The Crıme Of Use Of Drugs Or Drugs Substance (Article 191 Of The Turkish Penal Code)

The Turkish Penal Code No. 5237 lists offenses related to drugs and stimulants under two different headings:

– Manufacture and trafficking in narcotic drugs or stimulants (Art. 188 TPC)

– Buying, accepting or possessing drugs or stimulants for use or using drugs or stimulants (Article 191 of the TPC)

It is of great importance that these two types of offenses are not confused with each other. In order to determine the offense correctly, it is very important to determine the “purpose of possession” of the person correctly. There are some criteria that are taken into consideration in determining the “purpose of possession” in question. For example; some situations such as the amount of the substance, the way it is possessed, its variety, the behavior of the person determine the nature of the crime.

First of all, let us examine the criteria that constitute the offense of using, purchasing or possessing drugs or stimulants under Article 191 of the Turkish Penal Code No. 5237 and the conditions for the crime to occur.

As can be understood from the explanation of the article, the offense under Article 191 can generally be committed in two different ways.

Buying, accepting or possessing drugs or stimulants for use,

Using drugs or stimulants.            

Use can be defined as taking drugs or stimulants into one’s body in any form. Possession, on the other hand, means that the person keeps the substance in his possession, regardless of whether it belongs to himself or someone else, regardless of the duration of possession.

How Does The Offense Of Possessıon Of Drugs Or Stımulants Occur?

The offense of ‘possession’ and the offense of ‘trafficking in drugs or stimulants’ are often confused with each other. Let us examine some of the criteria to be considered in order to differentiate.

Quantity of Drug Substance

Possession of a substance in excess of the limit required for personal use constitutes the offense of drug or stimulant trafficking. According to the decisions of the Court of Cassation and the records of the Forensic Medicine Institute, it is understood that a person can consume cannabis 3 times a day, 1-1,5 gr each time. When calculating the amount possessed by the person, it is calculated by considering the amount of annual use. This amount may vary depending on the characteristics of the drug and the person.

Behavior of the Person

The person’s behavior with the intention to sell, such as negotiating with the user or seeking customers, constitutes a trafficking offense. The person must be in possession of the substance for the sole purpose of using it.

Place of Possession

The fact that the person keeps the substance in hidden places for different purposes such as hiding and storing it instead of keeping it in a public place for use is a sign of trafficking. For example, the presence of the substance on the coffee table in the person’s home constitutes the crime of ‘possession’, while the presence of the substance hidden in the bed or inside the armchair may constitute the crime of ‘trafficking’.

Possession of the substance

It is not necessary for the person who possesses the substance for the purpose of use to divide and store the substance in equal quantities with great care. The fact that the substance is weighed with a precision scale and carefully separated into separate bags instead of being kept in a careless manner for the purpose of use is a sign of trade. In addition, the fact that the person possesses products such as precision scales or packaging materials together with the substance in question also indicates that the crime of trafficking has occurred.

Diversity of the Substance

The combination of several different types of drugs or stimulants, e.g. cannabis, cocaine, heroin, etc., constitutes evidence of trafficking. Even if each substance does not exceed its personal use limit, the combination of more than one type of substance constitutes the crime of trafficking.

Economic Status and Social Environment of the Person

Other factors such as the person’s work life, financial situation and the way he/she is known also give an impression of whether the person is a user or a dealer.

How To Prove The Offense Of Usıng Drugs Or Stımulants? What Are The Elements Consıdered By The Court?

Persons’ Persuasion or Reporting is Not Sufficient

It is not sufficient for a person to be convicted or punished if he or she states that he or she has used drugs or stimulants and admits that he or she has committed this offense. The substance in question must be physically seized and a report must be obtained stating that it is a substance as specified. In addition, the drug or stimulant substance that constitutes the material subject of the offense must be suitable for use. Therefore, there must be evidence to determine whether the seized substance contains narcotics or stimulants and, if it does contain narcotics or stimulants, the net amount of narcotics or stimulants.

The Court of Cassation has clearly ruled in many decisions that the defendant cannot be convicted of the offense of drug use if the substance that the person admitted to use cannot be seized and if it cannot be proven by technical methods whether it is a drug or not. The reason for this is the principle of “the accused benefits from the doubt” in the Turkish Criminal Judiciary. In accordance with this principle, if there is any unproven situation or doubt in the current case, this situation is interpreted in favor of the defendant.

