Effective Remorse in Drug Offences

Related guides: Drug Offences for Personal Use (TCK Art. 191) · Drug Manufacturing and Trafficking Offences (TCK Art. 188)

Introduction

Effective remorse (etkin pişmanlık) is a personal ground that completely removes or reduces the penalty, applied where the offender, after the offence has been completed, feels remorse and takes voluntary steps aimed at remedying the harmful consequences of the offence.

The main purpose of effective remorse in drug offences is to fight crime more effectively by dismantling criminal organisations, making it easier to catch offenders and ensuring the seizure of these substances, which threaten public health. Regulated in four paragraphs in Article 192 of the Turkish Criminal Code (TCK), this institution produces different legal consequences, such as "no penalty" or a "reduction in penalty", depending on the type of offence and the stage at which the offender provides assistance (before or after the official authorities learn of the offence).

1. The Concept and Legal Nature of Effective Remorse

In Turkish criminal law doctrine and practice, effective remorse is defined as the offender's effort to take responsibility for the act committed and to remedy the resulting wrong.

1.1. Definition and Etymology

• Effective (etkin): Means in motion, active, operative.
• Remorse (pişmanlık): Feeling sorrow upon realising the negative consequence of an act one has carried out.
• Legal Definition: The voluntary conduct of the offender, after the offence has been completed and within the period set by law, aimed at remedying the harmful consequences of the offence or actively supporting the judicial process.

1.2. Legal Nature

Effective remorse does not change the structure of the offence or the criminal nature of the act; however, it affects criminal liability on a personal basis.

• Personal Ground: Only the offender who shows remorse can benefit from this provision; other accomplices acting jointly cannot benefit (unless they also show remorse).
• Flexibility: In order to limit the effects of the offence, the legal system may waive punishment or allow flexibility in the sanction by granting a reduction.

2. The Purpose of the Institution of Effective Remorse

The legislator's main motivation in regulating this institution is to provide social benefit beyond punishment:

• Effective Fight Against Crime: Particularly in organised structures, it aims to expose criminal organisations by securing a flow of information from the inside.
• Compensation for Harm: Eliminating or reducing the wrong and the harmful consequences caused by the offence.
• Rehabilitation and Reintegration: Giving the remorseful offender an opportunity, so as to prevent reoffending and facilitate their reintegration into society.
• Strengthening the Hand of the State: Speeding up the justice system by encouraging offenders' cooperation in cases where the state has difficulty uncovering the offence on its own.

3. The Basic Elements of Effective Remorse

For the provisions on effective remorse to apply, certain material and mental conditions must be present together.

3.1. The Requirement That the Offence Be Completed

In the scheme of the Turkish Criminal Code No. 5237, effective remorse as a rule concerns the stage after the offence has been completed. While the offender's abandonment of the offence during the acts of execution falls within "voluntary abandonment" (TCK Art. 36), interventions after the result has occurred are assessed under effective remorse.

4. Effective Remorse in Drug Offences (TCK Art. 192)

Effective remorse in drug offences is addressed in four different scenarios depending on the nature of the offence and the time of notification.

Effective remorse
Article 192- (1) A person who has participated in the offences of manufacturing and trafficking in narcotic or stimulant substances shall not be sentenced to a penalty if, before the official authorities are informed, he or she informs the competent authority of the other accomplices and the places where the narcotic or stimulant substances are stored or manufactured, provided that the information given leads to the capture of the accomplices or the seizure of the narcotic or stimulant substance.
(2) A person who purchases, accepts or possesses a narcotic or stimulant substance for use shall not be sentenced to a penalty if, before the official authorities are informed, he or she informs the competent authority of from whom, where and when he or she obtained the substance, thereby facilitating the capture of the offenders or the seizure of the narcotic or stimulant substance.
(3) The penalty to be imposed on a person who, after these offences have come to the knowledge of the authorities, voluntarily serves and assists in the uncovering of the offence and the capture of the offender or other accomplices shall be reduced by one quarter to one half, depending on the nature of the assistance.
(4) A person who uses a narcotic or stimulant substance shall not be sentenced to a penalty if, before an investigation is initiated against him or her for purchasing, accepting or possessing a narcotic or stimulant substance for use, he or she applies to the official authorities or health institutions and requests to be treated. In this case, public officials and members of the health professions shall not be under the obligation to report the offence under Articles 279 and 280.

