KÜHEYLAN HUKUK
Beyond their devastating effects on individual health, narcotic and stimulant substances have a transboundary nature that threatens public health, security and social order. For this reason, the fight against drug crimes in Turkish criminal policy has been shaped with an uncompromising and preventive approach. In the first and second paragraphs of Article 188 of the Turkish Penal Code No. 5237, which is the legal reflection of this determination; The acts of manufacture, import and export, which constitute the starting and supply links of the drug crime chain, are regulated.
The purpose of this study is TCK art. To examine the crimes of manufacturing, importing and exporting narcotic or stimulant substances regulated within the scope of 188/1-2 in the light of their legal elements, theoretical foundations and judicial practices. In addition to the theoretical discussions in the doctrine, the study analyzed how abstract legal provisions are concretized in judicial practice on the basis of current Supreme Court decisions. In this regard, the limits of the act of manufacturing, the moment of completion in the import crime, and the attempt stage in the export crime are discussed.
Settlement Institution, Supreme Court.
SK: Law no.
Beyond the destructive and irreversible effects of narcotic and stimulant substances on individual health; It has a global nature that seriously threatens public health, general security, economic structure and social order. In the face of this dangerous situation, Turkish criminal policy has adopted an uncompromising, protective, social defense and preventive approach in the fight against drug crimes. As a matter of fact, as a legal reflection of this criminal policy, the crimes of drug and stimulant trafficking are regulated in the section titled "Crimes Against Public Health" of the third part of the Turkish Penal Code No. 5237 titled "Crimes Against Society". The legal interest directly protected in these types of crimes is the public interest in preserving the health of the society and especially the health of young people, who are the guarantee of our future, in accordance with the abstract danger crime logic.
In order to provide strong social protection against the dynamic and changing nature of drugs, the legislator has avoided making an absolute definition of drugs in the text of the law or enumerating the substances one by one. Instead, a flexible criminal norm system based on the criteria brought by international conventions and the potential of substances to cause addiction in people has been preferred. In this regard, in the first and second paragraphs of Article 188 of the Turkish Penal Code; The manufacture, import and export of narcotic or stimulant substances are sanctioned.
In criminal law doctrine and judicial practice, some theoretical and practical dilemmas arise during the determination of the legal elements of the acts in question and the application of the crime to concrete events. In particular, the issue of whether a transaction is considered a simple physical intervention or a "manufacture" within the meaning of the law gives rise to serious debates within the framework of the change in quality criterion. Similarly, the moment of completion of the crime in the "imported" act, whose outcome is constructed as a crime adjacent to the action; It differs in terms of places with and without border gates, and the nature of the declarations made to customs officials in the customs area and whether the substances are hidden play a decisive role in terms of the proof of the crime. Again, the "transit" phenomenon, which is frequently encountered due to the geopolitical location of Türkiye's territory, is subject to the crime of importation and TCK Art. It is of critical importance how it will be positioned in determining the fine line between transfer and referral crimes regulated within the scope of Article 188/3. In the act of "export", which constitutes the logistics exit leg of the crime chain, how the enforcement actions begin with the customs declaration and the suitability of the act for the attempt stage necessitate a double distinction, based on the customs areas of the border gates.
The purpose of this study is TCK art. It is to subject the crimes of manufacturing, importing and exporting narcotic or stimulant substances regulated within the scope of 188/1-2 to a systematic analysis in the light of their legal elements, protected legal value, theoretical discussions in the doctrine and judicial practices. In the study, how abstract legal provisions are concretized in judicial practice has been analyzed, especially on the basis of the stable and current jurisprudence of the Supreme Court of Appeals. In this direction, in the study; The place and historical background of the drug concept in international texts will be discussed, then the limits of the act of manufacturing, the relationship of the import crime with customs regimes and transit passage, and the appearance of the attempt stage in the export crime in terms of places with and without border gates will be detailed. Finally, the situation of being tried in a foreign country as a result of the transnational nature of the crime and the Turkish Penal Code Article. The study will be concluded by evaluating the practical implementation steps of the offset institution regulated in Article 188/2 in terms of enforcement law.
The word drug was used as the equivalent of the French word "narcotic". The word narcotic is derived from the Greek word “narke” meaning “sleep”.
Narcotic and stimulant substances have not been fully defined, but international regulations and laws have revealed what narcotic or stimulant substances are through the counting method. The first regulation that comes to mind here was made with the 1961 Single Convention on Narcotic Drugs, and it was stated that the decision would be made according to whether narcotic or stimulant substances are among the substances listed in tables 1 and 2 of the contract.
Articles 188, 190 and 191 of the Turkish Penal Code No. 5237 do not provide a definition for narcotic or stimulant substances, and it is stipulated that the penalty will be increased by half if the substances subject to the acts defined in the 1st and 3rd paragraphs of Article 188 are heroin, cocaine, morphine, synthetic cannabinoids and their derivatives or base morphine. Thus, the legislator has shown that he attaches importance to some of the narcotic and stimulant substances, even if he does not specify them by counting them.
legislator; He stated the reason why there is no definition in the law for narcotic or stimulant substances in the first paragraph of the justification of the article. Accordingly;
"In this article, the provisions regarding the crime of manufacturing and trading of narcotic or stimulant substances are regulated. Here, the substances of narcotic or stimulant substances are not defined, and they are not shown one by one. The reason for this is to provide a strong social defense by sanctioning the abuse of narcotic or stimulant substances and drugs and synthetics that have the same effect. Thus, it has been accepted that all substances that have a narcotic or stimulant effect and cause addiction in people, as psychotropic substances, will be the subject of this crime."
Although narcotic substances are not defined in the law and contract texts, according to the World Health Organization, "all substances that are of herbal or synthetic origin, that affect the central nervous system and cause physical and/or psychic addiction states, and in some cases create single-subject passion and in other cases dual-subject passion, such as the same person using different drugs, are considered narcotic drugs." 5
Drug and stimulant trafficking crime. It is regulated in the section titled "Crimes Against Public Health" in the third part of the Turkish Penal Code titled "Crimes Against Society". The legal interest protected here is the public interest in protecting the health of society, especially the health of young people. It is possible to state that the legal value protected for all drug and stimulant crimes is public health7.
The history of narcotic and stimulant substances dates back to ancient times, and it is accepted that the first civilization to discover and use opium was the Sumerians. Opium, which spread from Mesopotamia to Europe via Egypt and Iran, became a global crisis with the commercial moves of colonial powers in later periods. In particular, the export of opium produced in India by British merchants to China led to a serious social and economic collapse in the Chinese Empire. In order to stop this trend, the Chinese Government banned the import of opium in 1796 and destroyed smuggled opium in 1839, triggering a two-year period of conflict that went down in history as the Opium Wars; With the 1842 Treaty of Nanjing signed after the war, the Chinese State was forced to reopen some of its ports to the opium trade8.
