OFFENSE OF USING DRUGS AND STIMULANTS (TCK ART.191)

A-) WHAT ARE DRUGS AND STIMULANTS ?

Drugs and stimulants are chemical substances that have a direct effect on the central nervous system, changing the consciousness, mind, mood and habits of the individual, and can cause physical and/or psychological dependence when used.

Legally, these substances are subject to national legislation (e.g. the Law on the Control of Narcotic Drugs) and international conventions (1961 Single Convention, 1971 Convention on Psychotropic Substances, etc.) and are in a strict control relationship with national legislation and conventions.

Examples of narcotic drugs include cannabis, heroin, morphine, cocaine, methadone; examples of stimulants include amphetamine, methamphetamine (crystal meth), MDMA (ecstasy).

These substances are at the center of criminal acts in terms of Turkish Criminal Law because they threaten public security and social order as well as the health of the individual.

B-) ELEMENTS OF THE OFFENSE OF USING DRUGS AND STIMULANTS, THE LEGAL VALUE PROTECTED, THE NATURE OF THE OFFENSE, SPECIAL FORMS OF APPEARANCE

A person who purchases narcotic drugs and stimulants for personal use, possesses narcotic drugs for use, accepts or uses narcotic drugs in any way commits the offense of using narcotic drugs pursuant to Article 191/1 of the TCK.

Accordingly, Article 191/1 of the TCK includes four separate acts in relation to this offense, namely use, purchase for the purpose of use, possession and acceptance. The common component of the acts other than using narcotic drugs is that the perpetrator allocates the narcotic or stimulant substance for personal use.

Possession of narcotic drugs or stimulants for use is the actual and/or legal possession of narcotic drugs or stimulants belonging to oneself or another person for the purpose of use. Possession means the continuation of the de facto sovereignty relationship over the drug or stimulant substance. Since there is a continuous offense here, it does not matter whether the possession of drugs or stimulants is short or long term in terms of the formation of the crime.(YCGK-K.2020/102).

1-) LEGAL VALUE PROTECTED

While explaining the legal value protected, it is useful to look at where the article is regulated in the Turkish Criminal Code. Article 191 of the TCK is included in the Third Section titled “Crimes Against Public Health” in the Third Part titled “Crimes Against Society” in the Second Book titled “Special Provisions” of the Turkish Criminal Code. Therefore, according to its place of regulation in the Turkish Criminal Code, the legal value protected by Article 191 of the TCK is the protection of general public interest and public health.

In addition to these purposes, the Anayasa Mahkemesi, in its decision dated 26.02.2009 and numbered E:2007/22, K: In its decision numbered 2009/37, while examining the claim of unconstitutionality of Article 191/7 of the TCK, which was in force before the amendment of Law No. 6545, the Constitutional Court emphasized that the legal benefit protected by Article 191 of the TCK is to reintegrate the defendant into society by forcing the defendant to undergo treatment with the threat of punishment.

As a matter of fact, in the Anayasa Mahkemesi Decions dated GK, E. 2007/22 K. 2009/37 T. 26.2.2009,

”…There is no doubt that Article 191/7 of the Turkish Criminal Code and Article 191/2 and therefore Article 191/5 of the Turkish Criminal Code are intended to achieve the same purpose in punishment, both articles of law aim to activate the fight against the use of drugs, which has become one of the most important problems of today’s society, to make the use, purchase and acceptance of drugs a deterrent for the individual and to treat and reintegrate individuals who have this problem into society…”

is stated as follows.

2-) PERPETRATOR

The person who performs the elements in the legal definition of the crime is called the perpetrator. The legislator requires the perpetrator to have certain legal or material characteristics within the scope of the execution of some crimes in the TCK.

However  when examined within the scope of Article 191 of the TCK, the legislator did not seek to have certain qualifications for the crime of using stimulants or drugs, and this crime is one of the crimes that can be committed by anyone, provided that they are a real person.

While the legislator, during the abrogated Criminal Code No. 765, sought the condition that the perpetrator should have “iptila”, that is, addiction to the degree of extreme addiction, there is no such condition or regulation in the TCK No. 5237. The fact that the perpetrator of the offense of using narcotic drugs or stimulants uses this substance for the first time and is a continuous and regular user or has a degree of addiction does not make a difference in terms of the execution of the offense.

Article 192 of the TCK makes a distinction regarding the security measure to be applied between the person who uses drugs and the person who does not use drugs but buys or possesses them for use. Pursuant to this provision, only probation provisions are applied to the person who does not use drugs but takes or possesses them for use, while both probation and treatment should be applied to the person who uses drugs or stimulants.

One of the points to be considered is whether the perpetrator will be covered by this offense if he/she procures drugs for the purpose of use. In this regard, it is necessary to look at whether the drug or stimulant substance supplied by the perpetrator exceeds the amount sufficient for personal use. If the perpetrator manufactures or supplies drugs at a level exceeding the amount sufficient for personal use, he/she is prosecuted for the crime of manufacturing drugs and stimulants in accordance with Article 188 of the TCK.

3-) VICTIM

The individual who uses the substance is not the victim of the crime. Based on the place where Article 191 of the TCK  is regulated in the TCK, the victim of the crime of using stimulants or drugs is the society. Some authors in the doctrine state that the victim of the crime of using stimulants or drugs is the whole humanity in case the crime becomes international.

As a matter of fact, the Criminal General Assembly of the Turkish Court of Cassation (Yargıtay) also mentions in its decisions that the value to be legally protected in crimes related to drugs is the well-being of society and the individual.

