In offences relating to narcotic substances, the most decisive distinction in law is whether the person acted for the purpose of use or of trafficking. The drug use offence is governed by Article 191 of the Turkish Criminal Code and trafficking by Article 188, and there is a very large difference between their sanctions. The same quantity of substance may, depending on the circumstances, result in one case in probation and no punishment, and in the other in a long term of imprisonment. For this reason, which article the file proceeds under is a matter the defence focuses on from the first moment of the investigation.
The difference between use and trafficking #
Buying, accepting or possessing a substance in order to use it falls under Article 191 and carries imprisonment from two to five years. But whether an act is treated as use or as trafficking is determined by various criteria: the quantity of substance seized, whether it is separately packaged (ready for sale), items such as cash and precision scales found on the person, communication records and witness statements. Treating a quantity that could be regarded as within the limit of personal use as "trafficking" changes the outcome entirely, and is therefore the defence's priority. This distinction often requires the careful analysis of the physical evidence in the file.
Probation: what happens on first use? #
The law grants an important alternative to punishment in the use offence. Before an indictment is drawn up, a decision may be made for a probation measure of at least one year; during this period the person is subject to treatment and/or supervision under a set programme. This means deferral of the public prosecution, and its aim is to distance the person from addiction without placing them in the penal execution system.
- If the person complies with the requirements of probation — attends signings, treatment and interviews — a decision of no grounds for prosecution is made and they receive no punishment.
- If they do not comply with the obligations or use again during this period, the deferred public prosecution is brought and a trial is held.
This mechanism is the most realistic way to save a person from conviction, especially in files encountered for the first time; but full compliance with its requirements is essential and the process must be taken seriously.
Active repentance and voluntary treatment #
A person who uses may receive no punishment if, before the official authorities become aware of the situation, they themselves apply and request treatment. Reporting from whom and how the substance was obtained, thereby helping to illuminate the investigation, may also produce a favourable outcome within active repentance. The conditions for benefiting from these provisions, and especially their timing, are decisive; when and how the statement is made directly affects the benefit to be obtained.
The importance of the statement and the defence #
In these files the first statement affects the whole subsequent process; the records concerning the type and quantity of the substance and the manner of its seizure, and the lawfulness of the search and seizure operations, must be examined carefully. Evidence obtained unlawfully can change the course of the file. We addressed your rights at the statement stage in our article on the right to give a statement and to defend oneself, and, in the event of conviction, the institution of the deferment of the announcement of the verdict in the relevant article. You can reach our work in criminal law on the criminal law page.
In summary: which route should be taken? #
Three axes determine the outcome in a file relating to drugs: whether the act is treated as use or trafficking, whether it is a first encounter, and whether the evidence was lawfully obtained. For a person caught for the first time using drugs, probation is a realistic route that prevents conviction; files where suspicion of trafficking arises because of quantity and packaging carry far graver consequences. For this reason correctly characterising the accusation is the first and most important step of the defence in drug offence files. At every stage of the process the consistency of statements and the correct assessment of the documents are decisive.
How the probation process works #
When a probation measure is ordered, the person is invited to the probation directorate to which they are attached and is notified of a programme of obligations. This programme usually includes:
- Attending the directorate at set intervals to sign and taking part in interviews.
- Where deemed necessary, continuing a treatment and rehabilitation programme.
- Not using again throughout the period; giving a test on request.
As long as the obligations are complied with, the file is closed in the person's favour at the end of the period. Conversely, unexcused absence, a substance showing in a test, or breach of the programme results in the measure being lifted and the public prosecution brought. For this reason the process should not be seen as a formality; appointments must be kept carefully and excuses reported with documents. In a file encountered for the first time this process is the most realistic way of avoiding punishment.
Deferral of the public prosecution: how does the five-year period work? #
In the offence of use, the prosecutor decides to defer the filing of a public prosecution for five years without the general conditions of Article 171 of the Code of Criminal Procedure being required (Penal Code art. 191/2). Those five years are not the length of probation but the total period for which the file remains suspended.
The length of probation and its extension #
During the deferral period a probation measure is applied to the person for at least one year. The prosecutor may extend that period in three-month blocks by at most one further year (art. 191/3); that is, the measure may last at most two years. Treatment may also be applied during the measure (art. 191/4).
Two situations that break the deferral #
- Use again: If during the five-year deferral period the person again buys, accepts or possesses a substance for use, or uses it, a public prosecution is filed against them (art. 191/5).
- Persisting in non-compliance: If the person persists in not complying with the probation obligations, the deferral likewise ends and the prosecution is filed (art. 191/6).
If the five years pass without a new act of use and without a breach of obligations, a decision of no ground for prosecution is given. It is therefore important that no new file be opened before the five years are up, even after the measure has ended.
Where is the record entered? Criminal record and security vetting #
A decision deferring the filing of a public prosecution does not appear like an ordinary criminal record entry. The law states that such decisions are recorded in a system dedicated solely to this purpose and that the records may be used only where requested by a prosecutor, judge or court in connection with an investigation or prosecution (Penal Code art. 191/7). In other words, the record is kept in order to determine whether the person has faced the same offence a second time.
If, on the other hand, a prosecution is filed and ends in conviction, the outcome changes: the judgment is entered in the criminal record, and if the pronouncement of the verdict is deferred the record is again kept in a system of its own. Since this distinction is decisive in the archive check carried out for civil service and certain professions, the stage at which the file closed affects the person’s later years.
Limitation, the competent court and the course of the file #
The upper limit of the sentence for the offence of use is five years’ imprisonment; the limitation period is therefore eight years (Penal Code art. 66/1-e). The trial takes place in the criminal court of first instance. As the offence is not subject to complaint, no one’s withdrawal of a complaint closes the file.
Detention and judicial control #
In files running on suspicion of use alone, detention is not an expected outcome in practice; the law prohibits detention where it would be disproportionate and brings judicial control measures to the fore (Code of Criminal Procedure art. 109). Under judicial control a ban on leaving the country, a regular obligation to sign in, or a decision to attend a treatment institution may be ordered. We explain the review of these measures in detail in our article on objecting to a detention order.
The lawfulness of the search and seizure #
Most of these files begin with a search. That the search rests on a judicial decision or, in cases where delay is prejudicial, on the prosecutor’s written order, that the record is kept in due form and that the substance is properly secured form the basis of the file. If there is unlawfulness in these steps, the defence argues that the evidence obtained cannot form the basis of the judgment.
What is done in files that turn into an allegation of trafficking? #
If, because of quantity, packaging or communication records, the file starts to be pursued under Article 188, the picture changes entirely: the possibility of deferral and probation disappears, jurisdiction passes to the high criminal court and the likelihood of detention increases markedly.
- In arguing that the quantity is within the limits of personal use, medical reports on the person’s state of dependency and their treatment history come to the fore.
- Concrete explanations that the packaging carries no sales purpose and that the substance was obtained in one go and divided up are compared with the records.
- Where there is secondary evidence such as precision scales, numerous phone lines or cash, producing documents about their source is important.
Finding out which article the file is being pursued under before the first statement is given is therefore the first step that sets the direction of the defence.
This content is for general information only; it does not replace legal advice on a specific matter. Penalties and periods may change according to the legislation in force.