The nineteenth century was a turning point in medicine and pharmacy where new drug derivatives were discovered with the analysis of opium. Morphine was isolated by analyzing opium compounds in France in the early 1800s, while heroin was discovered in 1898 for use in the treatment of morphine addicts. Similarly, heroin, marketed by Bayer as a pain-relieving drug, was banned after it was discovered that overdose caused deaths. In addition to cannabis, which was first used by the Assyrians; Amphetamines, produced against colds in the 1920s, and cocaine, isolated in 1860 from coca leaves dating back 2000 years, have gone beyond the boundaries of medicine and have become a major social danger, especially in North America and Europe, since the early 20th century.
The fact that non-medical use and trafficking of narcotic drugs has become a global threat has necessitated radical measures to be taken internationally. Under the leadership of the United States, international meetings were held and agreements were signed to limit the production and trade of opium, cocaine and other addictive substances. In this regard, the American Supreme Court made decisions in 1923 that completely banned the use of drugs other than medical purposes. Heroin and drug trafficking, which was seen as a problem specific to the United States until the 1970s, spread to European countries with the expansion of logistics networks after these dates; The radical increase in the amount of substances seized has clearly demonstrated that drug crimes have acquired a transnational and global nature.
When examined specifically in Türkiye, the Ottoman Empire has generally maintained a distant attitude towards drugs in line with the approach of Islamic law since its establishment12. Although Yıldırım Beyazıt II. Although there are historical records that some sultans such as Beyazıt and Yavuz Sultan Selim used marijuana, legal prohibitions were introduced by the decrees of Fatih and Suleiman the Magnificent; IV. During the reign of Murat, opium and tobacco use was directly linked to death penalty. Despite these harsh measures, Evliya Çelebi mentions the existence of shops producing and selling opium and marijuana in Istanbul in the 17th century, and a sultan's decree dated 1725 foresees exile and hard labor for marijuana users.
In the last period of the Ottoman Empire, although the sale of substances harmful to health was prohibited by Article 196 of the Imperial Criminal Code dated 1858, the opening of cannabis coffeehouses in Istanbul could not be prevented due to the lightness of the penalties. With the Police Regulation dated 1917, the method of making the owners of these businesses sign a guarantee and imposing a fine in case of repetition was adopted. At the beginning of the Republican Era, the heroin factories established by a Japanese company in Istanbul in the 1930s attracted international reaction and a campaign was launched in the world press against Türkiye. As a result of these global pressures, at the Council of Ministers meeting on 25.12.1932, chaired by Mustafa Kemal Atatürk; It was decided to accept the basic principles of the 1912 Hague, 1925 and 1931 Geneva conventions and accordingly, Law No. 2108 was put into force on 14 January 193316.
Since Türkiye controlled more than half of the world's legal opium market between 1938 and 1971, it was one of the countries held responsible for the international drug supply17. As a result of these pressures, opium production was completely banned in 1971, but after approximately 1.5 million people in the region, who made their living from poppy farming, were driven into poverty, the ban was lifted in 1974 and poppy cultivation was allowed again in a controlled manner. A new era began when the products harvested without drawing were purchased by the Soil Products Office and processed at the Alkaloid Factory established in Bolvadin in 1981. The combat strategy, which was carried out during the Republic period with legislation such as the Turkish Penal Code dated 1926, the Law on the Control of Narcotic Drugs dated 1933 and the law dated 1986, is today continued with the regulations between Articles 188 and 191 of the Turkish Penal Code No. 5237.
There is no regulation regarding the definition of manufacturing crime in our legislation. In Article 1 of the 1961 Single Convention on Narcotic Drugs, to which Turkey is a party, the concept of Manufacturing "refers to all processes that make it possible to obtain narcotic substances, excluding production. It includes the processes of increasing narcotic substances and converting them into other narcotic substances." He defined it as . The concept of production refers to the process of collecting opium, coco leaves, hemp and cannabis resin-producing plants.
In the doctrine, the concept of Manufacturing is defined as "the chemical reaction of two or more different substances to obtain a new substance with a different quality and drug properties within the meaning of the Turkish Penal Code, or to transform a drug substance into another drug, or to increase a drug substance."
According to other views in the doctrine; Processing a natural or synthetic raw material with different methods to produce a narcotic or stimulant substance that can be separated from the raw material can be described as manufacturing20. Manufacturing can be done in three ways:
To create a substance other than these two substances by entering into a chemical reaction.
Converting it into another drug by using methods.
Purification by separation by methods such as 2122.
In order for the process to be considered as manufacturing, the nature of the substance must be changed. For example, grinding the leaves of the cannabis plant into powder cannot be described as manufacturing because it does not change the quality of the substance but its physical structure. Likewise, the process of turning powdered matter into tablets cannot be considered manufacturing, nor can processes aimed at preserving its natural quality be considered manufacturing24. Mixing a drug substance with foreign substances for the sole purpose of increasing its volume or weight without changing its chemical structure does not constitute the crime of manufacture. Because manufactured; It requires creating a new substance or changing the nature of the substance. The fact that the procedures are carried out simply does not mean that narcotic or stimulant substances are not produced. For example, converting morphine into heroin is considered manufacturing even if it is done through a simple process.
According to the doctrine and the general practice of the Supreme Court, planting and growing hemp in the ground, collecting and drying its leaves, or collecting the resin from its leaves are considered production, and since crushing and sifting the hemp, separating its leaves, turning it into powder is considered sorting; Turning powdered cannabis into plates is not considered as manufacturing because it changes the physical state25. The established decisions of the Supreme Court also state that it is not possible to manufacture marijuana, which is a narcotic substance26.
In order for the manufacturing crime to be completed, the resulting substance must be a narcotic or a stimulant. Just having the materials and tools required for production does not indicate that enforcement actions have begun. However, if one of the substances required for production is a drug or stimulant in itself, the crime of possession of drugs other than using them occurs.
If the preparations made for production and the tools and materials brought lack the capacity to produce narcotic or stimulant substances, a crime that cannot be committed occurs.
In order to thoroughly evaluate whether there is an attempt to commit the crime of manufacturing drugs or stimulants, it is necessary to pay attention to the fine line between preparatory actions and execution actions. In this regard, the tools, equipment and components prepared for the manufacturing activity must be suitable for obtaining the final product and the perpetrator must directly engage in enforcement actions aimed at manufacturing with these materials. After this step, if the action cannot be completed due to external reasons beyond the will of the perpetrator, attempted production will come to the fore.
The practical appearance of the boundary line in question is shaped according to the stage of the action in the laboratory environment. For example, the seizure of only laboratory materials and production formulas within the perpetrator's domain is within the scope of TCK Art. as long as a chemical process has not yet been initiated. It cannot be described as an attempt within the scope of Article 188/1; This situation remains a preparatory action that does not give rise to criminal liability. On the other hand, with the reaction of the chemical components and the initiation of the synthesis process, the preparation phase is completed and the execution actions that constitute the crime are directly started. At this stage, if the person's action is left unfinished due to an external obstacle before the final product, the narcotic or stimulant, is obtained, it should be accepted that enforcement actions suitable for the crime of manufacturing are taken. Therefore, in this possibility, TCK art. In accordance with Article 188/1, the provisions of attempted production must be applied.
