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Related guides: Effective Remorse in Drug Offences (TCK Art. 192) · Drug Manufacturing and Trafficking Offences (TCK Art. 188)
This article examines, in the context of Turkish criminal law, the offences of purchasing, accepting, possessing and using narcotic or stimulant substances for personal use. The key findings show that combating drugs is not only a criminal matter but a complex issue with medical, social and international dimensions. In the Turkish legal system, particularly since Turkish Penal Code No. 5237 (TCK), rehabilitating drug users and directing them towards treatment, rather than punishing them directly, has become the priority policy. With the amendment made by Law No. 6545 in 2014, this type of offence took on a more integrated and complex structure, linked with criminal procedure institutions such as the "deferral of the filing of a public prosecution" and "probation".
Because of their structural characteristics, their physiological and psychological effects on people and the social consequences they create, narcotic and stimulant substances are the subject of many disciplines, including medicine, criminology, sociology and law.
Medically, these substances are defined as substances that act on the central nervous system and lead to functional changes, reduced sensitivity, clouding of consciousness and dependence.
The WHO defines these substances according to the following criteria:
Since the fight against drugs is global in nature, many international conventions and organisations govern this process.
| Convention | Focus |
|---|---|
| 1961 Single Convention | The core international instrument listing narcotic substances (the Schedule system). |
| 1971 Convention on Psychotropic Substances | Aims to control synthetic substances that are used for medical purposes but are abused. |
| 1988 UN Convention | Covers combating trafficking and defining plants such as cannabis and the coca bush. |
In Türkiye, narcotic substances are regulated not only in the TCK but also in special laws.
Law No. 2313 on the Control of Narcotic Substances: Controls the manufacture, import and export of substances. The lists can be updated by Presidential decision.
Law No. 3298 on Narcotic Substances: Sets out the principles particularly for the cultivation, purchase and sale of opium and poppy.
Turkish Penal Code No. 5237: Observing the principle of legality of crimes and penalties, it uses flexible yet comprehensive language covering narcotic and stimulant substances. The offence of use regulated in Article 191 has been one of the most frequently amended provisions over time.
The legal interest protected by the offence is public health. Its material object consists of substances specified in the laws or having a narcotic/stimulant effect.
The offence is committed by carrying out any of the following acts:
The offender's purpose must be "to use". If there is a commercial purpose (selling, transporting, etc.), Article 188 of the TCK comes into play. The following criteria are used to determine intent:
Special procedural rules and grounds for exemption from or reduction of punishment are provided for offences under Article 191 of the TCK.
Under the system introduced by Law No. 6545, the process works as follows:
The decisions of the Court of Cassation and the Regional Courts of Appeal (BAM) on the offence of purchasing, accepting, possessing and using narcotic or stimulant substances for personal use (Article 191 of the Turkish Penal Code, TCK m. 191) can be grouped under the following main headings:
Suitable Quantity and Active Ingredient Ratio: According to Court of Cassation practice, where the ratio of narcotic/stimulant active ingredient in the seized substance is below the statutory limits, where the narcotic is present in the substance only in "trace amounts", or where the substance is not suitable for use, the act is not capable of amounting to use, so there is an impossible offence (unsuitable attempt).
"...Since the morphine and derivative substances, determined to amount to a net 327 milligrams within the total of 172 grams of substance seized, are below the ratios provided for in Article 1 of Law No. 2313 on the Control of Narcotic Substances, there is no narcotic substance capable of constituting the material object of the offence regulated in Article 188 of TCK No. 5237, and the case is one of an impossible offence..." Court of Cassation, 10th Criminal Chamber, dated 09.01.2012, E. 2008/3482, K. 2012/34
Principle of Legality: For a substance to be accepted as a narcotic or stimulant substance, it must be listed under the TCK, Laws No. 2313 or 3298, the schedules in international conventions, or administrative decisions (Council of Ministers/Presidential decisions).
"That the powdered substance which the defendant ... allegedly sold contains paracetamol and caffeine, and that paracetamol and caffeine cannot be accepted as narcotic or stimulant substances because they are not among the narcotic and stimulant substances listed in paragraph 4 of Article 188 of TCK No. 5237, in Law No. 2313 on the Control of Narcotic Substances, in Law No. 3298 on Narcotic Substances, in Schedules 1 and 2 of the 1961 Single Convention on Narcotic Drugs, or in the Council of Ministers decisions issued under the authority granted by Laws No. 2313 and 3298...", Court of Cassation, 20th Criminal Chamber, dated 22.05.2018, E. 2018/1341, K. 2018/2394
Prescription Medicines: If medicines subject to green or red prescription (e.g. Akineton, etc.) are not listed in the statutory schedules of narcotic/stimulant substances, possessing them for use does not constitute the offence under TCK Art. 191; in such a case, an expert report must be obtained from the Forensic Medicine Institute and the Ministry of Health.
