The “amount” criterion in the determination of personal possession offenses involving the four most common drugs in Türkiye's supreme court

Introduction

Psychoactive or psychotropic substances have effects on the central nervous system (CNS) by altering the functioning of brain mechanisms and altering the perception and mood of the user. The effect of the substances varies depending on the chemical structure of the substance, the way it is ingested, the dose taken, the tolerance of the individual and the brain region affected.^1,2 As a result of substance use, people may become addicted, poisoned and/or face the risk of death because of the direct effects of the substance. In addition, for people who become addicted, substance use becomes a necessity rather than a pleasure and they even risk committing crimes to obtain the substance.^3,4 This can lead to many people becoming criminals or victims in criminal cases. Therefore, the use of psychoactive substances poses a major threat not only to individual health but also to public health, which increases the importance of drug prohibition and control. ⁵

The possession and trafficking of drug substances is one of the leading concerns about public health. These substances are often restricted or prohibited by law due to their harmful effects, and drug use disorders are a serious problem worldwide. According to the United Nations Office on Drugs and Crime (UNODC), in 2021 alone, approximately 39.5 million people suffered from drug use disorders. ⁶ The relationship between drug use disorders and violence and the prevalence of crime rates, both in the world and in our country, is of great concern. This problem, which threatens public order and security as well as public health, has been the subject of many forensic and medical investigations and studies. The fight against drug-related crime is not only a criminal justice issue, but also a multidisciplinary one, involving health, medicine, sociology, psychology, chemistry, law enforcement, and law. ⁷ However, drug use continues to spread worldwide due to factors such as population growth, urban congestion, social and environmental pressures, and increased internet use and access.

Organized crime, which engages in more extensive cross-border activities with developing technology, is triggered by factors such as economic instability, bribery and unemployment, and threatens not only individual and social but also national and international security. The billions of dollars circulating in the hands of organized crime syndicates every year with the profits from illegal substances is more than the annual budget of many developing countries. This poses a threat to the security as well as social and economic development of countries.^8–11 On the other hand, in the light of constitutional provisions, determining the differences between people who use and/or sell drugs in order to maintain social order is also of great importance in terms of ensuring the rule of law and justice. This legal distinction forms the basis of a fair trial process as a guarantee of social peace and security.

Drug offenses in Türkiye are regulated under the heading “Crimes against Public Health” in the Turkish Penal Code (TPC) No. 5237 and fall under three main headings: production and trafficking of drugs (Article 188), facilitation of drug use (Article 190), purchase, receipt or possession of drugs for the purpose of abuse or use (Article 191). The most common problem encountered in practice is to determine in which cases the drugs seized from a person's person, vehicle or home are possession and in which cases they are trafficked. This may cause confusion, especially when the amount of drugs seized is high. This confusion between the offenses of possession and trafficking in narcotics in the TPC stems from the fact that the offenses under Article 188 and Article 191 are very similar to each other. ¹² In order to prevent this confusion from leading to an unlawful and unfair result during the trial, it is very important to determine the purpose for which the drug is possessed and to assess the punishment according to the nature of the crime. Especially within the framework of the TPC, the “quantity” criterion stands out as a key indicator in understanding the nature of such crimes, which directly affects the nature of the crime and the degree of punishment.

Substances such as cannabis, heroin, cocaine and ecstasy are frequently involved in offenses related to use or possession.^13,14 However, the penalties may differ depending on the type of substances in question. For example, if drugs such as cocaine, morphine, morphine base or “bonzai” (phanezepam) are subject to drug trafficking, the offense is punishable by Article 188/4 of the TPC, while other substances such as cannabis, ecstasy, etc. are punished with the basic form of the offense, as in Article 188/3 of the TPC. ¹² These distinctions are made on the basis of the harm caused by the crime to society and the intent of the offender and are crucial for a fair trial.

Within the scope of this study, we analyzed the decisions (805 files) rendered in Turkish courts between 2016 and 2023 regarding the four main classical illicit substances: cannabis, heroin, cocaine and ecstasy. In light of these decisions, based on judicial practice, we have examined the circumstances that play an important role in determining the intent to supply drugs, particularly under TPC 191 and 188. In particular, we aimed to highlight the role of the quantity criterion in determining whether the offense was committed for commercial or personal use and its impact on criminal sanctions.