4-) SUBJECT

The subject matter of the offense is stimulants or drugs. The nature of the stimulant or narcotic substance is not important for the execution of the elements in the legal definition of the offense. There is no difference whether the substance is cannabis, ectasy, cocaine, bonzai,methamphetamine, amphetamine or heroin.

In practice, the content of the criminal report to be prepared by law enforcement officers within the scope of this offense must specify which drug or stimulant substance was seized or the content of the drug or stimulant substance and must be included in the documents related to the investigation. Otherwise, since there is no drug or stimulant substance that constitutes the main subject of the crime, it is said to be an unprocurable crime.

As a matter of fact, 10.CD. 05.04.2004- 2025\3900 dated Decision of the Turkish Court of Cassation (Yargıtay) mentions this issue.

“…The substances subject to the offense seized in the defendant’s residence…. “Establishing a written verdict with incomplete investigation without having an expert expert examination on whether the substances subject to the crime seized in the defendant’s residence contain narcotic substances…” 

In the 10th CD. 2014\12180 E.2017\946, K13.03.2017 dated Turkish Court of Cassation  (Yargıtay) Decision, which should be mentioned within the scope of the above-mentioned issues, the issue explained is mentioned as follows

“…Mine T., for whom a decision of non-prosecution was made for the offense of possession of drugs for use Samire A. and Aysun A., for whom a decision of no prosecution for the offense of possession of drugs for use was made, it was not determined whether the substance they said that the defendant provided them was of a narcotic or stimulant nature since it was not seized, it could not be determined by technical methods that the aforementioned persons used narcotic or stimulant substances on the date of the crime, and no narcotic substance was seized from the defendant, therefore, it is contrary to the law to decide for his conviction instead of his acquittal, considering that there is no sufficient and definite evidence, free from all kinds of doubts, which reveals that the defendant committed the imputed crime as a samout fact, except for the abstract statements of the aforementioned persons…”

In order  for the offense of using drugs or stimulants to be realized legally, the existence of the subject of the offense, i.e. drugs or stimulants, must be established before the perpetrator’s action. At this point, the first assessment can be made by preliminary expertise reports prepared by law enforcement officers who have received training on drugs within the framework of Law No. 2313. However, such reports are only preliminary assessments; their content is not expert opinion, but professional opinion. 

What is essential in the criminal procedure system is to establish the material truth beyond any doubt. Accordingly, whether the substance is indeed a narcotic or stimulant can only be established by expert reports with precise and scientific content issued by authorized forensic medicine institutions or laboratories. In the absence of this report, the court’s decision based solely on the opinion of the law enforcement or preliminary assessment is clearly contrary to both the principles of procedural law and the principle of legality in crime and punishment. In practice, the Court of Cassation considers the convictions based solely on the preliminary report as grounds for reversal in cases where the material truth is not determined in this way.

As a matter of fact, the 10th CD of the Turkish Court of Cassation(Yargıtay) , 2012/21190 E. – 2014/11460 K. , in its Decision dated 21.10.2014, states that the establishment of a judgment based solely on the preliminary expertise report issued by law enforcement officers constitutes a ground for reversal.

On the other hand, the mere declaration of the perpetrator at the investigation or prosecution stage that he/she has used a substance cannot be considered sufficient for a conviction alone. In order for this statement to have criminal consequences, the substance in question must have been seized and a definitive expert report on this substance must be present in the file. Otherwise, since the material element of the crime has not been realized, criminal responsibility does not arise.

There is a decision given by the 10th CD, 2006/2369, 2007/400 Turkish Court of Cassation (Yargıtay) regarding this issue.

“…Although it is accepted that the defendant used drugs according to his preparatory statement and statements at the stages, the fact that the drug substance or sample of the drug he stated that he used was not seized and no expert examination was made on the substance, and that the drug metabolite was not detected due to the fact that the defendants’ blood and urine samples were not taken and analyzed, it is contrary to the law to establish a conviction in the written manner instead of a verdict of acquittal due to the lack of conclusive and convincing evidence sufficient for the conviction of the defendant, away from all kinds of doubts…”

The principle of legality underlies this sensitivity regarding whether the substance is actually criminalized. In Turkish law, drugs and stimulants are not listed individually in the text of the law. This issue leads to various debates both in practice and in the doctrine. According to one opinion, as a requirement of the principle of legality, these substances must be clearly defined directly by the legislator in order to clarify the boundaries of the crime. This view argues that the basic principles of law should be preserved under all circumstances.

The other view, on the other hand, states that in our age, the variety of drugs and stimulants has increased rapidly, chemical compositions are constantly changing, and therefore, it is not possible to list these substances one by one in the text of the law. Accordingly, leaving the regulation to regulations and international conventions is seen as a dynamic and effective method in the fight against drugs. Indeed, the practice has developed in this direction; it is not based on whether the name of the substance used by the perpetrator is included in the law, but whether it actually has an addictive and harmful effect.

As a result, in order for the perpetrator to be punished, first of all, the substance used by the perpetrator must be a narcotic or stimulant substance identified by legally valid methods. Otherwise, for example, if the person is given flour instead of drugs or if a counterfeit substance is used, the subject of the offense does not exist and a non-communicable offense situation arises. This means that the perpetrator cannot be legally punished.

5-) MOVEMENT

Optional Acts Performed with the Intent to Use Narcotic Drugs or Stimulants

The offense of using narcotic drugs or stimulants is an elective offense and can be constituted by four separate acts performed for the purpose of using the substance: purchase, acceptance, possession and use. The commission of any one of these acts alone is sufficient for the offense to occur. On the other hand, if the acts are performed together, the number of acts, not the number of offenses, increases and is legally considered as a single offense. However, if the acts are directed towards different substances or different purposes, it is no longer necessary to speak of a single offense, but a separate offense for each act.