"...That the 10 tablets found on the defendant are the medicine named Akineton, subject to green prescription and containing the active ingredient 'Biperidene HCI', and that since the substance named 'Biperidene HCI' is not among the narcotic and stimulant substances listed in paragraph 4 of Article 188 of TCK No. 5237, in Law No. 2313 on the Control of Narcotic Substances, in Law No. 3298 on Narcotic Substances, in Schedules 1 and 2 of the 1961 Single Convention on Narcotic Drugs, or in the Council of Ministers decisions issued under the authority granted by Laws No. 2313 and 3298, it is not possible to accept it as a narcotic or stimulant substance...", Court of Cassation, 10th Criminal Chamber, dated 14.02.2018, E. 2013/10907, K. 2018/1852
Principle of In Dubio Pro Reo (the Benefit of the Doubt Goes to the Defendant): Court of Cassation and BAM decisions accept that, as long as there is no conclusive and sufficient evidence beyond doubt that the offender possessed the narcotic substance for a purpose other than use (selling, transferring, etc.) and the quantity seized remains within the limits of personal use, the act must be assessed under TCK Art. 191.
"On the date of the incident, following a tip-off that defendant R. S. was hiding narcotic substances at R. S.'s sister's residence and handing narcotics to buyers at another location, in the search carried out at that address 18 grams gross of cannabis were seized under the sofa and 65 grams gross of cannabis were seized in the vehicle belonging to defendant A. Ö.; cannabis metabolites were found in the toxicology reports obtained from the defendants; ... in view of the nature and quantity of the narcotic substances seized and the manner in which they were seized, the defendants' act constitutes the offence of possessing narcotic substances for the purpose of use..." Adana Regional Court of Appeal (BAM), 5th Criminal Chamber, dated 25.09.2018, E. 2018/1648, K. 2018/1877
Criteria for Determining Intent: When determining the offender's intent, the quantity of the substance alone cannot be decisive; the way the seized substances were kept (in small packets/wraps), the presence of precision scales or packaging material, the place and time of seizure, and the quantity/variety criteria are assessed together.
Joint Use and Offering: Where the narcotic substance possessed is offered to others and used together, since there is no transfer of ownership and no commercial purpose, the act does not constitute drug trafficking or providing a place for use, but the offence of possession for use under TCK Art. 191.
According to the Court of Cassation and the prevailing view in legal doctrine, where the offender offers the narcotic substance possessed for their own use to their friends in the same setting and they consume it together, it is accepted that there is no intent to transfer ownership or actual possession of the narcotic substance to another person. Since there is joint use in that setting and possession of the drug is not independently transferred to the friend, the act constitutes the offence under TCK Art. 191 (possession for use), not TCK Art. 188/3.
According to the established decisions of the Court of Cassation Criminal General Assembly (YCGK) (e.g. YCGK, E. 2013/637, K. 2014/137), no material consideration (gain) or commercial purpose is required for the act of "giving to others" regulated in TCK Art. 188/3 to be committed. Transferring possession of the narcotic substance to another person, even free of charge, constitutes the offence under TCK Art. 188/3.
A defendant's bare confession that they used narcotics cannot on its own form the basis of a conviction. For the offender to be punished, the substance that is the subject of the offence must have been seized, or the narcotic active ingredient must have been detected by technical methods in biological samples such as blood or urine.
"That no narcotic or stimulant substance was seized from the defendant, against whom an investigation for the alleged offence was started after he stated in his statements, given within the scope of an investigation into the offence of unlicensed cannabis cultivation, that he smoked cannabis; that no medical finding was established by technical methods that he used these substances; and that there is also no allegation or evidence that he picked and smoked from the cannabis plants seized while still growing; apart from his bare confession, there is no sufficient evidence free from doubt that the defendant committed the offence of possessing narcotic or stimulant substances for use...", Court of Cassation, 9th Criminal Chamber, dated 28.01.2016, E. 2015/7288, K. 2016/697
Method of Measuring Distance: For the aggravated circumstance that provides for an increased penalty where the offence is committed within 200 metres of schools, places of worship, buildings and facilities, the distance must be determined by an on-site inspection and measurement based on the usual routes of access (on foot, by vehicle), not as the crow flies (Google Maps, etc.).