Material and method

The crime statistics used in this study were obtained within the scope of the decisions made by the relevant criminal chambers of the Regional Courts of Justice and the Supreme Court of Appeals, as well as the General Criminal Assembly, throughout Türkiye between 2016 and 2023. The keywords “personal possession threshold, purchase of drugs for personal possession” were used for the data related to the study. In the research conducted with the same keywords, a total of 805 decisions were reached, 74 for “marijuana”, 250 for “cannabis root”, 302 for “heroin”, 75 for “cocaine” and 104 for “ecstasy”. As the case files are publicly available, no ethical approval is required. In addition, information on the number of suspects apprehended between 2006 and 2023 and the distribution of the number of suspects by type of crime between 2011 and 2023 was obtained from the TUBIM Drug Report data. ¹⁵ The graphs of the data obtained were created using Microsoft programs.

Results and discussion

Like in many countries around the world, the fight against drug-related issues in Türkiye plays a crucial role in safeguarding both individual health and public security. In this context, drug crimes were regulated in detail in the Turkish Penal Code No. 5237, enacted and put into practice in 2004. Thus, it is aimed to protect public health by punishing the production, trade and abuse of drugs and different penalty provisions are applied according to the seriousness of the offenses. According to these regulations, drug offenses are addressed under three main headings: Article 188 (production and trafficking of drugs), Article 190 (facilitation of drug use), Article 191 (purchase, receipt or possession of drugs for the purpose of abuse or use).

In line with its penal policy, the legislator has defined Article 191 with the aim of punishing actions of individuals defined as users and who have reached the level of addiction with a lesser penalty compared to the crime of illegal drug trafficking. In fact, mechanisms such as treatment and probation measures have been activated with the aim of rehabilitating the offender and, if necessary, directing them to treatment to reintegrate them into society. In this context, the idea that imprisoning drug addicts is not a solution to the problem and that they will somehow try to access drugs has become more significant. One of the notable trends in the legislation of EU countries is the increasing tolerance shown towards users and their referral to treatment, while focusing on punishing dealers and thus deciding whether law enforcement should help people or imprison them. ¹⁶

Article 188, which relates to the production and trafficking of drugs, is a crime with a high potential for social harm, which is why its penalty is more severe than other articles. This crime requires organization and drug traffickers, who illegally produce drugs and/or buy and sell drugs for current purposes, have various names in the literature such as cookers, dealers, puppeteers, candy sellers. These individuals harm all segments of society by taking part in different stages of drug trafficking and production. Therefore, harsh penalties are essential to maintain social order and prevent drug use. However, unfortunately, it is observed that people who want to escape from these penalties try to mislead the justice by trying to use these penal differences.

Figure 1 presents the graph of suspects apprehended for drug-related offenses in Türkiye between 2006 and 2023. In Figure 1, in addition to Articles 188 and 191, various offenses are included for violations of Article 190, Law No. 2313 on the Control of Narcotic Substances, and Law No. 3298 on Narcotic Drugs. Figure 2 shows the distribution of the number of suspects between 2011 and 2023 only according to Articles 188 and 191 of the TPC. Both Figure 1 and Figure 2 show that the number of suspects has continued to increase over the years. However, the majority of these suspects are those apprehended under Article 191. ¹⁵

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Figure 1.

Number of suspects by year.

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Figure 2.

Breakdown of number of suspects by crime types between 2011 and 2023.

Looking at the cases brought to court in Türkiye, it is seen that the most common crimes are the purchase, acceptance, possession or use/abuse of drugs and the manufacture and trafficking of drugs. In the context of this information, there is some confusion as to which of the offenses in Articles 188 and 191 of the TPC are to be decided according to the type and quantity of drugs, in accordance with the case law of the Supreme Court. The defense often put forward by perpetrators of drug trafficking offenses is that they possess or carry the seized substances for personal use and not for commercial purposes. It is the primary duty of the investigating authorities to establish the factual truth and correctly characterize the offender's actions, as mistakes made at this point will harm the fight against this crime and may lead to individual victimization of the perpetrator. Issues such as the possibility of applying strong protective measures, especially detention, in the investigation of the crime regulated in Article 188 of the Criminal Code, and on the other hand, the possibility of postponing the opening of a public trial against the perpetrator of the crime regulated in Article 191 of the Criminal Code, if a decision has not been made in advance, will determine the material fact and accurately makes qualification essential. ⁷

There is no clear criterion in the TPC regarding the purpose for which drugs are purchased, received, or possessed, and this requires that each specific case be assessed on its own merits. Although the Supreme Court has established jurisprudence and decisions on this legal problem, in practice situations arise where these two types of offences are mixed. An examination of the case law of the Supreme Court shows that certain criteria are used to distinguish between possession and trafficking offenses. In order to distinguish between possession and trafficking offenses, it is first necessary to determine the purpose for which the perpetrator possesses drugs. ⁷

