Manufacturing and Trafficking of Narcotic Drugs (Article 188 of the TPC)

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In this article, we will talk about the answers to questions such as “What should I do if I am caught manufacturing drugs or stimulants?”, “What will happen if I am detained for drug trafficking?”, “What is the penalty for the crime of drug trafficking?”, and the importance of working with a criminal lawyer on these drug or stimulant manufacturing and drug trafficking issues. For this, we will first examine the manufacture and trafficking of drugs or stimulants in terms of the Turkish Criminal Code as articles of law, and then we will try to find answers to frequently asked questions and questions in your mind.

The full article text of the offense of manufacturing and trafficking in drugs or stimulants regulated in Article 188 of the Turkish Criminal Code No. 5237 is as follows;

(1) The person who manufactures, imports or exports drugs or stimulants without a license or in violation of the license shall be sentenced to imprisonment from twenty to thirty years and to a judicial fine from two thousand days to twenty thousand days.

(2) The executed part of the sentence imposed as a result of the trial held in this country due to the act of exporting narcotic drugs or stimulants being qualified as importation for the other country shall be deducted from the sentence imposed as a result of the trial to be held in Turkey due to the export of narcotic drugs or stimulants.

(3) Any person who sells, offers for sale, gives, transfers, transports, stores, purchases, accepts or possesses narcotic drugs or stimulants within the country without a license or in violation of a license shall be sentenced to imprisonment for a term not less than ten years and a judicial fine from one thousand days to twenty thousand days. (Additional sentence: 18/6/2014 – 6545/66 Art.) However, if the person to whom narcotic drugs or stimulants are given or sold is a child, the prison sentence to be imposed on the person who gives or sells shall not be less than fifteen years.

(4) (Amended: 27/3/2015-6638/11 Art.)

a) The drugs or stimulants mentioned in the paragraphs above are heroin, cocaine, morphine, basmorphine, synthetic cannabinoids and derivatives thereof, synthetic cathinones and derivatives thereof, synthetic opioids and derivatives thereof or amphetamine and derivatives thereof (Amendment: 28.03.2023 T. Law No. 7445 Art.17),

b) If the acts in the third paragraph are committed in public or public places such as schools, dormitories, hospitals, barracks or places of worship within a distance of less than two hundred meters from the buildings and facilities where people gather for treatment, education, military and social purposes and their boundaries determined by perimeter walls, wire fences or similar obstacles or signs, the penalty to be imposed shall be increased by half.

(5) (Amended: 18/6/2014 – 6545/66 Art.) If the crimes specified in the paragraphs above are committed by three or more persons together, the penalty to be imposed shall be increased by half, and if they are committed within the framework of the activities of an organization formed to commit a crime, the penalty to be imposed shall be increased by one times.

(6) The provisions of the preceding paragraphs shall also apply to any substance whose production is subject to the permission of the official authorities or whose sale is subject to a prescription issued by an authorized physician and which produces the effect of narcotic or stimulant substance. (Additional sentence: 29/6/2005 – 5377/22 Art.) However, the penalty to be imposed may be reduced by up to half.

(7) Any person who imports, manufactures, sells, sells, buys, buys, transports, transports, stores or exports a substance which is used in the production of narcotic drugs or stimulants and the importation or manufacture of which is subject to the permission of the official authorities, shall be sentenced to imprisonment for a term of not less than eight years and to a judicial fine from one thousand days to twenty thousand days.

(8) If the offenses defined in this article are committed by a physician, dentist, pharmacist, chemist, veterinarian, health officer, laborant, midwife, nurse, dental technician, nurse, health care provider, person engaged in chemistry or pharmaceutical trade, the penalty shall be increased by half.

According to the explanation in the article, it can be committed in 3 different ways.

Manufacturing drugs or stimulants without a license or in violation of a license;

• To manufacture,
• Importing,
• Exporting.

In addition, paragraph 3 of the same article regulates the crimes of selling, offering for sale, giving to others, shipping, transporting, storing, purchasing, accepting and possessing drugs or stimulants within the country without a license or in violation of the license.