This type of crime is among the crimes whose result is contiguous with the act, and the change in the external world included in the legal definition is concretized by the actual purchase, acceptance, possession or use of drugs or stimulants. In this respect, the completion of the crime depends on the realization of the result. In addition, if the perpetrator commits another crime as a result of the voluntary use of these substances, he will be punished separately in accordance with the principle of free movement in the cause of action.

5-a) Purchase of Narcotic Drugs or Stimulants with the Intent to Use

The act of purchase consists of taking possession of a drug or stimulant in exchange for a consideration or a substitute. The consideration need not be money; anything of economic value, even an exchange for another drug, may also be considered as a purchase. However, if an act that has no economic value is given in return, such as sexual intercourse, the act of purchase does not occur; instead, the acts of possession or acceptance are evaluated.

In order for this act to be considered a crime, three basic elements are sought: Firstly, there must be a quid pro quo, secondly, the substance must actually be in the possession of the perpetrator, and thirdly, the purpose of the perpetrator must be to use the substance. Otherwise, if the purpose is something other than use (e.g. trade), the perpetrator is evaluated under Article 188 of the TCK. The purpose of the perpetrator should be determined not only according to his/her statements, but also according to the characteristics of the incident. Many factors such as the quantity of the substance, the place where it is found, the way it is packaged are decisive in this evaluation.

5-b) Accepting Narcotic Drugs or Stimulants for the Purpose of Use

Acceptance means that the perpetrator takes possession of a substance belonging to another person without any compensation. There must be a transfer of possession and only a verbal agreement is not sufficient. The perpetrator’s intention must also be to use it here. Otherwise, if there is an intent to trade, Article 188 of the TCK is applied again.

The quantity of the narcotic substance is also an important criterion here. Possession of substances in excess of the dose of use weakens the purpose of use and is considered to be acquired for commercial purposes. In addition, if the perpetrator accepts the substance for the purpose of protecting the person who is the subject of the investigation or prosecution, the crime of concealing evidence defined in Article 281 of the TCK comes to the fore.

5-c) Possession of Narcotic Drugs or Stimulants for the Purpose of Use

Possession is when the perpetrator takes the narcotic substance under his/her actual or legal sovereignty and disposes of it. The fact that the perpetrator has easy access to this substance is sufficient for the offense to occur. The substance may be on the perpetrator’s person or in his/her home, vehicle or workplace. It does not matter to whom the ownership belongs; what is important is the disposal and accessibility of the substance.

The act of possession is a continuous, uninterrupted crime. The fact that it has not been used or that it is kept in case it may be needed in the future does not eliminate the offense. If the substance is prescribed and based on medical necessity, the offense does not occur; however, if it is supplied without a prescription, the perpetrator cannot escape criminal responsibility.

The decisive difference between this offense and Article 188 of the TCK is in the intent of the perpetrator. A person who intends to use is liable under Article 191, while a person who intends to trade is liable under Article 188. In making this distinction, factors such as the amount of the substance, the way it is hidden, the sensitive scales, small bags and large sums of money should be taken into consideration.

In addition, possession of narcotics for someone else cannot be considered within this scope; in this case, the perpetrator will be held responsible for the offense of “facilitating the use” regulated under Article 190 of the TPC. If the perpetrator both possesses it for himself/herself and keeps it for someone else, he/she should be punished for both offenses separately.

 5-d) Use of Narcotic Drugs or Stimulants

Taking a narcotic substance into the body by any means and coming under its influence constitutes the act of use. This may be by ingestion, snorting or intravenous use. One time use is sufficient for the offense to occur; in the case of repeated use, only one offense occurs, because this act is a legally continuous act.

The purpose of the use, the psychological motives of the perpetrator or the type of substance do not matter. In addition, if the substance has not been seized, it can be determined whether the perpetrator has been affected as a result of the analysis of samples taken from the body. However, the perpetrator’s testimony alone is not considered sufficient evidence.

If the offense under Article 191 of the TCK is committed in public places such as schools, hospitals, places of worship, there is a qualified case and the penalty is increased. The type of substance (cocaine, amphetamine, methamphetamine, ectasy, etc.) does not lead to a different punishment for this offense.

There are differences of opinion in the doctrine as to whether the offense occurs in the case of trace amounts of the narcotic substance. While some opinions argue that the crime occurs even if the amount is small if the type of substance can be determined, the opposing opinions argue that substances that are ineffective in terms of use do not constitute the material element of the crime. In its recent decisions, the Court of Cassation, in the event that the amount of the substance is not effective or is at an immeasurable level, accepts it as a non-communicable offense and gives acquittal decisions.

As a matter of fact, in the Decision of the Criminal General Assembly of the Turkish Court of Cassation (Yargıtay) dated 26.06.1984, 1984/5, it is stated

“…According to the facts and acceptance, the amount of cocaine in the paper thrown by the defendant is too small to be discussed. The expert witnesses have stated that the drug subject to the case is not pleasurable. Apart from the amount obtained, there is no record that cocaine was searched for and could not be obtained from the defendant, the car and the place. …As such, it must be accepted that the cocaine substance subject to the crime is not in an amount suitable for use. In this respect, since the intent element of the act charged to the defendant under Article 404/2 of the TCK has not been formed, the objection is accepted.”

However, the responsibility of the perpetrator in cases such as offering or sharing the substance to others is one of the most debated issues in practice. The act of “giving to others”, which is evaluated within the scope of Article 188/3 of the TCK, does not require a commercial purpose. However, some decisions have evaluated such acts within the scope of Article 191 of the TCK. The Court of Cassation has an inconsistent approach on this issue, and in some decisions, it evaluates the act of offering within the scope of the crime of trade, and in some cases, within the scope of the crime of use.