For example; a bag of marijuana was found in the person’s house. There is no evidence that the substance was hidden or packaged for sale. As a result of the investigation, there is no evidence that the person is a dealer, such as a sensitive scale. In addition, no other banned substance other than cannabis was found. In this case, even if the person who reported the person made a statement such as ‘this person sold me the relevant substance’, it is not possible to convict for the crime of trafficking due to the lack of a fact that the person is a seller.

Existence of the Person’s Intention to Use the Substance

If the person takes the prohibited substance by giving something of material value in return, it constitutes the crime of purchase, and if the person takes it for free, it constitutes the crime of acceptance. Since these two offenses are regulated together, they are subject to the same sanctions, so it does not matter how the relevant substance is taken. According to the Court of Cassation, “If the transfer is for the purpose of use and the amount of drugs taken over is in an amount that confirms the defense that it was taken over (accepted) to drink, it must be accepted that the act constitutes the crime of using drugs”. In other words, it does not matter how the transfer is realized, if the main purpose is the person’s own use, the crime under Article 191 of the TCC will occur.

Another element to be considered is that the person must have taken the substance for the purpose of use, as can be understood from the explanation of the article of the TPC. In the event that the person purchases the narcotic or stimulant substance for a purpose other than his/her own use, the offense of purchasing narcotic substances for commercial purposes under Article 188 of the TPC will have occurred, not this offense. In addition, the use of intermediaries during the act of purchasing for use or the fact that the act of purchase is carried out face-to-face or in a virtual environment such as the internet environment does not matter in terms of the criminalization of the act.

What Is The Limit For Personal Use Of Drugs And Stimulants?

In the decisions of the Court of Cassation, the most important criterion for determining whether the drug or stimulant was purchased, accepted or possessed for the purpose of use or for commercial purposes is the quantity of the drug or stimulant.

The Court of Cassation, in cases where the perpetrator purchases, accepts or possesses narcotic drugs or stimulants for his/her own use, is based on the perpetrator’s need in this regard, especially for a period of 1 year, and states that “whether the amount of narcotic drugs is within the limits of personal need should be evaluated by the Forensic Medicine Institution, taking into account the 1-year time period”.

The amount of cannabis that is acceptable for personal use may vary depending on the physical and psychological structure of the individual and the type, nature and quality of the drug. The Forensic Medicine Institute assesses that individuals who use cannabis can consume 1-1.50 grams at a time and use cannabis 3 times a day. It is a common situation in judicial files that those who have a habit of using cannabis have enough cannabis to meet their needs for several months with them or in a place where they can easily access it. In this context, the fact that cannabis users keep more cannabis than they will need during the normal consumption period shows that it is not for personal use.

For example, in a decision of the Court of Cassation; the Court of Cassation ruled that the cannabis plant parts weighing net 974 grams found in the vehicle of the person can be used as cannabis without any processing and that 340 grams of cannabis can be obtained from drugs, 35% of which is net 340 grams of cannabis, and since the amount in question is within the annual personal use limits, the person possessed the drug for use, not for sale.

In other words, the Court of Cassation first looks at whether there is a need for a process to use the found plant as a narcotic or stimulant substance, then how much of this plant can be used as a prohibited substance and finally whether the amount of the substance is within the limits of personal use. As can be seen, the Court of Cassation has calculated the amount of use for 1 year.

NOTE: If the amount of narcotic or stimulant substance is sufficient for personal use, if there is no other evidence, it can be accepted that the purpose is possession for use, but for the purpose of revealing the material truth, an evaluation should be made according to the characteristics of the concrete event other than the quantity criterion. No matter how small the amount is, the amount of the drug or stimulant will not matter if it is clearly understood that the person possesses the substance in question in order to sell it or to make a profit.

Paying attention to these and similar distinctions is of great importance in terms of some fair trials such as the amount of punishment the person will receive, the possibility of benefiting from amnesty, and the possibility of suspending the sentence.