In its dictionary meaning, the concept of "import" generally refers to the act of bringing or purchasing goods from other countries to a country27.
According to Article 1 of the 1961 Single Convention on Narcotic Drugs, “Each of them, with its specific meaning, refers to the transfer of narcotic substances in substance from one country to another or from one country of the same country to another.”
In the doctrine, the concept of import is defined as "the physical introduction of narcotic and stimulant substances from any part of Turkey's political borders, or the bringing of narcotic substances from a foreign country to Turkey illegally (without a license or in violation of the license)." It is expressed as .
In order for this crime specified in the law to occur, drugs or stimulants must be brought into the country without a license or in violation of the license.
Country refers to the piece of land under the sovereignty of a state. In order to constitute an import crime, it does not matter where the substance is brought into the country. Drugs or stimulants can be brought into the country from places that have border gates, or they can be brought into the country from places that do not.
In order for the crime of importing narcotic or stimulant substances to occur, the action must occur for a purpose other than using it, otherwise the crime regulated in Article 191 of the Turkish Penal Code occurs32.
The crime of importing narcotic or stimulant substances is completed when the substance enters the country's borders. For this reason, it is a crime adjacent to the action resulting from the import crime and is not suitable for attempt.
1- By what means can drugs or stimulants be administered in places without border gates?
No matter what, the crime is completed the moment it enters the country 34 .
2- In places with border gates, the customs area should be taken into consideration.
Narcotic or stimulant substances must be seized before entering the customs territory.
The substance has not yet entered the country.
No import crime occurs. However, the act committed up to that time was “drug or stimulant”
It constitutes the crime of "possession, transportation or shipping of substances". Intent to import
and the phenomenon of concealment of the stimulant substance did not occur. However, the intent of the perpetrator
If it is obvious, an import crime occurs.
If it is seized after making a declaration to the officials, there is intent to import it.
The statement given by the perpetrator to customs officials is important in determining the
If it is seized, there will be no import crime since there is no intent to import; however
TCK due to the act committed up to that point. M. 188/3 “… the one who dispatches, transports,
stores, ..." will constitute the crime. Narcotic or stimulant substance will be used by the perpetrator.
to customs officials that he does not have any narcotic or stimulant substances.
If it is seized after the declaration that it does not exist, it constitutes an import crime36.
The word transit means “passing somewhere without resting, waiting or stopping” and “the passage of goods through a country's territory without duty”37.
Goods that go from one foreign country to another and are subject to transit regime are goods that cannot be left within Türkiye. If a vehicle carrying goods in transit experiences unexpected circumstances or force majeure, it must report this situation to the customs administration as soon as possible. If the goods carried need to be transferred to another vehicle, this must be under the supervision of customs officers.
If there are narcotics or stimulants in a transportation vehicle passing through Turkey in transit to go from a foreign country to another country and if these substances are caught and there is no evidence that the narcotic or stimulant substance will be left in Turkey, the action does not constitute the crime of importation but the crime of transferring to the third paragraph of Article 188 of the Turkish Penal Code. The distinction between transit and import of narcotic substances varies depending on whether a disposition will be made regarding the narcotic or stimulant within the country38.
If the incriminating drug or stimulant substance is seized within the country after passing through the customs gate, the origin of the incriminating substance must be determined by looking at the material in which the seized substance was carried or the items accompanying it, in order to decide whether the action constitutes an import crime39.
Regarding the import crime, it is useful to note the following issue: In accordance with the consuming norm-consumed norm relationship rule, the person who imports narcotic or stimulant substances, possessing or selling these imported narcotic or stimulant substances for sale, provided that there is no legally valid interruption, will not constitute a separate crime other than importation.
The word export means "to take out, to throw out" and "to sell goods abroad". According to the doctrine, the concept of export is defined as "the removal of narcotic and stimulant substances from the country without permission"43. According to Article 1 of the 1961 Single Convention on Narcotic Drugs, "It is the transfer of narcotic substances in substance, each with its specific meaning, from one country to another or from one country of the same country to another." It is defined as . 44
According to the Turkish Penal Code No. 5237, export is the taking of drugs or stimulants out of the country "without a license or in violation of the license".
A country is defined as a piece of land within the sovereignty of a state, or a country in the real sense; “It consists of the land area occupied by persons subject to the same sovereignty and separated from other neighboring states by borders, and the airspace and territorial waters above the land area46”. In paragraph a of the 2nd paragraph of Article 8 of the Turkish Penal Code; The provision stating that "A crime committed in Turkish land and airspace and Turkish territorial waters will be deemed to have been committed in Turkey" refers to the country in real terms. In the continuation of the same article, it is stated that "When it is committed in the open sea and the airspace above it, on or against Turkish sea and air vehicles, on Turkish sea and air combat vehicles, or on fixed platforms established with these vehicles in Türkiye's continental shelf or exclusive economic zone, or against them, it is deemed to have been committed in Türkiye."
It is not important where and how drugs or stimulants are taken out of the country for the crime to occur. It does not matter whether the narcotic or stimulant substance is removed from border gates or from a place without border gates; Taking it out of the country by sea, land or air is not important for the crime to occur. If the perpetrator is caught while transporting the drug from a domestic city to the city where the border gate is located, with the intention of taking it abroad, the action is within the scope of Turkish Penal Code art. Attempting 188/1 is not considered. Even if the perpetrator's intention is to export, the act is within the scope of TCK art. It constitutes the crime of "transportation", which is an independent crime within the scope of Article 188/3.
In order for the crime of exporting narcotic or stimulant substances to be proven, the act must occur for a purpose other than use. If the perpetrator has taken the drug or stimulant out of the country's borders for his own use and the amount of the substance caught on or with him confirms this, he must be punished for the crime of possession of drugs for use, as set out in Article 191 of the Turkish Penal Code.
If the perpetrator intends to both use and export the narcotic or stimulant substance he takes abroad:
1. Separate the narcotic or stimulant substances that the perpetrator took abroad.
provisions apply.
2. The perpetrator keeps the items he took abroad without separating them from each other.
If it can be detected, both crimes occur and real assembly occurs.
provisions apply.
If it cannot be determined, then only the narcotic or stimulant substance is exported.
In evaluating the crime of exporting narcotic or stimulant substances in terms of attempt, a distinction is made depending on whether the act takes place in places with border gates or not.
When leaving places without border gates, the crime is completed as soon as the drug or stimulant crosses the country border. In this case, attempting a crime is not possible. If the perpetrator has the narcotic or stimulant substance seized with him before crossing the border, the crime of "possession, transportation or dispatch of narcotic or stimulant substance", which has been completed up to that point and regulated in Article 188 of the Turkish Penal Code, occurs, not the crime of export.