4.1. No Penalty for the Offence of Manufacturing and Trafficking (TCK 192/1)

• Scope: Manufacturing and trafficking offences under TCK Art. 188.
• Condition: Reporting the accomplices or the places where the drugs are stored/produced before the official authorities learn of the offence.
• Result: If the information given leads to the capture of the offenders or the seizure of the substances, no penalty is imposed on the offender.

Decisions in Which Effective Remorse Was Accepted

Court of Cassation, Criminal General Assembly (YCGK), dated 11.02.2020, E. 2018/9-345, K. 2020/73:
"Because of the tablets seized as a result of a search carried out by the police, the accused was initially a suspect for the offence of 'trafficking in narcotic or stimulant substances'. During the investigation, while the police officers had no knowledge of the offence of 'importing narcotic or stimulant substances', the accused stated that he had brought the tablets from Iran approximately ten days earlier. Although this statement shows that the offence of importing came to light, since there is no concrete evidence that the tablets in question came from abroad, the accused cannot be punished for this offence within the scope of Article 192/1 of the TCK. Consequently, the accused's act must be assessed within the scope of the offence of 'transporting narcotic substances'.".

Court of Cassation, 20th Criminal Chamber, dated 16.11.2016, E. 2016/2121, K. 2016/5530:
"Since it is understood that the accused, who participated in the offence of trafficking in narcotic substances, tipped off the security forces that narcotic substances were being transported in the vehicle with licence plate 41..., and, before the official authorities were informed, reported the other accomplices and the location of the narcotic substance, thereby ensuring the capture of the accomplices and the seizure of the narcotic substance, it must be decided that there is no need to impose a penalty on the accused pursuant to Article 192/1 of the TCK."

Ankara Regional Court of Appeal (BAM), 3rd Criminal Chamber, dated 20.01.2021, E. 2019/2165, K. 2021/111: It was emphasised that an offender who gave another person a medicine falling within TCK Art. 188/6 will not be punished under TCK Art. 192/1 if he or she reveals his or her own offence and act at a stage when the official authorities do not yet have any evidence.

Konya Regional Court of Appeal (BAM), 3rd Criminal Chamber, dated 05.04.2023, E. 2023/1085, K. 2023/1097: In a case where police officers who had gone to the scene following another tip-off became suspicious, and the offender then of his or her own accord took out and handed over the drug pills in the vehicle, it was stated that the possibility of no penalty under TCK Art. 192/1 should be assessed by hearing the signatories of the official report as witnesses and investigating the source of the suspicion, whether a judicial search warrant would have been obtained and at what stage the offenders handed over the substances.

Decisions in Which Effective Remorse Was Not Accepted

Court of Cassation, 10th Criminal Chamber, dated 20.12.2023, E. 2021/18964, K. 2023/11360:
"Considering the amount of narcotic substance seized from the accused's hold baggage (chute) on the flight on which he travelled from Lagos/NIGERIA to Istanbul/TÜRKİYE and the manner in which it was seized, it is established that the accused committed the offence of importing narcotic substances with which he is charged. Although the accused gave certain names/code names in his defence as the senders and recipients of the narcotic substances, given the insufficiency of the information he provided, there was no capture of accomplices within the meaning of Article 192 of Law No. 5237, and therefore the provisions on effective remorse were not applied to the accused.".

Court of Cassation, 10th Criminal Chamber, dated 12.04.2023, E. 2020/4233, K. 2023/3390:
"In a case where it is understood from the communication interception reports, the physical surveillance reports consistent with the content of those reports and the other documents in the file that the seized narcotic substances that are the subject of the offence were brought into the country (imported) by the accused Mehmet and the other accused Met, Ruvin and Redjan; applying the provisions on effective remorse under Article 192/1 of the TCK on the grounds that the accused Met revealed the importing offence through his statements, without taking into account that the established act of the accused constitutes the offence of 'importing narcotic substances', is unlawful.".

4.2. No Penalty for the Offence of Obtaining and Possessing for Use (TCK 192/2)

• Scope: The offences of purchasing, accepting or possessing for use under TCK Art. 191.
• Condition: Reporting from whom, where and when the drug was obtained before the official authorities learn of the offence.
• Result: If the information helps in the capture of the offenders or the seizure of the substance, no penalty is imposed on the offender.

