Drug Offences in İzmir: Trafficking (TCK 188) and Personal Use (TCK 191)

Offences relating to narcotic and stimulant substances are among the areas of Turkish criminal law with the most severe potential consequences. The seizure of the very same substance may lead to two entirely different legal outcomes depending on the circumstances: manufacturing and trafficking under Article 188 of the Turkish Criminal Code, or possession for personal use under Article 191. The competent court, the procedure, the practice on pre-trial detention and the outcomes differ substantially between these two provisions. This article examines the line between TCK 188 and TCK 191, the criteria used in practice to draw it, the key issues in the assessment of evidence, and how investigations and trials proceed in İzmir.

The Core Distinction: Trafficking or Personal Use?

The first and most important question in drug cases is the purpose for which the substance was held. The law treats every act aimed at transferring the substance to another person, namely manufacturing, importing, exporting, selling, offering for sale, supplying, dispatching, transporting, storing, purchasing, accepting or possessing for such purposes, as a serious offence under TCK 188. By contrast, a person who purchases, accepts, possesses or uses the substance solely for personal consumption falls under the markedly different regime of TCK 191. The difference stems not from the type of substance or the place of seizure, but from the purpose of the person concerned.

The practical significance of this distinction is considerable. An indictment under TCK 188 entails proceedings before the assize court with a high likelihood of pre-trial detention, whereas a file under TCK 191 as a rule ends with deferral of the public case and a probation measure. For this reason, establishing from the very first hours of the investigation in what capacity and with what purpose the person acted is decisive. Although a mischaracterisation can later be corrected, an incorrect classification at the outset may result in lengthy restrictions on liberty.

There are also borderline situations. Handing the substance to a friend free of charge, for instance, does not fall within the scope of a personal-use defence: any conduct that transfers the substance to another person is in principle assessed under TCK 188. The Code further regulates, in Article 190, the facilitation of drug use as a separate offence. Merely asserting that a person acted only as a user is therefore not sufficient; concrete evidence must establish for whom and for what purpose the seized substance was held.

TCK 188 — Manufacturing and Trafficking, Aggravated Forms, Assize Court

TCK 188 governs the offence of manufacturing and trafficking narcotic or stimulant substances. Manufacturing the substance without a licence or contrary to a licence, bringing it into or out of the country, selling it, offering it for sale, supplying it to others, dispatching, transporting, storing, purchasing, accepting or possessing it are all punishable under this heading. The provision also sanctions conduct such as manufacturing, importing or exporting the equipment and precursor substances used in the production of narcotics. The statutory sentencing ranges are set out separately according to the type of substance and the form of the conduct, and a judicial fine is imposed in addition.

The provision also contains aggravated forms that require an increase of the sentence. Committing the offence in relation to substances such as heroin, cocaine, morphine, synthetic cannabinoids and their derivatives; committing it in the vicinity of places such as schools, dormitories, hospitals, barracks or places of worship; committing it jointly by three or more persons or within the framework of a criminal organisation; and supplying the substance to children or persons with mental disorders all increase the sentence considerably. The offence falls within the jurisdiction of the assize court and is an area in which remand in custody is frequently applied. In criminal proceedings, working with an İzmir criminal lawyer from the outset is important for the sound management of the file.

Establishing the correct basis of participation is equally important in these files. Owning the vehicle or the residence, being present at the scene or being acquainted with the perpetrator does not in itself demonstrate participation in the offence; the contribution of each defendant must be assessed individually. Because the statutory sentencing range is broad, the type of substance, the form of the conduct and any aggravating circumstances directly affect the outcome. The actual sentence is determined only by the state of the evidence and the discretion of the court, and no outcome can be promised in advance in any file.

TCK 191 — Possession for Personal Use, Probation and Deferral of the Public Case

TCK 191 covers purchasing, accepting or possessing narcotic or stimulant substances for personal use, as well as using such substances. Its most distinctive feature is that, as a rule, it does not result directly in a conviction. At the end of the investigation the prosecutor decides to defer the opening of the public case, and the suspect is placed under a probation measure for a period of five years. This period may be extended under certain conditions upon the suspect's request or the proposal of the probation directorate. During the supervision period a treatment measure may also be ordered, and the person is required to report periodically to the probation directorate, attend counselling sessions and provide test samples.

If the supervision period is completed in compliance with the obligations, a decision of non-prosecution is issued and the file is closed without a case being opened. Conversely, if the obligations are breached during the supervision period or the offence of possession for personal use is committed again within that period, the deferral is revoked and a public case is opened. The resulting case is heard before the criminal court of first instance. The most common loss of rights in practice arises when a person treats reporting or counselling obligations lightly and the deferral is consequently revoked. Legal follow-up and a correct understanding of the obligations therefore matter greatly even in a TCK 191 file.