In places with border gates; When evaluating a crime, it is necessary to make a decision based on the statements made to the customs officers at the border gate. Enforcement actions for the crime of exporting drugs or stimulants in question begin with a "customs declaration"52. According to the 16th paragraph of Article 3 of the Customs Law No. 4458, the term "Customs declaration" refers to "a request for the goods to be subjected to a customs regime within the framework of the determined procedures and principles".
Narcotic or stimulant substances must be declared to customs officials.
Since it has not been started, there is no attempt in this situation.
The challenge comes.
The perpetrator carrying narcotic or stimulant substances should be reported to the customs officer.
He only crossed the country border after stating that he had no substance.
If caught before it passes, the crime remains at the attempted stage.
It is evaluated as 57. In addition, the works that had been completed up to that time and the Turkish
Since the crime of "destruction" will also occur, it is stated in Article 44 of the Turkish Penal Code.
should .
When the narcotic or stimulant substance is taken out of the country, it is no longer exported.
Another issue that should be emphasized is that the seizure of the exported substance and the determination that this substance is a narcotic or stimulant is a condition of punishment; otherwise, it is not possible to punish the perpetrator60.
The crime of exportation is completed by taking the narcotic or stimulant substance out of the country border. It is not important whether the exported drugs reach the intended destination or not in terms of the occurrence of the crime61.
Exporting narcotic or stimulant substances may also be considered a crime in the country where the substance is taken or captured. In this case, it will result in the perpetrator being prosecuted by the country in question. The acquittal of the perpetrator as a result of the trial held in a foreign court does not prevent him from being tried in our country.
In cases where the perpetrator is tried and punished in a foreign country, the second paragraph of Article 188 of the Turkish Penal Code will come to the fore. The executed part of the sentence given as a result of the trial to be held in a foreign country will be offset from the penalty to be imposed in Turkey for the export of narcotic or stimulant substances63.
The following steps must be followed for the offsetting process: In Turkey, the penalty imposed for the crime of exporting drugs or stimulants must be calculated according to Article 107 of the Penal Execution Law No. 5275. Subsequently, the time spent in detention in a foreign country and the time spent as a prisoner or convict must be calculated. Subsequently, the first calculated period should be subtracted from the second calculated period and thus the period that the convict must spend in the execution institution should be determined64.
Crimes of manufacturing, importing and exporting narcotic or stimulant substances regulated in the first and second paragraphs of Article 188 of the Turkish Penal Code No. 5237, under the heading "Crimes Against Public Health" in the Second Book, Third Part, Fourth Chapter titled Special Provisions; It is one of the main types of crimes that threaten public health and the sovereignty of states on a global scale.
The act of "manufacture", which is regulated as the first optional act in the first paragraph of Article 188, is an open concept that is not defined in the legal text. In practice and judicial decisions, the difference between the acts of adding foreign substances, which only increase the volume or weight of an existing drug substance without changing its chemical structure and formula, and the processes of obtaining a new and unique drug substance from scratch, may not always be easily determined. I believe that it would be beneficial to intervene in the text of the law in order not to damage the principle of legal certainty, which is a sub-element of the principle of legality in crime and punishment. In this regard, TCK art. I think that introducing a clear legal limitation with a paragraph to be added to Article 188 stating that "Acts that do not cause a change in the chemical structure of an existing drug or stimulant substance, but only increase the amount, weight or volume by mixing it with organic or inorganic substances, will not constitute a manufacturing crime, and if these actions have the conditions, they will be qualified within the scope of Article 188/3" will solve many problems experienced in practice.
In import and export crimes, the question of whether the act constitutes a "completed Article 188/3 crime" or an "attempt to commit Article 188/1" when the narcotic drug spreads to the sovereign borders or is seized in customs/non-customs areas is controversial in the context of the beginning of enforcement actions. The predominant view in the doctrine is that in cases where the perpetrator's intent to import or export is supported by external evidence, the actual m. Although it tends to be described as an attempt to violate Article 188/1, the Supreme Court differentiates its approach from the doctrine according to the characteristics of the concrete case and its actions are within the scope of TCK Art. His punishment within the scope of Article 188/3 is legally appropriate.
TCK art. The mandatory provision in Article 188/2 that the perpetrator of drug exporting will be tried again in Turkey even if he has been tried and convicted/acquitted in a foreign state court, brings a conscious exception to the non bis in idem principle of international criminal law. In response to the criticisms put forward in the doctrine on the basis of personal freedom and the right to a fair trial, this dual jurisdiction mechanism adopted by the state with the reflex of protecting public health and order is extremely appropriate. Since the drug trade has a global organizational structure in nature, it is a natural extension of the state's absolute sovereign power that the Turkish state does not leave its own sovereignty and public health protection authority to the disposal of a foreign court. Moreover, the "offset institution" regulated in the continuation of the paragraph maintained the balance of justice and equity by ordering that the execution periods that restrict freedom in a foreign country be deducted from the punishment to be given in Turkey, and prevented the perpetrator from being subjected to a disproportionate spiral of sanctions.
In conclusion; TCK art. The provisions of Article 188/1-2, despite the definitional deficiencies it contains, clearly reveal the determined stance of Turkish criminal policy in the fight against drugs in the legal dimension. The jurisprudence of the Supreme Court, which applies the theories of general criminal provisions by balancing the practical needs with the guarantees that protect the rights of the accused, strengthens the protective effect of legal regulations in the field and maintains social confidence in justice at the highest level.
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3 Law No. 812 dated 27.12.1966 on the Approval of the 1961 Single Convention on Narcotic Drugs; Decision of the Council of Ministers dated 14.02.1967 and numbered 6/7732, Official Gazette, 12.05.1967, Number: 12596. 4 6
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8 Şahin Kurt, Ela Kurt, Drug or Stimulant Crimes in Practice and Related Legislation, Ankara, Adalet Publishing House, 2007, p.2-3. 9 Reşat Saka, Narcotic Substances, National and International Legal and Social Situation About Opium-Morphine-Heroin-Marijuana-Cocaine, Istanbul, Cumhuriyet Printing House, 1948, p.33
10 Özcan Köknel, Drug Problems in the World and Turkey Throughout Human History, Istanbul, Gelişim Publications, 1976, p.19.
11 Özcan Köknel, Drug Problems in the World and Turkey Throughout Human History, İstanbul, Gelişim Publications, 1976, p.337 13 14 15 12 Yusuf Yaşar, Crimes of Drug or Stimulant Production and Trade, 3rd Edition, Ankara, Seçkin Yayıncılık, 2019, p.103.