In determining the above-mentioned offenses, the intent of the perpetrator is taken into consideration. Otherwise, the crime types may be confused with each other.

What is the Crime of Manufacturing Drugs or Stimulants?

Manufacturing drugs or stimulants without a license or in violation of a license is a crime that covers the production, processing or manufacturing of illegal drugs in a laboratory environment. This offense refers to the preparation of drugs, their raw materials or derivatives by chemical processes or other methods. Penalties usually vary according to the scope of the activity, the quantity of substances produced and the manner in which the offense was committed. Such acts are considered to be committed not only by those directly involved in the production of drugs, but also by those who provide the materials used in these activities, set up laboratories or carry out chemical processing.

In order for the offense to occur, the perpetrator must know that the offense is being committed. For example, if he participated in the production in the chemical factory where he worked, but did not know that the product was of narcotic nature, he benefits from his mistake in accordance with Article 30 of the TPC. Because the perpetrator does not knowingly and willingly manufacture narcotic drugs.

NOTE: Transactions that do not change the nature of the narcotic substance do not constitute the offense of manufacturing. For example, according to the decision of the Court of Cassation, the conversion of cannabis into marijuana through a simple process does not fall within the scope of the crime of manufacturing.

What is the Crime of Importing Drugs or Stimulants?

Importing drugs or stimulants without a license or in violation of a license means bringing illegal drugs or raw materials used in drug production into the country. This crime includes actions such as transporting drugs from the country where they are produced to another country by land, sea or air, evading customs procedures or bringing drugs into the country that cannot be legally entered into the country.

NOTE: If a person uses Turkey as a transit route to export drugs from one country to another country, this does not constitute the offense of importation or exportation, but the offense of transporting drugs.

What is the offense of exporting drugs or stimulants?

The offense of exporting drugs means the illegal transportation of drugs or stimulants from one country to another and the transportation of these substances across borders. The crime is completed when the drug or stimulant crosses the border of the country. The main difference from the offense of transportation is that the substance concerned moves between the political borders of Turkey. If this act occurs within the country, the crime of transportation occurs.

What are the Crimes of Selling, Offering for Sale, Giving, Buying, Accepting Drugs or Stimulants?

The offense of selling drugs or stimulants is a crime that occurs with the physical delivery of the prohibited substance in exchange for the price given by the buyer. If the perpetrator does not provide a price in return, the crime of ‘giving to others’ occurs.

The offense of offering for sale, on the other hand, is defined in the doctrine as any behavior that reveals the will of the perpetrator to sell the narcotic or stimulant substance that he/she possesses or has under his/her custody. For example, behaviors such as bargaining for sale, looking for a customer, taking a deposit are also referred to as offering for sale. The offer for sale is completed by performing any act that reveals the will to sell.

In the crimes of purchasing and accepting drugs or stimulants, the most important factor to be considered is the purpose of the perpetrator. In order for the offenses of purchasing and accepting drugs or stimulants to occur, the perpetrator must purchase or accept the substance in question for a commercial purpose. Otherwise, the offense of using and accepting drugs or stimulants under Article 191 of the TPC will occur. If the perpetrator cannot be found to have a commercial intent regarding the drug or stimulant substance purchased, then the crime of trafficking does not occur. Because it should not be forgotten that the accused benefits from the doubt. In addition, in order for this crime to occur, the person must not only pay a price in exchange for the substance, but the substance must also come under his/her actual control.

What are the Crimes of Shipment, Transportation, Storage and Possession of Narcotic Drugs or Stimulants?

In order for the crime of dispatch to occur, the drug or stimulant substance must be sent for a purpose other than use. The perpetrator must have a purpose other than use, such as selling or transferring it to someone else. It is not important in terms of the formation of the crime whether the shipment is made for a price or free of charge. In addition, the shipment of a narcotic or stimulant substance must be within the borders of the country. If the act of transportation is made from outside the country to inside the country, it should be considered whether the crime of importation has occurred, and if it is made from inside the country to outside the country, it should be considered whether the crime of exportation has occurred.