In fact, the phrase “the purpose of possession is a significant difference in determining whether the act of possession constitutes the crime of personal possession or the crime of drug trafficking” was used in the decision of the General Criminal Assembly of the Supreme Court of Appeals of 25.09.2012, 2011/10-482 [Application No] and 2012/1784 [Decision No]. In the same decision, the criteria to be used in determining the purpose of possession were listed (Republic of Turkey, Criminal General Assembly of the Supreme Court, 2012). The most important of these criteria, which have been established in the jurisprudence of the Court of Cassation, are the place, manner of possession and quantity. These elements play an important role in determining whether drugs are possessed for the purpose of supply. For example, if a person possesses drugs for personal use, they will usually possess them in easily accessible and readily available places, such as at home or in the office. Also, in terms of types of possession, a method that breaks down the total quantity of substances into parts and packages is used. In contrast, in the offenses of manufacturing and trafficking in narcotics, the substances are weighed on precision scales and divided into a large number of small packages. This type of possession may give the impression of possession for the purpose of trafficking.

In the quantity criterion, the physical and psychological characteristics of the person and the type and chemistry of the substance are the most important considerations. According to these characteristics, it is evaluated whether the amount of possession is suitable for personal use. However, the TPC does not differentiate between the types of drug substances and evaluates all of them according to the same article. Therefore, in the evaluation of the actions of the defendant in relation to drug offenses, it is necessary to decide not according to the type of substance, but according to the amount of the substance and other criteria. Furthermore, it is not possible to measure the different quantities of personal use of all drugs. Although a certain amount of personal use is given in practice, the amount alone will not be sufficient when investigating the intent to possess. In addition to the amount, other issues such as the defendant's actions, the variety of substances seized, drug use test results, social and economic status, source of income and monthly income should also be taken into consideration (Republic of Turkey, 20th Criminal Chamber of the Court of Cassation, 2017). In Turkish criminal law, the “conscientious evidence system” is applied and according to this system, the judge decides according to his/her conscientious opinion when evaluating the evidence. ¹⁷ Therefore, in drug crimes, the judge evaluates the manner, place and amount of possession of the substance based on his/her conscientious opinion. In line with this information, a total of 805 decisions on four main illicit substances, namely cannabis, heroin, cocaine and ecstasy, were analyzed and the circumstances that are effective in determining the intention to supply drugs were revealed.

Out of the 805 judgments analyzed, 74 of them are related to cannabis, and in this judgment, it is clearly seen that the amount of substance found cannot be used as a basic criterion to determine whether the perpetrator intended to use the drug or to possess it for the purpose of production and smuggling. However, evidence such as witness statements, the location of the substance, the way and number of packages, the presence of precision scales at the crime scene, etc. can provide important information in determining the purpose of the crime. If the evidence in the form of such evidence is eliminated, the Regional Courts, in assessing whether the seized marijuana is within the limits of personal use, should base themselves on the net amount of the substance, not on the amount of drug contained in it, and according to the opinions of the Institute of Forensic Medicine, this amount should be 5–6 mg for a person. Considering that this corresponds to monthly consumption, the drug seized from the defendant is considered to be within the limits of personal use (Republic of Turkey, Antalya Regional Court of Appeals 5th Criminal Division 2018/1935 [Application No], 2019/1082 [Decision No]) (Republic of Turkey, Criminal General Assembly of the Supreme Court, 2012). In addition to the crimes in Article 23 of Law No. 2313, from the moment the cannabis plant is completely or partially plucked in order to obtain marijuana, it can also be punished for the crimes regulated in Article 188 or Article 191 of the TPC, depending on the purpose of obtaining marijuana (Republic of Turkey, Supreme Court of Appeals for Criminal Matters, 2018/10-577 [Application No], 2021/313 [Decision No], dated 24/06/2021). The most important issue here for the person to be punished is whether there is concrete evidence of hemp planting, such as hemp roots and harvest residue. Within the framework of this information, in the 250 decisions examined regarding the cannabis root plant, the competent criminal chambers of the regional courts and the Supreme Court of Appeals, in determining the amount exceeding the personal use limit, referred to the decision of the 10th Criminal Chamber of the Supreme Court of Appeals dated 10/07/2020, 2019/7695 [Application No] and 2020/3073 [Decision No] and “… if there is no other evidence that they were planted for commercial purposes, it can be assumed that up to 20 cannabis roots were planted for personal possession…”. In addition, hemp cultivation for any purpose is prohibited outside the 20 provinces and districts listed in Article 5 of the Regulation on Hemp Cultivation and Control. Cannabis grown without authorization is destroyed in accordance with the provisions of Law No. 2313 and the matter is referred to the judicial authorities. ¹⁸

