Article 188 of the Turkish Penal Code No. 5237 regulates the acts of manufacturing, importing, exporting, selling, offering for sale, giving away, transporting, storing and purchasing narcotic or stimulant substances as independent crimes. The article is one of the most frequently applied and most severely punished articles of Turkish criminal justice.
Articles Constituting the Subject of the Crime
The subject of the crime consists of substances considered "drugs" within the scope of Law No. 2313 on the Control of Narcotic Drugs and Law No. 3298 on Narcotic Drugs and stimulant substances added to the list by the decisions of the Council of Ministers / Presidency. This includes cannabis (cannabis resin/oil/weed), heroin, cocaine, methamphetamine, MDMA (ecstasy), synthetic cannabinoids (bonzai/JWH series) and "off-catalogue" new psychoactive substances.
Penalties — Baseband
- Manufacture/import/export (Art. 188/1): Imprisonment from 20 to 30 years + 2,000-20,000 days of judicial fine.
- Selling, offering for sale, giving to others, transportation, storage, purchasing (Art. 188/3): Imprisonment of not less than 10 years + judicial fine of not less than 1,000 days (the upper limit has been increased with the changes in the law and is actually applied between 10-20 years today).
- Heroin, cocaine, morphine, morphine base, synthetic cannabinoids and derivatives: the penalty is increased by half (m.188/4).
Qualified Circumstances (Increasing the Penalty)
- The crime is committed by three or more people together: the penalty is increased by half.
- Committed within the framework of organizational activity established for the purpose of committing a crime: the penalty is increased by one fold (TCK art. 188/5).
- Special escalation cases (Art. 188/6,8) are applied when the crime is committed by using healthcare professionals, public officials or people under the age of 18.
The Spiritual Element of Crime
The crime may be committed deliberately; It is not possible to commit it by negligence. The defendant must know that the substance in his hand is a drug and must have committed part of the act voluntarily. The Supreme Court evaluates the "I did not know" defense in the light of material facts; Elements such as storage location, packaging, quantity, moment of capture may reflect intent.
Supreme Court 10th CD — Established Approach
10. CD and the 20th CD have consistently stated that in terms of "intent to sell", not only the quantity but also all evidence such as the method of preparation (packaging, dosing), sales tools (scales, bags, payment records), communication traffic and the way the substance was obtained must be evaluated together. Accepting "trade" based on pure quantity seems erroneous if there is no other evidence.
Practical Considerations for Victims and Accused
For the person in the position of the accused: the type of substance seized, its degree of purity, net weight of the substance (the criminal report reflects the purity), the place and chain of acquisition (law enforcement search report, sealing), the legality of the records of communication detection and eavesdropping (CMK article 135) must be carefully examined.
These crimes fall within the jurisdiction of the high criminal court and are considered "catalog crimes" in terms of arrest (CMK art. 100/3). Criminal defense attorney support is indispensable.