Transportation is the transportation of a narcotic or stimulant substance from one place to another. In the offense of transportation, unlike the offense of shipment, the drug or stimulant substance must not be sent or sent, but the substance must be taken personally by the perpetrator or his/her men. Otherwise, the offense of transportation will occur. In addition, the transportation of a narcotic or stimulant substance must take place from one place to another within Turkey. If the transportation is made from abroad to inside the country, the crime of importation will occur, and if it is made from inside the country to abroad, the crime of exportation will occur.

The offense of storage refers to the keeping of a narcotic or stimulant substance in a place for a reason other than the perpetrator’s personal use, such as selling, transferring, exporting. The offense occurs when the drug or stimulant substance is kept in a place for a purpose other than use. In terms of the occurrence of the offense, it does not matter whether the perpetrator is the owner of the stored drug or stimulant substance. The offense occurs even if the perpetrator stores drugs or stimulants belonging to someone else. Whether the perpetrator receives a fee for storage or not, or whether the place where the drug or stimulant substance is stored belongs to the perpetrator or not, has no effect on the occurrence of the offense.

For the offense of possession to occur, the perpetrator need not be the owner of the drug or stimulant substance. Therefore, it does not matter whether the perpetrator gains the right to use the substance or not. Furthermore, it does not matter how the possession was achieved, the possession of the drug or stimulant may have been stolen, found or inherited. The only important criterion is that the substance is possessed for a purpose other than use. This purpose may be a commercial purpose such as selling, offering for sale, transferring, or any other purpose such as helping another person, defrauding another person or defaming another person. Another factor to be considered is whether the amount of the drug or stimulant substance possessed exceeds the limits of personal use. (Detailed information about the limits of personal use is given in our article titled “ The Crime of Using Drugs or Stimulants Art. 191 of the TPC ”).

In addition, if it is determined that the perpetrator uses drugs or stimulants, the crime of possession of drugs or stimulants for the purpose of use occurs. In one of its decisions, the Court of Cassation states that the limits of personal use vary according to the physical and mental structure of the persons and the types of drugs or stimulants.

NOTE: The Forensic Institute considers that cannabis users can consume cannabis three times a day, one to one and a half grams each time.

How Does The Attempt Occur In The Crime of Drug Or Stimulant Trafficking?

Article 35 of the Turkish Criminal Code No. 5237 stipulates that in order to be able to talk about the attempt, direct executive actions must be initiated. With the manufacture, export or importation of narcotic drugs, the crime is completed and no attempt can be mentioned anymore. For example, the Court of Cassation states that especially in cases where the perpetrator heads towards the border of the country with drugs or stimulants, the perpetrator should be punished not for drug trafficking, but for the transportation of drugs, since the executive acts of the export crime have not yet begun.

It is not possible to attempt the crime of exporting drugs from Turkey by air, land or sea from places without customs gates. Because the crime is completed by crossing the border, but if the border has not been crossed, the act constitutes the crime of possession or shipment or transportation, which has been completed until that stage. Thus, the attempt does not occur.

For the attempt in terms of the crime of manufacturing, the perpetrator must prepare a substance that can be manufactured drugs and stimulants, and start manufacturing with the tools and methods suitable for the manufacture of drugs and stimulants. The acts referred to here are as follows;

1. Converting the narcotic and stimulant substance into another narcotic and stimulant substance,

2. Purification of the drug substance by removing or separating foreign substances.

An attempt to commit the offense of selling does not seem possible. Because the attempt of the offense of selling constitutes a separate offense named ‘Offering for Sale’. In the case of supplying drugs or stimulants to another person, the attempt can be mentioned at the stage before the substance is in the hands of the person.

In the case of possession, if the substance has not yet entered the area where the person will dispose of the substance in question, the attempt is in question. Attempt is also possible in terms of purchasing, transporting, shipping, storing, giving to someone else, accepting.

How Does Participation Occur In The Crime Of Drug Or Stimulant Trafficking?

