The Crime of Drug Use in Turkey
Buying, Accepting, or Possessing Drugs or Stimulants for Use, or the Crime of Drug or Stimulant Use (Turkish Penal Code Article 191)
In this article, we will examine the crime of drug use, the crime of buying drugs or stimulants, and the crime of accepting or possessing drugs, as well as their legal processes.
Crimes related to drugs are regulated in detail in Article 191 of the Turkish Penal Code. However, this regulation was reconsidered with Article 68 of Law No. 6545, which made amendments to Some Laws in 2014.
Moreover, a significant change is evident in the title of this new regulation. The title states, “Buying, Accepting, or Possessing Drugs or Stimulants for Use, or the Crime of Drug or Stimulant Use.” Under this title, the primary aim of the new regulation is to include drug or stimulant use within the scope of the offense and subject it to punishment.
How many years of imprisonment does a drug user receive?
With the new regulation, individuals who buy, accept, or possess drugs or stimulants for use, as well as those who use drugs or stimulants, will be punished with imprisonment ranging from two to five years.
On the other hand, another important feature of the new regulation is the possibility of postponing the initiation of public prosecution for a period of five years without the restrictions and conditions stipulated in Article 171 of the Code of Criminal Procedure for those who commit this offense.
Additionally, with the introduction of this possibility, the public prosecutor is granted the authority to impose probation measures on the suspect regarding the offense in question, and the option of placing the suspect under treatment if necessary is emphasized. Thus, a significant step has been taken towards reintegrating offenders into society and towards rehabilitation processes.
According to the Turkish Penal Code, what is the penalty for drug use?
According to Article 191/1 of the Turkish Penal Code (TPC), the offense of drug or stimulant use is punishable by imprisonment for a term ranging from two to five years. However, Articles 51 and 50 of the TPC also provide for alternative sanctions such as suspension of the sentence or conversion to a fine.
If the penalty to be imposed is two years or less, it may be suspended under Article 51 of the TPC. Additionally, if the duration of the sentence is one year or less, according to Article 50 of the TPC, the penalty may be converted to a fine or other options specified in the said article.
In order to fall under the scope of Article 191 of the TPC, the drug or stimulant must have been purchased solely for personal use. If the perpetrator has purchased the drug or stimulant for a reason other than personal use, primarily this situation will fall under the offense of purchasing drugs for commercial purposes as stipulated in Article 188 of the TPC.
The defendant’s statement regarding the commission of the offense of drug or stimulant use (Article 191/1 of the TPC) is usually aimed at avoiding the offense of possessing drugs for commercial purposes (Article 188 of the TPC). Therefore, a detailed examination of the defendant’s defense in this regard is of utmost importance.
WARNING: The Court of Cassation acknowledges that in cases where the amount of drugs or stimulants imported or exported is very small and the perpetrator’s intention is for personal drug use, the importation or exportation of drugs or stimulants in quantities not exceeding the individual’s personal needs constitutes the offense of “possession for use” under Article 191 of the TPC, not the offense of drug or stimulant importation or exportation under Article 188/1 of the TPC.
In another decision, the Court of Cassation ruled: ”The drying and crushing of the stalks and leaves of the cannabis plant into powdered marijuana does not require technical methods and does not change the chemical structure of the substance, therefore it cannot be considered as manufacturing marijuana (10th Department, 21.05.1992, 1992/5557-6015).”
Postponement of Public Prosecution (Article 191/2):
In investigations initiated for the offense, a decision may be made to postpone the initiation of public prosecution against the suspect for a period of five years without the conditions specified in Article 171 of the Code of Criminal Procedure. During the period of postponement, the suspect must comply with specified obligations and refrain from violating prohibitions.
Probation Measure (Article 191/3):
During the period of postponement, the suspect shall be subject to probation for a minimum period of one year. The probation period may be extended for up to two years upon the recommendation of the prosecutor or the probation office, or by the decision of the public prosecutor ex officio. During this period, the individual under probation may be subjected to treatment if deemed necessary.
In accordance with Article 191 of the Turkish Penal Code, factors such as the general situation of the person, the degree of drug or stimulant addiction, social and economic status, occupation, and family should be taken into account for the suspect to whom probation is applied. Indeed, in a decision, the Court of Cassation ruled that “probationary measures should not be applied to a person who is fulfilling his military service and that the measure should be initiated after the completion of military service.”
According to Article 191/3 of the Turkish Penal Code; “A person subject to probationary measures may be subjected to treatment if necessary during the probationary period.” In the light of this statement, it can be understood that being subjected to treatment is not an absolute requirement within the scope of probationary measures, but it can be considered as one of the other probationary measures. Especially in the case of a suspect for whom the initiation of public prosecution has been postponed, for example, if it is determined that a crime related to drug or stimulant use has been committed, a decision for treatment may also be made during the probationary process. In short, it is possible to decide on treatment for the suspect in addition to other probationary obligations.
Failure to Comply with Obligations or Requirements of Treatment:
If the suspect, who has been granted a deferral decision for initiating public prosecution, persists in failing to comply with the obligations imposed on them or the requirements of the applied treatment within the five-year deferral period during which the decision is valid, public prosecution will be initiated (TCK Article 191/4). In this context, it is emphasized that persistence in failing to comply requires not just one, but at least two instances of contravening obligations or treatment requirements.
Public Prosecution and Violation Cases (Article 191/4-5):
If, during the deferred prosecution period, the suspect violates obligations such as failing to comply with imposed obligations or again using drugs or stimulants, public prosecution will be initiated. Violation cases are subject to separate investigation and prosecution.
Violation Grounds: Buying, Accepting, Possessing, or Using Drugs or Stimulants During the Deferral Period:
If the suspect, for whom a decision to defer prosecution has been made, purchases, accepts, or possesses drugs or stimulants for reuse (TCK Article 191/4-b), or uses drugs or stimulants (TCK Article 191/4-c) during the five-year deferral period, public prosecution will be initiated.
