trafficking of substances that fall within the scope of medical and legal use.

III. Offense of Possessing and Using Narcotics for Personal Use (TCK Article 191)

A. Definition of the Offense and Special Procedure (KDAE – Suspension of Public Prosecution)

TCK Article 191 regulates the acts of “purchasing, accepting, or possessing narcotics or stimulants for personal use, or using narcotics or stimulants.” A special procedure, different from the standard criminal procedure, is applied for this type of offense.

1. Mandatory Suspension of Public Prosecution (KDAE) and Probation

In the investigation initiated for this offense, the Public Prosecutor does not have significant discretion. TCK 191 mandates that the Public Prosecutor must decide to suspend the public prosecution for a period of five years, without seeking the general suspension conditions in CMK Art. 171. This mandatory suspension mechanism shows the importance the legislator attaches to the policy of directing a first-time user to treatment and supervision instead of penal sanctions. This approach facilitates the person’s adaptation to society and reduces the risk of stigma by suspending the creation of a criminal record for 5 years.

During the suspension period, a probation measure shall be applied to the suspect for a minimum period of one year.This period may be extended for a maximum of two more years in six-month increments, upon the proposal of the probation directorate or ex officio by the decision of the Public Prosecutor. If deemed necessary, a decision to subject the suspect to treatment can also be given during this period. The suspect is obliged to apply to the Probation Directorate within 10 days from the notification of the decision.

2. Successful Completion of the Suspension Period

If the suspect does not violate the obligations imposed upon them and does not violate the prohibitions during the suspension period, a decision of no grounds for prosecution (kovuşturmaya yer olmadığı kararı) shall be issued at the end of the five years. This decision means the legal dismissal of the charge and grants the user a second chance.

B. Violations of the Probation Measure and Special Legal Consequences

The commission of certain acts by the person during the suspension period leads to the lifting of the KDAE decision and the opening of a public prosecution. The violation criteria are as follows:

Insisting on Non-Compliance with Obligations: Insisting on not complying with the obligations imposed upon them or the requirements of the treatment applied. According to Court of Cassation practices, insistence means violating the obligations or treatment requirements at least twice. The fact that the legislator requires the condition of “insistence” indicates that the system shows reasonable tolerance to the user and does not easily abandon the treatment program due to minor setbacks.
Re-possession/Re-use of Narcotics: Purchasing, accepting, or possessing narcotics again for personal use, or using narcotics during the suspension period.

1. Single Prosecution Principle

The re-commission of offenses subject to TCK 191 by the person during the suspension period is only considered a reason for violation and is not subject to a separate investigation or prosecution. In this case, a single public prosecution is initiated for the perpetrator’s first offense and the repeated offense during the suspension period, and the trial may proceed within the framework of sequential offense provisions.

2. Announcement of HAGB During the Prosecution Phase

If the court evaluates the nature of the crime within the scope of TCK 191 during the prosecution phase, it may render a decision on the Suspension of the Announcement of the Verdict (HAGB – Hükmün Açıklanmasının Geri Bırakılması). However, this HAGB decision can only be announced by the re-commission of a TCK 191 offense during the probation period. According to Court of Cassation precedents, a conviction for another offense committed by the defendant during the probation period, such as “endangering traffic safety,” is not considered a reason for the announcement of the HAGB decision given within the scope of TCK Art. 191.

IV. Critical Distinction: Purpose of Use (TCK 191) vs. Purpose of Trafficking (TCK 188) (Court of Cassation Precedents)

A. Legal Significance of the Distinction and Precedence of Intent

Due to the magnitude of the difference in penal sanctions between TCK 188 (imprisonment starting from 20 years) and TCK 191 (5 years KDAE period), correctly determining the purpose of possession of the seized narcotic substance is vital for ensuring criminal justice. The basis of this distinction is whether the perpetrator acted for a purpose other than personal use (trafficking or supplying) with the substance in their possession.

The fact that such a large penalty difference relies solely on subjective intent can create legal uncertainty. Therefore, the Court of Cassation has developed quantitative and qualitative criteria to ensure consistency in judicial practice and to concretize the burden of proof. These criteria allow courts to make a rapid and predictable qualification at the initial stage. If there is no certain evidence beyond a reasonable doubt that substances remaining within the limits of personal use were possessed for commercial purposes, the act must be evaluated within the scope of TCK 191.

B. Quantitative Thresholds (Limits of Personal Use Quantity)

Court of Cassation precedents accept quantities exceeding a person’s annual personal use requirement as a presumption of intent to traffic, unless there is strong evidence to the contrary.