There is a decision of the Turkish Court of Cassation (Yargıtay) dated 10.CD.2012/13522E. 2013/8959K. 11.10.2013 regarding this issue.

“…Convicting the defendant for “trafficking in narcotic substances” instead of “possession of narcotic substances for use” without considering that there was a friendship relationship between the defendant and the complainant, that the defendant and the complainant smoked the marijuana cigarette that the defendant brought with him on the day of the incident, and that there was no intention to supply the same cigarette due to smoking together…”

6.MENTAL ELEMENT

The moral element of the crime is to use drugs or stimulants to meet personal needs, to possess or purchase drugs or stimulants knowing that they are drugs or stimulants, and to accept drugs or stimulants for personal use. Therefore, the moral element of the crime is intent.

7. REASONS FOR COMPLIANCE WITH THE LAW

7-a) Exercise of the Right

In criminal law, it is accepted that criminal liability does not arise if an individual exercises a right in accordance with the law. In this framework, the use of a drug containing narcotic or stimulant substances for the purpose of treatment and with a prescription issued by the

competent authorities is considered within the scope of the exercise of the right. The main legal interest pursued here is to protect the individual’s right to life.

However, in the event that the person uses drugs/stimulants without a prescription or unlawfully, goes beyond the amount prescribed to him/her, or sells the prescribed drugs/stimulants to a third party who wants to use them for recreational or intoxicating purposes, there will no longer be a case of compliance with the law within the scope of the exercise of the right. In this case, the act of the person constitutes a crime within the meaning of Article 191 of the TCK.

7-b) State of Necessity

The state of necessity arises when a person commits an act that constitutes a crime in order to eliminate a serious and immediate danger to himself or someone else. In the context of the use of drugs or stimulants, this situation has been evaluated in different ways in the doctrine.

According to one opinion, the state of necessity may constitute a reason for compliance with the law only in terms of the act of “use”. According to the other opinion, it can also be applied in terms of all optional acts such as “purchase, acceptance and possession”. However, in my opinion, it is more appropriate to evaluate and decide on each concrete case separately, taking into account the characteristics of the case, the environmental conditions and the situation of the perpetrator.

For example, in an environment where access to a doctor is not possible, situations such as an individual using drugs to relieve intense pain or a mother giving drugs to her child in crisis who has no access to treatment can be considered within the scope of necessity.

7-c) Realization of the Act with the Consent of the Perpetrator

In order for the crime of buying, accepting or possessing drugs or stimulants for the purpose of use to occur, the perpetrator must perform these acts knowingly and willingly. It is not possible for this offense to occur without consent and intent.

If the perpetrator takes these substances by force or deception or uses them without his/her knowledge, the act will be considered within the scope of compliance with the law; criminal liability will not be in question due to the absence of intent.

Pursuant to Article 34 of the Turkish Criminal Code, an individual’s taking drugs or stimulants with his/her own consent does not eliminate criminal responsibility. However, if the substance was given against the person’s will, or if the person used the substance for a temporary reason and as a result became unable to perceive the legal meaning and consequences of his/her actions, the criminal responsibility of the perpetrator does not arise.

For example, in the event that the individual loses his/her will under the influence of the substance as a result of being given drugs without his/her knowledge and commits an unlawful act in this situation, he/she will be exempted from criminal liability pursuant to Article 34/1 of the TCK.

8 – ) QUALITATIVE FORM OF THE OFFENSE OF USING STIMULANTS OR DRUGS

Paragraph 10 of Article 191 of the TCK No. 5237 regulates the qualified form of this offense. According to this paragraph, “The penalty to be imposed is increased by half if the acts in the first 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, if any, determined by perimeter walls, wire fences or similar obstacles or signs.”

The common characteristic of all of the places listed in this paragraph is that they are places where people carry out their business provided that they are together collectively. The main reason why the legislator regulates an increase clause according to the place/location is to prevent the use of drugs from becoming more widespread.

In order for the qualified form of the crime of using stimulants or drugs to be applied, the perpetrator’s purchase, possession, acceptance or use of drugs or stimulants must be within two hundred meters from the boundary of the perimeter wall of the places counted as the place where the perpetrator purchased, possessed, accepted or used the drug or stimulant substance must be taken under a wet signed sketch report by the law enforcement officer who saw the incident. The distance measurement made here must be a walking distance.

If the law enforcement officers have not prepared the sketch in this way or if there is any doubt in this regard in the file, the court should make a personal discovery at the scene of the incident by preparing traffic experts and determine whether the place where the actions subject to the crime were carried out is within two hundred meters or not.

9-) ATTEMPT IN THE OFFENSE OF USING STIMULANTS OR DRUGS

The crime of using drugs or stimulants is a crime that is completed with the realization of a concrete action. Examples of preparatory acts in the offense of purchasing, accepting and possessing drugs and stimulants for the purpose of use include the provision of tools and materials such as needles, wrapping paper for the use of drugs or conversations between the seller and the perpetrator about the quality of the substance.

Attempt provisions mostly arise from the aforementioned optional acts of the offense, especially in terms of the acts of purchase and acceptance. The reason for this is that the optional acts of acceptance and purchase are divisible.

