Global Perspective on Narcotics and Psychotropic Substances
The majority of countries worldwide do not tolerate the use and possession of narcotics. These acts are referred to as crimes, and their penalties are often severe. However, a small number of countries permit the use and possession of a limited amount of narcotics and psychotropic substances. An even smaller number have fully legalized their use and possession. In Portugal, for instance, the possession of narcotics in an amount sufficient for up to 10 days is decriminalized. Similarly, in Malta, possession is decriminalized for up to 7 grams.
Use and Possession in Turkey: TPC Article 191 The use and possession of narcotic substances are fully criminalized in Turkey. Unlike some other jurisdictions, there is no “legal limit” for personal use. Article 191 of the Turkish Penal Code (TPC) regulates this offense as follows:
“Any person who purchases, receives, or possesses narcotics or psychotropic substances for personal use, or uses narcotics or psychotropic substances, shall be sentenced to a penalty of imprisonment for a term of two to five years.”
Although the specific definitions of these substances are not explicitly detailed within the law itself, Turkey is a party to numerous international protocols (e.g., the Paris Protocol on Synthetic Narcotic Drugs). These international instruments define which specific substances fall under the legal classification of narcotics and psychotropic substances.
The Conflict: Ignorance of the Law vs. Error of Prohibition In Turkish Law, the general principle is that “ignorance of the law is not an excuse.” This is established in Article 4 of the TPC: “Ignorance of the criminal law shall not amount to a defense.”
However, an exception exists under Article 30/4 (Error of Law). Due to varying global regulations, individuals may occasionally be mistaken about the criminality of their actions. If a person makes an unavoidable error regarding the fact that an act constitutes a criminal offense, they shall not be held liable.
Determining “Unavoidability” An error is deemed unavoidable only if it persists despite the exercise of necessary care and diligence. This assessment is based on:
- Daily Life Experiences: We consider what an “average person” would know or do in a similar situation.
- Specialized Knowledge: If the individual possesses special talents, education, or professional knowledge, the standard of care is higher.
Example: While the error of a tourist who unknowingly brings a medical supplement (legal in their home country but banned in Turkey) might be deemed unavoidable, the same error made by a legal professional or a pharmaceutical representative would be considered “avoidable.” Their expertise grants them a higher duty of care; therefore, their specialized knowledge renders the error avoidable and does not eliminate their criminal liability.
Procedural Implementation: Rehabilitation and Probation (TPC Article 191/2-3)
In Turkish Criminal Law, the primary objective regarding the use of narcotics is not merely to punish, but also to rehabilitate the individual. Therefore, the legal process follows a specific procedural path:
1. Postponement of the Opening of a Public Prosecution When a person is investigated for the use or possession of narcotics for the first time, the Public Prosecutor is obligated to decide on the postponement of the opening of a public prosecution for a period of five years. This means that, unlike other crimes, a court case is not immediately initiated. Instead, the individual is given a chance to remain “clean” under the supervision of the state.
2. Probation and Treatment Measures During the postponement period, a probation order is issued for at least one year. Depending on the individual’s needs, the court or the prosecutor’s office may also mandate treatment in a specialized medical facility (e.g., AMATEM). The individual is expected to:
- Comply with the guidance of the probation officer.
- Attend scheduled rehabilitation sessions.
- Refrain from any further drug-related activities.
3. The Consequences of Violation If the individual intentionally violates the probation requirements or consumes narcotics again during the five-year postponement period, the “postponement” is revoked. In this case, a public prosecution is initiated, and the individual faces trial at the Criminal Court of First Instance, where the original sentence of two to five years of imprisonment may be imposed. Conversely, if the five-year period is completed successfully, the investigation is dismissed, and it does not appear on the individual’s permanent criminal record (adli sicil).
Conclusion The Turkish legal framework regarding narcotics is a hybrid system. While it maintains a strict prohibitionist stance as seen in the heavy penalties of Article 191, it also provides a “second chance” through the mechanisms of Article 191/2 and Article 30/4. This balance ensures that while the law acts as a deterrent, it also accounts for unavoidable human errors and the necessity of social reintegration through rehabilitation.
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