Table 2: Usage Quantity Limits According to Court of Cassation Precedents (Trafficking/Use Distinction)

Substance Type
—
Heroin/Cocaine
Synthetic Pills (Tablet)
Cannabis (Marijuana)

E-Tablolar’a aktar

Perpetrators apprehended with quantities exceeding these thresholds are expected to prove that they possessed this high amount for personal use (e.g., severe addiction status or long-term supply). For example, possessing a net 1018.800 grams of cannabis, which is above the personal use quantity, was accepted as constituting the offense of possessing for sale within the scope of TCK Art. 188/3. Similarly, up to 20 roots of planted cannabis are accepted as being planted within the scope of personal use, provided there is no other evidence suggesting commercial planting.

C. Qualitative Evidence and Collateral Presumptions

In addition to the quantity of the substance, qualitative evidence plays a major role in determining the existence of commercial intent:

Preparation and Packaging Method: Preparing the drug in numerous small packages is an important presumption of trafficking.
Treating/Sharing: The Court of Cassation evaluates the act of sharing a substance possessed for personal use with others for joint use, as long as there is no intent to transfer the ownership or possession of the substance, within the scope of TCK 191 (use). Sharing the substance is not considered a crime of supplying/trafficking.
Auxiliary Materials: There are also precedents stating that materials such as scales, sensitive balances, numerous tobacco rolling papers, or pages torn from a textbook are not sufficient alone to prove commercial intent.

V. Application of the Remorse/Effective Repentance Institution (TCK Article 192)

Effective repentance (TCK Art. 192) is specifically regulated for drug offenses and can provide significant reductions or even exemption from punishment, depending on the perpetrator’s effort to reveal the crime or prevent its consequences.

A. Conditions for Effective Repentance under TCK 188

Six mandatory conditions are sought for a perpetrator who has committed an offense under TCK 188 to benefit from effective repentance :

The perpetrator must have committed one of the offenses regulated in Article 188 of TCK No. 5237.
Timing Condition: The notification must be made by the perpetrator personally before the crime is officially learned by the authorities.
Content of the Notification: The perpetrator must inform the authorities about the other accomplices OR the places where the narcotics or stimulants are stored or manufactured. Legal doctrine and the established acceptance of the Court of Cassation state that the conjunction “and” in the article should be understood as “or.”
Effectiveness Condition: The information provided must lead to the apprehension of the accomplices or the seizure of the narcotic or stimulant substance. The condition that the information must not have been previously learned by the officials is also sought.

B. Remorse After Apprehension and Procedural Pragmatism

Paragraph 3 of TCK Art. 192 foresees a penalty reduction (1/3 to 1/2) even if the crime has been committed and officially learned by the authorities, provided that the perpetrator assists and helps in the disclosure of the crime.

Court of Cassation precedents have developed an important practice, especially related to legal irregularities in evidence gathering processes. The delivery of narcotics by a defendant to officials by consent while being stopped by law enforcement, despite the lack of a judicial search warrant, has been interpreted as making the subject matter and evidence of the crime legally compliant and thereby revealing their own crime. This delivery indicates that the provisions of effective repentance regulated in TCK Art. 192/3 should be applied.

This approach shows that the judicial system has developed a pragmatic solution against procedural violations in search measures of the Code of Criminal Procedure (CMK). While evidence obtained through unlawful means is normally considered inadmissible , the perpetrator’s delivery of the drug in the face of an illegal intervention is accepted as voluntarily aiding the offense, thereby reducing the risk of the guilty party being fully acquitted due to procedural error.

VI. Special Procedures in Criminal Procedure Law, Protective Measures, and Evidence Issues

In drug cases, proving the crime often depends on protective measures such as search and covert investigator, making the legality of these measures highly important.

A. Legality of Search and Seizure Measures (CMK Article 116 et seq.)

According to Turkish Criminal Procedure Law, in order to conduct a search in residences, workplaces, or auxiliary buildings considered closed areas, it is mandatory to obtain a decision from a judge or a written order from the Public Prosecutor pursuant to CMK Art. 116 and subsequent articles. This rule also applies particularly to searches conducted in parts of a vehicle that are not visible from the outside.

However, according to the regulation in CMK Article 116, subparagraph (f), no separate search warrant or order is required in cases of flagrante delicto (in the act); in this case, the evidence obtained is considered legally compliant.Conversely, deliveries made without a search warrant or order and not based on the free will of the defendant (e.g., delivery of cigarettes from under the counter to officials) are deemed unlawful evidence and cannot form the basis of a verdict. Lawful acquisition of evidence is critically important for the legitimacy of the judicial process.

B. Application of the Covert Investigator Measure (CMK Article 139)

The covert investigator measure is used, especially in the investigation of serious crimes such as organized crimes and narcotic drug trafficking (TCK Art. 188). This measure is subsidiary (tali) in nature, and its application requires strong suspicion based on concrete evidence, and the impossibility of obtaining evidence by other means. The decision to appoint a covert investigator is made by the High Criminal Court (Ağır Ceza Mahkemesi) by unanimous vote.

