Entrance

This report covers information compiled from the decisions of the Court of Cassation and the Regional Court of Justice regarding the crime of "buying, accepting or possessing narcotic or stimulant substances for use or using narcotic or stimulant substances". The report presents the definition of the crime, its penalty, the reasons affecting the penalty and important issues to be considered during the trial process, supported by quotes from the relevant decisions. The aim is to create a comprehensive, consistent and informative summary for the user's question.

Main Findings

1. Definition and Legal Basis of the Crime: The crime of purchasing, accepting, possessing or using drugs or stimulants for use is basically regulated in Article 191 of the Turkish Penal Code No. 5237 (TCK). As stated in the decision numbered 2014/7-2014/322 of the General Assembly of the Criminal Court of the Supreme Court of Appeals, this crime consists of "the acts of purchasing, accepting or possessing drugs or stimulants for use, not using drugs or stimulants." However, in subsequent legal regulations and many decisions such as the decision numbered 2017/2883-2018/1372 of the 1st Criminal Chamber of the Supreme Court of Appeals, the acts are defined more broadly as "purchasing, accepting, possessing or using drugs or stimulants for use."
2. Punishment: The punishment for the crime has varied over time.
   • Old Regulation ( Example : TCK 191, before 28.06.2014): In many old decisions ( example : Supreme Court of Appeals CGK-2012/10-1335, CGK-2014/7-2014/322, CGK-2013/88-2013/300, CGK-2020/148, 10.CD-2020/19708, CGK-2017/723, CGK-2019/429) it is stated that the penalty is "imprisonment from one to two years" . This is based on the dates of the crimes being before the amendment made by Law No. 6545.
   • New Regulation ( Example : TCK 191, amended by Law No. 6545 after 28.06.2014): In decisions referring to more recent practices such as the decision of the 1st Criminal Chamber of the Supreme Court of Appeals, numbered 2017/2883-2018/1372, and the decision of the CGK of the Supreme Court of Appeals, numbered 2019/326-2020/481, it is stated that the person who commits this crime "shall be punished with imprisonment from two to five years" . The decision of the 9th Criminal Chamber of the Supreme Court of Appeals, numbered 2016/927-2016/4447, also confirms this sentence.
3. Determination of the Purpose of Use and Its Distinction from Trafficking: One of the most critical points of the trial is whether the act of possessing drugs is carried out "for use" or "for trafficking". As emphasized in the decision numbered 2012/10-1335 of the General Assembly of the Criminal Court of Cassation, "The issue that plays an active role in determining whether the act constitutes the crime of possessing drugs for use or the crime of drug trafficking is the purpose of the defendant." The criteria taken into consideration in determining this purpose are as follows (Court of Cassation CGK-2012/10-1335, CGK-2014/7-2014/322, CGK-2019/326-2020/481, İzmir BAM 17.CD-2022/2353):
   • Whether the offender engaged in any behavior regarding selling, transferring or supplying the drugs he possessed to someone else.
   • The place where the narcotic or stimulant substance is kept and the manner in which it is kept.
   • The amount of narcotic or stimulant substance found. (Izmir BAM decision adds: "The amount that can be accepted for personal use may vary depending on the physical and mental structure of the person, the nature, type and quality of the narcotic or stimulant substance and the characteristics of the concrete case." )
   • The way the substance is packaged: In the decision numbered 2019/326-2020/481 of the Supreme Court of Appeals CGK , "the presence of the narcotic substance in a large number of carefully prepared small packages, the same amount of narcotic substance being placed in each package as a result of precise weighing, the presence of a precision scale and packaging materials used in packaging at or near the place where the narcotic substance was seized" were listed as indications of trafficking.

If the purpose is trafficking, Article 188/3 of the TCK comes into play and the penalty is much more severe, such as "imprisonment from five to fifteen years and a judicial fine of up to twenty thousand days" (Court of Cassation CGK-2012/10-1335). The principle of "the defendant benefits from the suspicion" is essential in this distinction. According to the Court of Cassation CGK-2012/10-1335, when an assessment is made that "it does not go beyond the suspicion that he committed the crime of drug trafficking" , it should be accepted that the defendant's action constitutes the crime of possession of drugs for use. Similarly, in the Court of Cassation CGK-2017/723-2018/562 decision , it is stated that "A criminal conviction must be based on clear and conclusive evidence, and this evidence must not allow for any doubt or other formation."