13 Saka, ibid. , p. 29.
14 Saka, a.e., p.33.
15 Dönmezer, Criminology, p.411.
16 Köknel, ibid., p.337-338. 17 Kurt, Kurt, Drug or Stimulant Crimes in Practice, p. 8. 18 19 18 Law No. 812 dated 27.12.1966 on the Appropriateness of Our Participation in the "1961 Single Convention on Narcotic Drugs", GNAT Laws and Decisions Series, Volume: 50, art. 1, (Online)https://www5.tbmm.gov.tr/tutanaklar/KANUNLAR_KARARLAR/kanuntbmmc050/kanu ntbmmc050/kanuntbmmc05000812.pdf, (Access Date: 15.06.2026).
19 Murat Balcı, Drug Trafficking Crimes, 1st Edition, Ankara, Seçkin Publishing, 2009, p.125.; Mehmet Zülfü Öner, Crimes of Drug or Stimulant Production and Trafficking, Ankara, Adalet Publishing House, 2011, p.106.
20 Veli Özer Özbek, Koray Doğan, Pınar Bacaksız, Turkish Criminal Law Special Provisions, 20th Edition, Ankara, Seçkin Publishing, 2025, p.750. 21 Şener Güngör, Ali Kınacı, Crimes Related to Drugs and Psychotropic Substances, Ankara, Yetkin Publications, 2001, p.166.
22 "Manufacturing" is defined as "Manufacturing" refers to all processes that make it possible to obtain narcotic substances, excluding production, and includes the processes of purification and conversion of narcotic substances into other narcotic substances, in the clause 1 (n) of Article 1 of the 1961 Single Convention on Narcotic Drugs. In the light of this information, according to the definition in the convention; Obtaining a narcotic or stimulant substance completely synthetically from substances that do not have narcotic or stimulant properties), b) Conversion of a narcotic or stimulant substance into another narcotic or stimulant substance (such as converting Morphine into heroin), c) Purification of any narcotic or stimulant substance by methods such as distillation, electrolysis or flotation (increasing the rate of narcotic or stimulant active substance in a mixture). According to the incident, arrest and search reports and the entire scope of the file; Tepecik Mah. determined by the defendant's statement. Badr Street No: 5 K. 3 Geyve/Sakarya, and the address known by the law enforcement and the home address, Tepecik Mah. Hira St. Regarding the green colored plants, powder substances and other materials seized at the address No: 35 Geyve/Sakarya, whether the synthetic cannabinoid named "XLR 11" is suitable for production or not, in the conclusion section numbered (2) of the report of the 5th Specialization Board of Forensic Medicine dated 24/08/2015, it is stated that "herbal substances impregnated and unimpregnated with large amounts of synthetic cannabinoids, basins, gas stations with contamination detected on them" "When the issue of mask, funnel, demijohn, watering jug and scale is evaluated as a whole, it is unanimously considered that these materials were used in the production as asked." Although an opinion was expressed as follows, all seized substances and materials and Article 1 of the 1961 Single Convention on Narcotic Drugs. According to paragraph 1 (n) of the article "While the legal status of the defendant should be determined according to the report received from the General Assembly of the Forensic Medicine Institute regarding whether the synthetic cannabinoid named XLR-11 is suitable for production or not, a verdict should be made with incomplete research," Supreme Court of Appeals 20th Criminal Chamber E. 2018/1653 K. 2018/2744 T. 7.6.2018. (Online) https://www.lexpera.com.tr, (E.T.: 21.05.2026) 23
23 “Removing the stems and leaves of the cannabis plant and crushing them into powdered cannabis is a simple process that does not require any technical method and cannot be considered as manufacturing cannabis since it does not change the chemical structure of the substance.” Supreme Court of Appeals 10th Criminal Chamber 10th CD., E. 1992/5557 K. 1992/6015 T. 21.05.1992 (Online) h ttps://www.lexpera.com.tr, (E. T.: 21.05.2026) 24 Özbek, Doğan, Bacaksız, Turkish Criminal Law Special Provisions, p. 750.
25 "Manufacturing narcotic drugs is not defined in our laws. However, adhering to the meanings of manufacturing and other related terms in Article 1 of the 1961 TEK Convention, to which our country is a party, manufacturing narcotic drugs is "the process of obtaining a new substance with different properties and drug properties as a result of the chemical reaction of at least two different substances, or converting a drug substance into another drug substance, or purifying a drug substance." Processes that do not change the nature of the substance are not considered manufacturing. Changes made to the physical properties of the substance cannot be considered as manufacturing, and processes aimed at preserving the natural quality of the substance cannot be considered as manufacturing. Since growing the hemp, collecting and drying its leaves, or collecting the resin from its leaves is considered production, crushing and sifting the hemp, separating it from its leaves, turning it into powder, and making it into a plate are not considered manufacturing. According to the residence-vehicle search, seizure and arrest report and the entire file scope; In the concrete case, in the villa where the search was carried out, a total of 76,712 grams of cannabis containing 21,955.2 grams of cannabis and special installations and materials for the purpose of growing cannabis plants were seized in the area that could be accessed through a secret elevator system operated by a special remote control, and considering that the materials and equipment specified in the minutes were not technically capable of being used in the production of drugs, the established actions of the defendants were in accordance with Article 188/3 of the TCK. Establishing a conviction for the crime of "manufacturing drugs" instead of this crime, without considering that it constitutes the crime of "trafficking drugs" regulated in the article," 10th Criminal Chamber of the Supreme Court of Appeals (Y10CD), E. 2021/2782, K. 2021/7107, T. 08.06.2021. (Online) https://www.lexpera.com.tr, (E. T.: 21.05.2026)
26 "a- In paragraph 1 (n) of Article 1 of the 1961 Single Convention on Narcotic Drugs, "The term 'production' refers to all processes that enable the production of narcotic substances, excluding production, and includes the processes of purification and conversion of narcotic substances into other narcotic substances." In clause (t) of Article 1 of the 1961 Single Convention, the term 'production' means: opium, coca leaf, hemp and It is defined as "It refers to the process of collecting cannabis from plants that produce cannabis resin." Accordingly, growing, collecting and drying the cannabis plant or collecting the resin from its leaves is production, not manufacturing. Crushing and sifting the leaves of the cannabis plant, separating the stems and seeds, turning them into powder as a result, is only changing the physical condition. Changing the physical condition is not considered manufacturing. Manufacturing drugs is not defined in our laws. However, the meanings of production and other related terms in Article 1 of the 1961 TEK Convention, to which our country is a party, are not defined. Manufacture of narcotic drugs; "It is the process of chemically reacting at least two different substances to obtain a new substance of different quality and drug properties, or to transform one drug substance into another drug, or to purify a drug substance." Operations that do not change the nature of the substance are not considered manufacturing. Changes made to the physical properties of the substance cannot be considered manufacturing, nor can processes aimed at preserving the natural nature of the substance be considered manufacturing. Manufacturing should be perceived as processing using scientific methods. Since growing hemp, collecting and drying its leaves, or collecting the resin from its leaves is considered production; Since the grinding and sifting of hemp, separating it from its leaves, and turning it into powder are in the nature of sorting; Since turning powdered cannabis into plates also changes the physical state, they are not considered manufacturing. According to the residence-vehicle search, seizure and arrest report and the entire file scope; In the concrete case, in the villa where the search was carried out, a total of 76,712 grams of cannabis containing 21,955.2 grams of cannabis and special installations and materials for the purpose of growing cannabis plants were seized in the area that could be accessed through a secret elevator system operated by a special remote control, and considering that the materials and equipment specified in the minutes were not technically capable of being used in the production of drugs, the established actions of the defendants were in accordance with Article 188/3 of the TCK. Establishing a conviction for the crime of "manufacturing drugs" instead of this crime, without considering that it constitutes the crime of "trafficking drugs" regulated in the article," 10th Criminal Chamber of the Supreme Court of Appeals E. 2021/2782 K. 2021/7107 T. 8.6.2021 (Online) https://www.lexpera.com.tr, (E. T.: 21.05.2026) 28 29 30 31
27 www.sozluk.gov.tr, (Online) Access Date: 09.06.2026 28 SINGLE CONVENTION OF 1961, art. 1, (Online). 29 Erman, Özek, ibid., p.268.
