TCK Article 188/4 Increase in Cocaine and Heroin Cases

According to TCK Article 188/4, when the subject of the crime consists of heroin, cocaine, morphine, morphine base and "synthetic cannabinoids and derivatives", the penalty is increased by half. This provision is a critical situation that directly changes the course of the case.

Detection of the Substance — Criminal Report

In order for the Article 188/4 increase to be applied, the substance must be directly identified as cocaine/heroin/morphine by the criminal/forensic chemistry report. When it is in the form of a mixture, the amount of active ingredient and the degree of purity must be written clearly in the report.

Purity Level and Account

• Purity in street heroin is typically between 5-30%; It should be concretized with a report.
• For cocaine, purity is generally in the 30-90% range; Whether it is appropriate to describe an extremely low purity substance as "cocaine" varies depending on the file.
• There are arguments in jurisprudence that when the purity is at a certain level, it can be described as "a mixture, not a substance".

Supreme Court 10th CD — Established Principle

10. CD stated that in order for Article 188/4 to be applied, the criminal report must have clearly and unambiguously determined the nature of the substance; It consistently states that expressions such as "may" or "probably" will be considered insufficient and that additional/counter expert testimony should be obtained when necessary.

Penalty on Net Article

The Supreme Court has adopted as established jurisprudence that the net active substance amount, not the gross substance, should be taken as basis in determining the penalty. A small amount of a substance of high purity may result in a more severe penalty than a large amount of a low purity substance.

Mixture — "Cut" Substances

Street heroin is usually mixed with substances such as paracetamol, caffeine, lidocaine or creatine ("cut"). In this case:

• If the mixture contains an active drug, it can be described as a substance.
• If the amount of active substance is very low, characterization may be discussed based on the criminal report result.
• Communication traffic proving that a deliberate "low purity" sale was made may move the file to Article 188/4.

Defense Strategy