Drug offences: possession for personal use or trafficking?

In drug cases a single question decides the course of the proceedings: was the substance held for personal use, or to be passed on to someone else? The answer turns the same set of facts into two separate offences — one that may end in probation, the other carrying a prison sentence starting at ten years.

Two offences, two outcomes

The Turkish Penal Code (Türk Ceza Kanunu) deals with the manufacture and trafficking of narcotic or stimulant substances in one provision, and with buying, accepting or possessing them for personal use in another.

Trafficking covers selling, offering for sale, supplying to others, dispatching, transporting, storing, buying, accepting and possessing. The sentence set by law cannot be less than ten years, and it is increased further for substances such as heroin, cocaine, morphine, base morphine and synthetic cannabinoids.

For possession for personal use the sentencing range is much narrower, and the file often ends with the prosecution being deferred.

What the courts look at

The law does not give a fixed list of criteria for this distinction; the assessment has been shaped by case law. The headings weighed together in practice are:

• Quantity. Where the amount seized is clearly above what is regarded as reasonable for personal use, that points towards trafficking. The threshold varies with the type of substance and is not decisive on its own.
• How it was held. Whether the substance was seized in a single piece or in small packets ready for sale matters. Precision scales, large numbers of empty bags and a ledger point towards trafficking.
• Where it was found. Whether the substance was on the person, at home, or hidden somewhere convenient for handing over.
• Whether the accused is a user. A medical report of drug use, a history of dependence, a treatment record. Where the person is not a user, explaining possession by personal use becomes harder.
• Direct evidence of sale. Statements by buyers, witness accounts, communications records, technical surveillance, movements of money.
• The person's financial position and the consistency of their account.

None of these is enough on its own; the court weighs them as a whole. Where doubt cannot be resolved, the characterisation more favourable to the defendant is taken as the basis.

The process for possession for personal use

In an investigation into this offence the public prosecutor decides to defer the opening of a public prosecution for five years. During that period the person is subject to probation, and treatment is added where there is dependence.

The length of the probation measure is set by law and can be extended at intervals by decision of the prosecutor. What is expected of the person during this period:

• Reporting regularly to the probation office
• Providing tests on set dates to establish whether they have used any substance
• Continuing the treatment programme where treatment has been ordered

If the obligations are breached, or the same offence is committed again during the deferral period, the prosecution is opened. If the obligations are observed and the period is completed without incident, a decision is given that there are no grounds for prosecution.

Effective remorse

The law gives wide scope to effective remorse (etkin pişmanlık) in drug offences. Where a person reports the situation before the authorities have learned of it, or, after being caught, discloses from whom and where the substance was obtained or identifies accomplices, the sentence may be reduced or not imposed at all. The extent of any reduction depends on when and at what stage the disclosure was made.

Effective remorse is separately regulated for possession for personal use as well: where a user comes forward of their own accord asking for treatment and probation, no investigation is opened against them.

This article is for general information only and does not constitute legal advice on any specific matter. Sentencing ranges and time limits may be updated as legislation changes.