In the crime of drug or stimulant trafficking, anyone can be the perpetrator of the crime. For this reason, participation in this crime is possible. Committing the crime with an organization and participation in the crime are different situations. In cases other than committing the crime with an organization, participation in the crime will be in question.

The person who instigates the perpetrator to manufacture, import or export narcotic drugs or stimulants without a license or in violation of the license will be responsible for the instigation regulated under Article 38 of the Turkish Penal Code, and those who use persons who lack the ability to commit the crime will be punished as perpetrators in accordance with Article 37.

In case of assisting a person who commits the offense of manufacturing and trafficking in drugs or stimulants, encouraging the person to commit a crime, strengthening the person’s decision to commit a crime or promising to help after the act is committed, liability will arise as an aider and abettor.

NOTE: The act of ‘aiding’ in the above information text must be realized in accordance with the definition in the Turkish Penal Code No. 5237. According to the relevant article:

In the following cases, the person shall be liable as an aider and abettor for the offense committed:

a) Encouraging to commit a crime or strengthening the decision to commit a crime or promising to provide assistance after the commission of the act.

b) Providing guidance on how to commit the offense or providing the means used in the commission of the offense.

c) Facilitating the execution of the offense by providing assistance before or during the commission of the offense.

What Are The Penalties For Drug Or Stimulant Trafficking Offenses?

It is possible to commit the offense of trafficking in drugs or stimulants together with another offense. For example, if actions are taken to legitimize the money earned from the production of drugs or stimulants, the crime of money laundering is committed together with the crime of manufacturing drugs or stimulants.

The perpetrator violates both paragraphs by committing one of the acts of selling, offering for sale, giving to others, shipping, transporting, storing, purchasing, accepting and possessing narcotic drugs or stimulants within the country without a license or in violation of the license as stipulated in paragraph 3 of Article 188 of the Turkish Criminal Code No. 5237, and one of the acts of manufacturing, importing or exporting narcotic drugs or stimulants without a license or in violation of the license as stipulated in paragraph 1 of the same article. Thus, there are 2 different acts and the perpetrator is punished separately for both acts. In other words, the perpetrator is held responsible for both acts separately. The nature of these two different offenses or the order in which they were committed is not important.

In another example, the Criminal General Assembly stated that if the slander is made by using drugs or stimulants, the perpetrator will be punished for both the drug offense and the slander offense.

Can The Offense Of Trafficking In Narcotic Drugs Or Stimulants Be Committed By Legal Entities?

According to the statement in paragraph 1 of Article 20 of the Turkish Penal Code, “Criminal responsibility is personal. No one is held responsible for the act of another.” Paragraph 2 of the same article states that “Criminal sanctions cannot be imposed on legal entities. However, the sanctions in the nature of precautionary measures stipulated in the law due to the offense are reserved.”

Within the scope of the crime of trafficking in drugs or stimulants, only natural persons can be the perpetrators of this crime. It is stated that in the event that these crimes are committed in the context of the activities carried out by legal entities, security measures will also be imposed on the legal entity in relation to these crimes. In addition, if a crime is committed in the field of activity of legal entities that carry out their activities through their organs, the real person who commits the act constituting the crime will be responsible for the crime, not the legal entity.

What Are The Penalties For Drug Or Stimulant Offenses?

Article 188 of the Turkish Penal Code specifies the amount of fines and imprisonment sanctions to be imposed for the offense of manufacturing, importing or exporting drugs or stimulants. According to the explanation in paragraph 1 of the same article, “The person who manufactures, imports or exports drugs or stimulants without a license or in violation of the license shall be sentenced to imprisonment from 20 years to 30 years and a judicial fine from two thousand days to twenty thousand days.”

In another regulation in paragraph 3 of the same article, “A person who sells, offers for sale, gives, ships, transports, stores, buys, accepts or possesses drugs or stimulants in the country without a license or in violation of the license shall be sentenced to imprisonment for a term of not less than 10 years and a judicial fine from one thousand days to twenty thousand days.”