Personal Use Amount Limit for Cannabis

According to general practice, although the courts have accepted that possession of 1 kilogram of cannabis per year is for personal use, recently, the Court of Cassation considers the annual net amount of cannabis exceeding 600-700 grams as possession for the purpose of trade. In this context, amounts of cannabis of 600-700 grams or less are considered as the crime of possession of narcotic drugs for the purpose of use.

Recent studies show that daily cannabis use is considered to be between 2-4 grams.

Personal Use Amount Limit for Heroin

According to the evaluations of the Court of Cassation, if the amount seized is 20 grams or more, it is accepted that the crime of trafficking has occurred, not use.

Recent studies show that daily heroin use is considered to be 150 milligrams.

Personal Use Amount Limit for Cocaine

According to the evaluations of the Court of Cassation, if the amount seized is 20 grams or more, it is accepted that the crime of trafficking has occurred, not use.

Recent studies show that daily cocaine use is considered to be 60 milligrams.

Personal Use Amount Limit for Synthetic Pills

According to the evaluations of the Court of Cassation, if the amount seized is 50 pieces or more, it is accepted that the crime of trafficking has occurred, not use.

In recent researches, it is seen that daily pill use is accepted as 3-4 pieces.

NOTE: The amounts above are not conclusive. Even if the person possesses a smaller amount, the type of offense may vary in the presence of other evidence of trafficking or in the presence of situations such as possession of small amounts of more than one type of substance.

Offense And Penalty Of Usıng, Purchasıng Or Possessıng Drugs Or Stımulants

As can be understood from the explanation of the article, the offense under Article 191 can generally be committed in two different ways.

1. Buying, accepting or possessing drugs or stimulants for use,

2. Using drugs or stimulants.                

Use can be defined as taking drugs or stimulants into one’s body in any form. Possession, on the other hand, means that the person keeps the substance in his/her possession, regardless of whether it belongs to himself/herself or someone else and regardless of the duration of possession.

According to Article 191 of the Turkish Penal Code No. 5237, “A person who buys, accepts or possesses drugs or stimulants for use or who uses drugs or stimulants shall be sentenced to imprisonment from two to five years.”

The qualified element of the offense is included in the tenth paragraph of the same article. According to the relevant article, “The penalty to be imposed shall be increased by half if the acts in the first paragraph are committed in public or public places within a distance of more than two hundred meters from the boundaries of buildings and facilities such as schools, dormitories, hospitals, hospitals, barracks or places of worship where people congregate for treatment, education, military and social purposes and their boundaries, if any, determined by perimeter walls, wire fences or similar obstacles or signs.”

Postponement Of The Penalty (Postponement Of The Openıng Of The Publıc Case)

In the investigation initiated due to a crime, the public prosecutor shall decide to postpone the initiation of a public case for five years against the suspect, without seeking the conditions of discretionary power to initiate a public case as stipulated in Article 171 of the Code of Criminal Procedure No. 5271. In this case, the public prosecutor warns the suspect of the consequences that may arise for him/her if he/she fails to comply with the obligations imposed on him/her or violates the prohibitions during the postponement period. The postponement decision shall also be notified to the law enforcement units.

During the postponement period, a probation measure shall be applied to the suspect for at least one year. This period may be extended for a maximum of two more years in six-month periods upon the proposal of the probation directorate or ex officio by the decision of the public prosecutor. The person against whom a probation measure is imposed may be subjected to treatment during the probation period if deemed necessary.

NOTE: The public prosecutor decides to refer the suspect to the relevant institution at least twice a year to determine whether he/she has used drugs or stimulants during the postponement period.

If the person commits the following acts during the postponement period, the postponement decision shall be revoked and a public case shall be initiated:

a) Persistence in not complying with the obligations imposed on him/her or the requirements of the treatment,

b) Buying, accepting or possessing drugs or stimulants for reuse,

c) Use of drugs or stimulants.

After the opening of the aforementioned public case, the decision to postpone the opening of the public case cannot be made in the investigations opened with the allegation that the crime has been committed again.

NOTE: The purchase, acceptance or possession of drugs or stimulants or the use of drugs or stimulants during the postponement period shall be considered as one of the above-mentioned reasons for violation and shall not be subject to a separate investigation and prosecution.

Is It Possıble To Appeal The Decısıon To Postpone The Openıng Of The Publıc Case?