For the act of purchase, an agreement must first be reached between the parties and then the delivery conditions must be realized as a result of the transfer of possession. In the event that the perpetrator agrees with the seller to purchase the narcotic or stimulant substance and is caught by law enforcement officers without receiving the substance, the perpetrator’s action will remain at the attempt stage

Turkish Court of Cassation (Yargıtay), in a decision it has given on this issue, has stated that it agrees with this view by ruling that “Considering that the actions of the defendants, who were caught as a result of the intervention of the law enforcement officers before the drugs were delivered to the person when they went to the scene to receive the drugs, remained at the stage of attempted crime, Article 35 of the Turkish Criminal Code No. 5237 should be applied to the defendants”.

In the act of acceptance, which is one of the optional acts of the crime, it is completed with the delivery of the drug or stimulant substance between the parties. If the perpetrator is caught before the delivery, the act will remain at the attempt stage.

In terms of the act of possession, the act of possession is the most difficult type of crime to apply the provisions of the attempt, as the act of possession will constitute a continuous crime. The offense continues as long as the perpetrator possesses the drug or stimulant substance. Therefore, attempt provisions cannot be applied.

In terms of the last remaining optional act, the act of use, the point to be considered is that there is no difference in terms of the elements of the crime between drinking the drug or stimulant substance once or finishing it all. First of all, in terms of attempt, it should be evaluated whether the executive movements of the offense of use are divided into parts or not. The executive acts for the act of use may be divided into parts. If the perpetrator wraps the narcotic substance in paper, crushes it, injects it into a syringe, prepares it and is caught without using the substance yet, there will be an attempt to use, but since the perpetrator’s action up to this stage will constitute the elements of the act of possession, which is another optional act of the crime, the perpetrator will be criminally responsible for the completed form of the crime.

One of the important issues in the crime of using drugs or stimulants is voluntary renunciation. In terms of this crime, if the perpetrator gives up the crime he/she is committing solely by his/her own will and without any factor, even the provisions of attempt will not be applied in this case

10-) PARTICIPATION IN THE OFFENSE OF USING STIMULANTS OR DRUGS

In criminal law, the concept of participation refers to a special liability regime that arises when a crime is committed by more than one person. The distinction between primary and secondary participation in the previous legislation has been abandoned, and the Turkish Criminal Code No. 5237 classifies participation as perpetrating, instigating and assisting. The criterion taken as the basis for this distinction is the extent to which a person has control over the act during the commission of the offense.

Participation includes not only participation in the crime as a joint perpetrator, but also indirect contributions such as instigating and assisting. The legislator defines a person’s directing another person to commit a crime as instigation, and providing support to another person while committing the crime as assistance. Acts of assistance may give rise to the responsibility of the perpetrator even if they occur before the crime is committed. As a matter of fact, behaviors such as showing a person where to obtain drugs or providing a place to hide them are considered within this scope.

The acts of purchasing, accepting or possessing narcotic drugs for use are among the optional offenses and in this respect, they have the characteristics of a continuous crime. As long as the offense continues, the responsibility of those who participate in the act of the person who provides the substance for use will also continue. However, even in this case, the perpetrator’s criminal intent and contact with other persons should be examined in detail; especially in family unions, it should be clarified whether other individuals are aware of the crime.

If it is established that the spouse or other family members living at home did not intend to use the drug together and that only the perpetrator possessed the substance, these individuals will not be held criminally responsible. On the other hand, if the actions of these individuals are of a facilitative nature or if they have an attitude that encourages the use, different types of crime (e.g. the crime of encouragement) may now come to the fore. The allocation of a special place for the use of drugs is also considered within this scope, and it is accepted that it constitutes a facilitating or encouraging ground for the commission of the crime.

Indirect perpetrator also has an important place in the commission of a crime in complicity. A person who establishes sovereignty over the will of another person and incites him/her to commit a crime is held responsible as a perpetrator even if he/she does not commit the act himself/herself. Especially in cases where individuals who do not have the power of discernment are used as perpetrators of crimes, the responsibility of the person who directs these individuals is aggravated and the penalty is increased.

On the other hand, directing a person who is looking for a narcotic substance to a dealer, explaining how to use the substance or showing a place to hide the substance are considered as aiding. When determining the penalty for aiding and abetting, the nature of the offense committed is taken as a basis and criminal responsibility is imposed together with the perpetrator. If probation is imposed on these persons, it is possible to apply the same provisions to the aider and abettor.

Finally, in the practice of the Court of Cassation, the possibility of joint commission is accepted in these types of crimes. Even though one person provided the substance, the fact that it was purchased to be smoked together may lead to separate liability for both perpetrators. At this point, whether the act is in the nature of transfer or supply, the position of the perpetrators against each other and their degree of contribution gain importance.

11-) IMPLICATION IN THE OFFENSE OF USING A STIMULANT OR NARCOTIC SUBSTANCE

The offense of using narcotic drugs and other offenses may be related by intellectual cumulatum or real cumulatum. For example, if a person both buys and uses narcotic drugs, the perpetrator is punished with a single penalty (intellectual aggregation – Art. 44 TCK).

However, in cases where the perpetrator both sells and uses the narcotic substance, there is a real cumulative punishment between the crimes of Article 188 (trade) and Article 191 (use) of the TCK. Because both acts violate different legal values. In this case, the perpetrator is punished for each offense separately.

In the doctrine, it is stated that if the person who uses the substance also uses the substance with other persons or facilitates these persons, the acts of these persons should be evaluated independently. This is because if each person’s own act is sufficient to constitute the offense, the provisions of actual aggregation shall apply, not participation.

C-) SANCTIONS AND PROSECUTION PROCEDURE

The crime of buying, accepting or possessing drugs or stimulants for use or using drugs as defined in Article 191 of the TCK is punishable by imprisonment from two to five years.

