Introduction
Import and export of narcotic substances under Article 188/2 of the Turkish Penal Code is among the most heavily punished offenses in Turkish criminal law. The provision criminalizes both bringing narcotics into Turkey (import/ithal) and taking them out of Turkey (export/ihracat).
As Turkey is geographically positioned between Asia and Europe, it is considered a transit hub for international narcotics trafficking. For this reason, the Turkish legislature and judiciary treat import and export crimes as threats not only to public health but also to national and international security.
For foreigners traveling through or residing in Turkey, awareness of Article 188/2 is critical. Even small quantities of narcotics crossing borders may result in decades-long imprisonment, heavy fines, and deportation.
Legal Framework
1. Turkish Penal Code (Law No. 5237) – Article 188/2
- Provision: “A person who imports or exports narcotic or stimulant substances shall be punished with imprisonment…”
- Covers two directions:
- Import (İthal): Bringing narcotics into Turkey.
- Export (İhracat): Taking narcotics out of Turkey into another country.
2. Connection with Other Provisions
- Article 188/1 TPC: General trafficking and production of narcotics.
- Article 188/3-4 TPC: Supplying and distributing narcotics.
- Article 191 TPC: Possession for personal use (separately regulated).
- Turkish Customs Code: Additional administrative measures for smuggling.
3. International Obligations
Turkey’s strict enforcement reflects obligations under:
- 1961 Single Convention on Narcotic Drugs
- 1971 Convention on Psychotropic Substances
- 1988 UN Convention against Illicit Traffic in Narcotic Drugs
Elements of the Crime
1. Actus Reus (Material Acts)
- Import: Physically bringing narcotics into Turkey, hidden or openly, regardless of amount.
- Export: Removing narcotics from Turkey’s borders, even if only in transit.
- Transit/Transfer: International cases where Turkey is used as a transit point may also be prosecuted.
2. Mens Rea (Mental Element)
- Requires intentional conduct.
- The accused must knowingly transport narcotics across borders.
- Negligence (unknowing carriage) is not enough, but in practice, courts demand strong evidence of innocence.
3. Object of the Crime
- Any narcotic or stimulant substance: cannabis, heroin, cocaine, methamphetamine, synthetic opioids, ecstasy, etc.
Penalties under Article 188/2
1. Basic Penalty
- Imprisonment of 20 to 30 years (the highest penalty for narcotics offenses).
- Judicial fine of up to 20,000 days (calculated based on daily income).
2. Aggravated Circumstances
- Organized Crime Involvement: Heavier penalties apply.
- Use of Minors or Vulnerable Persons: Severe aggravation.
- Large Quantities: Courts take into account the weight and purity of the narcotics.
3. Mitigation
- Effective Remorse (Article 192): If the offender provides valuable information leading to the prevention of crime or arrest of suppliers, penalties may be reduced.
Judicial Practice and Yargıtay (Court of Cassation) Precedents
- Airport Smuggling Cases: Yargıtay consistently rules that narcotics seized at airports, even in small amounts, fall under import/export and not mere possession.
- Hidden Narcotics: Courts impose maximum penalties for concealed narcotics in luggage, vehicles, or cargo.
- Transit Cases: Foreigners carrying drugs through Turkey, even if destined for another country, may be prosecuted under import/export provisions.
Practical Implications for Foreigners
1. Transit and Travel Risks
Foreigners traveling through Turkey face high scrutiny at airports, land borders, and ports. Strict customs and police inspections mean that even minimal amounts of narcotics can result in detention.
2. Common Scenarios
- Drug Couriers (“Mules”): Foreigners recruited to carry narcotics face maximum sentences if caught.
- Tourists with Small Quantities: Courts rarely accept “personal use” arguments if drugs cross borders.
- Shipping and Logistics: Foreign companies involved in trade must ensure compliance, as narcotics hidden in cargo can implicate carriers.
3. Procedural Consequences
- Pre-trial Detention: Almost automatic due to high penalties.
- Interpreter Rights: Foreign suspects must be provided with an interpreter.
- Deportation: Convicted foreigners face deportation and permanent entry bans after serving sentences.
Defenses and Legal Remedies
- Lack of Knowledge: The strongest defense is proving unawareness of narcotics being carried (e.g., planted drugs).
- Personal Use Argument: Rarely accepted in border cases, but may reduce liability if quantity is minimal.
- Effective Remorse: Cooperation with authorities may reduce punishment.
- Procedural Defenses: Challenging illegal searches or violations of customs procedure.
- Appeals: Defendants can appeal convictions before regional courts and Yargıtay.
Conclusion
The import and export of narcotic substances under Article 188/2 of the Turkish Penal Code represents one of the most severely punished crimes in Turkish criminal law. With prison sentences ranging from 20 to 30 years, and additional fines, it stands at the top of the hierarchy of narcotics-related offenses.
For foreigners, the risks are extreme. Even small amounts carried across Turkish borders can trigger prosecution under Article 188/2, with long-term imprisonment, fines, and deportation as likely outcomes. Strict compliance with Turkish narcotics law, awareness of customs regulations, and immediate access to competent legal counsel are essential safeguards.
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