It is not possible to directly appeal the decision on the crime of buying, accepting or possessing drugs or stimulants for use. However, according to the explanation in Article 171/2 of the Code of Criminal Procedure No. 5271, the person harmed by the crime or the suspect may appeal within two weeks from the date of notification of the “decision to postpone the opening of the public case” to the criminal judgeship of peace in the place where the heavy criminal court is located in the jurisdiction of the public prosecutor who made this decision.

It should also be noted that a person may appeal against the results of a drug or stimulant test.

Effectıve Remorse

The effective remorse provisions in the offense of buying, accepting or possessing drugs or stimulants for use have two different consequences, before and after the official authorities are informed.

If the person who buys, accepts or possesses narcotic drugs or stimulants for use facilitates the arrest of criminals or the seizure of narcotic drugs or stimulants by informing the authorities from whom, where and when he obtained this substance before being informed by the official authorities, no penalty shall be imposed on him.

After being informed by the official authorities, the punishment to be imposed on the person who voluntarily serves and assists in the discovery of the crime and the apprehension of the perpetrator or other accomplices shall be reduced from one fourth to one half depending on the nature of the assistance.

NOTE: If the person who uses drugs or stimulants applies to the official authorities or health institutions and asks for treatment before an investigation is initiated for the purchase, acceptance or possession of drugs or stimulants for use, no penalty shall be imposed.

Statute Of Lımıtatıons And Proof Provısıons

Although the purchase, acceptance or possession of drugs or stimulants for use is not a crime subject to complaint, the statute of limitations must be observed in order for it to be the subject of investigation and prosecution. The statute of limitations is 8 (eight) years. If the criminal case is not concluded within this period, the case is dropped.

In terms of proof, the person’s confession of the crime, that is, confessing by using a statement such as “I use drugs”, does not qualify as proof. There must be physical or medical evidence that the person has used or possessed drugs. In other words, the drug or stimulant substance must be physically seized or there must be evidence that the person has used the substance in medical control. Otherwise, the proof of the offense does not occur and the conviction of the offender, while the acquittal should have been decided, constitutes a reason for reversal.

Competent And Authorızed Court

The competent court for the crime of buying, accepting or possessing drugs or stimulants for use is the Criminal Court of First Instance where the substance was seized. If the place where the crime was committed is not known, the place where the suspect or defendant was arrested, and for the suspect or defendant who does not have a place of residence in Turkey, the Criminal Court of First Instance in the place where he was last in Turkey is in charge.

Crımınal Lawyer Support In The Offense Of Usıng Drugs Or Stımulants

The offenses of use, purchase and possession of drugs or stimulants are sensitive cases that require the best protection of the rights of the accused. Such cases require great care and expertise due to their complex legal processes and severe criminal sanctions.

As Güneş & Güneş Law Office, we have a deep knowledge in the field of drug crimes with 25 years of experience. We aim to achieve the best outcome for our clients by meticulously investigating and developing a strong defense strategy at every stage of the case. Our years of experience allow us to analyze not only the legal processes, but also the key elements that will influence court decisions. Our expertise in drug offenses guides us in providing our clients with a fair trial. Each case requires a unique and careful approach to defense, and we strive to manage this process in the most effective way.

Having the support of a professional lawyer in legal proceedings is critical to protecting your rights and managing the process effectively. A lawyer secures your legal rights at every stage, from making the necessary applications within the framework of the relevant legislation to the follow-up of the process before the official authorities. In addition, technical and procedural procedures such as determining the victimization, collecting evidence correctly and correspondence with the relevant parties can also be carried out effectively through lawyers.

Particularly in sensitive matters such as violation of personal rights, privacy, commercial rights or protection of copyrights, timely interventions are of vital importance. In such legal cases, it is possible to manage the processes correctly, prevent loss of rights and develop the most appropriate strategies with the support of an expert lawyer.

Providing legal services with its expert staff, Güneş & Güneş Law Office offers effective and strategic solutions to its clients in a wide range of legal issues, especially in the digital world. We are ready to provide the support you need in legal matters such as protecting your individual rights or securing the assets of your business. With 25 years of experience, we are at your side to provide solutions to all your legal problems.

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