Introduction
Facilitation of narcotic substance use under Article 190 of the Turkish Penal Code is a separate offense that targets conduct enabling or encouraging others to use narcotics. Unlike Article 188 (trafficking) and Article 191 (personal possession), this provision criminalizes those who may not directly produce, sell, or consume drugs, but who create opportunities, provide means, or remove obstacles for drug use.
For foreigners residing, studying, or conducting business in Turkey, this distinction is crucial. Even unintentional actions — such as providing a place, turning a blind eye, or failing to take precautions — can expose individuals to serious criminal liability. This article offers a comprehensive legal framework of Article 190, its scope, penalties, judicial practice, and practical implications for foreigners.
Legal Framework
1. Turkish Penal Code (Law No. 5237) – Article 190
Article 190 criminalizes two main categories of conduct:
- Facilitating Drug Use:
- Providing a location or opportunity for others to use narcotics.
- Giving advice, guidance, or means that make drug use possible.
- Encouraging Drug Use:
- Directly persuading or pressuring another person to consume narcotics.
- Making it easier by removing barriers (e.g., introducing a dealer, supplying equipment).
2. Related Provisions
- Article 188 TPC: Production and trafficking of narcotics.
- Article 191 TPC: Possession for personal use.
- Article 192 TPC: Effective remorse (reductions for cooperation).
- Law No. 2313 on the Control of Narcotic Substances: Defines substances and administrative measures.
3. International Context
While international conventions focus more on trafficking, Turkish law goes further by addressing enabling behaviors, reflecting Turkey’s strict approach in combating all levels of narcotics-related activity.
Elements of the Crime
1. Actus Reus (Material Acts)
- Providing Place or Opportunity: Allowing someone to use narcotics at home, workplace, car, or other private/public spaces.
- Facilitating Use: Supplying materials (e.g., syringes, smoking devices), transportation, or introductions.
- Encouragement: Actively persuading another person to use narcotics.
2. Mens Rea (Mental Element)
- Requires intentional facilitation.
- Negligence (e.g., landlord unaware of tenants using drugs) typically does not trigger Article 190, though civil liability may arise.
3. Object of the Crime
- Narcotic or stimulant substances defined under Turkish law, including cannabis, heroin, cocaine, methamphetamine, ecstasy, opioids, and other substances.
Penalties under Article 190
1. Basic Penalty
- Imprisonment of 5 to 10 years for facilitating or encouraging drug use.
2. Aggravated Forms
- If the facilitation occurs in schools, dormitories, military facilities, or places of worship, penalties are increased.
- If committed by public officials or professionals (teachers, doctors, business owners), courts may apply heavier sentences.
3. Attempt and Participation
- Attempted facilitation is punishable, though typically with a reduced sentence.
- Those who aid, abet, or conspire with facilitators may also face liability.
Practical Implications for Foreigners
1. Business Owners and Landlords
Foreigners owning or managing property in Turkey should be cautious:
- Allowing premises to be used for drug consumption can trigger Article 190 liability.
- Nightclubs, hotels, and rental apartments are under strict police and municipal inspection.
2. Social Context
- Foreign students or expatriates may face liability if they allow others to use narcotics in their dormitory, shared housing, or vehicles.
- Even passive tolerance (e.g., not reporting use) can be construed as facilitation in aggravated cases.
3. Criminal Procedure
- Pre-trial Detention: Common due to seriousness of penalties.
- Interpreter Rights: Guaranteed for foreigners at all stages.
- Deportation: Convicted foreigners often face deportation after serving sentences.
Defenses and Legal Remedies
- Lack of Knowledge: Demonstrating that the accused did not know narcotics were being used.
- Lack of Intent: Proving absence of active facilitation or encouragement.
- Procedural Violations: Contesting evidence obtained through unlawful searches or surveillance.
- Effective Remorse (Article 192): Providing information to authorities can reduce penalties.
- Appeals: Decisions may be challenged at the appellate courts and ultimately before Yargıtay.
Conclusion
The facilitation of narcotic substance use under Article 190 of the Turkish Penal Code highlights Turkey’s zero-tolerance approach, punishing not only traffickers and users but also those who enable the cycle of consumption. For foreigners, this provision creates significant risks in business, social, and housing contexts, as even indirect involvement may lead to imprisonment, fines, and eventual deportation.
Understanding this legal framework is essential for expatriates, landlords, employers, and students in Turkey. Preventive measures, legal awareness, and immediate access to competent legal defense are critical to avoiding liability under Article 190.
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