Introduction
Providing opportunity for narcotic substance use under Article 190/2 of the Turkish Penal Code is a separate and aggravated form of facilitation of drug use. While Article 190(1) generally criminalizes facilitation or encouragement of narcotic consumption, Article 190/2 specifically punishes those who make places, means, or opportunities available for others to consume narcotics.
For foreigners in Turkey — whether as landlords, business operators, students, or expatriates — this provision carries serious implications. Even passive behavior, such as allowing a house, car, or rented property to be used for drug consumption, can expose individuals to criminal liability. This article provides a comprehensive legal framework and practical overview of Article 190/2, explaining its elements, penalties, court practice, and potential risks for foreigners.
Legal Framework
1. Turkish Penal Code (Law No. 5237) – Article 190/2
- Text of Article 190/2: “A person who provides a place, equipment, or opportunity for the use of narcotic or stimulant substances shall be punished…”
- The provision targets enablers — individuals who may not directly use or traffic narcotics but facilitate their consumption through providing opportunities.
2. Relationship with Other Provisions
- Article 188 TPC: Production and trafficking of narcotics.
- Article 191 TPC: Possession for personal use.
- Article 190/1 TPC: Facilitation or encouragement of narcotic use (more general).
- Article 192 TPC: Mitigation in case of effective remorse.
3. International Context
While most international conventions (e.g., 1961 Single Convention on Narcotic Drugs) focus on trafficking and supply, Turkey criminalizes opportunity-providing conduct to strengthen its domestic war on drugs.
Elements of the Crime
1. Actus Reus (Material Acts)
Article 190/2 criminalizes:
- Providing a Place: Allowing others to use drugs in houses, apartments, hotels, clubs, vehicles, or workplaces.
- Providing Equipment or Means: Supplying tools such as pipes, syringes, or smoking devices.
- Providing Opportunity: Any conduct that removes obstacles and makes narcotic use possible (e.g., introducing users to a secluded place).
2. Mens Rea (Mental Element)
- Requires intentional conduct.
- The accused must knowingly provide the place or means for narcotic use.
- Negligence or ignorance (e.g., landlord unaware of tenant’s conduct) does not generally create liability under Article 190/2, but courts examine each case closely.
3. Object of the Crime
- Narcotic and stimulant substances defined under Turkish law: cannabis, heroin, cocaine, methamphetamine, synthetic opioids, ecstasy, etc.
Penalties under Article 190/2
1. Basic Sanction
- Imprisonment of 5 to 10 years.
- Judicial fines may be added depending on circumstances.
2. Aggravated Circumstances
- If the act occurs in schools, student dormitories, military units, or places of worship, penalties are significantly increased.
- If committed as part of organized crime or by public officials, courts apply harsher punishment.
3. Attempt and Participation
- Attempted facilitation under Article 190/2 is punishable.
- Accomplices (e.g., co-owners, employees, or partners) can also be held liable.
Judicial Practice and Yargıtay Precedents
The Court of Cassation (Yargıtay) has clarified several points:
- Renting Premises for Drug Use: Landlords who knowingly rent property to drug users can be convicted under Article 190/2.
- Providing Vehicles: Allowing a car or boat to be used for narcotics consumption constitutes “providing opportunity.”
- Equipment Supply: Supplying syringes, bongs, or rolling papers has been ruled as sufficient for conviction.
- Intent is Key: In cases where the accused was unaware of the narcotics use, Yargıtay overturned convictions due to lack of intent.
Practical Implications for Foreigners
1. Property Owners and Landlords
Foreign nationals owning or renting out real estate in Turkey face heightened risk. If tenants or guests use the property for drug consumption and the landlord is aware but indifferent, liability under Article 190/2 is possible.
2. Hospitality and Entertainment Businesses
Foreigners operating hotels, nightclubs, bars, or short-term rentals must take strict measures. Failing to prevent or even indirectly enabling drug use at such premises can trigger prosecution.
3. Students and Expatriates
Foreign students hosting gatherings or sharing accommodations must be careful. If narcotics are consumed in their presence with their consent, they could be prosecuted under Article 190/2.
4. Procedural Aspects
- Pre-trial Detention: Common due to the seriousness of the offense.
- Interpreter Rights: Guaranteed during investigation and trial.
- Deportation: Convicted foreigners are often deported after serving prison sentences.
Defenses and Legal Remedies
- Lack of Intent: Proving the accused did not knowingly allow narcotic use.
- Effective Remorse (Article 192): Assisting authorities in preventing drug use or exposing offenders can reduce penalties.
- Procedural Violations: Challenging illegal searches or surveillance.
- Appeals: Decisions may be appealed before regional courts and ultimately Yargıtay.
Conclusion
The providing opportunity for narcotic substance use under Article 190/2 of the Turkish Penal Code reflects Turkey’s uncompromising stance on narcotics. Liability attaches not only to traffickers and users but also to those who enable consumption by providing places, tools, or opportunities.
For foreigners, the risks are significant in property rental, hospitality, and social contexts. Even passive tolerance of narcotics consumption can be interpreted as “providing opportunity.” Immediate legal assistance, preventive compliance, and strict oversight of property or business operations are essential to avoid criminal liability under Article 190/2.
Yanıt yok