"...Whereas the expert report dated 17.03.2017 established, according to a measurement made on a map, that the place where the defendant was caught is within 129 metres of Ş. A. Mosque, and the reasoned judgment states that the place in question is closer than 200 metres to more than one school and place of worship; without taking into account that an on-site inspection should be carried out and, after determining the distance between the place where the offence was committed and Ş. A. Mosque shown in the sketch report, it should be determined whether Article 188/4-b of the TCK applies..." Court of Cassation, 20th Criminal Chamber, dated 21.11.2018, E. 2018/5135, K. 2018/5353
Requirement of Being Present Voluntarily: Merely being stopped or caught within this distance limit cannot be considered a ground for increasing the penalty; the offender must be present at that place with the intention of using or taking over the narcotic.
"...According to the incident report, the defendant was stopped after his situation aroused suspicion, and narcotic substances were seized from him as a result of the search conducted on him; with regard to the application of Article 191/10 of the TCK, the criterion of proximity to a school was not met in the specific case, given that the defendant was not voluntarily present at that place and the narcotic substance was seized after he was stopped...", Ankara Regional Court of Appeal (BAM), 3rd Criminal Chamber, dated 19.12.2018, E. 2017/1797, K. 2018/1274
Nature of the Place: Private vehicles, residences or parks (since they do not qualify as buildings and facilities) cannot be assessed within this aggravated circumstance or as places open to the public.
"That the narcotic substance subject to the offence was found inside the vehicle ... in which the defendant was present, that the inside of a vehicle is not a place open to the public, and therefore imposing a heavier penalty on the defendant by applying an increase under Article 191/10 of the TCK...", Konya Regional Court of Appeal (BAM), 3rd Criminal Chamber, dated 24.12.2018, E. 2018/427, K. 2018/403
Attempt: In the acts of purchasing or accepting, if the narcotic substance is seized by the police before it passes into the possession/control of the buyer, the act remains at the attempt stage.
"That the defendant... agreed with Ş. G. to obtain the narcotic substance subject to the offence, and while they were meeting in a vehicle, before he could take delivery, the police stopped the vehicle and the narcotic substance was thrown under the vehicle by Ş. G., so that the defendant's act remained 'at the attempt stage'...", Court of Cassation, 10th Criminal Chamber, dated 12.12.2018, E. 2017/4248, K. 2018/9206
Impossible Offence: Where police officers have already caught the seller and seized the narcotic substances, it becomes factually impossible for an offender who later comes to buy to take delivery of the substance, so the act is an impossible offence.
"...In the incident where, while a search was being carried out at N. K.'s residence as a result of intelligence work indicating that he was selling narcotic substances, the defendant came to the residence, held out money to the police officer who opened the door and said '2 tane dalga ver birader' ('give me 2 joints, brother'), and was then caught; since the police officers had seized the narcotic substances during the search, it was factually impossible for the defendant to obtain narcotic substances, and the act is therefore an impossible offence...", Court of Cassation, 10th Criminal Chamber, dated 10.12.2018, E. 2015/1018, K. 2018/9004
Before the Official Authorities Learn of the Offence (TCK Art. 192/2 and 192/4): For offenders who, before any investigation has been started against them, apply to the official authorities or health institutions, disclose that they use drugs and ask to be treated, or who enable the offence to come to light, a decision that there is no need to impose a penalty is issued. However, handing over the substance upon realising that one will be caught during a general public order check or a search does not entitle the offender to effective repentance under TCK Art. 192/2.
Where an offender who has been stopped during a preventive search or on suspicion takes out of their pocket and voluntarily hands over narcotic substances that the police would have found shortly afterwards, just as a pat-down search is about to be carried out, TCK 192/2 does not apply. Court of Cassation, 10th Criminal Chamber, E. 2014/7612, K. 2017/6888
After the Offence Has Come to the Authorities' Attention (TCK Art. 192/3): After the offence has come to the authorities' attention, if the offender, while there is no evidence against them, provides service and assistance with concrete and truthful information that brings their offence to light or leads to the capture of the persons from whom they obtained the narcotic substances, their penalty is reduced.
After being caught with narcotics, giving the clear identity and address details of the person from whom they bought the substance, thereby enabling that person to be caught or sufficient evidence to be obtained for their conviction: Court of Cassation, 10th Criminal Chamber, E. 2017/3843, K. 2018/7352; Court of Cassation, 10th Criminal Chamber, E. 2023/22551, K. 2024/26426
Deferral of the Filing of a Public Prosecution (KDAEK): For a suspect committing the offence of use for the first time, issuing a KDAEK decision for 5 years is mandatory, without the conditions in Article 171 of the Code of Criminal Procedure (CMK m. 171) being required. For a public prosecution to be filed due to breaches of obligations during the deferral period, the "persistence requirement" must be met, in the form of non-compliance despite at least two warnings/notifications.