30 Tuğçe Yavuz Gündüz, Crime of Production and Trafficking of Drugs or Stimulants in the Turkish Penal Code (TCK 188), (Master's Thesis, Marmara University Social Sciences Institute, Istanbul 2018), p.81.
31 “According to the incident detection and preservation reports dated 16.07.2012 and the scope of the entire file, the defendant crossed the Syrian-Turkish border at 00:15 on the date of the crime, overcoming the wire barrier that determines the political border to our country, and when he was caught, he was carrying... Presidency... 7.88 with 272 amphetamine-containing tablets specified in the report of the Forensic Medicine Specialization Board dated 25.03.2013 and numbered 573. "In the face of understanding that a substance containing 10.000 g and 13.03 g of amphetamine was seized, instead of convicting the defendant for the crime of importing drugs, it was decided to convict him of the crime of possessing drugs for use on grounds that do not fit within the scope of the file" 20th Criminal Chamber of the Supreme Court of Appeals (Y20CD), E. 2017/4797, K. 2019/1195, T. 26.02.2019. (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 33 32 "In order for the crime of importing drugs to occur, the action must be carried out for a purpose other than use, and that he kept 100.3 grams of the substance containing the active substance methylone seized in the parcel delivered to the defendant on the date of the crime, for the purpose of using it. Establishing a verdict based on incomplete research, without taking into account the need to determine the legal status of the defendant based on the report obtained from the relevant specialized department of the Forensic Medicine Institute, regarding the determination of the net amount of drug and the dosage related to the use of the substance,” 10th Criminal Chamber of the Supreme Court of Appeals (Y10CD), E. 2020/6154, K. 2020/5124, T. 07.10.2020. (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026)
33 "According to the content of the incident report, passport records, other documents and information in the file; it is established that the defendant imported the incriminating drug from Nigeria (Lagos) to Türkiye, the crime of importing drugs is completed by smuggling the drugs into the country's borders, the crime of drug importation is a crime adjacent to the action and since it is not possible to separate the actions into sections, the nature of the crime is determined incorrectly and a verdict is made for the crime of "drug trafficking" without taking into consideration the fact that it is not possible to attempt this crime," 20th Criminal Chamber of the Supreme Court of Appeals (Y20CD), E. 2018/481 K. 2018/5516 T. 27.11.2018 (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 34 “According to the intelligence information obtained, telephone conversation minutes, Kapıkule Police Department Directorate and Considering the content of the letters of the Edirne Customs Enforcement Chief Directorate dated 01.05.2006 and the amount of incriminating pills seized were 4330, the action should be described as an attempt to commit the crime of importation without considering that the defendant had the intention of importing and that the crime of consumption was completed upon entry into Turkey." 10th Criminal Chamber of the Supreme Court of Appeals (Y10CD), E. 2006/13135, K. 2006/14569, T. 10.12.2006. (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 35
35 "...it should be determined with certainty whether the narcotic substance was seized before or after the declaration stage to the Customs officials, and if the narcotic substance was seized before the declaration, it would not be an attempt to commit an import crime and the action of the defendants would constitute a completed crime of possession or transportation or forwarding. If the narcotic substance was seized after the defendants' declaration to the customs officers that it was not a narcotic substance, it should not be considered that the import crime would be completed." 10th Criminal Chamber of the Supreme Court of Appeals (Y10CD), E.2001/19792 K. 2001/23643 T. 15.11.2001 (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 36 "The drug subject to the crime was seized in the secret compartment of the bus that entered Turkey from Iran and arrived within the customs area, after the customs entry and passport procedures. Reducing the sentence by applying Article 35/2 of the Turkish Penal Code No. 5237, without considering that the crime of importing substances has been completed; since there is no appeal against it, no reason for reversal has been made.” 10th Criminal Chamber of the Supreme Court of Appeals (Y10CD), E. 2006/13242, K. 2006/14525, T. 19.12.2006. (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 37 www.sozluk.gov.tr,(Online) Access Date: 09.06.2026 38 Durmuş Tezcan, Mustafa Ruhan Erdem, Rıfat Murat Önok, Theoretical and Practical Criminal Private Law, 23rd Edition, Ankara, Seçkin Yayıncılık, 2025, p. 852.
39 “According to the Incident, Capture, Prosecutor Meeting, Search and Seizure Report dated 15/12/2015; in the studies carried out on the passengers of the X2N1 "In the incident where the incriminating drug was seized during the body search at the 4.7.2018 (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 42 40 “According to the content of the Incident, Arrest and Public Prosecutor Meeting Report dated 14.06.2018 and the scope of the entire file; Establishing a conviction for the crime of "trafficking drugs" by mistaking the nature of the action because he was a transit passenger, without considering that the action of the defendant, who got off the Brussels flight numbered TK-1940 on the date of the crime and entered Turkey by completing his passport procedures at the passport counter on the international arrivals floor and was found to have cocaine in his stomach, constituted the crime of "importing drugs". Supreme Court of Appeals 10th Criminal Chamber (Y10CD), E. 2010/979 K. 2021/833 T. 21.01.2021 (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026)
41 "In accordance with the consumer-consumed norm relationship rule, the person who imports drugs or stimulants, possessing or selling these imported substances for the purpose of selling them, provided that there is no legally valid interruption, will not constitute a separate crime other than importation, and the act of importation will include the acts of possession and sale; the defendant came to Istanbul from Iran one day before the date of the incident, and when he was caught, it was determined that he had 8 packets of heroin in his stomach, thus "importing narcotic substances" "Although it was understood that the defendant had committed the crime of 'importing drugs' and that the defendant had sold some of this heroin, since there was no legally valid interruption between importing and selling, the crime of selling drugs did not occur; and that the defendant's act constituted the crime of 'importing drugs' in its entirety and that he should be convicted solely of this crime, and that the defendant be convicted of both crimes." Supreme Court of Appeals 10th Criminal Chamber (Y10CD), E. 2011/26379, K. 2012/8893, T. 07.05.2012. (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 42 www.sozluk.gov.tr, Access Date: 09.06.2026
43 Ali Parlar, Muzaffer Hatipoğlu, Turkish Penal Code Commentary: Criminal General Assembly and Special Chamber Decisions, Vol. 2, 3rd Edition, Ankara, Adalet Publishing House, 2010, p. 1407.