1. Powers and Limits

A covert investigator can be assigned to conceal their identity, infiltrate the organization, monitor, observe, and collect evidence. Regarding the TCK Art. 188 offense, the judge may authorize the investigator to record audio or video in public places and workplaces for the purpose of collecting evidence.

2. Distinction from the Provocateur Agent

A covert investigator, due to their legal status, cannot be characterized as a “provocateur agent” (kışkırtıcı ajan). The most significant difference between these two concepts is that the covert investigator does not perform actions aimed at instigating a crime. A covert investigator cannot commit a crime while performing their duty; they cannot suggest, encourage, or advise on the commission of a crime.

This distinction is extremely important for the validity of the evidence collected. If the covert investigator acts in a manner intended to create criminal intent in the perpetrator that did not previously exist, this constitutes the acquisition of unlawful evidence and fundamentally undermines the prosecution.

VII. Security Measures, Confiscation, and Corporate Liability

A. Application of Security Measures Against Legal Entities (TCK Article 189)

Since drug or stimulant manufacturing and trafficking offenses are generally carried out within the framework of organized crime activity, it is necessary to target not only the individual perpetrators but also the institutional and financial infrastructure that facilitates the crime. TCK Art. 189 regulates that if these offenses are committed within the framework of a legal entity’s activity, security measures specific to legal entities shall be imposed.

The main security measures that can be applied include the cancellation of the activity permit and the confiscation of the legal entity’s unjust profits obtained from the crime, meaning the confiscation of its assets. If there is a conviction for an intentional crime committed for the benefit of the legal entity, the confiscation of the related assets and proceeds shall be ordered, and in this case, confiscation constitutes the primary sanction.

B. Confiscation of Assets and Proceeds (TCK Articles 54 and 55)

Confiscation (Müsadere) is regulated as a security measure in the TCK and comes in two types: Confiscation of Assets (Art. 54) and Confiscation of Proceeds (Art. 55).

Confiscation of Assets (TCK 54): This is the confiscation of assets used, allocated, or obtained from the commission of the crime. Pursuant to TCK Article 54/4, assets whose production, possession, use, transport, purchase, and sale constitute an offense (the narcotic substance) shall be confiscated, even if a decision of non-prosecution is rendered due to the statute of limitations.
Confiscation of Proceeds (TCK 55): This is the confiscation of financial benefits obtained as a result of the crime or that constituted a source for the commission of the crime. This measure targets the financial power of criminal organizations, increasing the general deterrent effect.

In confiscation measures, pursuant to the provisions of the Civil Code, the property belonging to a third party who acquired ownership of the asset related to the crime in good faith cannot be confiscated. For example, the vehicle of a good-faith third party who rented their car to the defendant cannot be confiscated.

VIII. Conclusion: Effectiveness of Legislation and Judicial Challenges

The Turkish Penal Code has adopted a dual legal policy against drug offenses, balancing deterrence and rehabilitation.

Primarily, the heavy and qualified penalties for manufacturing and trafficking offenses under TCK 188 reflect the determination to combat organized crime at an international level. Secondarily, the mechanism of mandatory Suspension of Public Prosecution (KDAE) under TCK 191 prioritizes the goal of treatment and societal reintegration for substance abusers, keeping the door of criminal justice closed to them. This mandatory procedure demonstrates that the legal system exhibits a humanitarian approach and does not easily abandon social rehabilitation.

However, the biggest challenge in the practice of drug offenses is determining the clear distinction between TCK 191 (use) and TCK 188 (trafficking). The Court of Cassation seeks to increase legal predictability by using quantitative thresholds (20 grams for Heroin/Cocaine, approximately one year’s use quantity for Cannabis) and assumes a balancing role in criminal justice. These quantitative thresholds constitute a critical presumption for prosecutors and courts during the initial evaluation phase.

Furthermore, the absolute importance of procedural rules in the judicial process continues. The requirements for the legality of covert investigators and search measures are vital for the validity of the evidence obtained. Specifically, the application of TCK 192/3 even when the defendant cooperates in situations of illegal search, emerges as a pragmatic solution that compensates for possible procedural errors in the legal process. Finally, the targeting of legal entities and proceeds of crime through TCK 189 and TCK 55 is an indicator of modern criminal law approaches aiming to dismantle the financial infrastructure of drug trafficking.

Table 3: Mechanism of Suspension of Public Prosecution (KDAE) Under TCK 191

Procedure Stage
—
KDAE Decision
Probation
Successful Suspension

These comprehensive regulations confirm that Turkey’s fight against drug crimes includes both strict criminal sanctions and special procedures focused on social responsibility and rehabilitation.

Our Latest Articles

« Previous Post