The penalty will be increased by half if the offense is committed in the places specified in paragraph 10 of Article 191 (facilities such as schools, dormitories, hospitals, barracks or places of worship where people gather for treatment, education, military or social purposes, and public or public places within a distance of less than two hundred meters from the boundaries determined by a perimeter wall, wire fence or similar obstacles or signs).

The legislator has introduced a system that prevents the imposition of the said prison sentence for the persons who commit the offense. Accordingly, at the end of the investigation initiated against the suspect who committed the crime, if there is sufficient evidence that the elements of the crime in the legal definition of the crime have been carried out, the prosecutor will decide to postpone the filing of the public case for five years instead of filing a lawsuit.

While deciding on the postponement of the public prosecution, it will not be taken into account whether the conditions in Article 171 of the Criminal Procedure Code, which regulates this issue, are met or not.

The public prosecutor shall warn the suspect against whom the public prosecution has been decided to be postponed about the issues that may occur if he/she violates the obligations imposed on him/her during the postponement period. This decision must also be notified to the law enforcement authorities.

During the postponement period, probation measures shall be applied to the suspect for a minimum period of one year. The period may be extended for a maximum of two years in six-month periods upon the request of the probation director or ex officio by the decision of the public prosecutor. The person on probation may be subjected to treatment during the probation period if deemed necessary. In order to determine whether drugs or stimulants have been used during the postponement period, the public prosecutor decides to refer the suspect to the relevant institution.

If the use of drugs has become a habit and has reached the degree of addiction, treatment will be deemed necessary, but if the suspect is in contact with stimulants or drugs for the first time, if this situation is not of a nature that requires treatment, it will not be subject to treatment.

If the suspect insists on acting in accordance with the obligations imposed on him/her or the requirements of the treatment applied during the postponement period, a public case will be filed against him/her.

As a matter of fact, the Turkish Court of Cassation (Yargıtay), 10th CD, 2019-90/2018-3082., in its Decision dated 29.03.2018, gave an exemplary decision on the relevant issue.

”… Although the court, in its decision on the return of the indictment, stated in the justification of the decision that “the suspect was not aware of the notifications and that the notifications were made in accordance with the law due to the fact that the notifications were made entirely to the address specified in the address registration system”, it is not contrary to the law to notify the neighborhood headman according to Article 21 of the same Law in accordance with paragraph 2 of Article 10 of the Notification Law in case it is understood that the address notified is the known address of the defendant and is also the Mernis address and is not suitable for notification, …. In this case, since it is understood that the “condition of persistence”, which is the “condition of prosecution” in the case filed with the request for the punishment of the defendant in accordance with paragraph 1 of Article 191 of the TPC for the crime of using drugs for use against the suspect who did not apply to the institution despite the two warned application invitations made in accordance with the law, the decision to reject the objection to the decision to return the indictment instead of accepting it is against the law and the decision of reversal is in place.

In addition, during the postponement period, if the suspect buys, accepts, possesses or uses drugs or stimulants with the intention of using them again, a public case will be opened.

The postponement period and probation arrangements differ. The maximum period of probation and, if deemed necessary, treatment is 3 years. However, while the postponement period is a maximum of three years, the deferment period is five years. If the person complies with the probation and treatment obligations, which can be for a maximum of three years, but violates the obligations stipulated during the postponement period after the end of these periods, a public case will be opened. It is not possible to initiate a public prosecution if the offense is committed after the end of the five-year postponement period.

If the person commits one of the optional forms of the offense of stimulant or narcotic substance during the postponement period, it will be considered a violation in accordance with Article 191/4 of the TCK, but this violation will not be subject to a separate investigation or prosecution.

If the person fails to comply with the obligations imposed on him/her or if the crime of procuring and using a stimulant or narcotic substance for use is committed again after the public case is opened as a result of this violation, the decision to postpone the opening of the public case will not be made again and the direct investigation and prosecution of the person will come to the agenda.

If the suspect does not violate the obligations and prohibitions set out in Article 191/4 of the TCK during the postponement period, it will be decided not to prosecute.

For example, if it is understood that it is necessary to be tried in accordance with Article 191 of the TCK due to the elements of the act in the trial for the offense of manufacturing and trafficking in stimulants or drugs or facilitating the use of stimulants or drugs, the decision to defer the announcement of the verdict will be made for the defendant regardless of the conditions in Article 231 of the Criminal Procedure Code.

EFFECTIVE REMORSE PROVISIONS

A person who uses, purchases, accepts or possesses narcotic drugs or stimulants shall not be punished if, before being apprehended by the authorities, he facilitates the apprehension of criminals or the seizure of the substance by informing from whom, where and when he obtained this substance.

The punishment of a person who voluntarily provides information after being informed of the crime may be reduced from one quarter to one half, depending on the degree of assistance. In addition, a person who applies to the authorities or health institutions for treatment before an investigation is initiated shall not be punished. In this case, health personnel are not obliged to report the crime.

VERY CURIOUS QUESTIONS AND ANSWERS ABOUT THE CRIME OF USING DRUGS AND STIMULANTS (TCK ART.191)

Which actions are covered by the crime of drug use?

It is a criminal offense to use, purchase, accept and possess drugs for one’s own use.

Does the number of uses matter, is the first use punishable?

No, not the number of uses, but the existence of the act is important. The first use is also punishable by imprisonment from 2 to 5 years, but treatment and probation may be applied.

Will I be arrested immediately if the police find drugs on me?

Generally not, but you will be taken into custody, a statement will be taken and a probation process may be initiated.

Is there complicity between people who use drugs together?