Decisions in Which Effective Remorse Was Accepted

Confession at a Stopped Vehicle: Where police officers approached a stopped vehicle following a radio call reporting that it posed a danger, and the offender of his or her own accord stated that he or she had used drugs, and this was confirmed by a urine test, effective remorse applies (Court of Cassation, 8th Criminal Chamber, E. 2024/13007, K. 2024/8521).

Confession During an Investigation/Trial for Another Offence: Where an offender caught or tried for another offence such as theft or assault confesses to using drugs and reveals his or her offence at a time when there is not yet any investigation or report against him or her concerning drugs, it is decided that there is no need to impose a penalty under TCK 192/2 (Court of Cassation, 10th Criminal Chamber, E. 2020/16856, K. 2022/12884; Court of Cassation, 10th Criminal Chamber, E. 2019/7744, K. 2021/4684; Court of Cassation, 9th Criminal Chamber, E. 2020/18137, K. 2023/1431).

Statement Made as a Victim/Complainant or Applicant: TCK 192/2 also applies where a person called the police to report being raped and said that he or she had used the drug found at the scene, or stated that he or she had used a substance when found while being searched for as a missing person (Court of Cassation, 10th Criminal Chamber, E. 2020/10468, K. 2022/9914; Court of Cassation, 8th Criminal Chamber, E. 2024/12583, K. 2024/2775).

Explaining One's Purpose at a Workplace Being Searched: Where, during a search of another person's workplace, the offender who was present there is asked why he or she came and confesses to having come to buy drugs, effective remorse applies (Court of Cassation, 10th Criminal Chamber, E. 2020/9692, K. 2022/8985)

Decisions in Which Effective Remorse Was Not Accepted

Voluntarily Handing Over the Substance During a Search / Pat-Down: Where an offender stopped for a preventive search or on suspicion, at the moment a pat-down is about to be carried out, takes out of his or her pocket and voluntarily hands over drugs that the police would have found shortly afterwards, TCK 192/2 does not apply (Court of Cassation, 10th Criminal Chamber, E. 2014/7612, K. 2017/6888).

Where the Offence Could Already Be Uncovered Through Other Facts: Where an offender under investigation for threatening his parents says that he uses drugs, but because the parents had previously told the police that they suspected their son of using substances, the offence could already be uncovered through biological samples, effective remorse does not apply (Court of Cassation, 8th Criminal Chamber, E. 2024/12924, K. 2024/7856).

4.3. Reduction of Penalty at the Investigation Stage (TCK 192/3)

• Scope: Both trafficking (Art. 188) and use (Art. 191) offences.
• Condition: Voluntarily providing service and assistance after the offence has come to the knowledge of the official authorities, but before judgment is given.
• Result: The penalty of an offender who contributes to the uncovering of the offence or the capture of the offenders is reduced by one quarter to one half, depending on the nature of the assistance.

Decisions in Which Effective Remorse Was Accepted

Admitting That a Substance Whose Offender/Owner Is Unknown Belongs to Him or Her: Where drugs are seized in a vehicle, house, coffeehouse or venue where several people are present and, at a stage when it cannot be determined to whom they belong, the offender states that the substances belong to him or her (Court of Cassation, 10th Criminal Chamber, E. 2021/16581, K. 2023/4369; Court of Cassation, 10th Criminal Chamber, E. 2021/3067, K. 2022/13800).

Revealing his or her own offence by disclosing that drugs thrown on the ground or intercepted in a parcel delivery belong to him or her while their owner is unknown (Court of Cassation, 10th Criminal Chamber, E. 2017/3610, K. 2018/9071; Court of Cassation, 10th Criminal Chamber, E. 2020/10360, K. 2022/10561).

Admitting that drugs found on another person belong to him or her, or that he or she gave them to that person (Court of Cassation, 10th Criminal Chamber, E. 2017/6097, K. 2021/3637; Court of Cassation, 10th Criminal Chamber, E. 2020/15006, K. 2020/7022).

Admissions That Reveal the True Nature of the Offence / Lead to Its Reclassification: Where an offender found with drugs within personal-use limits, in the absence of any evidence to that effect, reveals the trafficking offence by admitting that he or she possessed the substance in order to sell it/give it to others (YCGK, E. 2022/10-486, K. 2023/397; Court of Cassation, 10th Criminal Chamber, E. 2024/5128, K. 2024/22644).