"...Considering that the child pushed into crime failing to comply with the first warning cannot be accepted as persisting in not acting in accordance with the obligations imposed on him, it was found unlawful to continue the proceedings and render judgment based on the investigation as written, instead of suspending the proceedings in order to wait for the persistence requirement to be met...", İstanbul Regional Court of Appeal (BAM), 5th Criminal Chamber, dated 16.04.2018, E. 2018/527, K. 2018/858
Special HAGB Decision (TCK Art. 191/8): If, at the prosecution stage, it becomes clear that the act falls exclusively within TCK Art. 191 (for example, where the legal characterisation of the offence changes in a case brought under TCK Art. 188), a decision on the deferral of the pronouncement of the judgment (HAGB) is issued, with no discretion left to the judge.
Prohibition on Pronouncing the Judgment: In special HAGB decisions issued under TCK Art. 191, the judgment cannot be pronounced even if the defendant is convicted during the supervision period of another intentional offence (for example, wounding, endangering traffic safety, attempted murder, etc.). For the judgment to be pronounced, one of the special breach conditions laid down only in TCK Art. 191 (using/possessing again, or persisting in not complying with the treatment/supervision obligation) must occur within the supervision period.
"Since the court's decision dated 03/11/2015 on the deferral of the pronouncement of the judgment is a special arrangement introduced for the offences of possessing and using narcotic substances, the judgment whose pronouncement has been deferred can be pronounced only in the cases set out in Article 191/4 of the TCK, during the deferral period; namely where the defendant persists in not acting in accordance with the obligations imposed on him or the requirements of the treatment applied, again purchases, accepts or possesses narcotic or stimulant substances for use, or uses narcotic or stimulant substances...", Bursa Regional Court of Appeal (BAM), 3rd Criminal Chamber, dated 26.12.2017, E. 2017/369, K. 2017/350
Bringing Prohibited Items into a Penal Institution (TCK Art. 297): Where narcotics are possessed for use in prison or at its entrance, TCK Art. 297, which provides for the heavier penalty, is applied under TCK Art. 44 (notional concurrence).
"Whereas the defendant's proven act consists solely of bringing narcotic substances into a penal institution for the purpose of use, and a single penalty should have been imposed by applying sentences 1 and 2 of paragraph 1 of Article 297 of the TCK, which produces the heavier consequence, a confused judgment was rendered by dividing the defendant's single act into two in terms of its characterisation and rendering judgment for the offence of 'possessing narcotic substances for use' in respect of one characterisation and for the offence of 'bringing prohibited items into a penal institution' in respect of the other...", Court of Cassation, 10th Criminal Chamber, dated 20.11.2018, E. 2017/4461, K. 2018/8225
Cultivating Cannabis (Law No. 2313, Art. 23/5): For an offender who cultivates cannabis exclusively for their own use, the rules on real concurrence are applied under both Article 23/5 of Law No. 2313 (cultivating cannabis) and TCK Art. 191 (possessing cannabis for use), and separate penalties are imposed for each offence.
"...That Indian hemp was cultivated in the garden, also belonging to the defendant, next to the ... property owned by defendant İ. B.; that it was established that 78.3 g of cannabis were found at the ... property, and that a total of 224 roots of Indian hemp, which could amount to 31744 g of Indian hemp, were cultivated in the garden belonging to the defendant adjoining the house where the defendant resides; since it was reported that a total of 6,923.50 g of cannabis, far above the annual personal use quantity, could be obtained from 31,744 g of Indian hemp, it was decided that the defendant should be punished under the first sentence of Article 23/5 of Law No. 2313, which corresponds to his act, on the basis that he cultivated Indian hemp without permission for the purpose of producing cannabis for commercial purposes...", İstanbul Regional Court of Appeal (BAM), 5th Criminal Chamber, dated 04.07.2018, E. 2018/800, K. 2018/1518
Successive Offence (TCK Art. 43): While multiple acts of use/possession before the KDAEK decision constitute a single continuing offence unless there is a legal interruption, the rules on successive offences may be applied to acts committed with the same criminal resolve after the breach of the KDAEK and until the case is filed.
The statutory provisions and the practice of the high courts confirm that Turkish criminal law focuses on treatment and supervision rather than punishment in combating drug use. However, the frequent amendments to Article 191 of the TCK and the complex procedure introduced by Law No. 6545 (its relationship with the rules on successive offences, the supervision of deferral decisions, etc.) form an area that is still debated in practice and in legal doctrine and continues to be shaped by high court decisions.
This study has been prepared from an academic perspective to explain the legal framework of offences relating to narcotic or stimulant substances for personal use in Turkish criminal law. In accordance with the Union of Turkish Bar Associations' Regulation on the Prohibition of Advertising, the text is for information purposes only and does not constitute legal advice or advertising.