44 SINGLE CONVENTION OF 1961, art. 1, (Online).
45 Birsen Elmas, Drug and Stimulant Crimes, 5th Edition, Ankara, Seçkin Publishing, 2022, p. 74. 48 49 46 Mahmut Koca, İlhan Üzülmez, Turkish Criminal Law General Provisions, 18th Edition, Ankara, Seçkin Yayıncılık, 2025, p. 33.
47 Turkish Penal Code dated 26.09.2004 and numbered 5237, Official Gazette, 12.10.2004, Number: 25611, art. 188, https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=5237&MevzuatTur=1&MevzuatTertip=5, (Access Date: 15.06.2026).
48 TCK, art. 188. 49 "The defendant, who went to TRNC with his vehicle from Türkiye on the date of the crime... 534.95 grams of jute plant parts hidden in the spare tire of the vehicle were seized as a result of the suspicion of the narcotics police dog while the transactions were being carried out at the Tourism Port, and according to the justification and short decision of the Nicosia High Criminal Court dated 25.01.2007 and numbered 3771/2006, he defended himself in court accompanied by his defense counsel. In the face of the understanding from the entire file that the defendant confessed to the crime, without considering that the defendant's action as a whole constituted the crime of exporting drugs, the court ruled that the defendant's statement dated 17.03.2006, taken by the TRNC law enforcement authorities without the presence of the defendant's defense counsel, would not be taken as basis for the decision in accordance with Article 148/4 of the CMK, and that it would constitute a violation of Article 230/1.b of the CMK. "The decision to dismiss the crime of "possession of drugs for use" in writing, based on the statement regarding "using drugs" in the same statement taken by the TRNC law enforcement authorities, was taken as basis for the decision, and the crime of "possession of drugs for use" was given in writing," 20th Criminal Chamber of the Supreme Court of Appeals (Y20CD), E. 2017/3422, K. 2017/6882, T. 07.12.2017. (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 50
50 "It is obligatory to accept that the defendant, who could not be identified as selling and trading marijuana, took the marijuana in question to the place where he worked to use it for his own needs. Essentially, if the defendant admitted that he used marijuana and put it in his car for this purpose, the legal provision that would be applied to him in the light of the General Criminal Assembly Decision explained above was Article 404/2 of the Turkish Penal Code. In order to escape from all penalties, the defendant claimed that "the marijuana in question could have been put in his car by others and that he did not use marijuana." Deciding to punish him according to Article 403/1 2 of the Turkish Penal Code is unacceptable as it would lead to a practice that punishes the defendant's failure to confess, rather than his actual action.” Supreme Court of Appeals Criminal General Assembly (YCGK), E. 1982/271, K. 1982/315, T. 28.06.1982. (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026)
51 Şener Güngör, Ali Kınacı, Crimes Related to Drugs and Psychotropic Substances, Ankara, Yetkin Publications, 2001, p. 192.
52 "In Article 3 of the Customs Law No. 4458, the term "customs administration or administrations" refers to all hierarchical management units in the central or provincial organization where the transactions specified in the customs legislation are carried out partially or completely; the term "customs declaration" refers to the request for the goods to be subjected to a customs regime within the framework of the determined procedures and principles; in Article 59, the customs declaration is stated in writing, through computer data processing technique, orally or by the owner of the goods. It is stated that it can be made through any disposition in which the passengers express their desire to subject these goods to a customs regime. In Article 6 of the Anti-Smuggling Law No. 5607, it is stipulated that the provisions of Article 3 (provisions regarding the crime of import or export) will be applied if the goods found on them, among their belongings or in their transportation vehicles are prohibited. Enforcement actions for the crime of stealing begin with the "customs declaration" and if it is seized after the declaration and without being removed from the Turkish border, the crime remains in the attempted stage. In this case, since the single act will constitute two separate crimes, one of which is "exporting narcotic or stimulant substances that are still in the stage of attempt" and the other is "possession and transportation of narcotic or stimulant substance that has been completed", a conviction must be made for the crime that has more serious consequences, in accordance with the rule of intellectual gathering stipulated in Article 44 of the Turkish Penal Code. The crime of exportation is completed when the substance in question is removed from the Turkish border. Behaviors before the declaration stage are preparatory actions for the crime of expulsion, and in this case, only the crime of "possession and transport of completed drugs or stimulants" occurs. In the concrete incident, it was understood that the bus with a total of ten passengers, including the defendant, entered the platform for passport control by entering from the .... Gate to go abroad, and the defendant, who was sitting in the seat numbered .... and acting suspiciously during the passport control, was taken to the KOM Branch Directorate in the same place, and as a result of the search made by obtaining a written search warrant from the 54 5556 Public Prosecutor, 404 grams of heroin, which was the subject of the crime, hidden in his shoes, were seized. Considering these situations; 1- Determining precisely whether the heroin subject to the crime was seized before or after the customs declaration stage, 2- If it was seized after the declaration stage, the penalties to be imposed for the crimes of "exporting at the stage of attempt" and "possession and transportation that have been completed" are determined separately, and "crime with more serious consequences"; If it is seized before the declaration stage, establishing a verdict for the crime of "complete possession and transfer", Making a decision based on incomplete investigation without considering the necessity," 10th Criminal Chamber of the Supreme Court of Appeals (Y10CD)., E. 2014/9960 K. 2015/15126 T. 19.2.2015 (Online) h ttps://www.lexpera.com.tr, (E. T.: 21.05.2026) 53 Customs Law No. 4458 dated 27.10.1999, Official Gazette, 04.11.1999, Number: 23866, art. 3, (Online)https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=4458&MevzuatTur=1&MevzuatTertip= 5, (Access Date: 15.06.2026).