Providing Concrete Information About the Seller / Accomplice That Can Lead to Capture: Where, after being caught with drugs, the offender gives the clear identity and address details of the person from whom he or she bought the substance, thereby enabling that person to be caught or sufficient evidence to be obtained for that person's 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).

Handing Over the Substance During an Unlawful Search/A Stop Without a Warrant: Where an offender stopped without a search warrant issued in due form voluntarily hands over the drugs and thereby contributes to the uncovering of the offence (Court of Cassation, 10th Criminal Chamber, E. 2022/272, K. 2024/84; Court of Cassation, 10th Criminal Chamber, E. 2022/15592, K. 2024/26259).

Decisions in Which Effective Remorse Was Not Accepted

Giving Code/Fictitious Names or Information That Has No Effect on the Outcome: Where the offender cannot give the full identity of the persons from whom he or she obtained the drugs and gives code/fictitious names, or where a decision of non-prosecution/acquittal is given in respect of the persons named so that the information provides no concrete benefit (YCGK, E. 2016/10-1014, K. 2018/664; Court of Cassation, 10th Criminal Chamber, E. 2021/18964, K. 2023/11360; Court of Cassation, 8th Criminal Chamber, E. 2024/1890, K. 2024/5543).

Admitting an Offence Already Proven by Evidence: The TCK 192/3 reduction does not apply where the admission concerns drugs already evidenced and seized by the police through physical surveillance, camera footage, monitoring by technical means or a preventive search order (Court of Cassation, 10th Criminal Chamber, E. 2024/6349, K. 2024/24168; Court of Cassation, 10th Criminal Chamber, E. 2020/2691, K. 2020/8912).

Offences Protecting Different Legal Interests (e.g. Bringing Prohibited Items into a Penal Institution): Since the offence of "bringing prohibited items into a penal institution" in Article 297/1 of the TCK is one of the offences against the administration of justice and differs from drug offences, which protect public health, the TCK 192/3 effective remorse reduction cannot be applied to this offence by analogy (YCGK, E. 2017/10-973, K. 2019/54).

4.4. Effective Remorse Based on a Request for Treatment (TCK 192/4)

• Scope: Persons who use narcotic or stimulant substances.
• Condition: Applying to the official authorities or health institutions and requesting treatment before an investigation is initiated against the person.
• Result: In this case, no penalty is imposed on the person.

Decisions in Which Effective Remorse Was Accepted

İzmir Regional Court of Appeal (BAM), 3rd Criminal Chamber, dated 21.02.2025, E. 2025/942, K. 2025/730: It was held that a person who fell ill, went to hospital and stated there that he or she had used drugs, at a time when the judicial authorities had not yet initiated an investigation, must be given a decision that no penalty is to be imposed under TCK Art. 192/4.

Bursa Regional Court of Appeal (BAM), 15th Criminal Chamber, dated 02.10.2024, E. 2022/2768, K. 2024/1309: In a case where an offender experiencing health problems applied to a hospital with the help of his or her family and it emerged that he or she used drugs, it was stated that the personal ground for no penalty under TCK Art. 192/4 must be applied.

5. Findings and Assessments

• The Importance of the Time Frame: The reason the legislator imposed a time limit is to measure the offender's degree of remorse. The conduct of an offender who realises that he or she will receive a heavy sentence at the end of the trial and acts solely to escape punishment may not be accepted as genuine "remorse".
• The Requirement of Active Conduct: It is not enough for the offender simply to state that he or she is "sorry"; he or she must make an "effective" and "concrete" contribution towards uncovering the offence or remedying the harm.
• Victim's Consent: As a rule, the application of effective remorse does not depend on the victim's consent; however, in certain special cases, such as offences against property (TCK Art. 168/4), the victim's approval may be required where the harm is only partially remedied.

Conclusion

The provisions on effective remorse in drug offences are not only an "amnesty" mechanism in favour of the accused but also a strategic tool in the state's fight against crime. Applying these provisions correctly and appropriately is of critical importance for preventing drug trafficking and exposing criminal organisations.

This article has been prepared from an academic perspective in order to explain the legal framework of the institution of effective remorse in drug offences. 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.