The Offence of Purchasing, Accepting, Possessing, or Using Narcotic or Stimulant Substances for Personal Use (Article 191 of the Turkish Penal Code)

The offence of using and possessing narcotic or stimulant substances is regulated under Article 191 of the Turkish Penal Code No. 5237. Through this offence, the legislator aims to protect:

• individual health,
• public health, and
• public order.

Under Article 191 of the Turkish Penal Code (“TPC”), not only the use of narcotic or stimulant substances but also the purchase, acceptance, or possession of such substances for personal use is criminalized.

Definition of the Offence under Article 191 TPC

Pursuant to Article 191 of the Turkish Penal Code:

“Any person who purchases, accepts, or possesses narcotic or stimulant substances for personal use, or who uses narcotic or stimulant substances, shall be sentenced to imprisonment from two to five years.”

This provision sets forth four alternative acts constituting the offence:

• purchasing narcotic substances for personal use,
• accepting narcotic substances for personal use,
• possessing narcotic substances for personal use,
• using narcotic or stimulant substances.

The commission of any one of these acts is sufficient for the offence to be established.

Elements of the Offence of Using and Possessing Narcotic Substances

Material Element (Actus Reus)

Existence of a Narcotic or Stimulant Substance

First and foremost, the substance seized must qualify as a narcotic or stimulant substance.

Examples include:

• cannabis,
• cocaine,
• heroin,
• methamphetamine,
• synthetic cannabinoids,
• MDMA,
• ecstasy.

These substances may constitute the subject matter of the offence.

Requirement of Personal Use

The most significant criterion distinguishing the offence regulated under Article 191 TPC from the offence of drug trafficking regulated under Article 188 TPC is the purpose for which the substance is possessed.

As emphasized in the decisions of the Criminal General Assembly of the Court of Cassation, the distinction between possession for personal use and possession for trafficking purposes must be determined according to the specific circumstances of each case.

Difference Between Articles 191 and 188 TPC

One of the most important issues in practice concerning drug-related offences is distinguishing between possession for personal use and possession for trafficking purposes.

Courts assess the following criteria collectively:

• the quantity of the substance seized,
• the manner in which it is packaged,
• the method of storage,
• whether a precision scale was found,
• communication records related to sales,
• whether the offender is a user,
• other evidence indicating an intent to sell.

Indicators of Possession for Personal Use

The following circumstances are generally evaluated within the scope of Article 191:

• possession of a quantity consistent with personal consumption,
• seizure of drug-use paraphernalia,
• medical reports indicating substance use,
• absence of evidence of sale or distribution.

Indicators of Drug Trafficking

Conversely, the following evidence may indicate the offence of drug trafficking under Article 188:

• possession of numerous individually packaged doses,
• possession of precision scales,
• sales records or customer lists,
• communications with buyers,
• possession of substantial amounts of cash.

In such cases, the act may be classified as drug trafficking, resulting in significantly more severe penalties.

Mental Element (Mens Rea)

The offence of using or possessing narcotic substances may only be committed intentionally.

The offender must:

• know that the substance is a narcotic or stimulant substance,
• knowingly use or possess the substance.

This offence cannot be committed through negligence.

Offender and Victim

Any person may be the perpetrator of this offence.

There is no specific individual victim.

Accordingly, in legal doctrine and judicial practice, offences regulated under Article 191 are considered offences against society as a whole.

Penalty for the Offence under Article 191 TPC

Pursuant to Article 191/1 of the Turkish Penal Code, the offence is punishable by:

imprisonment from two to five years.

However, in practice, individuals apprehended for the first time are often not directly subjected to a conviction.

Deferment of the Filing of a Public Prosecution

Following the enactment of Law No. 6545, the legal framework governing drug use and possession offences underwent significant changes.

As a rule, the public prosecutor:

• defers the filing of a public prosecution for a period of five years,
• imposes probation measures,
• may impose treatment obligations where deemed necessary.

Successful Completion of the Process

If the suspect complies with the obligations imposed:

• a decision of non-prosecution is rendered,
• no conviction is entered,
• no criminal record of conviction is registered.

This system is primarily intended to promote rehabilitation and combat addiction rather than punishment.

Aggravating Circumstances

Commission Near Schools, Hospitals, Dormitories, Military Facilities, and Places of Worship

Pursuant to Article 191/10 TPC, if the offence is committed in publicly accessible areas located within 200 meters of:

• schools,
• student dormitories,
• hospitals,
• military facilities,
• places of worship,

the penalty shall be increased by one-half.

Chain Offence

According to current Court of Cassation jurisprudence:

multiple acts of drug use committed on different dates, where no legal or factual interruption exists, may be evaluated as a chain offence.

Nature of the Substance

More severe consequences may arise where the narcotic substance involved is:

• heroin,
• cocaine,
• morphine,
• synthetic cannabinoids,
• base morphine.

Circumstances Reducing or Eliminating Criminal Liability

Effective Remorse (Article 192 TPC)

The offender may avoid punishment if, before the authorities become aware of the offence, they disclose:

• from whom the substance was obtained,
• where it was obtained,
• the identities of accomplices,

and thereby contribute to uncovering the offence.

This provision is intended to facilitate the identification and dismantling of drug supply networks.

Discretionary Mitigation (Article 62 TPC)

The court may reduce the sentence after considering:

• the offender’s remorse,
• conduct during the proceedings,
• criminal record.

Competent Court and Procedural Rules

For offences involving the use or possession of narcotic or stimulant substances:

Competent Court: Criminal Court of First Instance (Asliye Ceza Mahkemesi)

Investigation Procedure: Conducted ex officio

Complaint Requirement: None

Mediation: Not applicable

Assessment in Light of Court of Cassation Case Law

In the jurisprudence of the Court of Cassation, the distinction between Articles 191 and 188 TPC is of paramount importance.

Courts evaluate:

• the quantity of the substance,
• packaging methods,
• other seized materials,
• whether the offender is a user,

in order to determine the proper legal classification of the act.

Consequently, every case must be assessed according to its own particular circumstances.

Conclusion

The offence of purchasing, accepting, possessing, or using narcotic or stimulant substances for personal use, regulated under Article 191 of the Turkish Penal Code, is primarily aimed at combating substance addiction.

For this reason, in cases involving first-time offenders, the legal framework generally focuses on:

• deferment of public prosecution,
• probation measures,
• treatment obligations,

rather than immediate punishment.

However, where evidence demonstrates an intent to sell or distribute narcotic substances, the act may be reclassified as drug trafficking under Article 188 TPC, resulting in substantially harsher sanctions.

Frequently Asked Questions

What is Article 191 TPC?

It is the criminal provision regulating the purchase, acceptance, possession, or use of narcotic or stimulant substances for personal use.

What is the penalty for drug use?

Article 191 provides for imprisonment from two to five years.

Will a first-time offender be punished?

In most cases, the filing of public prosecution is deferred and probation measures are imposed.

What is the difference between drug trafficking and possession for personal use?

The principal distinction lies in whether the substance is possessed for personal consumption or for sale and distribution.

Is this offence subject to mediation?

No. Mediation provisions do not apply to offences regulated under Article 191.

Legal Assistance in Drug-Related Offences

Cases involving the use or possession of narcotic substances require technical legal expertise, particularly regarding:

• distinguishing between Articles 188 and 191 TPC,
• evaluating the applicability of effective remorse provisions,
• monitoring probation procedures,
• developing an effective defence strategy.

Accordingly, it is important that investigation and prosecution processes be conducted with the assistance of a lawyer specialized in criminal law in order to ensure the effective protection of legal rights.