The Criminal Chamber of the Adana Regional Court of Appeals, in its 302 judgments on heroin, first found seven packages of heroin seized from the defendant's home. These packets were arranged ready for sale and of similar weights. The court considered this as a situation that would constitute the offense of drug trafficking and accepted that the defendant may have possessed these substances for commercial purposes. However, in its decisions numbered 2019/37 and 2019/321, the court evaluated the amount of heroin seized within the limits of personal use and decided to overturn the decision of the court of first instance.

In the 75 decisions examined for the substance cocaine, it was observed that the decision was made taking into account the way the drug was stored, the amount seized during the rough body search of the suspect, the method of packaging and preservation, and the elements of the arrest. In the decision of the General Criminal Assembly of the Supreme Court of Appeals, dated 10.03.2020, 2016/806 [Application No] and 2020/166 [Decision No], it was assessed that “Article 39 of the TPC must be applied against the accused”. In fact, during the search of the defendant's house, who stated in his defense statements that he had used drugs, 1.3 grams of cocaine wrapped in two pieces of paper, which was a threshold quantity, was seized and, according to the communication records, telephone calls were recorded indicating that he had sold or provided drugs to others. “Contrary to the defense of the unidentified accused… there is no sufficient and conclusive evidence beyond a reasonable doubt that he will sell or transfer the cocaine seized from his home to anyone else…” and a verdict was handed down.

In the 104 decisions examined for the substance ecstasy, it was observed that the decision of the 8th Criminal Chamber of the Supreme Court of Appeals dated 19.03.2024, which is considered as 2024/671 [Application No] and 2024/2538 [Decision No], was made in the following way; “It has been decided to increase penalty by half since; “the sentence imposed on the accused is in accordance with paragraph (a) of Article 188, fourth paragraph, of Law No. 5237 considering that the drug contains active substances from the group of synthetic cannabinoids. Besides it was unable to provide detailed information about the persons from whom have sell the drugs”. On the other hand “it is against the normal flow of life for the defendant to bring a large amount of drugs to a place where he will stay temporarily for a short period of time”; “the drugs seized from the defendant were in pieces”, “high street value of the drugs”, “defendant's income status”, “a total of 54 grams of methamphetamine and 48 grams of synthetic cannabinoids seized from the defendant which were above the personal use limit” besides it is accepted that the accused has committed the offence of trafficking or supplying drugs.

The data from 805 judgments show that in addition to the quantity, factors such as witness statements used as evidence, the place where the substance was found and the way it was packaged are also important in drug offenses, therefore, only the quantity may not be sufficient in determining the purpose of the crime. As can be seen, the role of the courts in determining the purpose of drug possession is quite complex. The comparative legal system shows two methods for determining the intent to possess drugs. One of these methods is the threshold quantities method and the other is the flexible model. In the threshold amounts method, an amount is determined, and according to this determined amount, the purpose for which the drug is possessed is determined. In the flexible system, unlike the threshold amount, the amount of the drug is considered as a criterion for the judge to form an opinion and the assessment is made within the framework of all the circumstances of the specific case. ¹⁹

The threshold quantity method is used in many countries as an important tool in the detection and punishment of drug offenses.^20–22 According to Australian legislation, which is one of the countries using the threshold quantity method, there is a certain threshold that specifies the quantity (weight) of drugs to distinguish between drug traffickers and drug users. If an offender possesses the same or greater amount of drugs in excess of the prescribed threshold, he or she is presumed to possess with the intent to traffic drugs. In other words, for the existence of the offense of drug trafficking, it is sufficient to establish that the offender possesses an amount of drugs exceeding the prescribed threshold. ²³ In Greece, thresholds are used to determine the intent to supply drugs. In the United Kingdom, these quantities are an important factor in sentencing, while in Portugal they are used as a criterion for sentencing defendants. ²⁰ In the Czech Republic, threshold amounts are used to distinguish drug offenses from misdemeanors. ²¹

A study was conducted in Serbia in 2019, covering almost all judgments of the Supreme Courts of Belgrade and Cacak. According to this study, it was observed that, in general, knowledge of the quantity of drugs is not sufficient to determine whether the substance is for drug trafficking or for personal possession. ²² In some cases, it has been observed that if the defendant is in a good financial situation, he or she has purchased large quantities of drugs for personal use. This shows that the quantity alone is insufficient to determine the purpose of the offense. According to Risimovic, ²² judicial practice emphasizes that circumstantial evidence should be taken into account in determining the purpose of supply, and Figure 3 illustrates these criteria. This data shows that in drug offenses, in addition to quantity, factors such as witness statements used as evidence, the location of the substance and the way it is packaged are also important, therefore, quantity alone may not be sufficient in determining the purpose of the crime.