As a rule, everyone is responsible for their own actions. However, if one person encouraged the other to supply the substance, if they acted together, then the titles of joint perpetrator or aider and abettor may come into question.

Are all individuals responsible if drugs or stimulants are found at home?

No, they are not. Drug use and possession offenses are personal crimes. Being present in the home does not give rise to automatic liability. It must be proven that the offense was committed intentionally by the perpetrator and that the substance was possessed consciously.

Is it a crime to refer someone to a dealer?

This person can be held liable under Art.190 TCK or Art.39 TCK. This person can be held responsible for facilitating drug use (Article 190 of the TCK) or assisting (Article 39 of the TCK). Although this guidance may seem passive, in criminal law, the contribution to the outcome is taken into account

What happens if drugs or stimulants are used again during the supervision period?

The prosecutor has the authority to open the previously postponed file. The person can no longer benefit from the deferment or postponement of the announcement of the verdict because the crime is committed again. If the trial starts and results in a conviction, the sentence is executed.

Can probation be applied?

Yes. Pursuant to Article 191/2 of the TCK, it is possible to subject the perpetrator to treatment and probation. The court may impose treatment and probation measures for 1 year. If the person complies with the obligations during this period, the case is dismissed.

Will a person who agrees to treatment be punished?

No. According to Article 192/4 of the TCK, a person who applies to a health institution for treatment before an investigation is initiated is not subject to punishment. This is considered as a kind of immunity from punishment.

Can effective remorse provisions be applied?

Yes. According to Article 192 of the TCK, if the person informs the competent authorities before the crime is learned and ensures the arrest of the persons who supply the drugs, he/she will not be punished. If he/she informs after the crime is known, the penalty is reduced.

How long is the probation period and what is done during this period?

The duration is usually 1 year. During this period, the person has to attend treatment at certain intervals, meet with supervision officers and comply with psychosocial support programs. Otherwise the case is restarted.

Is it possible to defer the announcement of the verdict (HAGB)?

Yes. HAGB can be applied due to the nature of the crime. However, according to Article 191/8 of the TCK, if the person is a substance addict and this situation is aimed at reintegrating the person into society, the court may direct the person to the treatment and supervision process by making a HAGB decision. The decision is not subject to Article 231 of the Criminal Procedure Code.

Does the offense appear on the criminal record?

If probation has been applied and the person has successfully completed the process, the case is dismissed and does not appear on the criminal record. The HAGB decision is also recorded in the criminal record archive, not in the criminal record.

What is the competent court?

Cases filed under Article 191 of the TCK (buying, accepting or possessing drugs or stimulants for use, or using drugs or stimulants) are heard in the criminal courts of first instance.

What is the competent court?

The competent court is determined in accordance with Article 12 of the Criminal Procedure Code. If the place where the crime was committed is known, the criminal court of first instance is authorized. If the place where the crime was committed is unclear, the court of the place where the suspect or defendant was arrested is authorized. For the suspect or defendant who does not have a place of residence in Turkey, the court of the last place in Turkey is authorized.

What is the personal use amount of a narcotic or stimulant substance (marijuana)?

Although it is known that the possession of 1 kilogram of cannabis per year is considered as a personal need limit in accordance with the decisions of the courts, it has been observed that the Supreme Court of Appeals has adopted the annual net 600-700 grams of cannabis over 600-700 grams as possession for the purpose of trade, since this crime has been committed by transporting smaller amounts in drug transport and trafficking crimes recently.

What is the amount of personal use of narcotic or stimulant substances (heroin, cocaine and synthetic pills containing narcotic substances)?

It is stated in the minutes of the 2013 legal deliberation meeting shared by the HSYK, which was also adopted by the Court of Cassation, that 20 grams or more of heroin and cocaine seized from a person if there is no other evidence, and 50 pieces or more of synthetic pills containing narcotic substances are considered to be possessed for the purpose of trade, not for use.

What is the amount of personal use of narcotic drugs or stimulants (seizure of various narcotic drugs and stimulants together)?

It was evaluated that the act would also constitute the offense of trafficking if more than one type of narcotic substance, but less than the amounts shared above, were seized from the person. For example, it was stated in the minutes of the HSYK’s legal deliberation meeting dated 2013 that there are decisions of the Turkish Court of Cassation stating that if 20 grams of cannabis, 10 grams of heroin, 5 pills are seized, then the act constitutes the crime of drug trafficking. However, it is stated that even if the criteria are basically observed, they will be evaluated with the specific conditions of the incident and the individuals.

JUDICIAL COURT DECISIONS ON THE OFFENSE OF USING DRUGS AND STIMULANTS

10th CD. 2014\12180 E.2017\946, K13.03.2017 dated Turkish Court of Cassation (Yargıtay) Decision

“…Mine T., Samire A. and Aysun A., against whom a decision of non-prosecution was issued for the offense of possession of drugs for use, were not found to be drugs or stimulants since the substance they said the defendant provided them was not seized, Samire A. and Aysun A., to whom a decision of no prosecution for the offense of possession of drugs for use was made, it was not determined whether the substance they said that the defendant provided them was of a narcotic or stimulant nature since it was not seized, it could not be determined by technical methods that the aforementioned persons used narcotic or stimulant substances on the date of the crime, and no narcotic substance was seized from the defendant, therefore, it is contrary to the law to decide for his conviction instead of his acquittal, considering that there is no sufficient and definite evidence, free from any kind of doubt, which reveals that the defendant committed the imputed crime as a samout fact, except for the abstract statements of the aforementioned persons…”

