Manufacturing And Trade Of Drugs Or Stimulant Substance, Toxic Substance Manufacturing And Trade
1- The crime of manufacturing and trading drugs or stimulants is regulated in Article 188 of the Turkish Penal Code No. 5237. The definition of punishment is made in the first paragraph of the article. According to this; “A person who manufactures, imports or exports drugs or stimulants without a license or against a license is sentenced to imprisonment from twenty years to thirty years and a judicial fine from two thousand days to twenty thousand days.” In the third paragraph of the article; “Persons who sell, offer for sale, give to others, ship, transport, store, buy, accept or keep the substances subject to the crime within the country without a license or in violation of the license are sentenced to imprisonment of not less than 10 years and a judicial fine up to twenty thousand days. shall be punished with The penalty amount before the previous law, numbered 6545, was determined as 5 to 15 years. However, it is obvious that these penalties are quite high and deterrent.
2- The important issue here is that the motive of the perpetrator and the nature of the action should be evaluated together. In Article 188 of the T.C.K., the concept of “commercial purpose” should be emphasized. In its current situation, the T.C.K article is suitable for determining whether the act includes commercial activity in terms of the material element rather than the motive of the perpetrator in terms of the moral element of the crime. If the narcotic or stimulant substance is given to another person free of charge and does not have a commercial nature due to its commercial purpose, there is no application as to which substance should be evaluated. However, in practice, the accepted opinion in this case is that the commercial purpose or nature of the drug or stimulant substance is given to another person free of charge without being commercialized, is included in the scope of Article 188/3 of the TCK. Because the “act of selling” drugs or stimulants is also regulated as a crime. In this case, giving the goods to others free of charge should be considered as the act of “giving to others” expressed in the provision.
3-Article 192 of the Turkish Penal Code No. 5237, titled “Effective regret”; It includes a special regulation in which the punishment of persons committing drugs or stimulants crimes is abolished or reduced in return for their assistance to the judicial authorities, and accordingly, the aid provided by persons who participate in the crimes of manufacturing and trading drugs or stimulants and who purchase, accept or possess drugs or stimulants for use. and the timing of aid affects the sanctions and legal status of the perpetrators in their favor. However, it is determined how long the perpetrator helps for the implementation of effective remorse provisions in the crimes of selling drugs or stimulants, and whether he will benefit from the effective repentance provisions for his own crime if he reports a drug or stimulant crime that is not related to his own investigation, but is the subject of another investigation. First of all, in order to benefit from effective remorse in terms of TCK article 192/1,2,4, the official authorities should not hear about the crimes, that is, the investigation should not have started. In the T.C.K article 192/3; It is stated that the punishment for the person who voluntarily serves and assists in the emergence of the crime and the arrest of the perpetrator or other accomplices, after the crimes are heard, will be reduced from one quarter to half of the penalty, depending on the nature of the aid.
The General Penal Board of the Court of Cassation seeks some conditions in order to benefit from the effective remorse regulated in Article 192/3 of the T.C.K.
- The perpetrator must have committed one of the crimes regulated in Articles 188 and 191 of the TCK No. 5237.
- Service and assistance must be done by the person himself.
- Service and assistance should be made to the investigating or prosecuting authorities.
- Service and assistance should take place after the crime is heard by the official authorities, but before the court gives a verdict. Judicial and administrative authorities, Ministries of Justice and Interior, prosecutors’ offices, police and gendarmerie organizations, governors and district governorships, embassies and consulates, which are responsible for reporting crimes to prosecutors’ offices, as indicated in Article 158 of the Criminal Procedure Law No. 5271, should be considered within the scope of official authorities. .
- The perpetrator must contribute significantly to the emergence of his own or someone else’s crime, serve and assist in the emergence of the crime or the capture of other accomplices by transferring information.
- The information provided by the perpetrator must be correct, and the service and assistance rendered must be effective and beneficial.
However, contrary to this situation, the opinion accepted in the doctrine states that “in order for the perpetrator to benefit from effective repentance, service and assistance to the judicial authorities should be provided until the judgment is made by the court of first instance, and the service and assistance provided at the legal remedy stage is subject to reduction in accordance with Article 192/3 of the TCK. It states that it will not happen.” is essential.