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Figure 3.

The criteria for determining the intent of supply.

The use of the threshold method to determine the purpose of possession of drugs has often been criticized in doctrine because there are many cases that show that when the amount of illegal substance seized exceeds the amount determined for the threshold, it is for personal use rather than trafficking. Every day, new types of drugs are created, marketed, and traded. Due to the different chemical structures of each of these substances, there may be differences in the amount of personal use. ²⁴ In this context, a comparison of countries’ practices with regard to quantity limits for possession and supply offenses for the four most commonly used illicit substances is useful for understanding the issue in a global context. In some countries, quantities are defined in law as small or large, but limits are not set in legislation or police/prosecution guidelines but are interpreted by expert opinion and/or case law. Each country has different practices regarding seized illicit substances. While some countries produce comprehensive lists of substances, others apply a defined quantity limit to only a few substances. References to small, medium, and large quantities that may be relevant for offense and/or punishment in laws and guidelines by country are shown in Table 1. ²⁵

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Table 1.

Amounts accepted for personal possession offenses by country.

Country Name	Illegal Substance Name	Threshold Quantity	Total Weight
Belgium	Cannabis (resin or powder)		3 g
Czechia	Cannabis (resin and plant)EcstasyHeroinCocaine	-<0.34 g<0.2 g<0.2 g	5 g and 10g4 tablets1.5 g1 g
Germany	CannabisEcstasyHeroinCocaine		6–15 g3 g1 g1–3 g
Estonia	No limits, based solely on expert opinion
Spain (5 day consumption)	Cannabis (resin and plant)EcstasyHeroinCocaine		25 g and 100 g2.4 g3 g7.5 g
Netherlands	Cannabis (resin and plant)EcstasyHeroinCocaine		5 g and 5 rootsOne tablet/ampul or 0.5gOne tablet/ampul or 0.5gOne tablet/ampul or 0.5g
Austria	CannabisEcstasyHeroinCocaine		20 g30 g3 g15 g
Hungary	CannabisEcstasyHeroinCocaine	1 g0.5–1 g0.6 g2 g
Portugal	Cannabis (resin and plant, THC oil)EcstasyHeroinCocaine		5 g, 25 g, 5 g and 2.5g1 g1 g2 g
Norway	CannabisEcstasyHeroinCocaine		10–15 g5 tablets0.5 g0.5 g
Finland	Cannabis (resin and plant)EcstasyHeroinCocaine		10 g and 15 g10 tablets1 g1.5 g
Poland	No limits, based solely on expert opinion

As can be seen in Table 1, although each country has its laws and guidelines, the levels of supply and possession of drugs also vary. However, it cannot be ignored that the substances mentioned in the article, such as marijuana, heroin, cocaine, and ecstasy, have toxicokinetic and toxicodynamic processes that vary from person to person after use. Various factors such as age, gender, health status, smoking and alcohol consumption, drug-drug interaction, genetic differences in liver enzymes cause differences both between individuals and between societies. Therefore, it is not possible to give an absolute answer about individual levels of use of illicit substances. On the other hand, it is known that when tolerance develops through substance use, the amount of substance used tends to increase. Another important variable is the method of use of the illicit substance. As the rate of absorption and volume of distribution of the same illicit substance will vary if it is taken orally, inhaled or intravenously, the form of the substance seized and the way it is used are also important. For various reasons, it is very difficult to make sound comparisons between countries and it is more appropriate to compare trends rather than absolute figures.

Conclusion

Certainty of law is a fundamental legal principle to guide citizens in the right direction; however, the effectiveness of national regulations on drugs is severely limited given the existence of around 400 different substances controlled across Europe. Setting limits for individual substances or even their active ingredients may not be feasible at national level. A low threshold between trafficking and personal use can lead to users being accused as traffickers, while a high threshold can lead to dealers operating with less supervision and the spread of drug trafficking. However, drug crimes should not be judged solely on the quantity of substances, but also on factors such as the manner in which the crime was committed, the role of the offender and whether the crime was organized. This multidimensional approach is important for a fair trial and an effective fight.