A decision to defer the opening of the public case is not a conviction in the classical sense and is entered only in a dedicated section of the judicial record; such entries do not appear on the ordinary criminal record certificate and may be requested only by the authorities listed in the law. The scope of the probation obligations may vary according to the person's level of dependency: some files involve a treatment-oriented programme, while others require only regular counselling and testing. Understanding these obligations clearly at the outset prevents consequences that are difficult to remedy later.

Trafficking or Use? Decisive Criteria in Practice

In practice, classification rests not on a single criterion but on the joint assessment of several indicators. Quantity comes first. Where the seized amount clearly exceeds the personal consumption needs of the individual, this is regarded as a significant indicator of trafficking. Quantity alone, however, is not decisive: the person's level of dependency, frequency of use and habit of obtaining supplies in a single purchase are also taken into account. The second criterion is packaging. Division of the substance into small packets of equal weight strengthens the impression that it was prepared for sale, whereas seizure in a single piece may support a personal-use defence.

The third criterion is the manner of seizure. The presence of precision scales, empty zip-lock bags, a notebook or an unusual amount of cash points towards trafficking, while a substance found alone on the person together with consumption paraphernalia points towards personal use. The fourth criterion is communication records. Text messages, call traffic and the content of messaging applications may reveal a buyer-seller relationship, but may equally show that the person obtained the substance only for their own consumption. At trial these indicators are assessed as a whole, and the task of the defence is to establish the real meaning of each indicator in the specific case.

In supporting a personal-use defence, medical records concerning the person's history of substance use, previously obtained dependency or treatment reports and concrete data on frequency of use carry weight. Conversely, where a trafficking allegation rests on assumption alone, for example where no indicator other than quantity exists, the principle that doubt benefits the accused comes into play. Because classification affects everything from the severity of the sentence to pre-trial detention, ensuring that these indicators are accurately reflected in the file at the earliest stage of the investigation is decisive for what follows.

Evidence and Defence: Search and Seizure, Expert Report, Interception

In drug files, the first line of defence analysis concerns whether the evidence was obtained lawfully. The Code of Criminal Procedure requires as a rule that a search rest on a judicial decision, or on the written order of the public prosecutor where delay would be prejudicial; seizure is likewise subject to specific formalities. The scope of the search decision, the content of the search record, whether a witness or member of the local council was present, and the chain of custody of the substance must all be examined closely. Evidence obtained by unlawful means cannot form the basis of a judgment, and in practice this principle is capable of changing the course of a file entirely.

The second heading is the expert report. Whether the seized material constitutes a narcotic or stimulant substance, its type, purity and net weight are determined by a forensic laboratory report. The difference between net and gross weight may directly affect classification. The third heading is the interception and monitoring of communications, measures which must comply with the statutory catalogue of offences and time limits. Where undercover investigators or technical surveillance are used, it must also be examined whether the officer incited the offence. The consistency of witness and complainant statements, and exposing contradictions at the hearing, are further core tools of the defence. Effective remorse in drug offences is addressed in detail in a separate article.

For the defence to be effective, the entire file must be examined in detail, in particular the search and seizure records and the documents relating to technical surveillance. Putting the right questions to witnesses at the hearing, remedying deficiencies in the expert report by requesting a supplementary report and, where appropriate, submitting an expert opinion are among the core tools of the defence. The judgment of the first instance court may be challenged on appeal, a stage at which the file can again be reviewed on both legal and factual grounds.

The Process in İzmir: Investigation, Detention and Bayraklı Courthouse

In İzmir, proceedings concerning drug offences usually begin with a search or an arrest carried out by the police. Once formalities are completed at the police station, the person is referred to the Chief Public Prosecutor's Office to give a statement. At this stage the right to the assistance of defence counsel, the right to remain silent and the proper taking of the statement are of great importance. How the detention and statement stage works is explained in our article on detention, statements and prosecution procedures in İzmir.

In files pursued on suspicion of an offence under TCK 188, where the prosecutor considers that strong suspicion and a ground for detention exist, the suspect is brought before the magistrate judge. The judge may order remand in custody, judicial control or release; judicial control may involve measures such as regular reporting, a ban on leaving the country or a requirement not to leave the residence. A detention order can be challenged, and detention is reviewed at regular intervals. Once the indictment is accepted, TCK 188 files are heard by the assize courts at İzmir Courthouse in Bayraklı, while cases brought under TCK 191 are heard by the criminal courts of first instance at the same courthouse. At every stage, correct classification of the file, scrutiny of the lawfulness of the evidence and timely presentation of the defence are the factors that shape the outcome.

The length of the proceedings varies with the number of defendants, the completion of forensic and communications analysis reports and the number of witnesses. In files where defendants are held in custody, hearings are scheduled at shorter intervals. The judgment of the first instance court may be appealed to the İzmir Regional Court of Appeal and, in the cases provided by law, taken to cassation. The duration and the outcome differ in every file, so rather than relying on general information, a defence strategy should be built around the specific evidence in the case.

Frequently Asked Questions

For legal support in investigations and proceedings concerning drug offences, contact Yücesoy Law Office via our contact page.