In the continuation of the paragraph, it is stated that if the person to whom drugs or stimulants are given or sold is a child, the prison sentence to be imposed on the person shall not be less than fifteen years. In addition, the penalty to be imposed is increased by half if the acts in paragraph 3 are committed in public or public places such as schools, dormitories, hospitals, barracks or places of worship, buildings and facilities where people gather for treatment, education, military and social purposes, and within a distance of less than 200 meters from their borders, if any, determined by perimeter walls, wire fences or similar obstacles or signs.

Apart from the above-mentioned regulations, situations where the penalty to be imposed will be increased are also regulated. Namely

– If the specified drugs or stimulants are heroin, cocaine, morphine, basmorphine, synthetic cannabinoids and derivatives, synthetic cathinones and derivatives, synthetic opioids and derivatives or amphetamine and derivatives, the penalty to be imposed is increased by half.

– If the specified crimes are committed by 3 or more persons together, the penalty to be imposed shall be increased by half, and if they are committed within the framework of the activities of an organization formed to commit a crime , the penalty to be imposed shall be increased by one times.

– The penalty to be imposed shall be increased by half if the offenses described are committed by a physician, dentist, pharmacist, chemist, veterinarian, health officer, laborant, midwife, nurse, dental technician, nurse, health care provider, person engaged in chemistry or pharmaceutical trade.

In another paragraph of the article, there is information about the discount that can be applied to the penalty. Namely

– The provisions of the above paragraphs shall also apply to any substance whose production is subject to the permission of the official authorities or whose sale is subject to a prescription issued by an authorized physician and which has the effect of a narcotic or stimulant substance. However, the penalty to be imposed may be reduced by up to half.

As can be understood from the provision of the article, the reduction to be made is not definite, but depends on the initiative of the judge who will impose the sentence.

In another paragraph of the same article, a different penalty is regulated. According to the relevant article paragraph;

– A person who imports, manufactures, sells, buys, transports, ships, transports, stores or exports a substance that is used in the production of drugs or stimulants and whose import or manufacture is subject to the permission of the official authorities, although it does not have a narcotic or stimulant effect, shall be sentenced to imprisonment for not less than 8 years and a judicial fine from one thousand days to twenty thousand days.

As stated in the article, the penalty imposed covers the raw materials of drugs or stimulants.

What Is The Offense Of Facilitating The Use Of Drugs Or Stimulants?

The Turkish Penal Code No. 5237 includes a separately regulated type of crime other than drug trafficking and drug use crimes. The penalty for the crime of facilitating the use of drugs or stimulants is also regulated separately in the relevant article.

In the article in question, the offense is regulated in two different ways. The first one regulates the actions aimed at facilitating the use of the substance, while the other regulates the encouragement of the substance.

To facilitate the use of drugs or stimulants

a) Providing specialized space, equipment or materials,

b) Taking measures to make it difficult to catch those who use,

c) Provides information to others on methods of use,

The person shall be sentenced to imprisonment from 5 years to 10 years and a judicial fine from one thousand days to ten thousand days.

A person who publicly encourages the use of drugs or stimulants or publishes publications of this nature shall be sentenced to imprisonment from 5 years to 10 years and a judicial fine from one thousand days to ten thousand days.

There is a common penalty increase for both types of offenses. If the offenses defined in this article are committed by a physician, dentist, pharmacist, chemist, veterinarian, health officer, laborant, midwife, nurse, dental technician, nurse, health care provider, person engaged in chemistry or pharmaceutical trade, the penalty to be imposed is increased by half.

How Is The Crime Of Drug Or Stimulant Trafficking And Effective Remorse Applied?

Effective remorse; It is the state of reducing or completely eliminating the punishment if the perpetrator shows remorse after the commission of an offense regulated in the Turkish Penal Code No. 5237. Effective remorse provisions for the crime of drug or stimulant trafficking are regulated in Article 192 of the Turkish Penal Code. “I committed a drug trafficking offense but I regret it. What should I do?” The answer to such questions is included under this article. According to the relevant article, “If the person who has participated in the crimes of manufacturing and trafficking in drugs or stimulants informs the authority of other accomplices and the places where drugs or stimulants are stored or manufactured before being informed by the official authorities, no penalty shall be imposed on himif the information provided ensures the capture of the accomplices or the seizure of drugs or stimulants.”