10th CD. 05.04.2004- 2025\3900 dated Turkish Court of Cassation (Yargıtay) Decision “…The substances subject to the crime seized in the defendant’s residence…. Establishing a written judgment with an incomplete investigation without having an expert expert examination on whether it contains narcotic substances…” 

Turkish Court of Cassation (Yargıtay), 10th CD, 2019-90/2018-3082., Decision dated 29.03.2018

”… Although in the decision of the court to return the indictment, it was stated in the justification of the decision that “the suspect was not aware of the notifications, the notifications were made in accordance with the law because the notifications were completely related to the address specified in the address registration system”, it is not against the law to notify the neighborhood headman in accordance with Article 21 of the same Law in accordance with paragraph 2 of Article 10 of the Notification Law in case it is understood that the address notified is the known address of the defendant and is also the Mernis address and is not suitable for notification, …. In this case, since it is understood that the “condition of persistence”, which is the “condition of prosecution” in the case filed with the request for the punishment of the defendant in accordance with paragraph 1 of Article 191 of the TCK for the crime of using drugs for use against the suspect who did not apply to the institution despite the two warned application invitations made in accordance with the law, the decision to reject the objection to the decision to return the indictment instead of accepting it is against the law and the decision of reversal is in place.

10th CD, 2006/2369, 2007/400 Turkish Court of Cassation Decision (Yargıtay)

“…Although it is accepted that the defendant used drugs according to the preparatory statement and the statements of the defendant at the stages, the fact that the drug substance or sample of the drug he stated that he used was not seized and no expert examination was made on the substance, and that the drug metabolite was not detected due to the fact that the defendants’ blood and urine samples were not taken and analyzed, it is contrary to the law to establish a conviction in the written manner instead of a verdict of acquittal due to the lack of conclusive and convincing evidence sufficient for the conviction of the defendant, away from all kinds of doubts…”

10th CD.2012/13522E. 2013/8959K. Turkish Court of Cassation (Yargıtay) Decision dated 11.10.2013

“…Convicting the defendant for “trafficking in narcotic substances” instead of “possession of narcotic substances for use” without considering that the defendant and the complainant had a friendship relationship, that the defendant smoked the marijuana cigarette he brought with him on the day of the incident, and that there was no intention to supply the same cigarette due to smoking together…”

The Crime of Possession of Drugs or Stimulants for Use (BONZAI)

Turkish Court of Cassation (Yargıtay) 10th CD – Decision No: 2015/32606

“…Contrary to the defense of the defendant, who handed over 61 tablets containing MDMA and 4 grams of THJ-2201 to the law enforcement officers when he was stopped on suspicion and asked whether there were any criminal elements on him, that he had taken the substances named bonzai from a person he did not know about an hour before he was caught and that he was caught on his way to the bus station to go to Balıkesir where he resided, It is unlawful to convict the defendant for the offense of “trafficking in drugs and stimulants” without considering that the defendant’s act constitutes the offense of “possession of drugs for use”, since there is no sufficient and conclusive evidence beyond doubt that the defendant will sell or give these substances within the limits of use…”

Possession of Drugs or Stimulants for Use (HEROIN)

Court of Cassation 10th CD – Decision: 2014/198

”…In the case where the defendant, who procured the net 5 grams of heroin subject to the crime from Malatya and came to Ankara with the automobile he was driving, was caught by the officers after he showed the heroin in the cigarette packet to the other defendant Mehmet, who came to him while he was sitting in the park, and put it in his pocket; the defendant said that he came to Ankara for a patient visit to his city; the amount of heroin to be used daily is approximately 60 milligrams and the amount of heroin subject to the crime is approximately 83 milligrams to meet the daily need; in the concrete case, in the face of the fact that this heroin is far above the amount of personal need according to the time period determined; it should be considered that the defendant’s action constitutes the crime of “possession of narcotic drugs for the purpose of selling”…”

The Crime of Possession of Narcotic Drugs or Stimulants for Use (POSSESSION OF HINTHIAN CANNABIS FOR USE BY POSSESSING MARİJUANA)

10th Criminal Chamber of the Turkish Court of Cassation(Yargıtay)- Decision: 2016/581

”…Contrary to the defendant’s defense that he planted the castor cannabis with a narrowed weight of 6 grams in 4 roots, which was found planted in the pot in the search conducted in the defendant’s residence, exclusively for his own use, there is no sufficient and definite evidence beyond doubt that he will sell this substance or give it to someone else, and the conviction of the defendant for the crime of “cultivation of cannabis for commercial purposes” was established without considering that the defendant’s action constituted the crime of “obtaining cannabis exclusively for his own use”…”

The Importance of Legal Support

Criminal law and cases involving drug use are complex areas that require in-depth knowledge of legislation, legal procedures, and court practice. Even though the law may seem straightforward, every case has its own unique circumstances, and a small mistake can easily lead to serious consequences. That’s why working with an experienced lawyer from the very beginning is crucial for choosing the right strategy, protecting your rights, and reaching a solution as quickly as possible.

It’s important to keep in mind that every step taken during a legal process carries both legal and financial implications. A skilled lawyer will not only prepare the necessary petitions but will also guide you in collecting evidence, representing you in court, negotiating, and exploring alternative solutions.

To safeguard your rights and handle the process with confidence, it is highly recommended that you seek support from a lawyer who specializes in the field.

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  • Eylül 1, 2025

    UYUŞTURUCU VE UYARICI MADDE KULLANMA SUÇU (TCK M.191) – İstanbul Bakırköy | Derin Hukuk & Danışmanlık – Av.Fatih Derin

    […] OFFENSE OF USING DRUGS AND STIMULANTS (TCK ART.191) – İstanbul Bakırköy | Derin Hukuk & Dan… […]

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