However, according to TCK Article 191/5: “Buying, accepting, or possessing drugs or stimulants for reuse or using drugs or stimulants during the deferral period shall be considered a violation ground under the fourth paragraph, and a separate investigation and prosecution cannot be conducted.”
In this context, the second action should only be considered as a violation ground necessitating the initiation of public prosecution. Upon determining the second action, a decision should be made to dismiss the ongoing public prosecution for the trial of the crime.
Decision of Non-Prosecution:
According to TCK Article 191/7: “If the suspect does not act contrary to the obligations specified in the fourth paragraph and does not violate prohibitions during the deferral period, a decision of non-prosecution shall be rendered.”
The obligations specified in TCK Article 191/4 are as follows:
a) Persisting in failing to comply with the obligations imposed on them or the requirements of the applied treatment,
b) Buying, accepting, or possessing drugs or stimulants for reuse,
c) Using drugs or stimulants.
After the decision of non-prosecution is rendered, if the suspect commits the offense specified under TCK Article 191 again, public prosecution may be initiated again by the public prosecutor’s office.
Effective Remorse and Suspension (Article 192):
A person participating in drug manufacturing and trafficking offenses may be exempted from punishment by reporting accomplices or the locations where the crime was committed. Additionally, a person who buys drugs or stimulants for personal use and informs authorities before the crime is reported may be exempted from punishment. If a person voluntarily assists after the crime is reported, their sentence may be reduced.
Penalty Increase (Article 191/10):
If the crime is committed in the vicinity of buildings and facilities used for treatment, education, military, and social purposes, the penalty is increased by half.
Effective Remorse:
Effective remorse for individuals involved in the manufacture and trade of drugs or stimulants is detailed under Article 192 of Law No. 5237. This article provides an opportunity for individuals involved in the crime to be exempt from punishment if they contribute to the apprehension of accomplices or the seizure of drugs.
The sub-articles of Article 192 are as follows:
Reporting Accomplices (Article 192/1):
An individual involved in the manufacture and trade of drugs or stimulants who reports other accomplices and the locations where drugs or stimulants are stored or manufactured to the authorities before they become aware of it, and if this information contributes to the apprehension of accomplices or the seizure of drugs, shall not be sentenced.
Providing Procurement Information (Article 192/2):
An individual who buys, accepts, or possesses drugs or stimulants for the purpose of using them, if they provide information about the method of obtaining drugs or stimulants, individuals involved, and the timeframe before the commission of the crime, and if this information assists in the apprehension of criminals or the seizure of the substance, shall not be sentenced.
Voluntary Assistance and Reduction (Article 192/3):
A person who reports crimes after they are discovered may receive a reduction in sentence if they assist in the disclosure of the crime. Their sentence may be reduced if they contribute to the apprehension of accomplices. This reduction rate may vary from one-fourth to one-half.
In this context, although the terms “service” and “assistance” are mentioned, it should be understood from the word “voluntary” that this is not a situation of voluntary abandonment. Because the relevant article essentially regulates the situation of effective remorse. With the term “these crimes,” it includes not only the offenses specified in Article 191 of the Turkish Penal Code but also the offenses of drug manufacturing and trade defined in Article 188.
In a decision, the Court of Cassation stated that “if it is understood that the defendant, who was found with a quantity of drugs (hashish) within the limit for personal use (6 grams) during a search at his home, engaged in drug trafficking by giving the drugs he cultivated in his field to another defendant in exchange for money, it should be concluded that he assisted in the disclosure of the crime of drug trafficking, and therefore, Article 192/3 of the Turkish Penal Code should be applied.”
Again, the Court of Cassation ruled that “the defendant should benefit from Article 192/3 because he clearly stated to the security forces who came to the barber shop that he delivered the hashish in his drawer to them, explicitly stating that they were given to him by the person who came to him for a shave, and by giving the name and location of the person, he ensured the seizure of the hashish in that person’s possession.”
Application for Treatment and Exemption from Punishment (Article 192/4):
A person using drugs or stimulants may be exempt from punishment if they apply for treatment to the authorities or healthcare institutions before an investigation is initiated into the charge of buying, accepting, or possessing drugs for use. In this case, there is no obligation for public officials or healthcare professionals to report the crime.
Attempt:
Another important aspect related to attempt is voluntary withdrawal. If the offender voluntarily withdraws from the stages of committing the crime, they will not be punished for the attempt (Article 36/1 of the Turkish Penal Code). For example, if a person who intended to buy drugs or stimulants for personal use but voluntarily refrains from acquiring them after making payment to the seller, they will not be subject to punishment under the provisions of voluntary withdrawal (Article 36/1).
Uncommitable Crime:
According to the Court of Cassation, “if it is understood that the substance found on the defendant is not a drug or stimulant, and if no substances previously used by the defendant, the presence of which is stated in their statement, are found, and if it is not determined whether these substances are drugs or stimulants, the defendant should be acquitted.” Without an expert evaluation on the substance in question, determining whether it is a drug or stimulant, a comprehensive report from the Forensic Medicine Institution’s specialized department or from the criminal laboratories of the Police or Gendarmerie is necessary.
In a decision, the Court of Cassation stated that “when making a decision based on the expert witness examination conducted on the substance in question, and in the absence of sufficient expertise and scientific evaluation regarding whether the substance is a drug or stimulant, a judgment cannot be made based on an inadequate expert report prepared by a non-expert police officer. Therefore, in case of insufficient expert knowledge and scientific evaluation regarding whether the substance is a drug or stimulant, judgment should not be made, and an expert report should be awaited from the relevant authorities.”