54 "The net 894 grams of quinoa gum that the defendant had sent to the cargo to be sent abroad ... Outside .... Since the customs procedures have not yet started when it was understood that the shipments in the cargo section were found during the checks carried out with drug search dogs, the crime that will not constitute the crime of attempting to export drugs will constitute the crime of drug trafficking, the article 50/1-a of the Turkish Penal Code regulates the conversion of a short-term prison sentence into a judicial fine and the day fine given to the defendant is judicial. Since Article 52 of the Turkish Penal Code was included in the judgment while converting it into a fine, the ideas of reversal numbered (1) and (2) in the notification were not included.” 20th Criminal Chamber of the Supreme Court of Appeals, E. 2016/2867 K. 2017/3818 T. 13.6.2017 (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 55 “The defendant arrived at Atatürk Airport to go to Kazakhstan, on the international departures floor before the customs declaration. It was understood that he was caught when his situation was suspected while he was going through the security check, and as a result of the checks, the substance JWH-210 hidden in his socks was seized; Convicting the defendant of the crime of attempting to export drugs, without considering that the enforcement action for the crime of exporting drugs has not started and that there is no attempt to commit this crime since it has not yet entered the customs area, and that the defendant's action constitutes the crime of transporting drugs that has been completed. ttps://www.lexpera.com.tr, (E.T.: 21.05.2026)
56 "Since it was understood that there was no attempt to commit an export crime because the drug in question was seized before the declaration stage to the customs officer and in the TIR park outside the customs area, it was ultimately deemed correct to convict the defendants for the completed crime of "trafficking in narcotics." Supreme Court of Appeals 10th Criminal Chamber E.2013/22446 K. 2014/483 T.21.02.2014 (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 58 59
57 "According to the content of the incident report and the scope of the entire file; considering that the defendant's action remained at the stage of attempting to export due to the fact that the drug subject to the crime was seized during the control by the customs officers, and that in this case the defendant would have committed two separate crimes, one of attempted export and the other of completed transportation; while the result determined by applying the crime of attempted export and the result to be determined by applying the crime of completed transportation should be compared and the verdict should be established on the basis of the crime with more serious consequences, concretization and comparison of the specified nature making a decision in writing without making a decision,” Supreme Court of Appeals 10th Criminal Chamber E. 2010/45686 K.2011/2557 T. 22.02.2011 (Online) h ttps://www.lexpera.com.tr, (E. T.: 21.05.2026)
58 "When it is evaluated that the defendant was caught at the Atatürk Airport departure floor checkpoint with the drug subject to the crime and that, according to the scope of the entire file, he was at the stage of attempting to export the drug; since he will have committed two separate crimes, one of which is attempted export and the other is transportation, in accordance with Article 44 of the Turkish Penal Code, the result to be determined by applying the crime of completed transportation should be compared with the result determined by the application of the crime of attempted export and a verdict should be made on the basis of the crime that has more serious consequences. Making a decision in writing without concretization and comparison of the specified nature,” Supreme Court of Appeals 10th Criminal Chamber E. 2010/9695K. 2010/2910 T. 10.02.2010 (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026)
59 "According to the occurrence and the content of the file; giving a decision in writing, without considering that the action of the defendant, who is understood to have sent the drug subject to the crime to the Turkish Republic of Northern Cyprus by cargo, constitutes the crime of exporting drugs written in Article 188/1 of the Turkish Penal Code," 20th Criminal Chamber of the Supreme Court of Appeals E. 2015/11241 K. 2018/2473 T. 28.5.2018 (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026) 60 “A lawsuit was filed against K1 for the heroin allegedly exported to Italy on 17.06.1996, and in the indictment dated 18.06.1997, which is the basis of this case, against K1 for the heroin seized in Istanbul on 28.08.1996. Since it was stated that the case filed before the State Security Court No. was declared dead, no repeated lawsuit was filed regarding this incident; 62 of the convictions given in accordance with the articles were approved and finalized by our Office on 07/10/1998; Regarding the incident dated 17.06.1996, the drug allegedly exported to Italy was not seized and no trial was held in Italy regarding this incident, therefore, the decision to convict the defendant instead of acquittal, without taking into consideration that the substance in question and not seized was a narcotic or a stimulant, and accordingly, the defendant committed the crime of exporting drugs to Italy,” Supreme Court of Appeals 10th Criminal Chamber E. 2009/10604 K. 2009/19490 T. 17.12.2009 (Online) h ttps://www.lexpera.com.tr, (E. T.: 21.05.2026)
61 Güngör and Kınacı, Crimes Related to Drugs and Psychotropic Substances, p. 196.
62 "The defendants of the case subject to appeal were accused of exporting drugs that they allegedly committed in Turkey, as a result of the trial by the English court... Since the acquittal given against them was based on the act of importing and possessing drugs, although they were the same drug, committed in this country, it cannot be said that they were tried twice for the same act..." 10th Criminal Chamber of the Supreme Court of Appeals E.2004/4881 K. 2004/2451 T. 04.04.2004 (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026)
63 "In accordance with Article 188/2 of the Turkish Penal Code, while it should be decided to deduct the executed portion of the sentence imposed on the defendant as a result of the trial held abroad, the deduction should be decided in writing in accordance with Article 16 of the Turkish Penal Code," 20th Criminal Chamber of the Supreme Court of Appeals, E. 2015/8679 K. 2016/749 T. 15.02.2016 (Online) h ttps://www.lexpera.com.tr, (E.T.: 21.05.2026)
64 "In the request for reversal in the interest of law and in the notice letter; According to the scope of the file, the convict was sentenced to 9 years in prison with the decision of the 1st Criminal Chamber of the Kleve Regional Court of Germany dated 27/01/1999 and numbered 29/98, for the crime of importing heroin from Turkey to Germany, and that he executed 1916 days of this sentence in this country, and that this action of the defendant was also within the scope of the crime of exporting drugs and substances from Turkey to Germany. It is understood that, as a result of the trial held by the Istanbul 9th High Criminal Court for his stay, he was sentenced to 15 years in prison and the period he served abroad was to be deducted. During the execution phase, the court was requested to make a decision upon hesitation as to whether the deduction would be deducted from the final sentence or the conditional release period, and the Istanbul 9th High Criminal Court decided to deduct the deduction from the final sentence, and the objection to this decision was rejected by the authority. 188/2 of the Turkish Penal Code No. 5237. In the article, "Since the act of exporting narcotic or stimulant substances is considered as importation from the perspective of another country, the executed part of the sentence imposed as a result of the trial held in this country will be deducted from the penalty imposed as a result of the trial to be held in Türkiye for the export of narcotic substance or stimulant substance." With the regulation in the form of Article 63/1 of the same Law. In the article, "Periods spent due to all situations that occurred before the verdict became final and resulted in limiting personal freedom are deducted from the sentenced prison sentence." When the provision is evaluated together, it is not deemed appropriate to decide to reject the objection in writing instead of accepting it, without considering that the period served abroad should be offset from the part of the sentence that is still being executed that will actually be spent in the penal institution, that is, from the possible conditional release date. It was requested that the decision of the Istanbul 10th High Criminal Court dated 31.01.2014 be reversed. Since the request for annulment in the interest of law is deemed appropriate; The decision of the Istanbul 10th High Criminal Court dated 31.01.2014 and amended number 2014/69 is based on Article 309 of the CMK No. 5271. REVERSED for the sake of law in accordance with the paragraph; Supreme Court of Appeals 10th Criminal Chamber E. 2014/3699 K. 2014/3710 T. 12.5.2014 (Online) h ttps://www.lexpera.com.tr, (E. T.: 21.05.2026)
KÜHEYLAN HUKUK