Examination

1. Penalty Mitigating Factors and Alternative Sanctions (Within the Scope of TCK 191): TCK 191 provides various alternative mechanisms instead of direct imprisonment or together with the penalty:
   • Postponement of the Filing of a Public Lawsuit and Probation: During the investigation phase, it may be decided to postpone the filing of a public lawsuit against the suspect for 5 years and to impose a measure of probation for at least one year (Court of Cassation 1.CD-2017/2883, Court of Cassation 9.CD-2016/927). Committing the same acts again or not complying with obligations during the postponement period will result in the filing of a public lawsuit.
   • Treatment and/or Supervised Release: During the trial phase, the court may decide on treatment and/or supervised release before sentencing a prison sentence pursuant to TCK 191/2 (Court of Cassation 6.CD-2014/6222, Court of Cassation 7.CD-2008/4584). If the requirements of the measure are complied with, the case may be dismissed (Court of Cassation 7.CD-2007/11518).
   • Suspension of the Announcement of the Verdict (HAGB): If there is no other case against the defendant for the same crime or if the defendant did not commit this crime during the execution of the treatment/probation measure given before, a decision to "suspend the announcement of the verdict" may be made in accordance with TCK Article 191 and relevant legislation ( e.g. after 6545 SK) (Court of Cassation 18.CD-2016/17316, Court of Cassation 20.CD-2017/3187, Court of Cassation 9.CD-2015/3772).
   • Dismissal of Case (TCK 191/5): One of the most important points is the situation where the defendant commits this crime during the execution/supervision period of a treatment and/or probation measure (or a decision to postpone the filing of a public lawsuit) previously given for the same crime. In this case, in accordance with Article 191/5 of the TCK, "The person's purchase, acceptance or possession of narcotic or stimulant substances for use again during the postponement period is considered a violation in accordance with the fourth paragraph and cannot be made the subject of a separate investigation and prosecution." Therefore, it is decided to "dismiss" the case filed for the second crime in accordance with Article 223/8 of the CMK (Court of Cassation CGK-2020/148, Court of Cassation 18.CD-2016/17316, Court of Cassation 20.CD-2017/4936, Court of Cassation 9.CD-2015/15139).
   • Active Remorse (TCK 192/2): If the defendant ensures that his/her own crime is revealed by confessing to using drugs at a stage when the officers are not aware of it, he/she will not be punished according to TCK 192/2 (Istanbul BAM 5.CD-2018/1710: "No punishment can be imposed on the defendant who ensures that his/her own crime is revealed by confessing at a stage when the officers are not aware of it..." ).
   • Simple Trial Procedure: The applicability of the "Simple Trial Procedure" (CMK 251), which was introduced by Law No. 7188 and rearranged after the Constitutional Court's annulment decision, should be evaluated, and it should be taken into consideration that a one-fourth reduction in the final sentence can be made in the event of conviction (Court of Cassation 10.CD-2020/19708, Court of Cassation 10.CD-2020/21120).
2. Reasons Increasing the Sentence (Within the Scope of TCK 191): A specific reason for increase directly within the scope of TCK 191 is not apparent in the texts. However, general principles such as the defendant's past and the way the crime was committed may be taken into account in determining the basic sentence by deviating from the lower limit. In the decision numbered 2018/4387-2020/2208 of the Gaziantep BAM 13th Criminal Chamber, it was stated that the lower limit was deviated by taking into account elements such as "the defendant being caught with drugs twice after the decision to postpone the public trial" . The main situation that increases the sentence is that the action falls within the scope of TCK 188 (trade). In the decision numbered 2010/862-2014/391 of the 10th Criminal Chamber of the Supreme Court of Appeals, it was stated that the penalty would be increased according to TCK 297/1 in case of introduction of narcotic substances into the penal institution, however, this situation affects the penalty of the combined crime, not the basic penalty of TCK 191.
3. Matters to be Considered in the Trial:
   • Previous Status of the Defendant: It should be meticulously investigated whether there is another case or investigation against the defendant for the same crime, and if so, whether this crime was committed during the execution of a previous treatment/probation/suspension decision. This may lead to different decisions such as HAGB or dismissal of the case (Many 9th, 18th and 20th Criminal Chamber decisions).
   • Right to Objection and Nature of Decisions: Decisions regarding "treatment and/or probation measures" and decisions to postpone the filing of a public lawsuit, given in accordance with TCK 191/2, are considered "suspension decisions" and are subject to appeal (Court of Cassation 10.CD-2017/357, Court of Cassation 20.CD-2017/5748).
   • Reasoned Decision: The court must explain with justification which of the alternative sanctions in TCK 191 ( e.g .: only treatment/probation or imprisonment + treatment) it prefers and why (Court of Cassation 6.CD-2014/6222).
   • Discussion of Evidence and the Principle of Doubt: The crime must be proven with conclusive and convincing evidence, and suspicious circumstances must be interpreted in favor of the defendant (Court of Cassation CGK-2013/88-2013/300: "events and allegations whose occurrence is suspicious and not fully clarified cannot be interpreted against the defendant and a verdict of conviction cannot be established." ).
   • Competent Court: If the amount of the seized substance and the way it is kept can change the nature of the crime to "trade", the Criminal Court of First Instance must decide on lack of jurisdiction and send the file to the High Criminal Court (Court of Cassation 10.CD-2020/21168).
   • Statute of Limitations for Cases: For crimes within the scope of TCK 191, the statute of limitations for cases (8 years, 12 years with interruption, as per TCK 66/1-e) must be observed ex officio (Court of Cassation CGK-2020/148, CGK-2019/429).
   • Constitutional Court Decisions: Constitutional Court annulment decisions regarding articles such as TCK 53 (deprivation of the use of certain rights) should be taken into consideration during the execution phase (Court of Cassation 20.CD-2015/10340).
   • Distinction between Use and Non-Use: Determining whether the defendant uses drugs or not is important in determining the measures to be applied (only probation or treatment + probation) (Court of Cassation 7.CD-2008/4584).
   • HAGB and New Crime: Since the decision regarding treatment and probation given in accordance with TCK 191 "does not have the nature of a final conviction", a previously given HAGB decision cannot be explained based on this decision (Court of Cassation CGK-2016/350-2019/49).

Conclusion

The crime of purchasing, accepting, possessing or using drugs for personal use (TCK 191) is a type of crime in which the " purpose" of the perpetrator is at the forefront in the Turkish Criminal Law, and various alternative mechanisms are envisaged that aim at treatment and rehabilitation rather than punishment. Although the penalty has been determined as imprisonment from two to five years with the amendment made by Law No. 6545 dated 28.06.2014, practices such as postponing the opening of a public lawsuit, treatment and supervised release, and deferring the announcement of the verdict are common. In particular, in cases where the defendant commits the same crime repeatedly (TCK 191/5), not opening a new case but considering it as a violation of the previous measure and dismissing the case is an important legal consequence. In trials, the distinction between crime and trafficking (TCK 188), the principle of "the defendant benefits from the doubt", the defendant's previous judicial history and current changes in legal regulations (Simple Trial Procedure, etc.) should be meticulously taken into consideration.