As can be understood from the provision of the article, some conditions are required for the effective remorse provisions to be applied to the person.

– First of all, the perpetrator who participates in the crime must inform the authorities.

– (Ministries of Justice and Interior, prosecutor’s offices, police and gendarmerie organizations, governors and district governorships, embassies and consulates that are obliged to report crimes to prosecutor’s offices)

– He or she must have informed the authorities before being informed by them.

– He/she must have given information about other accomplices and the places where the substances are stored or manufactured.

– Thanks to the information provided, the accomplices must be apprehended or the substance in question must be seized.

The term “accomplices” does not only refer to those who participate in the crime, but also to all those who are connected to the crime.

Paragraph 3 of the same article regulates effective remorse after being informed by the official authorities. Namely, “The penalty to be imposed on the person who, after being informed of these crimes, voluntarily serves and assists in the discovery of the crime and the apprehension of the perpetrator or other accomplices, shall be reduced by one-fourth to one-half, depending on the nature of the assistance.”

As can be seen, in this case, there is not no punishment, but a reduction.

So, is the consensual delivery of the substance by the perpetrator during the search considered effective remorse? The General Assembly of Criminal Court, while deciding that the procedure in the incident where the defendant surrendered the substance with his consent cannot be characterized as a search and that the evidence is in accordance with the law, also stated that the effective remorse provisions cannot be applied. Accordingly, it is not possible to apply the provisions of effective remorse because the defendant understood that the police would find the substance by checking by polling before the delivery.

What Is The Foreign Element In The Offense Of Trafficking In Drugs Or Stimulants?

Article 13 of the Turkish Penal Code states that if the aforementioned offenses are committed in Turkey by citizens or non-citizens, they will be processed in accordance with the laws of our country. In other words, if the offense in question is committed by a foreigner in Turkey, the provisions of the Turkish Penal Code will be applied.

For the crimes of manufacture and trafficking of drugs or stimulants committed outside the country, in accordance with the provision regulated in Article 14 of the Criminal Procedure Code, if the investigation and prosecution must be carried out in our country, it is necessary to take action in accordance with Article 13 of the Criminal Procedure Code. Although the aforementioned rule is a general rule, upon the request of the public prosecutor, defendant or suspect, the Court of Cassation may grant jurisdiction to the court that is closest in distance to the place where the crime occurred.

If the place of arrest of the suspect or accused in the crimes in question is outside Turkey, if he/she has not resided in Turkey and does not have a specific address, the competent court will be determined by the Court of Cassation upon the request of the Ministry of Justice and the application to be made by the Chief Public Prosecutor of the Court of Cassation. The Ankara court is authorized for crimes committed by public officials of our country who benefit from diplomatic immunity by taking place in foreign countries.

What Is The Competent And Authorized Court For The Crime Of Drug Or Stimulant Trafficking?

Since the lower limit of the penalty for the crime of drug or stimulant trafficking regulated in Article 188 of the TPC is 20 years imprisonment, the competent and authorized court is the Assize Court where the crime is committed.

What Is The Importance Of Criminal Lawyer Support In Drug Or Stimulant Trafficking Offense?

The crime of drug trafficking is one of the complex cases that should be handled by a specialized lawyer, taking into account many factors such as the way it was committed, the seriousness of the crime and the criteria set by the Supreme Court. For this reason, it is of great importance to work with an experienced and expert lawyer in drug cases in order to prevent possible victimization. Lawyers who handle drug cases should know the legal regulations well, examine the subject in detail and carry out the case process meticulously in this direction.

As Güneş & Güneş Law Office, we have a team of specialized criminal lawyers with 25 years of experience and deep knowledge in the field of drug crimes. We aim to achieve the best result for our clients by developing a meticulous investigation and a strong defense strategy at every stage of the case. Our years of experience allow us to analyze not only the legal process, 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.

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